Three birds with one stone: the potential of special agreements to vaccinate in non-international armed conflicts

About the author(s):

Alexander Grimmig is currently doing his master’s in international law at Utrecht University and is specialising in Conflict and Security. Before that, he was studying law in Kiel, Germany, and was working for the German Yearbook of International Law. His research interests include the ius ad bellum, especially self-defence against non-State actors and the ius in bello.

Since their development, the administration of vaccine doses is the main tool combating the further spread of the COVID-19 virus. Currently, roughly 4,5 billion people in the world have been fully vaccinated. Strikingly, most of these vaccines are administered in high- and upper-middle-income countries leaving out the most vulnerable populations in conflict regions. Missing critical medical infrastructure, equipment, and personnel are making people living in these regions particularly dependent on international co-operation and humanitarian aid programmes. Besides the factual infrastructural problems of getting doses, equipment, and personnel into these regions, an additional legal issue arises in cases where the population is under control of a non-State armed group: which actor is obliged under international law to provide the vaccines to protected persons? The two potential frameworks are International Humanitarian Law (IHL) or International Human Rights Law (IHRL). Both, however, present certain problems of applicability. While the application of IHL seems more obvious due to the context of a non-international armed conflict, the rules regulating public health and hygiene are not necessarily applicable to these types of conflict. While IHRL on the other hand provides more comprehensive obligations regarding health and safety of individuals, these obligations bind first and foremost the State; whether non-State armed groups are also bound by IHRL is still controversial (at 8-15).

In a recent post on this blog, Nathalie Weizmann introduced the framework (potentially) regulating the obligation to vaccinate persons living in the territory under the control of an armed group. The post was particularly interesting because it pointed out the different aspects of IHL and IHRL regulating public health and hygiene and underlying practical and legal challenges. Since vaccine equity is far from being achieved, the question which specific actor is under an obligation to ensure access to vaccination in contested regions is of utmost importance. This post will evaluate the legal arguments presented that might support a positive obligation of the armed group vis-à-vis the population under its territorial control. Although IHRL might generally confer more comprehensive rules concerning public health, the focus will be on the IHL framework. This is not only because of the already mentioned fundamental question of applicability of IHRL to armed groups that would exceed the scope of this contribution but also because, as it will be shown, recourse to IHRL is ultimately not necessary to achieve access to vaccines in conflict zones, if approached consistently.

The general framework of IHL relating to public health

Under the IHL that applies to international armed conflicts, an obligation to vaccinate persons under the control of one conflict party could first arise out of Art. 56 GC IV which obliges the occupying power to ensure and maintain inter alia the public health and hygiene including by adoption of preventive measures necessary to combat the spread of contagious diseases and epidemics. Evidently, however, because this obligation only exists within an international armed conflict it is not binding upon armed groups fighting in a non-international armed conflict. Therefore, recourse must be made to common Article 3 to the Geneva Conventions which, while not providing specific obligations concerning the handling of infectious diseases or even health measures more generally, still provides fundamental guarantees.

In her contribution, Weizmann presents these obligations, ranging from humane treatment of persons not taking part in hostilities over guarantees to the collection and care for the wounded and sick to cooperating with independent humanitarian bodies that provide humanitarian relief. Although common Article 3 is formulated very vaguely regarding any health-related obligations in that it “only” requires humane treatment to the enumerated groups, there are several arguments to include certain positive obligations like vaccinating the population in case of an epidemic disease. From a legal perspective, it must be noted that humane treatment is context specific (at para. 553) and therefore, a flexible notion that can be applied according to the specific needs in the given situation. State practice indicates that humane treatment includes providing suitable medical care (see here, at para. 592) which could in turn require providing vaccines to the population under control of the armed group. This should hold true in exceptional circumstances such as the COVID-19 pandemic where the virus is not only highly contagious but also life-threatening, especially for vulnerable persons. As the vulnerability of civilians and of the wounded and sick is amplified in conflict regions, this specific context presumably requires an obligation to vaccinate these groups, or at least to take feasible measures, according to their capacity, to ensure access to the vaccination within the regions controlled by the armed group. More generally speaking, this approach would also be in line with the object and purpose of common Article 3 which is to provide persons not or no longer fighting with minimum protections. It would consequently be furthering the object and purpose of the provision to extend the obligation of humane treatment to vaccinations in an epidemic situation.

The missing “nexus” and practical issues

However, there are also substantial counter-arguments to imposing such positive obligations to non-State armed groups. The first one relates to the nexus-requirement (see here, at para. 494). While IHL is generally applicable on the whole territory where the armed conflict takes place, specific conduct is only regulated by IHL when it is related to, or has a nexus to the armed conflict (see here, at 1001-1003, and here, at 175-176). It is difficult to imagine that any vaccination campaign will take place in an area that is located in or adjacent to combat zones. This would not only provide risks to the required equipment but also to medical personnel, and most importantly to the civilians and those hors de combat. Rather, such vaccinations would probably take place in regions where civilians have an “everyday life” (at 172) and where the nexus to the armed conflict is therefore not per se given. A convincing argument cannot be made that the vaccination itself is a conduct that has a nexus to the conflict as it primarily helps with preventing the further spread of the virus. The fact that this might implicitly help to maintain combat capabilities if fewer members of the armed group fall ill does not lead to the nexus criterion being met. Consequently, in the absence of a nexus to the armed conflict, the vaccination campaign would not be regulated by IHL, precluding positive obligations for the armed group under common Article 3.

