As war continues to ravage countries plagued by conflict, a new plague has hit all four corners of the world: COVID-19. While human activity has basically stopped around the world due, places such as Yemen, Syria, Congo and South Sudan, have not seen much of a slowdown in military activity.

To the contrary, some rebel groups have even taken advantage of their oppositions’ ceasefires by intensifying their attacks. The United Nations (UN) and the International Committee of the Red Cross (IRCC) have reiterated that International Humanitarian Law (IHL) must be upheld during the global pandemic. 

Although IHL is generally clear on what constitutes a violation of IHL, COVID-19 is a new phenomenon that does not necessarily fit in its existing paradigms. COVID-19 will increase strain on already overwrought essential services during armed conflict and as such, to decrease the human suffering COVID-19 can inflict, cooperation between opposition parties and assistance from international organisations is required.  

With increasing concerns that parties to conflicts are neglecting to take the pandemic seriously and international aid becoming more scare as donor states attempt to save their own economies before helping, it begs the question of who will be held responsible for the resulting violations of IHL?

RESPONSIBILITIES DURING AND AFTER ARMED CONFLICT 

In order to understand who can be held responsible for violations of IHL, it is important to first understand the responsibilities of parties during conflict. 

Parties are required to uphold IHL by ‘maintain[ing] access to’ and ‘respect of’ a number of provisions during armed conflict. The following have been identified as the most important during COVID-19:

• Access to and adequately staffed medical personnel, facilities and transport;[1]

• Access to clean water;[2]

• Access to humanitarian relief;[3]

• Protection of persons specifically at risk;[4]

• Protection of detainees;[5]

• Protection of internally displaced persons, migrants, asylum seekers and refugees;[6]

• Protection of children and access to education;[7] and

• Ensure sanctions regimes and other restrictive measures do not hinder aid.[8]

 As all parties to armed conflict are obliged to respect the IHL provisions outlined above, responsibility of violations of IHL can thus be attributed to the states[9] themselves, and a number of other actors such as: commanders,[10] individual combatants and even humanitarian organisations.

Findings an actor responsible for a violation of IHL requires a different test and burden of proof depending on the actor. The burden is wider for states and stricter for individuals. Recurring criteria in the finding of responsibility are: level of control, intent and knowledge or ‘ought to have known’[11] of the fact that the act was a violation of IHL.

Prosecution challenges due to COVID-19

COVID-19 challenges the reliance on the ‘intent’ and ‘knowledge of’ criteria as the pandemic exacerbates the erosion of essential services in armed conflict zones and can make it difficult to prove whether armed groups purposely intended deprived civilians under their control under of the key IHL provisions, or whether they were simply unable to meet the needs as many non-war torn countries also could not.

‘Knowledge of’ the IHL violation can also lead to many prosecution issues as alleged violators can rely on the fact that many state leaders have sent mixed messages about the virus’ harmfulness, downplayed their country’s death toll and argued that human activity should resume as usual, leading them to not understand the full extent of the virus and unknowingly increase preventable human suffering once COVID-19 sets in their backyard.  

As COVID-19 challenges each and every country’s health care systems and economy, it important to remember that it may also challenge our national and international justice systems.

[1]ICRC April 2020, citing : Common Art 3 GC I-IV; Arts 19, 23-26 and 35 GC I; Art 36 GC II; Arts 14(1), 15, 18, 20-21 and 56 GC IV; Arts 12, 15-16 and 21 AP I; Arts 10 and 11 AP II; Rules 25, 26, 28, 29 and 35 ICRC Customary IHL (CIHL) Study.

[2] ICRC April 2020, citing : Arts 54(2) and 57(1) AP I; Arts 13(1) and 14 AP II; Rules 15 and 54 ICRC CIHL Study.

[3] ICRC April 2020, citing : Common Arts 3 and 9/9/9/10 GC I-IV; Arts 70 and 71 AP I; Art 18(2) AP II; Rules 55-56 ICRC CIHL Study.

[4] ICRC April 2020, citing : Common Art 3 GC I-IV; Arts 12 and 15 GC I; Art 16 GC IV; Art 10 AP I; Art 7 AP II; Rules 109, 110 and 138 ICRC CIHL Study.

[5] ICRC April 2020, citing : Arts 22(1), 23(1), 29-31 GC III; Arts 83(1), 85(1), 91-92 GC IV; Arts 5(1)(b) and 5(2)(c) AP II; Rules 118 and 121 ICRC CIHL Study.

[6] ICRC April 2020, citing :  Arts 35, 44, 45(4), 49, 70(2), 147 GC IV; Art 73 AP I; Art 17 AP II; Rules 105, 129 and 131 ICRC CIHL Study.

[7] ICRC April 2020, citing : Arts 13, 24, 50(1), 94, 108 and 142 GC IV; Art 4(3)(a) AP II; Rule 135 ICRC CIHL Study

[8] ICRC April 2020, citing : Common Arts 3 and 9/9/9/10 GC I-IV; Arts 70 and 71 AP I; Art 18(2) AP II; Rules 31, 32, 55-56 and 109-110 ICRC CIHL Study. 

[9] Médecins sans frontières, “The Practical Guide to Humanitarian Law, Responsibility”, available online: https://guide-humanitarian-law.org/content/article/3/responsibility/ (“MSF”), citing : General obligation: GCI–IV Art. 1; API Arts. 1, 80.2; GCI Art. 47; GCII Art. 48; GCIII Art. 127; GCIV Art. 144; API Arts. 83.1, 87.2; and APII Art. 19; and GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; and API Arts. 80.1, 86, and 87.

[10] MSF, citing: GCI Art. 49, GCII Art. 50, GCIII Art. 129, GCIV Art. 146, and API Art. 86.2.

[11] MSF.

Katherine is currently completing her articling in the private sector in Ottawa, Canada. Katherine has worked in Egypt, Costa Rica and Argentina and has completed an internship in Canada's Northwest Territories working in Indigenous law and rights issues as well as an internship with Global Diligence, an international criminal law firm in London, England.  She is also involved in many women's rights groups.

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