(Editor’s note: This is the first of a two-part analysis by Global Rights Compliance of the application of international humanitarian law (IHL) in areas under occupation during the coronavirus pandemic, with the Russian occupation of parts of Ukraine as a case in point. Part 1 discusses Russia’s obligations and compliance in protection of civilians from the effects of the virus. Part 2 will consider to what extent Ukraine, as the displaced sovereign, retains residual obligations to provide further protection.)
As the coronavirus works its way across the globe, compliance with international humanitarian law (IHL) standards is paramount for the protection of survivors of armed conflict. The pandemic particularly highlights the vulnerability — and conversely, the legal rights — of populations living under occupation, whose lives depend on the willingness of the occupying State to abide by the letter and spirit of IHL.
The Russian Federation’s occupation of parts of Ukraine is a useful example. Ukraine is one of 10 States and territories currently under foreign occupation in the world. The others are: Azerbaijan, Cyprus, Eritrea, Georgia, Lebanon, Moldova, Palestine, Syria and Western Sahara. (see here, p. 32). Occupying powers in these territories are bound by a range of specific obligations under IHL related to providing health care for the populations living under their control. Non-compliance with these obligations can have harmful, if not catastrophic, consequences for these populations, especially in the midst of a crisis as deadly as the coronavirus pandemic. This is especially so in the frequent scenario wherein the occupier disputes its status as an occupying power and therefore, refuses to assume its IHL obligations.
The following discussion is premised on the clearest of legal indications that the Russian Federation is an occupying power in Crimea and bound by a panoply of IHL obligations that require a robust response to any public health crisis to ensure that the civilian population’s medical and health requirements are met. There is international consensus on the occupied status of Crimea (see here, here and here). The Russian Federation has been an occupying power in Crimea and, arguably, eastern Ukraine since 2014 (for more information, see here and here). Whilst the Kremlin disputes this status, they are alone in this view.
The situation in eastern Ukraine and the question of Russia’s IHL status is more complicated. Since 2014, two non-State armed groups (NSAGs) – the Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR) – have exercised territorial control over parts of eastern Ukraine. For the purposes of this analysis, the question may be viewed as one of control, namely who is in actual control: the Russian Federation or these NSAGs (which themselves, are unquestionably supported by Russia) that purport to independently administer the territory?
If the Russian Federation exercises overall control over these NSAGs, it follows that it is to be legally deemed an occupying power (see, Blaškić Trial Judgment, para. 149) and is therefore obligated to fulfil all IHL obligations applicable to an international armed conflict (IAC) (as outlined below). In the event that the facts do not meet this threshold, the DPR and LPR, as NSAGs exercising control over parts of eastern Ukraine, will themselves be required to meet a range of less demanding and detailed (but, nonetheless, still considerable) IHL obligations applicable to non-international armed conflicts (NIACs).
The “Overall Control” Test
Legally speaking, the “overall control” test dictates when a State is deemed responsible for the actions of a NSAG, or other non-state actor. Overall control exists where the State in question “has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support” (see the Tadić Appeal Judgment, para. 137, and GRC’s note on the subject). In the words of the late international law luminary Antonio Cassese, the State in question must have “a say in and an impact on, the planning and organisation of the group’s activities” (see here, p. 661). The extent of this impact must go beyond mere coordination and cooperation between allies (see Tadić, para. 152). Whether overall control exists is a factual determination, made on a case-by-case basis.
Differing from the International Court of Justice’s “effective control” test, the overall control test does not require a demonstration that the State in question planned or directed all of the relevant group’s actions, issued specific orders and instructions on the conduct of military operations or chose the group’s targets (Tadić, para. 137). Instead, the existence of overall control may be inferred in the following circumstances: (i) the State generally directs, coordinates or helps the armed group in its actions, including by participating in the planning and supervision of its military operations, (ii) the State exercises control over the political and military objectives of the group, and (iii) the group is (financially or otherwise) dependent on the State (Tadić, paras. 138, 145, 150-154; and Cyprus v. Turkey, in the European Court of Human Rights, para. 77).
