As the world is grappling with the COVID-19 pandemic, news headlines are dominated by empty supermarket shelves, school closures, and rising death tolls. The plight of those most vulnerable in fragile and conflict-affected states (FCAS) however, has largely gone unnoticed. Globally, countries are imposing drastic emergency measures, some unprecedented in peace-time. The effects of these measures on the fulfillment of State obligations under human rights and humanitarian law must be considered. For FCAS, who are also enduring conflict induced food-insecurity, particularly those dependent on humanitarian aid and with health systems already at the point of collapse, the combined impact of these measures and COVID-19 itself may be catastrophic.
Global Rights Compliance (GRC) is working to assess how the COVID-19 pandemic is likely to affect conflict-affected states that suffer from food insecurity and the broader humanitarian law impacts of the pandemic to ensure obligations are followed and stability prioritized. This article briefly examines the legal framework of humanitarian access and the projected impact of COVID-19 in Yemen. A second article will conduct a similar analysis of the situation in relation to refugee camps and internally displaced people, with a focus on Syria and Cox’s Bazaar, Bangladesh.
The Current Situation in Yemen
Yemen descended into a civil war between the internationally recognized government of Abdrabbuh Mansur Hadi and Houthi rebels in 2015. Since that time, Yemen has experienced a protracted armed conflict. The Hadi government, which continues to be the generally recognized legitimate government of Yemen by the international community, is backed by a coalition led by the Kingdom of Saudi Arabia and United Arab Emirates (UAE), commonly referred to as the Saudi-led Coalition. Meanwhile, militant groups, including al-Qaeda in the Arabian Peninsula (AQAP) and a local affiliate of the rival Islamic State group (IS) have taken advantage of the chaos by seizing territory in the south and a southern separatist movement, the Southern Transitional Council, backed by UAE has also emerged against Saudi-backed government forces in 2019. Despite attempts for a negotiated end to the conflict, yesterday marked the fifth year of a devastating war, with no clear end in sight.
Yemen is the largest and most protracted food-insecurity crisis in the contemporary era with an Integrated Food Phase Classification (IPC) level 5 “famine” label having been declared in certain governates in 2018. The latest Famine Early Warning System Network (FEWSNET) projection (pre-pandemic) for October 2019 to May 2020 was that most areas of western Yemen will be in IPC Phase 3 (Crisis!) and would likely enter Phase 4 (Emergency) or worse in the absence of assistance. The projection also forewarned that in the event of significant declines in commercial imports or conflict that cuts off trade and humanitarian assistance, some areas would descend back into IPC Phase 5 (Famine). After five years of war, FEWSNET estimates that an approximate 17 million Yemenis are in need of humanitarian assistance.
At the time of writing, the World Health Organisation (WHO) has not reported any cases of coronavirus in Yemen, however, it is predicted that the (likely inevitable) onset of coronavirus will severely affect the humanitarian aid system, push civilian populations further into crisis and severely elevate mortality rates. (see here, here and here)
The ongoing war in Yemen has seen repeated attacks on key civilian infrastructure. A recent report by Mwatana for Human Rights and Physicians for Human Rights has documented as many as 120 attacks on health facilities and medical personnel across 20 of Yemen’s 22 governorates between March 2015 and December 2018. What is left of the health-care system in Yemen is already overstretched with the treatment of other outbreaks such as cholera, malaria and dengue fever, which have risen in recent years due to poor sanitation. Cholera swept through Yemen in late 2016, with over 1.3 million suspected cholera cases, including 3,910 related deaths. Given that even prior to the war, Yemen was the poorest country in the Arab world — with high food insecurity and high child malnutrition — such repeated attacks and outbreaks have only exacerbated an already dire situation.
Over 80 percent of the civilian population in Yemen has become dependent on humanitarian aid. Such acute humanitarian needs remain unmet as the humanitarian access into Yemen has been severely compromised and under attack for years. Humanitarian aid workers have been harassed and arbitrarily detained — sometimes for extended periods — while aid missions have been repeatedly delayed or cancelled. This stands at odds with applicable fundamental humanitarian principles and contravenes the regulatory procedures of various donors, including States. For over a year, United Nations aid agencies and other donor States have been threatening to cut back on aid operations due to large-scale aid diversion, movement restrictions, interference with aid operations and attacks on humanitarian aid workers and medical personnel, which have combined to make access extremely difficult.
