About the author(s):
Anandi Sweere is an LLM candidate in Public International Law at Utrecht University specializing in international security law and international humanitarian law. She participated in the 2022 edition of the Frits Kalshoven International Humanitarian Law Competition and won both the role-plays and moot court award. Previously, Anandi obtained her BA from University College Utrecht where she specialized in law, international relations and anthropology.
The reach of the COVID-19 pandemic over the past two years has been indiscriminate. The pandemic has swept throughout the world, from peaceful countries to countries embroiled in armed conflict and areas under the control of armed groups. Like States, some armed groups have responded to the onset of the COVID-19 pandemic by imposing lockdowns, curfews and quarantines (see here). This reveals that armed conflict is not always the only emergency faced by civilians living in areas under the control of armed groups.
The COVID-19 measures implemented by armed groups has brought to the fore the question whether international humanitarian law (IHL) would apply to such emergency governance activities. Dr Tilman Rodenhauser and Mathilde Piret have in a recent blogpost responded to this question. They argue that any act conducted by armed groups that affect the civilian population including emergency measures in response to the pandemic have a nexus to the armed conflict. Therefore IHL would apply to these acts. In this blog post I will analyse this position. First, I will assess the relationship between armed groups and emergency governance. Secondly, I will ascertain to what extent emergency governance affects the nexus requirement with reference to another kind of emergency: the climate crisis.
Emergency governance and armed groups
There are currently many armed groups that have certain degrees of control over areas and the people living there. The ICRC has estimated that around 60 to 80 million live under the exclusive control of armed groups (p. 2). These areas under the control of armed groups are often not conflict-ravaged wastelands as popular imagery tends to portray. Instead, many aspects of everyday life simply continue for the people living in these areas. This continuation of everyday life also comes with the armed groups taking up many of the governance activities previously administered by the State government of the territory (for an extensive analysis on this, see here pp. 163-169).
What made the COVID-19 measures taken by armed groups in areas under their control unique is that it was not part of continuing ordinary governance activities like the provision of basic security or providing certain public services (see here). It was a situation in which the armed groups took, what has been called, emergency governance measures. Krähenmann, Lima & Mikhail in their blogpost identified this emergency governance as the special situation of armed groups having to establish and respond to states of emergencies.
Emergency governance is different from ordinary governance as it goes beyond what is normally possible or allowed. State governments, by declaring states of emergencies, can often domestically gain emergency powers that would allow it to take exceptional measures (see for example here). What situations of emergency would mean for an armed group in control of an area and what they would be legally allowed to do is, however, less clear.
In order to determine this scope it is relevant to assess which body of law would guide such actions by armed groups. A logical first step of analysis would be looking at IHL, as that is the body of law applicable in armed conflicts. Whether IHL is the appropriate body of law to guide the actions of armed groups, with regards to ordinary governance activities, has been widely considered and debated (see i.e. here pp. 172-179, here pp. 93-98 and here). However, the legal framework around armed groups responding to emergencies and disasters that are not part of the armed conflict has been less considered. Rodenhauser & Piret are taking the debate in a new direction by arguing that emergency governance activities also fall within the ambit of IHL, whilst not excluding the possibility that international human rights law (IHRL) may also apply.
There is one clear requirement for IHL to apply: it only applies in cases of armed conflict. In order to determine whether a particular act is part of the armed conflict, the act has to have a nexus to the armed conflict (see here, para. 494). The scope of the nexus requirement is, however, not precisely elaborated upon in IHL. The test has been further developed in international criminal law, as a crime can only be a war crime if IHL would apply to that specific act. Looking at the jurisprudence of the ICTY and ICC and the wording of APII, it has been shown that both a narrow and a broad interpretation of the nexus requirement is legally possible (for further elaboration see here, pp. 172-179and here). Therefore, I will focus on the impact a broad or narrow approach of the nexus requirement may have on the emergency governance activities conducted by armed groups.
The nexus requirement and emergency governance – broad or narrow?
The nexus requirement in emergency governance argued for by Rodenhauser & Piret is a broad one. They put forward that the ability and manner of the armed group to impose restrictive measures is necessarily an effect of the control they gained through the armed conflict, and therefore these acts are inherently linked to the armed conflict. This wide nexus requirement, in line with the broad nexus requirement as advocated for by the ICRC (pp. 52-54), would allow for a continuous application of IHL in relation to all emergency governance acts conducted by armed groups.
Rodenhauser does recognize that IHRL may also apply to certain governance acts conducted by armed groups (p. 24). The ICRC has similarly stated that certain armed groups with control over territory may have some ‘human rights responsibilities’ (p. 54). Moreover, there is potential for IHL and IHRL to co-apply in situations in which the provisions do not contradict each other (see here, pp. 20-21). However, for present purposes, I will set aside the question of the application of IHRL. Instead, I aim to analyse whether, in itself, it is desirable that IHL would apply to emergency governance acts of armed groups.