Regrettably, in-depth analysis of this threshold has been lacking both in and out of Ukraine. Nevertheless, there are strong indications that the Russian Federation is in overall control of the DPR and LPR. First, despite repeated denials by Russian officials, there is mounting evidence of direct Russian military involvement in the conflict in support of the DPR/LPR. To this day, despite purporting to play a neutral role in the ceasefire and peace talks in eastern Ukraine, it appears that the Russian Federation has not only trained, armed and equipped the DPR/LPR forces, but also coordinated with them in the planning and execution of military operations against the Ukrainian armed forces (see here and here). This includes the direct participation of Russian troops in hostilities in support of DPR/LPR forces (including by cross-border shelling from Russian territory), as well as the provision of military training and the transfer of large quantities of advanced weaponry, including defense systems, artillery, tanks and armored personnel carriers, to these groups (see the International Criminal Court Prosecutor’s 2017 Preliminary Examination Report on the situation in Ukraine at para. 92; see also here, here, here, here, here, here and here). By March 2, 2015, the U.S. Army Europe Command estimated that 12,000 Russian soldiers including military advisers, weapons operators and combat troops were active in eastern Ukraine.
Still, the question remains whether this far-reaching assistance indicates a relationship of cooperation/coordination between allies or of overall control. Recent developments in litigation concerning the downing of flight MH17 in Dutch courts provide further insights into the likely role of the Russian state. Three of the individuals indicted in the case, due to the “leading role” they played in the commission of the crime (Igor Girkin, Sergey Dubinsky and Oleg Pulatov), are Russian nationals and former members of the GRU and FSB, the two main Russian intelligence agencies. At the time of the incident, these individuals also held high-level positions in the DPR (Girkin was the Minister of Defense; Dubinsky was Girkin’s deputy and the head of the DPR’s intelligence service; and Pulatov was Dubinsky’s deputy). These facts suggest that the role played by the Russian Federation in the DPR’s military operations goes far beyond mere coordination or provision of training and arms. Rather, it seems that, through its operatives, the Russian Federation has directly participated in the organization, planning and supervision of the DPR’s military operations.
This is an illustrative demonstration of the Russian Federation’s modus operandi in exercising control over eastern Ukraine: infiltrating the higher echelons of DPR/LPR governmental structures with Russian operatives (and eliminating any dissenting elements therein), allowing Russia to exert control over the military objectives and actions of these groups, while at all times retaining a measure of plausible deniability (see here, here and here). Such control, however, is not limited to the military sphere. An email leak in October 2016 revealed how the Russian Federation also manages and controls political developments within the DPR and LPR, for instance, by vetting/reviewing prospective members of their respective governments (for a detailed analysis, see here).
Moreover, and of particular note during the time of COVID-19, is the degree of financial dependency. The Russian Federation supports the economies of these entities by spending an estimated $2 billion annually in non-military expenditures in eastern Ukraine. In 2015, the Russian Federation began paying pensions, benefits, and wages to members of both entities, leading to significant economic dependency.
In sum, the level of Russian involvement in military, political and financial spheres have led commentators to conclude that the LPR and DPR are not autonomous actors but in fact, puppets that operate under the complete and direct military and political control of the Russian Federation (see here, here and here). While this analysis is based in part on the geopolitical realm, there does appear to exist substantial legal reason to believe that Russia is in overall control of both the LPR and DPR and thus, legally qualifies as an occupying power in eastern Ukraine.
Russia’s IHL Obligations
IHL provides occupying powers with an overarching duty to restore and ensure public order and safety within occupied territories (Hague Regulations, Art. 43). This obligation derives from their forceful supplanting of the authority and control of the prior sovereign power and consequent disruptions to the provision of essential public services to the population. IHL requires the occupying power to assume responsibility for these services.
Provision of health care is one such service. The occupying power has the duty to ensure public health and hygiene in occupied territories and meet the medical needs of the population without any adverse distinction (See Geneva Convention IV, Arts. 27, 55 and 56; and Additional Protocol I, Art. 14). According to the International Committee of the Red Cross’ (ICRC’s) influential commentaries to the Geneva Conventions, Article 55 of the Fourth Geneva Convention requires an occupying power “to maintain at a reasonable level the material conditions under which the population of the occupied territory lives.” To this end, and to the fullest extent of the means available to it, the fourth Geneva Convention stipulates in Article 56 that an occupying power must maintain hospital establishments and related services, including by promptly organizing new hospitals if necessary. Medical services must be of good quality, meaning that they are provided in facilities that satisfy certain minimum standards (such as having access to safe and potable water and adequate sanitation) and staffed by skilled medical personnel who treat patients using appropriate medications and equipment (see this influential commentary on the Geneva Conventions, p. 1498). Similar, but less detailed, obligations apply to NSAGs during NIACs (see Geneva Conventions I-IV, especially Common Article 3; Additional Protocol II, Art. 7; Rule 110 of the ICRC’s study of customary IHL; and the ICRC’s Commentary on the Additional Protocols, p. 1409).
