COVID-19 measures by armed groups: what legal framework applies?

About the author(s):

Tilman Rodenhaeuser

Dr Tilman Rodenhauser holds a PhD from the Graduate Institute of International and Development Studies in Geneva. He is currently Legal Adviser at the International Committee of the Red Cross (ICRC), and worked previously with the German Red Cross, DCAF, and Geneva Call. The views expressed on this blog are those of the author alone and do not engage the ICRC, or previous employers, in any form.

Mathilde Piret

Mathilde Piret holds a law degree from the Université Catholique de Louvain and an LLM from the University of Cambridge. Until recently, she was an associate at the Legal Division of the International Committee of the Red Cross. She has previous work experience at the European Court of Human Rights and the Extraordinary Chambers in the Courts of Cambodia.

Girl washing her hands in North East Syria

*The views expressed in this post are those of the authors and do not necessarily reflect those of the ICRC*

In 2020, armed groups in Colombia began imposing COVID-19 containment measures ranging from bans on traveling in boats and vehicles to shop closures, night-time curfews and lockdowns of entire communities. This is only one example of measures adopted by armed groups to try to halt the spread of the COVID-19 pandemic. In many cases, these measures mirrored those taken by States; in some cases, however, they were enforced by brutal force and caused great suffering (see here, p. 47).

COVID-19 measures by armed groups have brought to the fore a much wider phenomenon, namely governance activities undertaken by armed groups. For lawyers, this reality raises intriguing questions, some of which this blog aims to explore specifically with regard to COVID-19 measures (for a more in-depth analysis of the wider issue, see here). Thus, this post first analyzes the extent to which international humanitarian law (IHL) imposes limits on COVID-19 measures taken by armed groups; and, second, whether and to what extent international human rights law could play a role.

COVID-19 measures adopted by armed groups – diverse realities

The ICRC estimates that in 2021 around 50 million people lived under the exclusive control of armed groups, and 100 million in territories over which control is disputed. Behind these numbers, there are complex realities, three of which shall be briefly highlighted here.

First, for civilian populations, living under the de facto control of an armed group can exacerbate pre-existing needs and vulnerabilities, create new ones, or – in other instances – provide a degree of stability in conflict-ravaged environments. Regardless of whether civilians live under the control of a State or an armed group, several of their basic needs – such as security, work, education and livelihoods – were likely affected by the pandemic.

Second, there are significant differences between armed groups, ranging from gangs in favelas to groups with stable control over territory and the capacity to act like a State authority; from groups pursuing primarily political objectives, to religiously motivated groups, to those having a criminal agenda. This diversity of groups is also evident in measures they have taken during the pandemic. For this post, two examples are instructive and will be considered further.

  • In one case, the armed group was party to a non-international armed conflict without exercising stable control over the territory. When the pandemic hit the area in which it was operating, the armed group adopted strict COVID-19 measures and enforced them by using lethal force against those who did not comply with them.
  • In another case, the armed group had been exercising control over important parts of the territory for several years and had established a de facto administration that resembled that of a State. During the pandemic, this armed group established quarantine centers for individuals entering its territory and enforced mandatory quarantine.

Third, from a legal point of view, not every armed group can be classified as a party to a non-international armed conflict and therefore bound by IHL. Out of the approximately 600 armed groups of humanitarian concern identified by the ICRC, only 100 were classified as party to a non-international armed conflict. The following legal analysis is limited to the obligations of non-State armed groups (NSAGs) that can be classified as parties to armed conflicts.

International humanitarian law – a set of essential safeguards when armed conflict and pandemics intersect

For NSAGs that are classified as parties to armed conflicts, IHL provides a generally accepted set of legal obligations. By imposing limits on permissible behavior by NSAGs, it primarily aims to protect the lives and dignity of civilians and addresses their acute humanitarian needs.

Unlike the rules applicable in international armed conflicts, for instance in situations of occupation (see i.e. Article 56 GC IV), IHL rules applicable in non-international armed conflicts do not impose on parties to conflicts an obligation to ensure and maintain public health and hygiene in the territory under their control. In fact, IHL applicable in non-international armed conflicts does not have much to say on public health measures parties to conflicts may or may not take to curb the spread of a pandemic (such as limitation to the freedom of movement or the right to work).

At the same time, IHL does have something to say about how NSAGs enforce these COVID-19 measures. Notably, IHL provides a set of fundamental guarantees that protect civilians affected by non-international armed conflicts. For instance, under IHL, the murder or ill-treatment of civilians is prohibited at any time and in any place whatsoever. Thus, the injuring and killing of civilians by a NSAG for not complying with the group’s COVID-19 measures would constitute an IHL violation.

