COVID-19 and International Law Series: International Humanitarian Law – Humanitarian Access

[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.]

As COVID-19 spreads unchecked in war-torn areas around the world, the international humanitarian law principle of humanitarian access has become more urgent than ever. Local health systems, already overburdened by years of war, are poorly equipped to deal with the new challenges posed by COVID-19. Despite United Nations (U.N.) Secretary General António Guterres’ repeated calls for a global ceasefire, warring parties around the world continue to fight and to impede humanitarian access.

In Yemen, which has been gripped by civil war since 2014, both states and non-state armed groups (NSAGs) have hindered humanitarian access by the United Nations and aid agencies, even as COVID-19 tears through the country. One report showed that “[e]fforts to prevent the spread of COVID-19 and respond to other urgent health needs in Yemen have been severely hampered by onerous restrictions and obstacles that the Houthi and other authorities have imposed on international aid agencies and humanitarian organizations.” The U.N. has warned, moreover, that “the novel coronavirus that causes COVID-19 is ‘likely to spread faster, more widely and with deadlier consequences [in Yemen] than almost anywhere else.’”

In Syria, aid groups have similarly encountered difficulties and interference in maintaining humanitarian access to a suffering population. In April 2020, Human Rights Watch indicated that the “combination of restrictions from Damascus, the KRG [Kurdish Regional Government], and the Security Council has prevented [aid workers] from preparing for an outbreak of COVID-19 in northeast Syria.” In January, the UN Security Council, under Russian pressure, closed one of two key humanitarian access points into Syria. Since then, the situation has deteriorated; between August and September, northwest Syria witnessed a ten-fold increase in COVID-19 cases.

These are just two examples of conflicts in which various actors have blocked humanitarian access. As aid agencies continue their efforts to prevent the further spread of the novel coronavirus in these contexts, they will undoubtedly identify more examples where armed actors consistently impede humanitarian access.

The previous article in this series examined how international humanitarian law (IHL) obligations regarding conduct of hostilities apply during the current pandemic. This article turns to relevant IHL obligations of humanitarian access. It first examines the general IHL principles that apply in all conflicts. Next, the article identifies the specific obligations of participants in “international armed conflicts” (IACs) – that is, conflicts between nation states. The article then identifies the specific obligations of belligerents in “non-international armed conflicts” (NIACs) – which entail protracted armed violence between governmental authorities and organized armed groups or between groups within a state. Finally, the article closes with an assessment of what these obligations mean in the COVID-19 context.

Customary International Law Governing Humanitarian Access in All Armed Conflicts

We begin with the International Committee for the Red Cross’s (ICRC’s) International Humanitarian Law database of customary international law, which aims to compile the evidence for customary international law. The ICRC is named in the Geneva Conventions as an “impartial humanitarian body . . . [that] may offer its services to the Parties to the conflict.” The ICRC has a mandate not only to carry out relief operations, but also to visit prisoners of war and to act as a substitute protecting power. Its position on the rules that govern humanitarian access are therefore particularly worthy of note.

International law experts and certain governments disagree as to whether all of the rules the ICRC has identified as customary truly reflect norms of customary international law. For a norm to constitute customary international law, it must be (1) reflective of general and consistent State practice and (2) accepted as law (opinio juris). Notably, in 2006, the U.S. government published its reactions to the ICRC’s compilation of customary international law, concluding that “many rules are stated in a way that renders them overbroad or unconditional, even though State practice and treaty language on the issue reflect different, and sometimes substantially narrower, propositions.” Others, however, have found it a useful compendium of customary law, particularly on the subject of humanitarian access. It points to four principles of access that it contends are binding in all conflicts as a matter of customary international law:

  • Humanitarian relief personnel must be respected and protected (Rule 31).
  • Objects used for humanitarian relief operations must be respected and protected (Rule 32).
  • The parties to the 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 (Rule 55).
  • The parties to the conflict must ensure the freedom of movement of authorized humanitarian relief personnel essential to the exercise of their functions. Only in case of imperative military necessity may their movements be temporarily restricted. (Rule 56).

