By Ximena Galvez, Legal and Policy Officer – Eurasia Region
Health systems in conflict-affected countries are currently facing the twin impacts of armed conflict or violence and the COVID-19 pandemic. Despite their essential functions during this crisis, healthcare facilities continue to be attacked. In addition to state preventive measures to address the ongoing pandemic, several armed non-State actors (ANSAs) have adopted a variety of responses related to COVID-19 in non-governmental controlled areas, contested territories and hard-to-reach areas. In particular, ANSAs have established COVID-19 screening posts [i] and quarantine shelters in remote areas —often under their control— that do not have formal healthcare or COVID-19 screening facilities. Geneva Call has noted recent attacks against COVID-19 screening posts in Colombia, Myanmar and the Philippines; these attacks negatively impact the protection of healthcare, the containment of the disease and the overall crisis response. They have also led many to question whether improvised COVID-19 screening posts can be considered as ‘medical units’ that benefit from special protection in times of armed conflict, in accordance with International Humanitarian Law (IHL). This article aims to address this query and analyze the extent to which the presence of members of parties to armed conflicts manning these improvised units, with health and/or military-related functions, affects the special protection these COVID-19 screening posts benefit from under IHL. The overall purpose of the article is to inform practice of parties to armed conflicts and ensure effective responses to COVID-19.
For the purposes of this article the term ‘medical units’ as opposed to ‘healthcare facilities’ is used because IHL defines the term ‘medical unit’ and provides for their special protection.
ANSA COVID-19 screening posts
Among the concrete measures that ANSAs have taken to control the spread of COVID-19 are the establishment of improvised quarantine shelters and COVID-19 screening posts. ANSA-constructed COVID-19 screening posts check the temperature of individuals, distribute personal protective equipment, conduct identity checks for the purpose of screening record keeping, record the names and locations of people returning from abroad or other parts of the country and give instructions on quarantine regulations. In addition, some screening posts refer people with Covid-19 symptoms to State or ANSA-run hospitals. The majority of these COVID-19 screening posts appear to be staffed by healthcare workers supported by either members of state security forces or ANSA members. Unfortunately, violence against healthcare in conflict-affected countries has increased and in some cases affected improvised COVID-19 screening posts in conflict-affected countries.
The Legal Basis under IHL
Defining medical units
The definition of medical units is contained in the 1977 Additional Protocol I of the 1949 Geneva Convention (API) and its 1987 commentary, which is focused on international armed conflicts. In the absence of a definition of medical units in the 1977 Additional Protocol II focused on non-international armed conflicts (NIACs), in accordance with customary IHL, the definition in API is equally applicable to NIACs.
IHL defines medical units as establishments or other units that are permanent or temporary, such as hospitals, blood transfusion centers, medical depots and medical and pharmaceutical stores, and are exclusively assigned to medical purposes [ii], namely the search for, collection, transportation, diagnosis or treatment – including first-aid – of the wounded and sick. The use/function of the medical unit at the relevant moment determines whether a facility qualifies as a medical unit, irrespective of the reasons for which it was built. For example, family planning mobile posts, which do not offer medical treatment, would continue to fall under this term as long as their function is still health-related. Moreover, medical units regardless of whether they are civilian, military or established by ANSAs fall under this term. Similarly, it is important to highlight that establishments which do not directly care for victims, namely the wounded and sick, but endeavor to reduce the number of victims by preventing diseases are also considered to be medical units. Under IHL, COVID-19 screening posts fit under the definition of medical units provided their function is entirely medical and as such their protection is regulated.
The obligation to respect and protect medical units
According to IHL, medical units exclusively assigned to medical purposes need to be respected and protected in all circumstances and must not be the object of any attack. The obligation to respect means that medical units must not be attacked or harmed in any way. It also means that their work must not be interfered with, for example by preventing, denying or limiting access to healthcare or disease preventing supplies and services. The obligation to protect means that measures must be taken to facilitate the work of medical units, where necessary, and to provide help, if needed, for example by facilitating the passage of disease-preventing supplies. Medical units may not be used to shield military objectives from attack and should be situated at a sufficient distance from military objectives that can be lawfully attacked. It also requires parties to armed conflict to ensure that they are respected by others, including taking possible measures to ensure they are not mistreated or endangered.