In addition to these crippling bureaucratic and other impediments, relief operations are now facing a new impediment — COVID-19. How Yemen will respond to this pandemic, given its perilous humanitarian situation, requires international attention.
In response to COVID-19, both the internationally recognized government of Yemen and the Houthi rebels have imposed flight bans across all airports in addition to restrictions on road travel since March 14. Both the U.N. flights at Sana’a airport (which were the only planes allowed by the Coalition who control the airspace) and chartered medical evacuations (which are run by WHO for critical patients to be flown out of the country) have been stopped.
While the importation and distribution of humanitarian cargo is continuing as of now, according to a New Humanitarian article, travel restrictions have had a severe impact on relief operations, reducing the presence of international aid teams to essential staff only. In addition, the key aid reform proposed by the World Food Programme (WFP) of a biometric system using fingerprint registration technology to register all aid recipients and reduce fraud is likely to be put on hold to prevent coronavirus spread, after months of negotiations between aid agencies, donors and the Houthi rebels.
Such border and flight restrictions are not entirely novel for Yemen, which has endured partial or complete aerial, land and naval blockades for varying periods since 2015. These were imposed by the Saudi-led Coalition, and each of them restricted aid considerably. The Sana’a airport was completely closed in August 2016 and only recently reopened in November 2019 to allow limited flights for Yemeni civilians requiring life-saving medical treatment. With few humanitarian flights entering, only limited food shipments have reached the Houthi-controlled areas on an ad-hoc basis since November 2019. GRC has analyzed the legality of these blockades and their impact upon humanitarian access in conjunction with the World Peace Foundation (WPF) across a series of expert reports published in 2019.
As warned in a recent webinar organized by leading experts and practitioners from across the humanitarian sector, these pre-existing access constraints to areas controlled by non-State armed groups including — but not limited to — the Houthis and other ungoverned spaces are likely to be a hot spot for the spread of diseases (including COVID-19), along with extremism and discrimination.
International Legal Obligations: Human Rights
In statement on March 6, U.N. High Commissioner for Human Rights Michelle Bachelet reminded all nations that:
… measures to contain and combat the spread of COVID-19 should always be carried out in strict accordance with human rights standards and in a way that is necessary and proportionate to the evaluated risk — but even when they are, they may have serious repercussions on people’s lives.
Ten days later, various U.N. human rights experts added that any restrictions imposed to combat the pandemic should be “narrowly tailored” and “should not function as a cover for repressive action.”
The human rights standard most directly relevant to humanitarian access impediments in the Yemeni context is the right to food. This right is a core human right recognized in both Article 25 of the Universal Declaration of Human Rights and Article 11 of the International Covenant on Economic Social and Cultural Rights (ICESCR). Article 11 recognizes both a right to “adequate food” as part of “the right of everyone to an adequate standard of living” and “the fundamental right of everyone to be free from hunger.” The right to food has also been recognized as an intrinsic component of the right to life. The right to food is an umbrella term that includes the right to adequate food and the right to be free from hunger. The right to be free from hunger is an indispensable and minimum core obligation of the right to food, subject to immediate realization.
Further, as with all human rights, the right to food imposes three different obligations on State parties to the ICESCR, namely, obligations to respect, protect, and fulfil. The U.N. Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 12 made it clear that “States have a core obligation to take the necessary action to mitigate and alleviate hunger … even in times of natural or other disasters subject to immediate realisation.” Where a State is unable to fulfil their obligations under the right to food, General Comment No. 12 puts an obligation on such State to seek international support, including foreign aid, to ensure the availability and accessibility of necessary food.