Additionally, the occupying power must ensure that adequate medical supplies are available to meet the needs of the population of the occupied territory, including by procuring such supplies when necessary (Geneva Convention IV, Art. 55). If the population is inadequately supplied, the occupying power must agree on relief schemes with other States or impartial humanitarian organizations (such as the ICRC) to allow and facilitate the provision of medical aid to the population (Geneva Convention IV, Arts. 23, 59). For rules applicable to NIACs, see Additional Protocol II, Arts. 9 and 18; ICRC Rule 55).
Particularly relevant to the current crisis, an occupying power is required to adopt and apply “prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics” (Geneva Convention IV, Art. 56). As noted in the authoritative ICRC commentary, measures taken to satisfy Article 56 should include:
supervision of public health, education of the general public, the distribution of medicines, the organisation of medical examinations and disinfection, the establishment of stock of necessary medical supplies, the despatch of medical teams to areas where epidemics are raging, the isolation and accommodation in hospital of people suffering from communicable diseases, and the opening of new hospitals and medical centres.
These obligations are broadly consistent with the World Health Organization (WHO) guidelines on ensuring public health and safety during the COVID-19 pandemic. In short, WHO advises States to, among other things: (i) communicate to the public the facts about the pandemic, (ii) adopt public health measures, such as social distancing and travel-related measures, (iii) identify, isolate and provide optimized care for infected patients, especially those who are particularly vulnerable, and (iv) enhance the preparedness and capacity of health care facilities (including the knowledge of the medical personnel) to meet expected surges in COVID-19 cases (see also here and here).
Russia’s Response to COVID-19 in Crimea and Eastern Ukraine
An examination of the Russian Federation’s response to the COVID-19 pandemic in Crimea and eastern Ukraine exposes a range of deficits that likely entail breaches of various IHL obligations.
As of April 21, there were 46 confirmed cases of COVID-19 in Crimea and 57 in relevant parts of eastern Ukraine (36 in DPR controlled areas and 21 in LPR controlled areas). There is, however, reason to doubt the accuracy of these figures. Firstly, in a general sense, neither the Kremlin nor its agents are known for their truthfulness and transparency in normal times, let alone during times of urgency or emergency. Ukrainian authorities claim that the DPR and LPR authorities have suppressed actual infection and mortality figures (see here and here). Doctors are purportedly being silenced, including being required to sign non-disclosure forms and to re-classify autopsy reports. Similar claims have been made by Ukrainian Ombudsman Lyudmila Denisova in relation to the spread of coronavirus in Crimea. These claims, if true, point to a deliberate attempt on the part of Russian occupation authorities to avoid their responsibilities to the populations of Crimea and eastern Ukraine by keeping them (and the international community) in the dark.
Further evidence of this neglect may be seen in the introduction of emergency measures in Crimea. Despite the preventative measures the Russian Federation took within Russia itself to curb the spread of the coronavirus as early as January, corresponding measures apparently were not put in place in Crimea until March 17. Enacted measures include prohibitions on sports, cultural, public, and other large gatherings; suspension of the activities of restaurants, cafes, education institutions, and public transportation services; isolation of individuals arriving in Crimea from other territories of the Russian Federation; and mandatory quarantine measures and travel restrictions (see here, here and here). Similar, albeit milder, measures have been put in place by the DPR and LPR authorities (see here).
The adoption of these physical distancing measures is certainly a step in the right direction. Nevertheless, as will be discussed below, the Russian occupation authorities appear grossly ill-prepared to take the further steps necessary to comply with their IHL obligations.
The Inadequacies of Health Services in Crimea and Eastern Ukraine
The Russian health-care system introduced into Crimea after the occupation is beset with major shortcomings across a range of essential services relevant to the treatment of infectious diseases. Of significant relevance to IHL obligations more broadly, and in direct contravention of the specific requirement that the provision of health care in occupied territory be made without any adverse distinction (see Geneva Convention IV, Art. 27), is that Ukrainian citizens who refuse to acquire Russian citizenship and residence permits are denied access to medical services (see here, pp. 11-12).
Similarly, Russian authorities seem to be failing to maintain the health services at a reasonable standard to meet the medical needs of the population in Crimea and eastern Ukraine. Local residents report that the conditions in Crimean medical facilities do not satisfy basic sanitary standards. For example, the mother of a teenage patient exposed the inadequate conditions in the Kerch City Hospital in the east of Crimea, which lacks access to running water, sufficient heating, and electricity. Another resident shared photos from the main Bakhchisaray and Yalta City Hospitals, revealing the unsanitary conditions there, including fungus growth on the walls and soiled bedsheets. In Sevastopol City Hospital, on the other hand, patients complain that there is only one functioning toilet for 60 people.