Principles Governing Humanitarian Access in International Armed Conflicts in a Pandemic

In addition to customary international law, there is treaty law that governs international armed conflicts (IACs) during pandemics. The Geneva Conventions (GC I-IV) and Additional Protocol I (AP I) establish the right of the ICRC and other aid organizations to provide humanitarian relief. GC I Article 9, GC II Article 9, GC III Article 9, and GC IV Article 10 similarly enshrine the right of humanitarian organizations to provide relief. Accordingly, while parties to the conflict have the primary obligation to care for the wounded and sick without adverse distinction (GC I Article 12; GC II 12), if they are unable or unwilling to fulfill their primary responsibility, they may not deny consent to humanitarian agencies that offer assistance. As the ICRC’s 2016 Commentary on GC I, Article 9 puts it: “If the humanitarian needs cannot be met otherwise, the refusal of such an offer would be considered arbitrary, and therefore inconsistent with international law.”  In addition, Article 23 of GC IV – which provides protections to all civilian persons during IACs – requires States to “allow the free passage of all consignments of medical and hospital stores” intended for civilians of another High Contracting Party and “the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases.”

AP I Article 70 established broader obligations for States Parties to that Protocol. It states that “if the civilian population of any territory under the control of a Party to the conflict . . . is not adequately provided with [humanitarian] supplies…relief actions which are humanitarian and impartial in character and conducted without any adverse distinction shall be undertaken.” Moreover, the parties to the conflict and each High Contracting Party “shall allow and facilitate rapid and unimpeded passage” of humanitarian assistance, “even if such assistance is destined for the civilian population of the adverse Party.” (AP I Article 70(2)).

States are not relieved of these obligations during a pandemic. States are, however, entitled to prescribe certain measures to regulate humanitarian activities. AP I Article 70(3), for example, allows Parties to the conflict and each High Contracting Party to articulate “technical arrangements, including search, under which passage is permitted.” During a virulent pandemic, these “technical arrangements” might validly include measures to contain the spread of disease such as temporary quarantine.

In short, despite the fact that the provision of humanitarian activities is “subject to the consent of the Parties to the conflict concerned” (GC I Article 9; GC II Article 9; GC III Article 9; GC IV Article 10), belligerents arguably have little room to deny consent to humanitarian organizations if they cannot or elect not to meet humanitarian needs themselves. According to one ICRC backgrounder, “if a belligerent is not in a position to fulfil its primary obligation to meet the basic needs of the population under its control, it must consent to the humanitarian activities of impartial humanitarian organizations, including in the field of health.” The ICRC has also argued in its Customary IHL study that the civilian population has a right to receive humanitarian relief essential for its survival (commentary to Rule 55).  Legal commentators have noted that a State Party’s willful denial of humanitarian access can in certain contexts amount to a war crime. Additionally, States that have occupied the territory of other States have primary responsibility in the occupied territory to provide “supplies essential to the survival of the civilian population….” (AP I Article 69).

Principles Governing Humanitarian Access in Non-International Armed Conflicts in a Pandemic

Common Article 3, which applies to “conflicts not of an international character” or non-international armed conflicts (NIACs), allows impartial humanitarian bodies to offer their services to the Parties to the conflict. Additional Protocol II complements this framework, for states that are party to it. AP II Article 18(2) states that “[i]f the civilian population is suffering undue hardship owing to a lack of the supplies essential to its survival…relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.”

AP II Article 18(2) speaks only of the consent of the High Contracting Party—that is, the State Party to the conflict. As the Oxford Guidance’s Principle 24 intimates, however, there is disagreement as to whether State Party consent is always required. If a humanitarian relief convoy is traveling to civilians in an area controlled by a non-State actor group and need not traverse territory under the State Party’s control, then does the convoy need State Party consent? The Oxford Guidance’s Principle 31 correctly notes that “as a matter of operational practice, the agreement or acquiescence of all Parties to an armed conflict to humanitarian relief operations intended for civilians in territory under their effective control or transiting through such territory will be required” for the safe conduct of operations. However, the Oxford Guidance’s Principle 44 emphasizes that, as with IACs, “consent to humanitarian relief operations may not be arbitrarily withheld.”

