COVID-19 and International Law Series: International Humanitarian Law – Treatment of Detainees

[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.]

In settings of armed conflict, those subject to wartime detention may face circumstances that leave them vulnerable to COVID-19. These include inadequate medical services, overcrowding, lack of adequate ventilation, and pre-existing health conditions lowering their resistance to the disease.

In the first few months of the pandemic, there were already several documented cases of parties to ongoing conflicts failing to adequately address these concerns. In Libya, for example, the internationally-backed Government of National Accord (GNA) and non-state armed groups (NSAGs) participating in armed conflict have detained fighters and their relatives, in addition to arbitrarily detaining journalists, politicians, refugees, and migrants. Human Rights Watch and other advocacy groups warn that detainees in overcrowded detention centers are susceptible to COVID-19, particularly in light of the overall context of a degraded health care system in Libya resulting from years of conflict. Some parties to the conflict, such as the GNA, have begun taking minimal steps to release detainees since the emergence of COVID-19 in order to reduce overcrowding in facilities.

South Sudan, where armed conflict has persisted since 2014, also illustrates the challenges: the government’s National Security Service (NSS) operates outside of official state structures and has arbitrarily detained  alleged political opponents and other civilians in facilities where these individuals have been subject to abuse and substandard conditions. Human Rights Watch notes these locations lack adequate medical care and remain overcrowded and unsanitary. Those unlawfully detained by the NSS may face even more dire conditions with the emergence of COVID-19 in the country. Government efforts to reduce overcrowding in regular prisons reportedly have yet to include the NSS’s detention facilities.

A final example can be found closer to home: At the United States’ military base at Guantanamo Bay, many of the remaining 40 detainees are of advanced age and in poor health, leaving them particularly at risk if they were to contract COVID-19. Despite this risk, it is not clear that existing rules and regulations at the base are sufficient to meet the detainees’ existing medical needs, let alone counter an outbreak of COVID-19. At least two U.S. servicemembers serving at the base have tested positive for the virus, and as Scott Roehm warns, an outbreak among the detainees could be “catastrophic.” Based on its legal obligations and own affirmation that military detention operations are compliant with international humanitarian law (IHL) (apart from its rejection of international human rights law’s applicability), the United States may owe certain additional obligations to the Guantanamo detainees in the COVID-19 context.

The previous two articles in this series examined the ways in which IHL obligations regarding conduct of hostilities and humanitarian access apply during the current pandemic. This article now turns to IHL obligations to detainees. It examines, first, the 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 Detention in International Armed Conflicts

The relevant treaty provisions that govern the treatment of detainees in an IAC are mostly contained in Geneva Conventions (GC) III and IV. Prisoners of war (that is, captured combatants fighting on behalf of a High Contracting Party) are entitled to both general and specific guarantees of health and hygiene. GC III Articles 12 and 13 articulate the fundamental obligations owed to prisoners of war. GC III Article 12 states that the “Detaining Power is responsible for the treatment” given to prisoners of war; GC III article 13 specifies that “[p]risoners of war must at all times be humanely treated.” GC III Article 22 articulates fairly broad protections for prisoners of war, stating, among other provisions, that “prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and healthfulness.” (See also ICRC Study Rule 121). GC IV Article 76, which provides protection to interned civilians, is also fairly broad in scope, assuring protected persons “the medical attention required by their state of health” and the “right to receive any spiritual assistance which they may require,” among other provisions.

The detaining power also has a duty to implement certain sanitary measures in its POW camps. GC III Article 29, for example, states that the detaining power “shall be bound to take all sanitary measures necessary to ensure the cleanliness and healthfulness of camps and to prevent epidemics. Prisoners of war shall have for their use, day and night, conveniences which conform to the rules of hygiene.” GC III Article 31 mandates a specific procedure, requiring that “medical inspections of prisoners of war…be held at least once a month.” The purpose of such inspections is to “supervise the general state of health, nutrition and cleanliness of prisoners and to detect contagious diseases.”

Sanitary procedures are not enough, however, and the detaining power has a duty to ensure that the camps meet minimum standards. GC III Article 25 states that “prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area.” Food rations must be sufficient to keep prisoners of war in “good health” (GC III Article 26; GC IV Article 89) and the Detaining Power must provide adequate clothing in sufficient quantities to prisoners of war (GC III Article 27; GC IV Article 90; see also ICRC Study Rule 118). GC III Article 28 and GC IV Article 87 mandate the installation of camp canteens, where prisoners of war may procure “ordinary articles in daily use.”