Another reason not to apply IHL too hastily to vaccination campaigns are practical issues that complicate the armed group’s capacity to administer vaccinations. This of course includes the fact that the armed group does not produce any vaccine by itself. Furthermore, it is most likely that essential medical equipment needed for a vaccination campaign is lacking which makes the armed group dependent on external aid from the outset. Weizmann presents several other issues that factor in and that are only amplified by the conflict: weakened health systems, destroyed health facilities, supplies being looted, impassable or difficult terrain, and even bureaucratic impediments. Thus, the more fundamental question arises whether it is at all feasible in the first place to have a positive obligation that has no or only a minimal chance of being fulfilled by the armed group. Imposing obligations that are impossible to fulfil always bear the risk of reducing the willingness of armed groups to comply with IHL, which is why obliging armed groups should be addressed cautiously.

Special agreements as the way out?

In its last part, this blogpost will explore an alternative approach that, if implemented, would not put pressure on the armed group but could improve vaccination rates in conflict zones by relying on a sound legal basis and co-operation. To mind comes common Article 3(3) according to which the Parties to the conflict should “further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”. This provision contains two interesting points. First of all, it encourages conflict parties to conclude special agreements and, second, these special agreements may bring into force parts of the Conventions and other elements of humanitarian law (see here, at paras. 881, 889, and here, at 192-194) which are otherwise only applicable in international armed conflicts. By way of special agreement, the parties could consequently bring into force the already mentioned Art. 56 GC IV which establishes a more comprehensible obligation for the occupying power – in this case factually the armed group – regarding public health and hygiene. Alternatively, they could elaborate further on humane treatment so that it explicitly includes vaccinations. Following this, it would not be necessary rely exclusively on the vaguely formulated common Article 3. Most likely, the State party would want to avoid this approach to not give the insurgent armed group any more legitimacy, an argument that can, at least legally, be countered by incorporating a clause into the special agreement like that contained in common Article 3(4) according to which the legal status of the parties will not be affected by the “preceding provisions”.

Still, another compelling argument speaks in favour of this approach. As early as June 2020, the United Nations Security Council (UNSC) passed its Resolution 2532 in which it called for a 90-day global ceasefire to combat the spread of the disease. This call was renewed by UNSC Res. 2565 (2021) which also highlighted the necessity of humanitarian aid, including providing equal access to vaccination, in conflict regions (at operative para. 4). As has been pointed out, Resolution 2532 (2020) was a decision under Art. 24(1) Charter of the United Nations (as the wording to the relevant provisions is mostly the same, the same arguably holds true for the renewed call from 2021) and therefore binding upon member States. Some armed groups followed the call and announced or proposed ceasefires (see, e.g., here and here) inter alia to combat COVID-19 (for a list of ceasefires in times of COVID-19, see here). Unfortunately, overall the call was unsuccessful. Nevertheless, ceasefires can serve as special agreements (at 738-739) under common Article 3(3) if they are concluded by both conflict parties. Adopting temporary ceasefires with the aim of vaccinating the population under the control of the armed group would consequently adhere to the decision of the UNSC and have the advantage of ensuring the uniformity of international law. As the human rights obligation of public health could remain with the State party – ensuring health by way of co-operation with the armed group and independent humanitarian actors – this would avoid the difficult question of imposing IHRL obligations on the armed group. Additionally, this approach would allow IHL to be applied in light of the decision(s) by the UNSC and would promote IHL in general through bringing additional provisions of the Geneva Conventions, most likely Art. 56 GC IV, into force.

Conclusion

This post evaluated the legal framework relating to the obligation to vaccinate in territories under the control of an armed group. By focusing on IHL, it was shown that the approach of only applying the most fundamental guarantees of common Article 3 may have the advantage of potentially including any medical conduct toward the civilian population and the sick and wounded. However, substantial issues remain regarding the nexus to the armed conflict and the capacity of the armed group to fulfil any such obligation to vaccinate. It showed that common Article 3 provides another solution in that it gives the possibility to conclude special agreements that bring into force other provisions of the Conventions and humanitarian law. Three advantages arise out of this: first, adopting special agreements could not only help over the highly controversial issue of applying IHL vs. IHRL in territories occupied by armed groups but could, secondly, also lead to the uniform application of international law as a whole. Lastly, and if incorporated effectively, this approach could facilitate co-operation and ultimately further the objective of equitable access to vaccines, which are especially needed in conflict zones.

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