The Duties of Occupying Powers in Relation to the Fight against Covid-19

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Significant scholarship is investigating the array of international legal issues pertaining to the fight against Covid-19. This brief post aims at contributing to this debate by assessing the obligations upon occupying powers in this regard. Many sources have been reported that Covid-19 has reached occupied areas such as the OPT (e.g., here) and Northern Cyprus (here). This post does not focus on the legality of the specific measures undertaken by some occupying powers, which will require more in-depth knowledge of facts and figures than the one currently available. Rather, it describes in wide brushstrokes the relevant legal framework to pave the way to future further analysis.

Article 56 of the 1949 Fourth Geneva Convention (GCIV)

The law of occupation embodies a number of rules that are relevant in relation to the fight against Covid-19. The main provision is Article 56(1) GCIV, according to which:

To the fullest extent of the means available to it, the occupying power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.

The opening words of this provision demonstrates its nature as an obligation of diligent conduct, even if they impose an extraordinary amount of diligence upon the occupying power. The expression ‘the fullest extent of the means available’ significantly reduces the scenarios in which an occupying power could escape responsibility.

The object of the duty is insurance and maintenance of the healthcare system in the occupied territory, with particular attention in relation to ‘prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics’. This is a particularly topical provision in relation to Covid-19. Pictet’s commentary lists a number of measures to fight epidemics, such as education of the public, distribution of medicines, medical examinations and disinfection, establishment of stocks of medical supplies, sending medical teams to areas where epidemics are raging, isolation and accommodation in hospital of people with communicable diseases, and the opening of new hospitals. In compliance with this obligation, the Coalition Provisional Authority in occupied Iraq decided to deny entry into Iraq to individuals who were suffering from serious communicable diseases (here, p. 152).

However, the burden of taking care of public health and fighting pandemics does not rest upon the occupying power alone. Article 56(1) of the GCIV clarifies that the occupying power must act ‘with the cooperation of national and local authorities’, so that the Pictet’s commentary and the US Military Manual (section 11.15.1) conclude that the occupying power should intervene only if the health infrastructure of the occupied territory fails to provide adequate healthcare. The continuity of the healthcare system already in place in the occupied territory is confirmed by Article 14(1) of the 1977 First Additional Protocol, according to which the occupying power ‘has the duty to ensure that the medical needs of the civilian population in occupied territory continue to be satisfied’ (here, paras 581-583). The reported Israeli confiscations and demolitions of items pertaining to health facilities in the West Bank is a violation of this rule.

This allocation of responsibilities is particular relevant in relation to the Occupied Palestinian Territory, where the so-called Oslo Accords have established a framework of cooperation between the Palestinian Authority and Israel. Article VI of the 1993 Declaration of Principles and Article 17 of Annex II to the 1995 Interim Agreement transfers to the Palestinian Authority responsibility for healthcare in certain Palestinian areas. In particular, paragraph 6 of Article 17 demands that ‘Israel and the Palestinian side shall exchange information regarding epidemics and contagious diseases, shall cooperate in combating them and shall develop methods for exchange of medical files and documents.’ Since, pursuant to Article 47 GCIV, the Oslo Accords cannot lawfully derogate the protection offered by the Convention itself (see here), it is possible to conclude that Israel maintains responsibilities under Article 56(1) if the healthcare infrastructure of the OPT are unable to fight Covid-19. This is confirmed by the reported cooperation between Israeli and Palestinian authorities to fight the spreading of Covid-19 in the West Bank, which was lauded by the UNSC. Likewise, the healthcare authorities of Western Sahara are addressing Covid-19 in the areas under their control, whereas Morocco is taking care of the situation in other portions of that territory.

Health Support from the Outside

In order to fight pandemics like Covid-19 and to maintain adequate health conditions in the occupied territory, ‘[t]o the fullest extent of the means available to it, the occupying power has the duty of ensuring […] medical supplies of the population; it should, in particular, bring in the necessary […] medical stores […] if the resources of the occupied territory are inadequate’ (Article 55 of the GCIV). This provision confirms that the duty to cooperate with the local authorities cannot be considered in any case as a renunciation of occupying power’s responsibilities regarding healthcare and the fight against pandemics. Rather, if the occupied territory is inadequately supplied with medical goods, the occupying power must bring them in. This is the case of the Gaza Strip, where the local healthcare infrastructure is dramatically inadequate to address Covid-19. Indeed, Israel claims that it is allowing entry of medical supplies into the Gaza Strip (here for more).

This rule is also an obligation of conduct with a very onerous degree of diligence demanded to the occupying power (‘the fullest extent of the means available’). However, the GCIV provides also for the case in which the occupying power is unable to adequately supply the occupied territory. This could be the case, for example, if the medical supplies are needed to fight a pandemic in the very territory of the occupying power. Under Article 59, if the population of an occupied territory is inadequately supplied with medical supplies, the occupying power must agree to receive consignments of medical supplies offered by States or impartial humanitarian organisations. This duty is absolute and the Convention does not embody any ground that the occupying power can invoke to block this kind of relief (here and here, para 33). However, the occupying power can adopt measures of control, impose technical arrangements, and decide which actors may conduct the relief operations, provided that the needs of the local population are met in accordance with humanitarian principles (here, para. 33)

However, under Article 60, relief can be diverted from the purpose for which it is intended ‘in cases of urgent necessity, in the interests of the population of the occupied territory’. This scenario covers epidemics (here, p. 366) and would allow an occupying power to use relief originally dispatched into the occupied territory for other purposes to fight Covid-19 in the occupied territory (UK Military Manual, Section 11.46.1).

Other Applicable International Law Rules

International humanitarian law conventions include other rules relevant to the fight against Covid-19 in occupied territory. Particularly important is Article 43 of the 1907 Hague Regulations, which demands the occupying power to ‘restore and ensure public order and civil life’. As recognised by the Supreme Court of Israel, the notion of ‘civil life’ also encompasses healthcare (here, para 18). Additionally, there is room to argue that a pandemic as aggressive as Covid-19 is in itself a threat to public order.

Article 43 is also considered the source of the duty not to cause harm to other States as a result of activities occurring in occupied territory (here, p. 174, and Draft Article 22 in relation to environmental harm). Accordingly, the occupying power, similarly to what happens in relation to sovereign States (here),  is under a due diligence obligation to try to prevent the spreading of the contagion from the occupied territory to other areas.

To this end, the occupying power could apply the 2005 International Health Regulations, which bind all the occupying powers that are parties to the WHO (such as Israel). The scope of application of these regulations is unclear. Although Article 4(1) refers to the duty to create authorities responsible for the implementation of the Regulations within the State’s jurisdiction, Articles 6, and 8-10 refer to duties of the State Parties in relation to their own territory. Admittedly, a literal interpretation should exclude the applicability of these duties to occupied territory, even though the entire ratio of the law of occupation would suggest otherwise. However, complying with the Regulations’ obligations to detect, assess, notify, and report events in order to prevent the spread of disease or contamination in the occupied territory would be a way to comply with the due diligence obligation not to bring harm to other States as well, since such diseases could easily spred from the occupied territory to other areas. In any case, Article 10(2) demands that ‘States Parties shall, as far as practicable, inform WHO within 24 hours of receipt of evidence of a public health risk identified outside their territory that may cause international disease spread’.

Moreover, international human rights law conventions binding upon the occupying power are applicable in occupied territory (here, para. 106, here, para. 216). This is relevant in relation to the right to health enshrined in Article 12 of the 1966 ICESCR. The Committee of Economic, Social and Cultural rights has recognised on a number of occasions the applicability of this rule in occupied territory (here and here). Measures aiming at ‘the prevention, treatment and control of epidemic diseases’ are explicitly mentioned by Article 12. Absent any normative conflict with international humanitarian law, the occupying power must undertake measures similar to those listed by the 2000 General Comment no. 14, such as ‘the establishment of prevention and education programmes for behaviour-related health concerns’, with an emphasis on the availability of relevant technologies to monitor, control, and reduce the pandemic (para. 16; here for the role of these measures in the fight against Covid-19). Accordingly, applicable international human rights law standards strengthen the human rights oriented approach that the occupying power and the authorities of the occupied territory should apply in fighting Covid-19 (here), shifting the focus of the fight against pandemics from public order to the attainment of the highest standards of health for each individual.

Finally, the rules embodied in the 2016 Draft Articles on Protection of Persons in the Event of Disasters, which could play a role in relation to Covid-19 (here), are applicable to occupied territory only to the extent that international humanitarian law does not provide a more specific regulation (Article 18(2) and para. 9 of the commentary). E.g., the provision of medical supplies to treat Covid-19 is governed by the aforementioned rules of the GCIV.

Conclusions

Under international law, an occupying power is responsible for the fight against pandemics such as Covid-19 along with the authorities of the occupied territory – if any. Whereas international humanitarian law demands that the occupying power intervenes to fight against these diseases in occupied territory if the local healthcare infrastructures are inadequate, applicable international human rights law obliges the occupying power to fight pandemics taking into account the heath of the local population as the main objective of the occupying power’s action.

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Sari Bashi says

April 14, 2020

Thank you for this interesting analysis. I would be even more explicit: Israel has an obligation to allocate equally scarce medical resources to Palestinians in Gaza and the West Bank, even though it is struggling to ensure adequate supplies for its own citizens. See my article in Responsible Statecraft making that argument: https://responsiblestatecraft.org/2020/04/03/israel-needs-to-protect-palestinians-from-covid-19/ as well as a draft of a longer forthcoming article in the Cardozo Journal of International and Comparative Law arguing for the principle of nondiscrimination in the provision of health and other services to Israelis and Palestinians: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3575431

Rohan Sinha says

April 28, 2020

Just a small mistake in the text: The obligation of States under the International Health Regulations to notify the WHO of evidence of a public health risk identified outside their territory is written in Article 9(2), not 10(2).