05 May A Radical Shift in Libyan and International Priorities is Necessary to Protect Health and Save Lives in Libya
[Kate Vigneswaran is a Senior Legal Advisor with the International Commission of Jurists.]
As other countries across North Africa entered lockdown in March 2020 to prevent and contain the spread of COVID-19, warring parties in Libya ramped up their hostilities. On 24 March 2020, the day after the UN Secretary-General called for a global ceasefire to combat the pandemic, the first diagnosed case of COVID 19 was reported in Libya and, three days later, forces acting under or aligned with the Government of National Accord (GNA) and the Libyan Arab Armed Forces (LAAF, formerly the Libyan National Army) broke the truce they had agreed to only 24 hours earlier. Since then, hospitals and other medical facilities, including those assigned to receive COVID-19 patients, and critical water supplies necessary for sanitation have been attacked.
It was almost three weeks later when lockdown measures and curfews were instituted by the GNA in the West and by the House of Representatives (HoR) backed Interim Libyan Government led by Abdullah al-Thinni in the East; information on measures in the South beyond thermal screening is limited. Credible sources indicate that enforcement of social distancing measures is limited, and that numbers of people are gathering at funerals and in homes.
Libyans face the pandemic in the context of a severely compromised health system which was already vulnerable to a pandemic outbreak. Although medical supplies have been increased in some areas, reports indicate there is a lack of personal protective equipment (PPE), trained and remunerated doctors and nurses and sufficient equipment to test for COVID-19 and treat serious cases. Shortages in the South are severe. The low number of reported infections and deaths – 63 confirmed infections and three deaths in Tripoli, Benghazi, Misrata and Surman as of 3 May 2020 – is likely because of the absence of nationwide testing. A Libyan doctor who criticized the lack of testing and PPE in an interview on Al-Hadath television was detained by the LAAF, although he was subsequently released. The following day the Eastern-based Consultative Medical Committee to Combat the Corona Epidemic (CMCCCE) made a statement that anyone publicly criticizing their work would be considered a “traitor” and be “in jeopardy under Libyan law.” Humanitarian needs in Libya are also substantial, with UNCHR (likely under)estimating that around 1.3 million people “living in unsafe conditions with little or no access to health care, essential medicines, food, safe drinking water, shelter or education” need assistance.
On the eve of Ramadan, the head of the House of Representatives backed LAAF, Field Marshal Khalifa Haftar, called on Libyans to reject the Libyan Political Agreement and all institutions derived from it; at the time, a seemingly apparent signal to continue to support the conflict. As the LAAF continued to lose control over territory in the West and oil prices plummeted, Haftar then announced that he had a “popular mandate” to rule the country. His statements implied an intention to disband the HoR and institutions under the Interim Libyan Government. After criticism from States including Russia and the United States, he then announced a unilateral ceasefire – among the many ceasefires announced since 2014, Haftar’s is the third this year alone – which was rejected by the GNA.
Whether these measures signal a call for a continuation or a cessation of conflict, they indicate continuing prioritization of political ambitions over protecting the population, which will undermine the institutions whose very functioning is necessary to combat COVID-19. Unless all Libyan and involved international actors, such as the GNA, the Interim Libyan Government, the LAAF and other armed groups, and States intervening in the conflict in Libya, take drastic action now, the COVID-19 pandemic will cost thousands of lives in Libya and cause other severe impacts on human rights and human needs. Such actors must redirect their resources to addressing the health crisis to meet their obligations under international human rights law.
The discussion below focusses on Libyan actors’ responsibilities with respect to the right to health in the context of conflict. There are many other legal issues raised by the pandemic, including movement restrictions which affect the population’s ability to avoid conflict hotspots and the possibility of resettlement or repatriation of an estimated 650,000 migrants, refugees and asylum seekers in Libya, which States have a shared responsibility to address; the impact of court closures on necessary judicial review of detention, the accused’s right to a fair trial and victims’ right to a remedy; and the gendered impacts of isolation measures on vulnerable groups, in particular the heightened risk of gender-based violence. Addressing such other issues meaningfully is not possible within the scope of this piece.
