04 Apr COVID-19 Symposium: COVID-19 in Conflict-Affected Areas–Armed Groups as Part of a Global Solution
[Marcos Kotlik is the Academic Coordinator of the IHL Observatory at the University of Buenos Aires School of Law, and a PhD in International Law candidate at the Graduate Institute of International and Development Studies. Ezequiel Heffes is a Thematic Legal Adviser at Geneva Call. This post was written in their personal capacity and does not represent the views of any institution]
Conflict-affected areas are particularly vulnerable to the spread of COVID-19. Several countries where armed conflicts are taking place have already reported cases – more will surely surface in the days to come, while others will remain concealed due to the lack of appropriate facilities and testing kits. The imperative need to address this scenario became evident on 23rd March, when the UN Secretary-General called for a global ceasefire.
Understandably, scholarly discussions – including most contributions to this symposium – are focusing on State responses (here, here and here) and the role of international organizations (here). Around the world, however, non-State armed groups (NSAGs) – especially those that exert control over a certain territory – are also facing the unexpected challenges posed by COVID-19, which may affect their ranks and the individuals under their control. While some NSAGs have not been responsive to the UN Secretary-General’s appeal (e.g. here and here), others have shown their willingness to address this exceptional situation (here and here). From Syria to the Philippines, and from Afghanistan to Gaza, NSAGs have issued instructions to their troops, adopted and implemented exceptional measures in the territories they control, and begun to engage with other actors on this issue.
This post reflects on some of the difficulties this scenario presents. In particular, it examines the exercise of regulatory authority by NSAGs, and it considers the need for further interaction between these groups and other concerned actors, namely humanitarian organizations and the World Health Organization (WHO). As the international community is dealing with a new global challenge, non-State armed groups need to be a part of the solution.
Acts of governance: How armed groups tackle COVID-19
As recently highlighted by the International Committee of the Red Cross (ICRC), many NSAGs exercise control over territory and persons living therein (p. 52). Sometimes they allow State organs to continue operating, other times they replace them, including in the provision of services for the population. Different degrees of control can entail acts of ‘governance’ – this notion, applied to NSAGs, has been defined as ´the manner in which an insurgent group regulates life within a defined territory and provides public services’ (p. 40).
Individuals living in conflict-affected areas, including those controlled by NSAGs, are especially vulnerable to the consequences of humanitarian crises, such as the spread of COVID-19. It is unsurprising that several groups rapidly adopted measures (acts of governance) to contain the virus. In the Philippines, the Chair of the Moro National Liberation Front (MNLF) asked its fighters and villagers ‘to stay home and refrain from going’ to a specific city ‘to avoid acquiring the virus from other people’. In Gaza, reports indicate that Hamas has placed into quarantine almost 1,300 people returning from abroad, also closing schools, street markets, and wedding halls. In Syria, hours after the government confirmed the first case of COVID-19, the Kurdish-led autonomous administration announced a lockdown in the broad swathes of territory under its control. Ethnic groups in Myanmar have imposed travel restrictions, increased health checks, and established fines in some areas. The Donetsk People’s Republic (DPR) decided to close certain checkpoints and to ban the movement of people and transport. Even the Islamic State group (ISg) issued guidelines to contain the spread of the virus, a measure that has been reported as a decision ‘to follow the example of governments worldwide’. While some of these measures indeed resemble those adopted by States, they are conditioned by the specific nature, objectives, and capacities of each NSAG (e.g. business lockdowns would hardly be accompanied by economic mitigation measures). None of these acts of governance, however, are adopted in a legal void – they should be examined through the lens of the international rules that NSAGs are bound by.
International humanitarian law (IHL), designed to apply in the exceptional situation of armed conflict, is generally not concerned with everyday issues related to the provision of public order, and is often silent on the protection of numerous rights. Some IHL rules, however, may be relevant with respect to measures adopted by NSAGs. For instance, both under Common Article 3 to the 1949 Geneva Conventions and customary IHL, the sick need to be collected and cared for. Parties to an armed conflict must ensure that the sick receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition, without any distinction other than those founded on medical grounds. These rules may call for the adoption of certain measures, such as increased health checks and quarantines, inasmuch as they are adopted to identify, collect, and care for the sick.
Other measures, such as closing businesses, establishing lockdowns, or other restrictions to freedom of movement, are more difficult to address from an IHL perspective. Under IHL rules applicable to occupation, some measures could be justified by Article 56 of the 1949 Geneva Convention IV, which establishes the Occupying Power’s duty to ensure and maintain public health and hygiene in occupied territory, in particular ‘prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics’. Yet there is no parallel IHL rule applicable in NIACs, and therefore to most NSAGs. And even if some measures could constitute a form of deprivation of liberty, they would fall beyond the scope of IHL, since they were not adopted for reasons related to the armed conflict. Certainly, IHL does not prevent NSAGs from adopting these regulations, but neither does it provide a legal basis for them, nor does it establish limits to the regulatory authority of NSAGs in this realm.