Humanitarian Access in the COVID-19 Context

These general principles of humanitarian access in IACs and NIACs apply with particular urgency to conflicts in the present moment, when the pandemic has amplified the needs of conflict-affected communities around the world. Assistance by aid organizations is essential in these contexts where armed conflict continues to rage and states are ill-equipped to ensure that civilians and captured enemy fighters have access to COVID-responsive medical supplies and treatment.

As noted above, humanitarian personnel should be respected and protected (Rule 31 of the ICRC study on CIL), as should objects for humanitarian relief operations (Rule 32). Warring parties have a duty to respect and protect those humanitarian personnel who are delivering COVID-related aid. If those personnel are transporting COVID-related equipment, such as facemasks or vaccines, warring parties have a similar duty to respect and protect that equipment.

Civilians should be provided access to essential COVID prevention materials. In cases of occupation, occupying powers have a duty to adopt and apply “prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics” such as COVID (GC IV Article 56). Warring parties must treat those who have contracted COVID in light of their obligation to care for the sick and wounded (GC I, Article 12). Warring parties arguably must also provide access to COVID prevention materials for those civilians who are already sick or wounded to protect them against further harm.

International humanitarian law clearly establishes that aid organizations such as the ICRC have the right to offer aid in both IAC and NIAC contexts; moreover, in the current crisis, such aid organizations may be better positioned and equipped than Parties to the conflict to provide COVID-related aid to civilians and prisoners of war. As noted above, while humanitarian activities are subject to the consent of the Parties to the conflict, belligerents arguably have little room to deny consent to aid organizations if they cannot themselves provide the necessary assistance. That likely means that aid organizations offering personal protective equipment (such as masks) and other essential supplies (such as ventilators), medical treatment for COVID patients, and, when it is available, a vaccine, must be provided access unless the Party to the conflict can and does provide for those needs. Warring parties can prescribe technical arrangements for the distribution of COVID supplies and are permitted to supervise the delivery of humanitarian aid (GC IV Article 23).  They cannot, however, discriminate against civilians of a rival party to the conflict. As the ICRC Commentary of 1958 indicates, the principle of free passage of consignments of medical and hospital stores “applies to all such consignments, when they are intended for the civilian population of another contracting party, whether that party is an enemy, allied, associated or neutral State.”

Warring parties around the world have violated their obligation to permit humanitarian access as required by IHL. For example, the Syrian regime’s regular targeting of humanitarian relief facilities and vehicles and refusal to grant access and passage to aid workers and aid efforts violate the obligation to protect humanitarian access. This has undoubtedly exacerbated the spread of COVID in the country and, indeed, the region. The same, as noted earlier, is true in Yemen, where the crisis continues to worsen. Elsewhere warring parties have taken steps to respect the principle of humanitarian access. In Afghanistan, for example, Taliban insurgents have offered “secure passage to humanitarian organizations and health workers seeking to provide aid” and provided supplies to those living under Taliban control.

The ICRC has concluded that “arguments based on the necessity to counter the spread of COVID-19 are not valid grounds under IHL to deny consent to humanitarian activities undertaken by impartial humanitarian organizations.” While States might, for example, require all incoming aid personnel to quarantine for two weeks under the “technical arrangements” provision of AP I Article 70(3), State Parties cannot entirely refuse access to aid organizations. Indeed, the ICRC study would suggest that States even have an affirmative obligation to “ensure the freedom of movement” of aid personnel providing COVID prevention and treatment.

Finally, it is worth underscoring the novel coronavirus’ virulence. The pandemic does not observe battle-lines and does not distinguish between combatants and civilians. Given the virus’s potency, States have a responsibility to deliver or allow aid organizations to deliver protective gear and treatment. Failing to allow humanitarian access necessarily increases the exposure of civilians to a virus that has already taken the lives of too many.

Image: International Red Cross and Red Crescent workers keep watch at an airport in the southern city of Aden, the interim seat of the Yemeni government, on October 16, 2020, as the war-torn country began swapping 1,000 prisoners in a complex operation overseen by the International Committee of the Red Cross. – (Photo by SALEH AL-OBEIDI/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).