Libyan authorities are obligated to redirect resources to protect the right to health
Libyan authorities are obligated to respect, protect and fulfill the right to “the highest attainable standard of physical and mental health” under article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR) and article 24 of the Convention on the Rights of the Child (CRC). This requires State authorities to respect, protect and fulfill individuals’ right to health by making healthcare systems, facilities, goods and services, that are acceptable and of sufficient quality, available and accessible to all persons without discrimination. This is not a “soft” obligation, but a core requirement to ensure basic health delivery during a pandemic like the one facing us now.
Under article 2 of the ICESCR, Libya must use the “maximum of its available resources,” including by using existing financial, natural, human, technological and informational resources, and increasing them through international cooperation and assistance and the contributions of private actors, to meet this obligation. This means they must reprioritize existing resources as well as expand them to ensure the right to health. This also requires Libyan authorities to ensure private healthcare providers do not hinder measures to prevent, contain and treat COVID-19 cases.
In the Libyan context, and under article 2 of the ICESCR and article 24(4) of the CRC, the authorities must also seek international cooperation and assistance to boost their scarce resources to fulfill the right to health. The Committee on Economic, Social and Cultural Rights has made clear that States must coordinate with each other in the allocation of responsibilities, including by cooperating to provide “humanitarian assistance in times of emergency” and “contribut[ing] … to the maximum of its capacities.” The obligations under the ICESCR and the CRC are set out at greater length in the Maastricht Principles on Extraterritorial State Obligations in the Area of ESCR.
In the context of the pandemic, resources must be directed to granting any person to whom the right applies access to COVID-19 prevention, screening and treatment measures. This includes “fully staffed health facilities” to test and treat COVID patients, in which medical and other workers are provided with PPE. It also requires the provision of “necessary goods and services,” such as information to the population about COVID-19 to ensure they can take measures to protect themselves, comply with legitimate prevention and containment measures and access medical services, including through public television and radio broadcasts and grassroots awareness campaigns. Both medical facilities and staff and necessary goods and services are lacking in Libya.
Non-State actors arguably have a heightened duty to protect and fulfill the right to health
These obligations undoubtedly apply to the GNA as the internationally recognized authority and related institutions, but of what relevance is this framework in a country in which the GNA only controls a fraction of the territory, and therefore can only be held responsible for respecting, protecting and fulfilling the right to health in that area? While these principles are applicable to non-State actors, whether they constitute hard legal obligations for the myriad armed groups operating in Libya, including the LAAF, does not have a straightforward answer. And an in-depth analysis of the question – examining the legitimacy of the “State” and “non-State” actors, the scope of territorial control, and exercise of de facto government functions – is beyond the scope of this piece.
However, at least for the East-West divide in Libya, a simple answer lies in the absence of GNA territorial control in the East and parts of the West and the LAAF’s establishment of relatively long-standing control over it. According to the Office of the High Commissioner for Human Rights, “it is increasingly considered that under certain circumstances non-State actors can also be bound by international human rights law and can assume, voluntarily or not, obligations to respect, protect and fulfil human rights.” Assumption of the full range of human rights obligations is “particularly relevant in situations where they exercise some degree of control over a given territory and population.” Otherwise, “rights holders would lose out on any practicable claim to their human rights.”
While there are clearly areas of shifting control between the West and East, and uncertain levels of control by a number of groups in the South, at a minimum in those areas where non-State actors exercise de facto government functions, their obligations to respect the right to health should be heightened to one of protection and fulfillment. To hold otherwise would open a vacuum leaving the affected population extremely vulnerable to the pandemic, particularly in the context of movement restrictions preventing them from accessing health services elsewhere. In such circumstances, the obligation to reprioritize and expand existing resources could equally apply to the LAAF and any other non-State actors meeting the de facto control requirement.