The benefit of a broad approach to the nexus requirement would be the constant safeguard of the minimum guarantees provided for by IHL, as set out in common article 3 to the Geneva Conventions. However, there are also several problems with regards to taking such a broad approach.
Firstly, IHL may provide certain minimal guarantees of protection, however, it does not provide many positive obligations regarding the required governance responses to emergencies. These are obligations that IHRL does provide for. It is therefore worthwhile to consider which body of law in the end will provide the most guarantees or the best protections for the people living under the control of the armed groups. IHRL for example provides for a right to health. This right explicitly states that prevention and control of epidemics is required (see article 12(2)(c) ICESCR). Whereas this obligation has also been read into the requirement of IHL to care for the sick and the wounded, this is less explicit (see here p. 171).
Another example in which the lack of positive obligations in IHL becomes present are the emergencies caused by climate change. IHRL provides for many rights in relation to the effects faced by climate change, like the provision of water, food and adequate living standards (see e.g. article 11 ICESCR). IHL however has nothing to say on these matters. Therefore, tying acts to IHL, a body of law that provides no provisions or guidance on those acts may not be helpful for protecting the civilian population. Especially when there is a body of law, IHRL, that does provide a legal framework of relevant protections.
Secondly, these other emergencies can present situations in which it would be essential for the armed groups to respond to avoid further harm or damage to the civilian population. IHL would not provide any law to urge armed groups to do so and does not provide any law guiding these actions. Considering these practicalities, IHRL would likely be the more suitable guiding body of law in the response to other emergencies.
As mentioned, Rodenhauser, amongst others, has argued (p. 19) that IHL and IHRL can co-apply in situations where IHL remains silent on a specific issue, but IHRL does provide obligations. However, regardless of the potential that they could co-apply in certain situations of emergency governance, it would still not be desirable for IHL to also apply to these acts. IHL is a specialized body of law that has been designed to only apply to armed conflict and, therefore, unrelated emergencies like a pandemic or the climate crisis should not be artificially moulded into the framework of IHL by taking a broad nexus requirement. The focus and application of IHL should reflect the original and limited purpose it was created for and a narrow approach to the nexus requirement would better be in line with this.
Thirdly, the emergency of an armed conflict may exist side-to-side to other emergencies for civilians living in areas under the control of armed groups. The armed conflict may not necessarily be the biggest concern to these people. As shown before, everyday life continues for people living in armed conflicts, especially in situations of protracted armed conflicts. Thus, other emergencies or disasters can also have a considerable impact on the civilian population. For example in Somalia, amongst others in regions ruled by the armed group Al-Shabaab, climate change is having drastic effects and droughts and hunger are affecting many people (see here). Whilst not in any way diminishing the far-reaching and potentially difficult effects the armed conflict can have, these people also have a daily concern of securing food and water. This emergency may be exacerbated by the armed conflict, but is not necessarily caused by it. If the armed group were to take measures in response to the disasters caused by climate change, it would be odd if this was to be guided by a body of law that relates solely to armed conflict, as these acts would be clearly related to another emergency.
This is not to say that the nexus requirement can never be met in cases of emergency responses by armed groups. Under the guise of emergency measures there is still a potential that armed groups conduct acts that are clearly in furtherance of their military operations (see here, pp. 15-16). However, this should not be regarded as automatically the case and the standard of the nexus requirement test should reflect that in many instances the emergency measures are unrelated to the armed conflict.
Preparing for the climate emergency: A new approach
A more nuanced and human-based approach in establishing the nexus requirement is thus warranted. This will become especially relevant as climate change is predicting to cause many further emergencies and disasters that will significantly impact communities already vulnerable due to armed conflict. I argue for an approach that takes as its starting point an analysis of the lived reality of people living in the territory under the control of the armed group in relation to the armed conflict and, importantly, in relation to other emergencies or disasters that are affecting them. Then, based on that analysis I advocate for an assessment that differentiates between acts that are part of the armed conflict and acts that are in response to other emergencies, and to apply the relevant law based on this delineation.
This approach reflects that armed conflict is at times but one emergency facing certain communities. An analysis of the nexus requirement should take into account this potential horizontal relation between the different emergencies amongst which the armed conflict is just one. Rather than vertically putting the occurrence of an armed conflict above all other emergencies that occur in a specific territory, and thereby inaccurately applying IHL to all emergencies.
The COVID-19 measures taken by armed groups in areas under their control has explicitly shown the role armed groups can take in emergency responses. Whereas Rodenhauser & Piret argue that these emergency governance activities meet the nexus requirement and are thus guided by IHL, this blog has shown that armed conflict is at times but one emergency facing the people living under the control of armed groups. The other emergencies and disasters require to be treated separately from the armed conflict and through its own legal framework that will provide the relevant protections. The law should reflect the reality on the ground and this may be more complicated and intricate than simply perceiving armed groups solely through the lens of armed conflict. Armed groups may become important actors in the emergency response to climate change and other disasters and this will require further consideration on what law will guide what actions.