COVID-19 and International Law Series: International Humanitarian Law – Conduct of Hostilities

[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]

This article is the first of three that will analyze the international humanitarian law (IHL) issues raised by the COVID-19 pandemic and States’ responses to it. This piece identifies the rules and norms that govern the specific issue of conduct of hostilities; the second will focus on humanitarian access; and the third will focus on the treatment of detainees.

Amidst the spread of COVID-19, conflict continues to rage on in various parts of the world. In some conflicts, warring parties’ failure to respect IHL rules on the conduct of hostilities long before the current pandemic has further exacerbated the current acute health crisis. In other conflicts, combatants have failed to adapt their behavior to the pandemic, leading to violations of IHL – or have even sought to exploit the pandemic to gain a military advantage. This includes the violation of rules that protect medical personnel, hospitals, and civilian objects, and infrastructure against attack.

Consider the following examples: In Ukraine, armed attacks linked to ongoing hostilities between Ukrainian forces and separatist groups have damaged critical water and sanitation infrastructure. The United Nations (U.N.) Office of the High Commissioner for Human Rights (OHCHR) recorded attacks on at least 45 such facilities between January and July 2020. The Norwegian Refugee Council also noted shelling that disrupted the installation or maintenance of water and sanitation infrastructure. Clean water supplies are essential not only to meet persons’ basic health needs – and thus always a humanitarian priority – but necessary to maintaining hygiene practices that stem the spread of COVID-19 and therefore even more vital than ever during the pandemic.

In Yemen, parties to a conflict that began in 2015 have targeted essential health facilities in what is already a healthcare system in crisis. More than 140 attacks on medical facilities have taken place during the armed conflict and have reduced the capacity of medical facilities in the country by half, a problem further exacerbated by the worst cholera epidemic in recorded history. As of October 2020, the COVID-19 case rate appears to be declining, but limited data and testing capacity means that the situation is difficult to assess, and the International Organization for Migration (IOM) warns that new restrictions on humanitarian organizations will hamper efforts to prevent and treat a second wave.

Meanwhile, in Syria, belligerents have deliberately or indiscriminately attacked medical personnel and facilities over the course of nearly ten years of conflict, leaving health systems ill-equipped to control the spread of COVID-19. Physicians for Human Rights estimates that more than 900 medical professionals have been killed since the start of the conflict. The systematic targeting of health care workers and facilities has left the country without sufficient numbers of health care workers, which now impedes an adequate response to COVID-19 as infection rates among medical professionals rise and the pandemic spirals wildly out of control.

This article examines, first, the relevant obligations of participants in “international armed conflicts” (IACs) – that is, conflicts between nation states. It then turns to the obligations of belligerents in “non-international armed conflicts” (NIACs) – which entail protracted armed violence between governmental authorities and organized armed groups or between such groups. Finally, the article closes with an assessment of what these obligations mean in the COVID-19 context.

Principles Governing Conduct of Hostilities in IACs During a Pandemic

International treaty law governs the conduct of hostilities in IACs, regulating targeting and military operations based on principles of distinction, prohibition on indiscriminate attacks, proportionality, and necessary precautions. The governing conventions, specifically the four Geneva Conventions and Additional Protocol I, protect medical personnel, entities, and equipment from direct attack.

Medical facilities, personnel, and equipment must not be targeted, and must not be punished for providing medical care or upholding ethical standards.  

To ensure the care of wounded and sick combatants, the First Geneva Convention (GC I) requires protections for the belligerent armed forces’ medical personnel and units, as well as hospital zones and medical transport and the necessary passage to effect such transport (see GC I Articles 19, 23, 24, and 35-37). The Second Geneva Convention (GC II) provides corresponding protections for maritime warfare (see GC II Articles 12-18, 22-32, and 34-43).

In addition, the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War allows parties to a conflict to establish hospital and safety zones, as well as localities and neutralized zones intended to shelter wounded and sick combatants and civilians taking no part in hostilities from the effects of war (GC IV Articles 14, 15). It requires, moreover, that civilian medical entities and operations, and persons engaged in the operation and administration of such civilian hospitals, in no circumstances be the object of attack (GC IV Articles 18, 20).  Medical convoys conveying wounded and sick civilians must also be protected from attack (GC IV Article 21).