Libyan courts must remain available to secure the rule of law
On 31 March 2020, the High Judicial Council ordered the closure of courts for one month except for undefined “urgent cases,” which was renewed on 28 April. The closure of courts in the current context is particularly concerning given its potential impact on exercising the right to health.
Affected populations must continue to have access to justice to protect their rights during times of emergency or other crises when the potential for abuse of the law for improper motives is heightened. While some rights may be restricted or derogated from during a “public health” crisis, scope for judicial review by independent courts should be maintained. Under article 4 of the ICCPR and principle II(C) of the Siracusa Principles, any restrictions on and derogations from ICCPR rights must be strictly necessary according to the exigencies of the situation, and proportionate. As clearly stated by the UN Human Rights Committee in General Comment No. 29, States’ obligation to provide for an effective remedy for any violation of rights under article 2, paragraph 3, of the ICCPR, continues to apply irrespective of any adjustment to the functioning of judicial authorities in emergency or crisis situations. In accordance with article 4 of ICESCR, economic, social and cultural rights, including the right to health, may only be limited to the extent necessary “for the purpose of promoting the general welfare in a democratic society.” As discussed in more detail in commentary to the International Commission of Jurists’ Geneva Declaration on the Role of Judges and Lawyers in times of Crisis (pages 1-15, 181-194), the judiciary must maintain jurisdiction to determine whether an exercise of emergency power or encroachment upon rights is lawful and an effective remedy for violations of rights must always be available.
Actions that undermine or directly violate individuals’ rights in Libya, in particular the right to health, should be subject to judicial review to determine whether they meet ICCPR and ICESCR requirements. Recourse to the courts should also be available for actions by non-State actors which infringe individuals’ rights, such as by disbanding institutions necessary to prevent and contain COVID-19 and intimidating, detaining or arresting persons criticizing institutional responses (or the lack thereof). Libyan courts should remain open to review measures impacting the right to health of the affected population, whether virtually or with appropriate safeguards in place.
Libyan and other State actors should redirect their resources to addressing the pandemic
The escalation of conflict in Libya not only limits resources available to Libyan actors to contain COVID-19, but has proven to seriously undermine their ability to do so through destruction of medical facilities and water supplies, and an increasing burden on the health system from injured fighters who now have to be treated in Libya instead of elsewhere. Other States, including Turkey, Russia, Egypt, the UAE and France, are also directing resources to supporting the main actors in the conflict in Libya or directly intervening in it. Indications by Haftar that he intends to disband or take control over civilian institutions whose functioning is necessary to combat the pandemic also potentially diminish resources for political ends.
These resources should be redirected to combatting COVID-19. This would require not only a cessation of conflict, at least in the form of a cease fire, but the warring parties to coordinate their actions across the country. The GNA and, arguably, the HoR and LAAF and any other actors exercising effective control, are obligated to ensure the population’s right to health within the limits of their effective power, which will require them to coordinate access to medical supplies including medical personnel, the movement of goods and people and the sharing of information. Such coordination is necessary to ensure medical supplies and services can be directed where needed. Presently, multiple disease prevention bodies operate across Libya under authorities that ordinarily function in politically demarcated silos: the National Centre for Disease Prevention (NCDP) under the authority of the GNA; the CMCCCE under the authority of the LAAF; the Libyan Ministry of Health (MOH) which has authority in GNA areas and parts of the East; and the Interim Libyan Government MOH with authority in the East. The need for coordination generally, and particularly with the South, where measures are currently limited and minorities have traditionally experienced discrimination in accessing healthcare, is necessary. Libyan courts should also remain open to examine whether actions taken by State and non-State actors meet their duties under international law.
International law compels international solidarity in the face of a pandemic. It requires Libyan actors to seek international cooperation and assistance given its resources are scarce, and other States to provide it where possible. In addition to the humanitarian support already being provided by States and international bodies including the UN, Libyan actors should seek the support of States to obtain humanitarian aid including medical equipment and supplies necessary for testing for and treating COVID-19, including by asking States to reprioritize funds allocated to the provision of arms and other forms of support. Human rights and human needs, not political goals and security interests, must be paramount.