In non-international armed conflicts, IHL applies to conduct that has a ‘nexus’ to the conflict and protects persons who are ‘affected by the conflict’ (i.e. here, para. 494). While different views exist on this question (see, for instance, here), in our view it is difficult to imagine that people living under the control of a NSAG, and being subjected to violence by that NSAG, should not be considered as affected by the armed conflict. If a NSAG inflicts violence on the civilian population in the context of a NIAC, it will likely amount to a violation of IHL – regardless of whether the violence was exercised for reasons directly linked to combat operations or for governance reasons, which encompass not only religious, ideological or political motivations but also the objective of preventing the spread of a pandemic (for further discussion, see here, p. 53; here, pp. 1001-1004).

The conclusion that IHL applies to how a NSAG treats persons living under its control is further supported by the interpretation of the nexus requirement in international criminal law. In the case law of both the ICTY (i.e. here, para. 58) and more recently the ICC (i.e. here, para. 142), the link between an act and a conflict is established if‘the existence of an armed conflict [has played], at a minimum, […] a substantial/major part in the perpetrator’s ability to commit [the act], his decision to commit it, the manner in which it was committed or the purpose for which it was committed’. There are compelling reasons to argue that several of these factors are met in the situation where a group conducts violence against a civilian population in order to enforce governance measures. First, in most cases, the group would not have had the ability to impose such measures and enforce them without the existence of an armed conflict. Second, the manner in which these acts are conducted by the armed group is shaped by the group’s position as a party to the conflict and as the de facto authority operating in a region. Third, in many cases such measures are also an expression of power by the group, linked to the purpose for which the group operates.

To what extent can international human rights law complement IHL obligations?

Many COVID-19 measures, such as restrictions of the right to freedom of movement or to work have led to significant humanitarian needs. Such measures are not addressed by IHL but rather by human rights law.  But does human rights law bind armed groups as a matter of international law?

When we look at most human rights treaties, obligations are generally defined for States, not for armed groups, reflecting the general understanding that States have the onus to respect human rights and to protect them against interference by non-State actors. Over the past two decades, however, the question of whether armed groups may also have human rights obligations has been vividly discussed among academic experts (i.e. here, here, here, here and here), probably inspired by – and also inspiring – a certain practice by UN human rights mandate holders that have called on armed groups to respect human rights (for a recent statement in this respect, seehere). There have also been multiple instances of States in UN bodies calling upon armed groups to stop human rights abuses (see here and here).

In light of this practice, it appears that there is a certain expectation, or demand, by States and human rights experts for armed groups not to violate or abuse human rights. However, a legal analysis of this practice shows that it remains unclear what legal sources are relied on in order to ground possible human rights obligations in international law. In addition, some of the more comprehensive studies found that current State practice does not seem sufficient to find that human rights obligations exist for armed groups under customary international law (i.e. here, p. 27). As a result, it is difficult to conclude that these expectations are currently based on armed groups having human rights obligations as a matter of law.

This legal conclusion should, however, not necessarily be an obstacle to using human rights “standards” or “expectations” in humanitarian dialogue with armed groups. For instance, the ICRC has pursued an approach that when it operates in a context in which an NSAG ‘exercises stable control over territory and is able to act like a State authority’ and the organization cannot rely on IHL alone to address the protection needs of the civilian population, the ICRC takes a pragmatic approachand refers to the de facto ‘human rights responsibilities’ of such groups (here, p. 54).

Conclusion

Due to the diversity of armed groups and contexts in which they operate, adopting a case-by-case approach to determine the applicable law and necessary protection messages is essential. IHL provides a set of essential safeguards which impose clear restrictions on how NSAGs may treat civilian populations under their control, including with regard to COVID-19 measures.

When it comes to using human rights messages in humanitarian dialogue with armed groups, important questions must be considered to ensure that such dialogue advances the protection of people and does not undermine it. For instance, focusing on permissible restrictions of human rights when discussing with NSAGs lacking stable control over territory or relevant governance structures, in addition to being unsettled in law, might not be the best strategy in order to achieve a protective outcome. Indeed, when it comes to such groups (i.e. those comparable to the group mentioned in the first example given above), the basic message of ‘do not kill’ or ‘do not ill-treat’ is the most essential one and , in situations of armed conflict, is based – as a matter of law – on IHL only. Conversely, in other circumstances, such as when interacting with the few NSAGs having established State-like governance structures (i.e. those comparable to the group mentioned in the second example given above), going beyond IHL and referring to human rights can be sensible in order to strengthen the protection of affected persons.

This blog post is part of a series on ‘The Role of Non-State Armed Groups in Addressing the COVID-19 Pandemic’. It builds on the authors’ presentations at the 2021 Sanremo Roundtable on ‘ Pandemics, armed conflict, and international humanitarian law’. Recordings of the panel presentations can be found here


(Visited 274 times, 1 visits today)

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: