What happens when the laws of war meet a pandemic?

International humanitarian law is designed for the exceptional situation of armed conflict. It remains relevant even in the face of this exceptional pandemic.

In March, UN Secretary-General Antonio Guterres appealed for a global ceasefire because of  the Covid-19 pandemic, pleading for a halt to hostilities to create corridors for life-saving aid and to open precious windows for diplomacy.

His call has had some positive results. The Southern Cameroons Defence Forces, an armed wing of the African People’s Liberation Movement, announced a temporary ceasefire, and there have been encouraging signals from warring parties in the Central African Republic.

However, in most areas in which the International Committee of the Red Cross is operating, our delegates have not seen any fundamental change. In South Sudan over the past three weeks the ICRC treated more than 180 people wounded in war. Facilities are at their maximum capacity and are now obliged to focus on the most critical cases. Meanwhile, the Islamic State group has used its media channels to urge its members to exploit the chaos created by the pandemic and step up their attacks.

ICRC President Peter Maurer recently observed: ‘Combat operations go on.’

In these theatres of conflict, international humanitarian law provides crucial safeguards for victims of hostilities. This is the body of law which is lex specialis in armed conflict—the specific body of rules that apply in war and continue to apply even as countries adopt special measures to combat Covid-19.

Indeed, a number of provisions of international humanitarian law are particularly relevant during this pandemic and have the potential to greatly assist in ensuring a better protective response for affected populations around the world.

This pandemic has highlighted the essential role of healthcare workers and health facilities. These personnel and facilities are our front line, and they are already under massive strain. To scale up capacity, authorities are variously mobilising military medical units or nationalising private medical facilities.

As an example of what can be done by a developed nation, in Australia the ACT government is building a temporary emergency department dedicated to Covid-19.

The laws of armed conflict have long recognised the importance of healthcare. International humanitarian law specifically protects medical personnel, units and transportation because the direct and indirect consequences of not doing so can be catastrophic.

Respect for these protections will be crucial in the coming months. We must ensure that the few places and people that can help with the effects of both Covid-19 and the horrors of war don’t come under attack. And we must do so not only in relation to physical attacks, but also when it comes to attacks in the cyber domain.

Protections under humanitarian law apply equally to kinetic operations and to cyber operations during armed conflict. The ICRC has recently warned that the healthcare sector is particularly vulnerable to cyberattacks because of its extensive digitisation and connectivity. In the past month, various countries have reported a number of cyber incidents against the healthcare sector.

International humanitarian law also contains the possibility of setting up hospital and safety zones, either in war or in peacetime as a preparedness measure. These provisions could be used to address the current crisis. In contrast to the ‘safe corridors’ or ‘safe areas’ established by UN Security Council resolutions in the 1990s, under humanitarian law such zones are based on voluntariness and consent from parties to a conflict. They have rarely been used, but in these unprecedented times states may consider unprecedented measures.

In addition to access to healthcare, international humanitarian law contains rules safeguarding humanitarian assistance. These requirements cannot be displaced by health regulations and other measures that may be implemented to combat the spread of Covid-19. First and foremost, it’s the responsibility of each party to a conflict to meet the basic needs of the population under its control. However, with the daunting scale of the Covid-19 pandemic, national authorities may become overwhelmed and unable to discharge this responsibility. In these cases, the legal framework provides for relief activities to be undertaken by others, including humanitarian organisations like the ICRC.

This supplementary capacity is already helping governments to respond to the pandemic. In Iraq, the ICRC is supporting primary healthcare centres, hospitals and physical rehabilitation centres, providing infection prevention control items and delivering Covid-19 awareness sessions to staff. In Lebanon, the ICRC runs an emergency ward treating Covid-19 cases, and with the Lebanese Red Cross and health authorities we’re working to ensure the population can continue to access services.

Humanitarian organisations must still seek consent from the authorities for these operations. But this consent cannot be arbitrarily withheld. In particular, while states are entitled to prescribe measures of control or regulation over relief activities, they cannot withhold consent on an argument that it is necessary to counter the spread of Covid-19.

So, as more governments act to contain the virus through travel or import restrictions, it’s imperative that measures remain consistent with states’ obligations to allow and facilitate relief operations. Possible safeguards may include designating the work of impartial humanitarian organisations as an essential service and humanitarian personnel as essential workers with waivers from restrictions on movement. Or it may be necessary to exempt humanitarian flights from bans or to expedite customs procedures and prioritise consignments of humanitarian supplies.

Sadly, warfare has not ceased because of Covid-19, and so international humanitarian law remains highly relevant as the lex specialis in many conflicts. This doesn’t mean that governments are necessarily prevented from taking steps to combat the virus in these areas.

International humanitarian law is a pragmatic and flexible body of law. Its provisions are designed for exceptional circumstances, and the obligations that it imposes take into account what is feasible and reasonable. Accordingly, it shouldn’t be seen as a barrier or impediment in the fight against Covid-19 in war-torn countries. Rather, it has the potential to complement action, and to bring better outcomes for populations affected by the dual threats of coronavirus and conflict.