Moreover, according to the Crimean Human Rights Group, the number of medical personnel who know how to treat COVID-19 patients in Crimean hospitals is extremely low, meaning that proper COVID-19 testing, diagnosis, and treatment remains the exception. Rather than conducting appropriate medical examinations and isolating/treating COVID-19 patients at hospitals, medical personnel send those who show symptoms home to self-isolate. Even the relatives or other persons living in the same household with those who were diagnosed with COVID-19 are denied testing and admission to hospitals.
These shortcomings have already proven to be deadly for those most vulnerable. On March 31, a 65-year-old resident of Kerch with a high fever and heavy coughing was denied admission to a hospital by the emergency medical staff. He was admitted to the intensive care unit two days later with more severe symptoms, where he eventually died. His family was not informed of the cause of his death.
While there is not the same amount of information available in Donetsk and Luhansk, even more serious problems appear to undermine medical responses there. As outlined by the United Nations, people (especially older persons) residing in eastern Ukraine conflict zones, including numerous isolated villages, face serious limitations in accessing vital healthcare due to the distance, the cost of travel, the unavailability of medication, medical personnel, and lack of transportation such as ambulances (see here, here, para. 36 and here para. 7).
Lack of Adequate Medical Supplies
Lastly, both Crimea and eastern Ukraine seem to be under-resourced in relation to the type of medical supplies necessary to help stem the spread of, or treat those infected with, the coronavirus. Activists across six Crimean cities checked 16 pharmacies and reported there to be no face masks or hand sanitizers available, and shortages on medications. The main hospitals in Armyanks and Sevastopol City, on the other hand, lack sufficient protective equipment for both health workers and patients.
Further, throughout Crimea (with a population of more than 2 million), the medical facilities where COVID-19 patients are treated have a total of 212 ventilators available. Similarly, even these limited resources are largely unavailable in Donetsk and Luhansk. According to LPR medical professionals, local hospitals are unprepared to deal with a near-inevitable COVID-19 outbreak and lack the resources to treat any high number of patients. A report by Ukrainian authorities noted that Donetsk and Luhansk residents showing symptoms of COVID-19 are often diagnosed with general viral infections and sent home, in large part due to the lack of medical personnel, test kits, and hospital beds.
These shortcomings indicate that the Russian Federation is failing to respond to the COVID-19 pandemic in any meaningful way in line with its obligations under IHL. Russian authorities do not have to do the impossible nor achieve perfection. Rather, the Russian government must urgently “utilise all the means at its disposal” (i.e. the fullest extent of means available to it) to bring the health-care standards in Crimea and eastern Ukraine to a reasonable level. That includes: (i) improving the conditions and resources of the existing medical facilities, (ii) establishing new medical facilities if needed, and (iii) ensuring that the medical supplies necessary to address COVID-19 are adequate for the population (see ICRC Commentary on Geneva Convention IV, Arts. 55 and 56).
Any claim by Russia to not having the means to improve health conditions in occupied areas of Ukraine should be carefully scrutinized. Of particular concern is Russia’s apparent lack of effort to fulfil the WHO’s recommendations that require, at a minimum, enhancement of the capacity of health facilities (including expert medical personnel) to address the elevated and specific demands corresponding to the coronavirus pandemic. Moreover, any bona fide claim along these lines would need to be evidenced by Russian efforts to reach agreements with other States or impartial organizations such as the ICRC to allow and facilitate required medical assistance to the occupied territories (see ICRC Commentary on Geneva Convention IV, Art. 59). In sum, as the 11th largest economy in the world, the Russian Federation has an uphill battle to convince the international community that it does not have the material resources to meet these obligations.
Russia’s IHL Obligations to Confined Persons
IHL provides specific health safeguards for persons who are deprived of their liberty in occupied territories because they are particularly vulnerable. Detained or interned persons must be: (i) kept in conditions of hygiene sufficient to ensure good health, (ii) provided with any medical attention they require, and (iii) given the right to be visited by ICRC personnel (see Geneva Convention IV, Arts. 76, 81; for NIACs see Additional Protocol II, Art 5(1)(a), (2)(d) and ICRC Rules 118).
WHO guidelines on responding to the pandemic in prisons and other places of confinement provide some insights on what these obligations may entail. According to WHO, incarcerated persons should: (i) be protected from infection by screening those who access the prison and adopting social distancing measures, (ii) be given adequate space, air exchange, and routine disinfection of their environment, (iii) receive access to adequate health care, personal hygiene facilities (e.g. hot water and soap), and protective equipment such as masks and gloves, without discrimination, (iv) be screened for COVID-19 symptoms and put in medical isolation for further medical evaluation/testing if need be, (v) be treated on-site or be transferred to specialist facilities if they have contracted COVID-19, and (vi) be allowed to receive visits from international or domestic monitoring organizations.