The presence of armed personnel in medical units
It is important to acknowledge that in accordance with IHL, personnel working in medical units may be equipped with light individual weapons for their own defense or for the defense of the wounded, sick and civilians that are in their charge for medical purposes, such as medical screening. ‘Light individual weapons’ refers to those which are generally carried and used by a single individual, including but not limited to hand weapons such as pistols. However, machine guns and other heavy arms which cannot easily be transported by an individual and which have to be operated by a number of people are prohibited. In this sense, the presence of lightly armed personnel in medical units to defend the wounded, sick and civilians in their charge does not lead to the loss of protection of these units. Irrespective of the permissibility of personnel armed with light individual weapons, the presence of anyone who is armed in medical units inevitably increases the risk of them becoming the target of attacks and jeopardizes civilians lives, dignity and security within the medical unit and in nearby premises.
The presence of fighters assigned as temporary or permanent medical personnel in medical units
Personnel in medical units may be fighters that have temporarily been assigned to fulfill medical duties exclusively and for a limited time period, or permanent medical personnel. All medical personnel benefit from protection and they shall display the protective emblem (red cross, crescent or crystal). However, if the emblem is not worn, this does not mean that medical personnel are not protected as the emblem enables their identification, but it is not constitutive for protection. Abuse of the protective emblem for military purposes is prohibited. Personnel providing assistance or manning medical units lose their protection if they commit acts harmful to the enemy [iii] outside their humanitarian functions, such as direct participation in hostilities by using force against enemy fighting forces outside self defence. This may render them liable to attack. This may also endanger the medical units in near premises. This inevitably has a negative impact on the provision and access to healthcare as it may affect people’s willingness to remain in or attend these medical units and compromises measures designed to stop viruses from spreading.
Potential loss of protection from attack
Exceptionally medical units lose their protection if they are being used outside their humanitarian function for acts harmful to the enemy. This includes not only engaging in combat activities but also sheltering able-bodied fighters that are not serving temporary or permanent medical functions. If medical units are used for acts harmful to the enemy outside of their humanitarian function, protection may be lost only after a warning providing sufficient time to evacuate has been given and has been ignored. In these circumstances, medical units lose protection only if and for such time as they constitute military objectives. Medical units have a ‘functional’ protection rather than a ‘status’ protection and they do not need to provide health treatment in order to benefit from such special protection. For example, a hospital which is used as a military barracks is not a medical unit, however a barracks equipped and used as an improvised hospital becomes one and benefits from special protection. COVID-19 screening posts, as long as they are being used exclusively for medical purposes – such as medical checks and temperature screenings – remain protected. Medical units may engage in conduct that appears to be an act harmful to the enemy, for example when a medical transport breaks down and hinders movement of military operations. In such cases, as long as the medical units serve their humanitarian purpose, they remain protected. In light of the humanitarian purpose of medical units, loss of protection should be interpreted narrowly. Accordingly, conduct should not be considered an act harmful to the enemy if there is doubt whether this is the case. COVID-19 screening posts may check and record identities, which may appear to be an act harmful to the enemy, but as long as this is done for medical purposes, it should not be considered as an act harmful to the enemy. It should be noted that the presence of small arms and ammunition in a medical unit taken from the wounded and sick, and not yet handed to the proper service, does not lead to the loss of protection of the unit. Similarly, protection is not lost if members of fighting parties are in the unit for medical reasons.