For states that are party to it, Additional Protocol I (AP I) also extends protections established in GC I and GC II to civilian medical personnel, equipment, and transport (see AP I Articles 8-34), and explicitly prohibits attacks on such entities (see AP I Articles 48, 51, 52, and 54). (The United States, notably, is not a party to Additional Protocol I, but it recognizes some portions of it, including Article 75’s fundamental guarantees of minimum treatment for all persons, as applicable to U.S. conduct.)

AP I also recognizes additional protections for medical personnel performing their duties. No one can “be punished for carrying out medical activities compatible with medical ethics” regardless of the benefactor (AP I Article 16(1)), nor can they be compelled to act (or to refrain from acting) in ways contrary to rules of medical ethics (AP I Article 16(2)). Additionally, force cannot be used to threaten personnel to provide medical information of those who have been or are being treated:  “no person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families” (see AP I, Article 16(3)). However, this provision creates an explicit carve-out for regulations on information-sharing regarding communicable diseases, stating “regulations for the compulsory notification of communicable diseases shall, however, be respected.”

Belligerents must not undertake attacks indiscriminately and should take precautionary steps to minimize incidental harm to civilians and civilian objects in undertaking attacks.

AP I Article 51(4) prohibits parties to IACs from undertaking indiscriminate attacks that, by their nature, can strike military objectives and civilians (and civilian objects, including medical facilities and personnel) without distinction. This prohibition also necessitates that belligerents assess the proportionality of an attack by weighing the military advantage anticipated against the expected “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof” (AP I Article 51(5)(b)).

Further, belligerents in IACs must take precautions in the conduct of hostilities to ensure military operations satisfy the other principles of distinction and proportionality and the prohibition on indiscriminate attacks. AP I Article 57 imposes a duty on belligerents in IACs to take precautionary steps to minimize incidental harm to civilians and civilian objects in undertaking attacks. Similarly, belligerents have a duty to civilians under their jurisdiction: AP I Article 58 requires belligerents to take precautions to protect civilians and civilian objects under their control from the dangers of conflict.

These precautionary obligations are not limited to States Parties to AP I, however. Many of these obligations arguably constitute customary law and are therefore binding on all states. The International Committee for the Red Cross (ICRC) IHL Database, for example, outlines several “rules” that it maintains constitute customary international law. Rules 16-21 identify several steps that parties to a conflict should take, including verifying targets are actually military objectives; taking precautions in the methods of warfare to avoid incidental loss of life, injury, and damage; assessing whether the effect of an attack would lead to excessive harm; suspending or canceling attacks if the target is found to not be a legitimate military objective or if the civilian harm is expected to be excessive; giving effective advance warning to civilians who might be affected by an attack; and selecting targets that are least likely to cause civilian harm. The ICRC’s compilation of customary rules draws heavily on AP I as well the 1899 and 1907 Hague Regulations and 1907 Hague Convention (IX).

Principles Governing Conduct of Hostilities in NIACs During a Pandemic

Conventional IHL protections for medical personnel and activities against targeting in NIACs are less specific and comprehensive than those for IACs. Nonetheless, there are rules governing such conflicts that are relevant to the pandemic. Additional Protocol II to the Geneva Conventions (AP II) establishes obligations for states and non-state armed groups that are party to that Protocol, if the conflict takes place in the territory of a state that is party to the Protocol. (The United States is also not a party to this Protocol, though the Reagan Administration submitted it to the Senate for approval in 1987 and the Obama Administration encouraged the Senate to act on it in 2011.) These belligerents cannot punish medical personnel, who are to be “respected and protected” (AP II Article 9). Health care workers must not be compelled to undertake tasks contrary to their humanitarian mission or to give priority except on medical grounds (AP II Article 9). Generally, they should not be punished for adhering to ethical standards on information-sharing and for maintaining confidentiality (AP II Article 10).

Additionally, Common Article 3 of the Geneva Conventions – so called because the text of the article is “common” or shared between all four Geneva Conventions – requires parties to NIACs (whether states or non-state armed groups) to treat humanely individuals not taking part in the conflict, including members of armed forces placed hors de combat by sickness or other causes.