Detention Conditions in Crimea and Eastern Ukraine
Conditions imposed on detainees in occupied Crimea and eastern Ukraine fall significantly short of IHL requirements and WHO standards and regretfully, pave the way for a perfect storm in the event of a coronavirus outbreak in the region. Reportedly, detention facilities in Crimea lack medical staff, medications, equipment (such as masks or ventilators) as well as expertise in the treatment of COVID-19 patients. Sanitation and hygiene conditions are extremely poor. Detainees do not have adequate access to water or ventilation and live in overcrowded cells. Prisoners risk infection due to daily inspections and searches conducted by the prison staff who carry out their duties without any protective equipment. No social distancing measures are in place.
More disturbingly, those who show symptoms of COVID-19 are denied appropriate medical treatment, testing, or hospitalization, significantly increasing the likelihood of infecting other prisoners as well as staff. For instance, Server Mustafayev, a Crimean Tatar prisoner of conscience and the coordinator of the civil society organization “Crimean Solidarity” was denied any meaningful medical attention or hospitalization, even though he was suffering from a dry cough and breathing difficulties with a fever and temperature of 39.3 °C (102.7 °F). Instead, he was forced to appear in a court hearing and is still being kept in a pre-trial detention cell with other detainees.
The situation in eastern Ukraine is even worse. Conditions in the detention centers in the DPR and LPR would test the strength of a healthy person in the best of times. The latest report on Ukraine by the U.N. Office of the High Commissioner for Human Rights (OHCHR) tells its own shocking story of intentional cruelty and neglect — torture and ill-treatment including beatings, stress positions, electric shocks, asphyxiation, sexual violence, deprivation of water, food, sleep, or access to a toilet (para. 69).
Only recently, more than 100 civil society organizations worldwide appealed for international intervention to help prevent the spread of COVID-19 in the prisons of Ukraine’s occupied territories. Aside from these horrendous acts outlined by the U.N. human rights commissioner, cells lack light and are overcrowded, lack proper heating and sanitation, and are overflowing with sewage and vermin (including insects and rats). Ordinarily, detainees rely on their relatives for food and medication, but due to COVID-19 movement restrictions, family members are no longer able to access detention centers (see here and here).
In light of this systematic ill-treatment and the fact that ICRC and U.N. officials are still not provided access to detained persons held in official (let alone unacknowledged) detention centers, there is nothing to suggest that there will be any change in the near future, let alone anything resembling adequate medical protection from the spread of this pernicious infection.
There is little to suggest that Russia will accept or respect binding IHL obligations clearly mandating firm and decisive action to protect the health of populations in occupied Ukrainian territories. Indeed, the last five years of occupation have led to a range of IHL violations, some of which may amount to war crimes.
This rather gloomy assessment is not intended to inspire despair, but rather to reinforce the pressure that will be needed to achieve constructive change before it is too late. Common Article 1 of the Geneva Conventions, as interpreted by the International Court of Justice (see para. 158), requires every State Party, whether or not it is a party to a specific conflict, to ensure that the provisions of these instruments are complied with. As discussed above, Russia is obliged to provide adequate health care and medical supplies to the populations of Crimea and eastern Ukraine to counter the COVID-19 pandemic or, if unable to do so, reach agreements with other States or impartial organizations such as the ICRC to allow and facilitate the provision of appropriate medical assistance to these territories.
Compliance has its advantages for the Russian Federation as well. By strengthening its COVID-19 response and meeting its obligations under international law, Russia can avoid a full-blown epidemic within the territories it occupies. Not only would this be useful in the protection of its own territory from the coronavirus, it would also boost its credibility as part of the international community.
Time may be running out and, as we have seen throughout the world, action taken early and decisively remains the best protection against the spread of the virus and to ultimately save lives.
Image – Russia-backed separatists, wearing protective masks against the novelcorona virus, COVID-19, and who were jailed in the Ukraine, wait during a prisoner exchange at the Mayorske checkpoint in Donetsk region, eastern Ukraine, on April 16, 2020. – Ukraine’s government on April 16, 2020, swapped prisoners with Russia-backed separatists in the war-torn east of the country, ahead of Orthodox Easter celebrations. Twenty people who had been held captive in two breakaway regions were handed to the government, Kiev said. Separatists took back 14 prisoners but three others refused to return, Ukrainian President Volodymyr Zelensky’s office told AFP. (Photo by YEVGEN HONCHARENKO / AFP) (Photo by YEVGEN HONCHARENKO/AFP via Getty Images)