Inasmuch as IHL is ill-suited to address these complexities, international human rights law (IHRL) is better prepared to address other exceptional situations, such as pandemics. Moreover, IHRL is the legal framework that should be considered to govern the regulatory authority of NSAGs in this scenario, where the relationship between “authorities” and “citizens” takes center stage. It is precisely when NSAGs exercise stable control over territory and are able to act like a State authority, that the practical need to apply IHRL should be recognized (p. 54).
Humanitarian actors and armed groups: Interactions to address the COVID-19 crisis
Other elements highlighted by recent statements are NSAGs’ lack of means and knowledge to appropriately address the COVID-19 crisis, and their need for assistance from other actors. In Syria, it has been reported that medical facilities in the area under Kurdish control are very limited, and do not include operational testing facilities. In Myanmar, ethnic armed groups declared that they could only afford to provide health education, but had no funds for masks or sanitizer, calling on aid agencies and the government to help them. The Islamic Emirate of Afghanistan issued a statement demanding that humanitarian and relief organizations ‘execute their obligation’ of sending aid, also promising safe passage for humanitarian workers to assist with COVID-19.
But there is no obligation of humanitarian organizations to send aid, as the duty-bearers are actually States and NSAGs. Common Article 3 establishes that humanitarian organizations may offer their services to the parties to conflict – throughout this crisis, for example, the ICRC and Geneva Call have continued performing their tasks with the goal of ensuring that individuals have access to healthcare. In this regard, States and NSAGs are bound to allow and facilitate the passage of humanitarian relief for civilians in need, subject to their right of control, as long as it is impartial and conducted without distinction – that is, humanitarian relief must not be refused on arbitrary grounds. But perhaps the most important aspect of this issue is that humanitarian organizations regularly face serious difficulties to perform their functions. On the one hand, many NSAGs fail to abide by IHL rules on the respect and protection owed to medical and humanitarian personnel and objects (including some NSAGs that are now requesting assistance, but have even been identified for attacking hospitals in a recent report of the UN Secretary-General, in particular at 39-41). On the other hand, States also impose significant obstacles, such as restrictions emerging from the establishment of economic sanctions and regulations that criminalize the activities of humanitarian workers. Thus, to be able to provide assistance, humanitarian organizations will often need to rebuild trust with NSAGs and States – their chances of success might depend on the possibility of coordinating actions with both of them.
Another aspect of the COVID-19 crisis that will require further coordination with (and between) NSAGs and States, is ensuring that the WHO – the most important authority on international health work – can effectively perform its crucial role. Interactions between NSAGs and WHO officials or personnel have previously taken place in conflict settings, e.g. in Afghanistan (where the WHO has had regular contact with the Taliban) and in Ukraine (where the WHO works in territories controlled by various parties). In the current scenario, it has already been reported that the Kurdish administration in Syria contacted the WHO and is awaiting the delivery of testing kits. Moreover, after a recent visit to Gaza, the head of the WHO office for the occupied Palestinian territories identified the need to strengthen the capacities of the health system in order to address its shortages.
In Syria, in Gaza, and beyond, multi-party coordination will be essential to produce reliable information and to adopt timely measures that can help to slow down the spread of COVID-19. For States involved in armed conflict against NSAGs, adopting ceasefires and engaging in cooperative dialogue with these actors may simply be the only way to fulfill their due diligence obligations.
Concluding ideas: The importance of involving armed groups in a global solution
It is uncertain whether the COVID-19 crisis will slow conflicts or intensify them. Yet it is certain that populations living under NSAGs’ control are extremely vulnerable to the potential consequences of the crisis. In this sense, involving NSAGs in the implementation of a global solution is a matter of common sense – if those populations are not protected, it increases risks even outside of those specific geographical areas. But involving NSAGs requires certain efforts. First and foremost, a ‘diplomatic effort’ of States to engage with NSAGs, and to allow and encourage their interaction with humanitarian organizations and the WHO – traditional legitimacy concerns need to be left aside if the global pandemic is to be defeated. Second, an ‘intellectual effort’ to progressively enlarge the legal framework applicable to NSAGs, in particular, to consider their regulatory activities under IHRL. Third, a ‘humanitarian effort’ from all of us: not to forget, ignore, or neglect the everyday life of individuals in territories controlled by NSAGs, and to demand that the international community meets the challenge of simultaneously addressing concomitant phenomena of the greatest complexity. If these efforts are successful, perhaps new avenues for engagement will remain open, and the overall impact of the COVID-19 crisis on conflict-settings will ultimately be a positive one.
*This post was finalized on 26 March 2020 and does not include developments after that date.