State obligations in such dire circumstances become all the more pertinent to protect, respect and fulfil the right to food, especially the fundamental right to be free from hunger. To the extent that any State actor or rebel group establishes effective control over a territory or part thereof, such entity is obligated by human rights law to make good-faith efforts to fulfil, respect and protect the right to food without discrimination and to also immediately take necessary steps, such as undertaking a needs-based assessment, to identify food-insecure groups. Given what we now know about how the COVID-19 pandemic affects not only the health of a population once the coronavirus begins to spread, but also how the pandemic affects economies, production chains, and the transportation of goods — including foodstuffs — respecting the food rights of a population now clearly entails an obligation to take measures to prevent the spread of COVID-19.
In the context of the prospect of the COVID-19 pandemic spreading to Yemen, the right to food must be interpreted as intersecting with the right to health laid out in Article 12 of the ICESCR. The right to health includes prevention, treatment and control of epidemic, endemic, occupational and other diseases, which puts an obligation on States to provide disaster relief and humanitarian assistance in emergency situations. (see CESCR General Comment 14)
Further, the ICESCR does not contain an explicit derogation clause. This is in contrast to the International Covenant on Civil and Political Rights (ICCPR), which, in Article 4, explicitly anticipates the derogation from certain rights obligations “[i]n [a] time of public emergency which threatens the life of the nation.” Also relevant to the COVID-19 pandemic, Article 11 of the ICCPR, which lays out freedom of movement rights, allows for such rights to be restricted, to inter alia, “protect national security, public order … [and] public health,” so long as such restrictions are “provided by law,” “necessary” and “consistent with the other rights recognized in the [ICCPR].”
In contrast, Article 4 of the ICESCR establishes that a “State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” This limitation clause, as interpreted by Simone Hutter, is rather restricted compared to those in other human rights treaties. Also, as Niall Coghlan explains, the ability to legally justify derogations from human rights obligations on the grounds of a pandemic remains unclear and controversial.
A full discussion on derogation falls outside the scope of the present analysis. It bears noting, however, that a large number of human rights law principles are not absolute and can be restricted in extreme circumstances. For example, the Siracusa principles acknowledge that during public emergencies certain civil and political rights may be limited, but such limitations must: be provided for in national laws and compatible with the objects and purposes of the ICCPR; be officially and publicly announced; not be applied in an arbitrary manner; respond to a pressing public or social need; pursue a legitimate aim; be proportionate to such aim; and be limited to measures that are strictly necessary in terms of their severity, duration and geographical scope.
Of course, the most basic and core human right — the right to life — remains non-derogable even in times of an emergency threatening the life of the nation. (see the Siracusa principles and ICCPR General Comment 29)
Notwithstanding the permissibility of such derogations and accepting these are exceptional times, human rights principles must govern every humanitarian response along with applicable humanitarian laws, which themselves are designed to complement and mutually reinforce the human rights framework. The range of international law norms applicable in contexts of food insecurity are analyzed in GRC and WPF’s forthcoming Mass Starvation Textbook, an edited collection to be published by Oxford University Press in late 2020.
International Legal Obligations: Humanitarian Law
In addition to human rights obligations, the warring parties in Yemen are also bound by international humanitarian law (IHL), which requires that civilians in need be afforded unimpeded access to the impartial provision of humanitarian aid. While there remains some debate on the subject, due to the involvement of the Saudi-led Coalition and Western states supporting the Coalition, the Yemen conflict is predominantly viewed as a non-international armed conflict (NIAC) between the Houthi rebels and the internationally recognised government of Yemen, supported by the Saudi-led Coalition.
The rules of IHL that regulate humanitarian relief operations are, for the most part, the same in international and non-international conflicts. The principal IHL rules governing humanitarian relief operations applicable to a NIAC are laid out in Common Article 3 of the four Geneva Conventions and Article 18 of Additional Protocol II thereto. Customary IHL rules apply alongside these treaty provisions, most notably Rule 55 of the International Committee of the Red Cross’ (ICRC’s) study on customary IHL, which requires that the parties to a “conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.”