Conduct of Hostilities in the COVID-19 Context

The formal rules and obligations governing the conduct of hostilities do not change in the context of a deadly pandemic, but their practical impact may be altered. In particular, certain actions that might be permissible under normal circumstances may impermissible during a pandemic. Some of the effects of the pandemic on obligations during conflict are sketched below.

The numerous legal obligations incumbent upon parties to a conflict take on additional relevance in locations where COVID-19 risks spreading (or where it has already spread) among a conflict-affected population. Some duties are fairly straightforward: parties to conflicts are not to target military personnel hors de combat because incapacitated by the virus. Further, belligerents are not to punish medical personnel disseminating personal protective equipment such as masks, carrying out COVID-19 tests, or administering a vaccine once available, in accordance with their ethical duties, even if enemy forces or civilians allied with those adversaries are assisted.

The need for assessing proportionality of attacks and undertaking precautionary measures may also necessitate that parties take into account foreseeable pandemic-related “reverberating effects” of a military operation. Emanuela-Chiara Gillard cites as an example of reverberating harm an attack that results eventually in a disease outbreak; an attack that knocks out an electricity generation and distribution system might in turn prevent the operation of water purification systems and lead ultimately to an outbreak of waterborne disease. However, as Ellen Nohle and Isabel Robinson explain, “while there is growing consensus belligerents in an armed conflict are legally obliged to take into account the reasonably foreseeable reverberating effects of an attack… the precise scope of this obligation remains unclear.” Further, there is not yet a consensus as to what qualifies as a reverberating effect.

Whatever the exact scope of the obligation to account for reverberating effects, the pandemic is likely to magnify foreseeable effects of hostile activities. Second-order impacts from attacks on civilian objects and infrastructure increase the damage of such attacks and thus alter the required proportionality analysis. For example, belligerents may have to assess the risk of attacks that might reduce systemic capacity to respond to COVID-19 (or prevent its spread). A party to a conflict may need to weigh whether an attack could have the incidental harm of destroying stocks of mechanical ventilators that are in short supply. Likewise, the foreseeable consequences of a temporary interruption to civilian water or medical supply lines might be much greater in a pandemic context than in other times, as even temporary lack of access to hygiene or personal protective equipment can significantly impact disease spread.

Additionally, the AP I Articles 56/57 and AP II Article 15 obligations to adopt precautionary measures regarding “works and installations containing dangerous forces” might be read to extend special protections to laboratories or medical clinics where biological agents of infectious diseases are kept. Such locations might be analogized to those facilities for which these articles provide special protection, namely dams, dykes and nuclear electrical generating stations. In consequence, belligerents may need to take precautionary measures against the incidental harm of attacking sites where vaccines for COVID-19 are under development, if there is a chance that damage to such facilities could cause exposure to live viruses. Arguably, if belligerents were to target a vaccine development site, they would also have to consider the reverberating effects of such an attack; given the importance of vaccines to the population’s wellbeing, such an attack would likely be considered disproportionate.

In short, belligerents’ conflict-related duties remain relevant—and abiding by these rules has arguably become even more essential—as COVID-19 reaches populations in conflict-ridden areas. Conversely, violations of such laws and norms, which are all too common, have also taken on greater consequence as conflict-affected societies seek to protect their already vulnerable populations from the added dangers of the current pandemic.

Image: The damaged interior of the hospital in which the Medecins Sans Frontieres (MSF) medical charity operated is seen on October 13, 2015 following an air strike in the northern city of Kunduz. Thirty-three people are still missing days after a US air strike on an Afghan hospital, the medical charity has warned, sparking fears the death toll could rise significantly. (Photo credit: STR/AFP via Getty Images)

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).

Mark Stevens

Mark Stevens is a 2021 J.D. candidate at Yale Law School and Hansell Fellow at the YLS Center for Global Legal Challenges. Follow him on Twitter at (@MarknotSteve)

Preston Lim

J.D. student at Yale Law School, former Schwarzman Scholar at Tsinghua University - Follow him on Twitter (@PrestonJordanL1).