Application of International Humanitarian Law in War-Zones During COVID-19

In the age of the COVID-19 Pandemic, conflict ridden areas are facing human rights crises in two specific ways. Firstly, the consequences of ceasefires being warranted by the Pandemic. This has resulted in the withdrawal of troops, which oppositions have taken advantage of to cease military control. Secondly, the failure of International Humanitarian Law (IHL) to effectively combat the Pandemic. Issues of imminence are not lack of law, but rather, a lack of essential services and a disregard for the health and safety measures of nations.

This post analyses existing provisions, and indicates the major problem areas with respect to the effectiveness of the law as it currently operates in conflict zones. References to the International Committee of the Red Cross’ Customary International Humanitarian Law Rules and other sources underpin the existing rules protecting medical personnel, as well as the conduct of hostilities during a pandemic. As a point of focus, this post will highlight the concept of a reverberating effect that results from a pandemic such as COVID-19. Most of the provisions discussed are applicable to both International and Non-International Armed Conflicts.

In the primary instance, customary IHL Rules differentiate between civilians and combatants and it is imperative that this distinction be drawn. References to these particular rules are derived from the four Geneva Conventions, as well as the Additional Protocols. Furthermore, Rule 47 of the Geneva Conventions of 1949 prohibits the attacking of persons who are recognised as hors de combat, which would include those individuals that have contracted COVID-19. Part II of the document deals with specially protected persons under customary IHL. The following aspects of international humanitarian law must be noted.

1. Considering the Pandemic has affected mobility, the number of external humanitarian staff, as well as implements that could be utilised to conduct relief operations are turning scarce, so it is all the more imperative that these be given their due protection. Humanitarian personnel are also guaranteed freedom of movement and free passage. (Rules 30, 31, 32, 54, 55).
2. Those individuals that, in accordance with the UN Charter, engage in peacekeeping missions, cannot be harmed, and must be treated as civilians as mentioned under Rule 15 and Rule 33.
3. Journalists in armed conflict zones must also be treated as civilians as long as they do not take part in the conflict. (Rule 34).
4. A zone that has been established in order to shelter the sick and wounded cannot be harmed by a party to conflict. These would also refer to zones that have been agreed upon as being demilitarised. (Rules 35, 36, 37)

All of the aforementioned legal provisions from the ICRC’s Customary IHL rules are derived from various sources of International Humanitarian Law. To that extent, it would be fitting to conclude that the law is not inadequate, and existing provisions are strong enough to combat a pandemic situation. The problems with the law are primarily those that base themselves in the lack of humanitarian aid, as well as the inability to conduct checks and balances and establish a system of accountability.

In order to better understand the ineffectiveness of the existing law, it would be helpful to look at certain conflict zones in the present day that are finding it difficult to adhere to the law, or rather, are able to justify their disregard for it. Yemen, in conflict with the Houthi rebels, issued an agreed upon ceasefire between warring parties. However, after nodding to the agreement, the rebels took advantage and continued to attack. This left Yemen in a further weakened position, with the Pandemic already statistically slated to affect over 93% of the population. Apart from this action being in violation of the agreement, this act also violated multiple international laws. It violated the ceasefire agreement and also resulted in perfidy, which is outlawed under various international legal instruments such as: the Lieber Code, the Hague Regulations and the Geneva Conventions. Additionally, the inability to track the number of cases in conflict zones is a challenge that cannot be ignored. In Yemen, reports suggest that available information is inaccurate and it is impossible to know the number of cases at the ground level.

Enforcement of the law, in the context of a solution to this article, would require instituting bilateral and domestic agreements between parties in conflict. When a ceasefire is issued, especially within a conflict zone, it can either be oral, or written. More often than not, a ceasefire is an oral agreement that exists between parties as a reaction to a sudden or unforeseen issue. Though, there have been various instances where ceasefires are broken simply because both parties have different understandings of the intricacies of the agreement. Take for instance the Gaza conflict between Israel and Palestine where

“the terms of the ceasefire agreement were not set out in any formal, written document and, according to recent analysis, the Gaza authorities’ and Israel’s understanding of the terms differed substantially”.

There were various aspects of the agreement that were abused, specifically because of a lack of clarity. Thus, a necessary requirement for a ceasefire agreement must be specified and so should the relevant IHL provisions. Furthermore, the anticipation of a reverberating effect must be pre-empted.

The central concept drawn from the Proportionality in the Conduct of Hostilities was that of “Reverberating harm”. This idea refers to actions taken by belligerents in conflict that can have an effect on the civilian population. Reverberating harm is not just relevant in ceasefire agreements, but also in a larger sense. If a water facility is attacked, for example, the impact would be widespread on the civilian population who are dependent on that facility. Reverberating harm also includes the far-reaching impacts of military decisions on regions of conflict. In the tense situation of  COVID-19, analysing the reverberating harm of military decisions is more integral than ever before. This is due to the already scarce amount of resources and manpower in vulnerable regions.

This post began with an understanding of the various laws under IHL applicable in conflict zones and assessing their adequacy in times of COVID-19.  This article concludes that IHL itself is sufficient. However, the problems with the law lie in enforcement. The recommendation to be made is that written agreements must be enforced between warring actors, including the guarantee that IHL is reflected in ensuring ceasefires are respected. Finally, addressing the concept of a reverberating effect is all the more important in times of COVID-19. Reverberating effects should be viewed as an integral component of influence when analysing international military affairs.