An additional layer of complexity can be identified with the protection of COVID-19 screening posts when they offer disease prevention support and also serve as military checkpoints [iv]. This poses challenges in differentiating the function of these COVID-19 screening posts as they may look similar to military checkpoints or may seem as dual use objects that provide healthcare and also serve military purposes. In this aspect, the destruction of dual-use objects —referring to an object that is being used for both civilian and military purposes—may be legitimate only and if at a specific moment in time they qualify as a military objective. Even if at that moment in time COVID-19 screening posts are being used for military purposes, it is possible that any attack against or destruction of these posts will not bring a definite military advantage [v]. If there is any doubt about the function of COVID-19 screening posts, parties to armed conflicts must presume they are still civilian objects that benefit from protection. Additionally, if dual-use objects become ‘military objectives’, any attack against them must guarantee that the ‘collateral damage’ is not excessive in relation to the direct military advantage anticipated from the attack [vi] and that precautionary measures are adopted to minimize harm to the civilian population. Against this backdrop, even if a COVID-19 screening post arguably amounts to a military objective, their essential role in providing the civilian population access to healthcare and preventive disease spreading equipment must be considered in the proportionality assessment before launching an attack, including the short- and mid-term consequences of such an attack. Before launching any attack, parties must verify that COVID-19 screening posts are indeed military objectives and take all other feasible precautionary measures to minimize harm, including warnings. In case of doubt about the precise function of a COVID-19 screening post, civilian status shall be presumed. Attacks must be suspended if it becomes apparent that COVID-19 screening posts are used for medical purposes.
Geneva Call has a unique mandate to engage ANSAs to prevent harmful behavior perpetrated by them against civilians. It carries out its preventive work by engaging in dialogue with ANSAs on humanitarian norms, with the belief that all such entities need to be reminded of their obligations in armed conflict. Geneva Call remains concerned over the situation of civilians in armed conflicts across the globe and recent patterns of attacks on medical units, especially during the context of the current COVID-19 pandemic. Attacks against COVID-19 screenings posts have a detrimental impact on the civilian population and those that have fallen sick, which may last throughout the pandemic and beyond. Geneva Call recommends parties to armed conflicts to:
- Assign and use COVID-19 screening posts exclusively for health purposes.
- Assess the specific functions of COVID-19 screening posts before engaging in any attacks that may impact their continuous functioning.
- Suspend attacks if it becomes apparent that COVID-19 screening posts are used for medical purposes.
- Consider agreeing on safety zones in locations where COVID-19 screening posts have been set up, that are far removed from military operations, or neutralized zones, where military operations are taking place.
- Endeavor to instate a ‘no weapons’ policy within COVID-19 screening posts that may enhance the safety of those seeking screening and medical treatment as well as healthcare personnel, even if not mandated by IHL.
Geneva Call is ready to support and work with ANSAs towards the enforcement and dissemination of these recommendations and encourages the adoption of Geneva Call’s Deed of Commitment on the protection of health care in times of armed conflict. Through this standardized unilateral declaration ANSAs agree to refrain from attacking, interfering with, or obstructing healthcare amongst other positive and negative obligations. We welcome any other special humanitarian agreements or unilateral declarations entailing further and broader obligations on the matter.
[i] COVID-19 screening posts: units created to prevent the spread of COVID-19 that conduct temperature checks, identify COVID-19 symptoms, offer COVID-19 medical tests, provide personal protective equipment including for disinfection, check identities for the purpose of record keeping of screened individuals, keep record of screened individuals (whether negative or positive) and people they have been in contact if tested positive, refer patients to quarantine shelters or notify healthcare providers for further clinical management, post disease-prevention alerts such as signs and posters at the unit entrances and in strategic places around the unit, among other health-related tasks.
[ii] Exclusivity: COVID-19 screening posts must be theoretically assigned to health purposes and practically exclude fulfilling any other tasks that are not health-related.
[iii] Act harmful to the enemy: use of medical units outside their humanitarian functions to interfere directly or indirectly with military operations of the enemy, such as any use for military purposes.
[iv] Military checkpoints: Roadblock manned by military or law enforcement personnel disrupting unauthorized or unwanted movement of vehicles and pedestrians. It aims to monitor and control the movement of people and materials in order to prevent violence or attack, or investigate and identify offenders.
[vi] ‘Collateral damage’: a term used to describe the adverse impact on civilian bystanders and civilian infrastructure caused by an attack against a military objective.