Re-Evaluating Triage in International Justice during COVID-19 – Complying with the Rule of Law?

This article addresses the challenges (and responses thereto) for those international institutions devoted to mandatory monitoring the individuals’ protection of fundamental rights during and after the COVID pandemic. It covers the practice of several of the main regional (European, Inter-American and African) judicial and quasi-judicial human rights bodies in a comparative overview with the UN human rights monitoring bodies and the International Criminal Court. The interesting medical metaphor of ‘triage’ (i.e., designing a system of priorities to maximize impact, during an emergency) is used to discuss the measures taken to preserve the rule of law, both in their internal functioning as well as in promoting the rule of law within national legal orders when monitoring the States’ compliance with international human rights obligations and guidelines about COVID-19. While overall, procedures in the different bodies were developed to ensure that the rule of law is maintained, which makes it easier to respond to similar crises in the future, the pandemic also sheds light on the need to revisit some substantive concepts in human rights law.