The detaining power must further ensure that the camp has a suitable physical infrastructure to attend to medical needs, including disease outbreaks. GC III Article 30 stipulates that “every camp shall have an adequate infirmary where prisoners of war may have the attention they require, as well as appropriate diet.” GC IV Article 91 similarly requires that “every place of interment shall have an adequate infirmary, under the direction of a qualified doctor” and that “isolation wards shall be set aside for cases of contagious or mental diseases.” Camp buildings and quarters also must meet certain hygienic standards. GC IV Article 85 states that “the Detaining Power is bound to take all necessary and possible measures to ensure that protected persons shall, from the outset of their internment, be accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health.” The detaining power is obligated, moreover, to conduct medical inspections of internees at least once a month (GC IV Article 92). In performance of its duties, the detaining power may require prisoners of war who are “physicians, surgeons, dentists, nurses or medical orderlies…to exercise their medical functions” (GC III Article 32).

Principles Governing Detention in Non-International Armed Conflicts

IHL provides detainees in a NIAC context with both general and specific guarantees of hygiene and health. The Geneva Conventions’ Common Article 3 (CA III) – so called because the text of the article is “common” or shared between all four Geneva Conventions – provides a broad and non-derogable guarantee of proper detainee treatment, stating that “[p]ersons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” Paragraph 2 of CA III states that the “wounded and sick shall be collected and cared for.”

Similarly, Additional Protocol II’s (AP II) Article 7, which applies to States parties to that protocol engaged in NIACs, articulates a broad guarantee of proper treatment: the wounded “shall be respected and protected” and shall in all circumstances “be treated humanely” and “receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition.”

AP II also contains more specific guarantees of proper detainee treatment. AP II Article 5(1)(b) extends to “persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained” the same health and hygiene protections afforded to the “local civilian population.” (See also ICRC Study Rules 118, 121). AP II effectively ties detainee treatment to the standard enjoyed by the local civilian population, but that treatment may not fall below the basic, fundamental guarantees of humane treatment under IHL. Moreover, the detaining authorities shall, “within the limits of their capabilities,” provide detainees with “the benefit of medical examinations” and ensure that detainee “physical or mental health and integrity shall not be endangered by any unjustified act or omission.” (AP II Articles 5(2)(d) and 5(2)(e)).

Detainee Treatment in the COVID-19 Context

How do these IHL guarantees of proper treatment apply in the context of COVID-19? The specificity of the answer depends significantly on whether the conflict is an IAC or a NIAC, but the principles are the same.

The IAC context is tightly regulated: detainees are to enjoy sanitary procedures and a base level of goods and infrastructure in the camps. A detaining power must, under GC III Article 29, take measures to prevent epidemics. In the COVID-19 context, this would mean providing personal protective equipment such as face masks and building detention facilities that have enough space for adequate social distancing. Detaining powers are obligated to conduct regular medical inspections of prisoners of war. Civilian internees who manifest symptoms of COVID-19 should be quarantined in an isolation ward, in accordance with GC IV Article 91, and provided with adequate medical treatment; prisoners of war manifesting symptoms should also be quarantined, consistent with GC III Article 30. The detaining power can require prisoners of war with medical training to “exercise their medical functions” (GC III Article 32). And as the previous article in this series has demonstrated, the ICRC and other aid organizations can offer humanitarian relief (GC III Article 9); the detaining power is arguably obligated to consent to humanitarian relief if it cannot meet the health needs of detainees on its own.

The NIAC context is less tightly regulated, though detainees are still entitled to “medical examinations,” proper treatment, and to a basic standard of health and hygiene. If detainees are infected with COVID-19, they are entitled to the appropriate medical care to the greatest practicable extent (AP II Article 7). If feasible, the detaining party should provide the medical facilities at a detention camp with respirators, oxygen tanks, and other equipment commonly used to deal with COVID-19 cases. The detaining power must also, to the extent practicable, organize medical examinations and ensure the health of detainees. At the very least, detaining powers should ensure that detention facilities are large enough to allow for adequate social distancing and basic protective equipment is provided – i.e., masks. Lastly, detainees in the NIAC context must be afforded the same COVID-19 protections as the local civilian population. As in IACs, humanitarian bodies can offer their services to the parties to a NIAC (CA III), and the detaining party is arguably obligated to consent to humanitarian relief if it cannot meet the health needs of detainees on its own.

Image: A member of the Syrian Democratic Forces (SDF) stands guard in a prison where men suspected to be affiliated with the Islamic State (IS) group are jailed in northeast Syria in the city of Hasakeh on October 26, 2019. (Photo by FADEL SENNA/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).

Preston Lim

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

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)