Additionally, the IHL provisions applicable in times of international armed conflicts (IACs), which set an obligation to ensure, to the fullest extent possible, food and medical supplies to the population, as well as clothing, bedding, means of shelter and other supplies essential to the survival of the civilian population amongst other things, are equally applicable in NIACs and apply to all warring parties, including non-State armed groups. (see paras. 14-15 of the Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict; Article 55 of the Fourth Geneva Convention and Article 69 of Additional Protocol I to the Geneva Conventions)
Accordingly, each party to a conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, and subject to their right of control. Further, allowing unimpeded access to humanitarian aid is both an obligation and urgently needed to support the fragile population in Yemen. It is important that the emergency measures imposed to address the COVID-19 pandemic do not compound the ongoing conflict and the inevitable post-conflict vulnerabilities of Yemeni civilians once the fighting eventually ends.
International Legal Obligations: War Crimes
While most attention has been paid to human rights and IHL in Yemen in relation to starvation and food insecurity, international criminal law may also be engaged. Allegations of the use of starvation as a method of warfare by the warring parties in Yemen have been discussed in reports and letters issued by the U.N.-appointed Panel of Experts on Yemen and has been a major focus of GRC’s ongoing Accountability for Mass Starvation Project since 2017.
Most notably, pursuant to Article 8(2)(b)(xxv) of the Rome Statute “[i]ntentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions” is a war crime during an international armed conflict. The Rome Statute was recently amended to extend this war crime to NIACs through the planned addition of Article 8(2)(e)(xix). While Yemen has not joined the International Criminal Court as a State party yet, the situation bears watching, as food access in Yemen was at the forefront of discussions leading to the amendment of the Rome Statute. More details related to both the amendment and potential accountability avenues for starvation-related war crimes in Yemen can be found on the project website and in GRC’s Yemen policy paper published jointly with the WPF.
Conclusion: Continuing Aid Access Critical for Yemeni Civilians
The blanket denial of appropriate humanitarian aid distribution and personnel access by parties to the ongoing conflict in Yemen, citing the COVID-19 pandemic, could exacerbate the dire situation of civilians and constitute a flagrant violation of the right to food and the right to life, especially if contributing to an increase in civilians dying of hunger-related causes. Such denials could also violate relevant IHL provisions relating to relief actions and could even amount to war crimes.
Given the years of repeated, extensive violations of international law in Yemen, the COVID-19 pandemic should not be used as a legal façade to excuse the further persecution of an already devastated population. Current and future emergency measures taken to combat the spread of the coronavirus in Yemen must take into account the overall situation of existing food insecurity and any restrictions imposed must be proportionate and without discrimination. In particular, unimpeded access to humanitarian aid should be facilitated by all warring parties in fulfilment of their obligations under IHL.
Yemen is not the only country facing these challenges. Access to aid is under threat in several other FCAS because of travel restrictions on foreign nationals, including aid workers in Iraq, closing of shared regional borders in Afghanistan and Syria, and stigmatization of foreign aid workers by local populations in places such as the Democratic Republic of Congo, amongst others. (see here for a list of instances of how coronavirus is affecting aid responses in vulnerable communities) Additionally, the risks posed to those in refugee and displaced persons camps and informal settlements are acute and the principles of non-discrimination or stigmatization must be championed.
As physical social-distancing becomes the norm, our international community must socially and psychologically come together and collaborate to ensure that the closure of borders does not violate fundamental human rights and international law principles, perpetuate discrimination or deepen already-worrying trends of nationalism and xenophobia. Moreover, we must ensure this pandemic does not allow potential violations of basic rights and access to subsistence needs to flourish behind closed borders. Every effort should be made by donors and U.N. bodies to work with States and non-State armed groups to make unimpeded access for aid workers and healthcare professionals a priority so as to protect already vulnerable civilian populations, such as that in Yemen. Doing so requires respect for core principles of human rights and IHL, while remaining cognizant of the fact that actively denying such access may be a war crime. As is oft quoted, the true measure of a society can be found in how it treats its most vulnerable members. As global, regional, and national responses continue to be formulated and adapted to the pandemic’s shifting tides, it is essential that those most vulnerable, including the 17 million Yemeni civilians in need, are not isolated further.