By Ximena Galvez Lima – Regional Legal and Policy Coordinator – Eurasia
As a variety of COVID-19 vaccines are now available, the question now lies on vaccination for people living in areas controlled by armed non-State actors (ANSAs) and the protection of COVID-19 vaccination posts or centers [i] that have been or are intended to be established in ANSA-controlled territories or contested areas. Armed conflict weakens health systems and increases vulnerability substantially in these territories, it is crucial that COVID-19 vaccination/immunization centers or posts are respected and protected accordingly to guarantee equal access to immunization.
Over the past year, many ANSAs have adopted measures to contain the spread of the virus. Examples can be found in Afghanistan, Iraq, Myanmar, Colombia and Ukraine where ANSAs have temporarily closed businesses, established lockdowns, increased health checks, imposed travel controls and other relief efforts. Some ANSAs are ready to take the next step in the efforts to eradicate COVID-19. ANSAs have publicly requested for COVID-19 vaccines for their controlled territories and have announced the opening of vaccination centers/posts, which are reportedly operational at the moment. Others have already expressed their intention to back vaccination drives in areas they control.
Armed conflict creates ideal ground for disease resurgence and outbreaks and the medium to long term public health impact linked to the lack of vaccination in ANSA controlled areas or contested territories must be considered. As has been the case for polio and measles outbreaks in conflict-affected countries, diseases compounded with increasing amount of war-wounded and civilian’s constrained access to health care and health education may cause long-lasting consequences where health systems risk being further burdened or collapse. Knowing that potential attacks against COVID-19 vaccination centers and posts can negatively impact the protection of health care, the eradication of the virus and the overall crisis response, it is important to recall the rules that protect medical units in times of armed conflict. As with COVID-19 screening posts, COVID-19 vaccination centers or posts are ‘medical units’ that benefit from special protection in times of armed conflict, in accordance with International Humanitarian Law (IHL).
As part of Geneva Call’s continuous call for vaccines in territories controlled by ANSAs and contested areas, this article aims to address the protection that vaccination centers and posts have in times of armed conflict, including those established by civilian authorities. The overall purpose of the article is to ensure effective responses to COVID-19 eradication in ANSA controlled or contested areas and inform practice of parties to armed conflicts. For the purposes of this article the term ‘medical units’ as opposed to ‘health care facilities’ is used because IHL defines the term ‘medical unit’ and provides for their special protection.
The legal basis for the protection of medical units under IHL
Defining medical units
IHL defines medical units as establishments or other units that are permanent or temporary, such as hospitals, preventive medicine centers and institutes, blood transfusion centers, medical depots and medical and pharmaceutical stores, and are exclusively assigned to medical purposes [ii], namely the search for, collection, transportation, diagnosis or treatment – including first-aid – of the wounded and sick. Medical units can also be fixed or mobile, the latter move from place to place such as first aid posts and roving vaccination teams. The use/function of the medical unit at the relevant moment determines whether a facility qualifies as a medical unit, irrespective of the reasons for which it was built. Establishments or other units falling under the above definition are considered as medical units; this is regardless of whether they are set up by civilian authorities or parties to the conflict. Similarly, it is important to highlight that establishments which do not directly care for victims, namely the wounded and sick, but endeavor to reduce the number of victims by preventing diseases are also medical units. This applies in particular to vaccination centres or other preventive medicine centres and institutes (376). Accordingly, COVID-19 vaccination centers and posts are protected under IHL.
The obligation to respect and protect medical units
According to IHL, medical units exclusively assigned to medical purposes need to be respected and protected in all circumstances and must not be the object of any attack. The obligation to respect means that medical units must not be attacked or harmed in any way. It also means that their work must not be interfered with, for example by preventing, denying or limiting access to vaccination (23). The obligation to protect means that measures must be taken to facilitate the work of medical units, where necessary, and to provide help, if needed, for example by facilitating the passage of vaccines and vaccination supplies (23). If unable to provide immunization for the population, allowing and facilitating rapid and unimpeded humanitarian access to designated health personnel to conduct vaccination is of paramount importance to guarantee immunization of individuals living in ANSA controlled territories and contested areas. Medical units may not be used to shield military objectives from attack and should be situated at a sufficient distance from military objectives that can be lawfully attacked. It also requires parties to armed conflict to ensure that they are respected by others, including taking possible measures to ensure they are not mistreated or endangered.
The presence of fighters or armed personnel in vaccination centers
It is important to acknowledge that in accordance with IHL, personnel working in medical units may be equipped with light individual weapons exclusively for their own defense or for the defense of the wounded, sick and civilians that are in their charge for medical purposes, such as medical screening and/or vaccination. However, the presence of anyone who is armed in medical units inevitably increases the risk of them becoming the target of attacks and inevitably has a negative impact on the provision and access to health care as it may affect people’s willingness to remain in or attend these medical units and compromises vaccination efforts to ultimately eradicate viruses. In the past years, many medical units and humanitarian organizations have imposed a variety of policies which do not allow weapons or armed personnel within medical units or near premises. Though IHL does not require medical units to instate no-weapon policies, it is highly advisable to have them in place and enforce them for the safety of patients, staff members and more broadly to safeguard health care in conflict-affected zones or areas prone to armed violence. This does not hinder the possibility of providing medical assistance to fighters that are armed provided that their weapons are left outside or far away from medical units.
Potential loss of protection from attack
If medical units are used for acts harmful to the enemy outside of their humanitarian function, protection may be lost only after a warning providing sufficient time to evacuate has been given and has been ignored. [iii] In these circumstances, medical units lose protection only if and for such time as they constitute military objectives. Medical units have a ‘functional’ protection rather than a ‘status’ protection and they do not need to provide health treatment in order to benefit from such special protection. For example, a vaccination center which is used as a military barracks is not a medical unit, however a barracks equipped and used as an improvised vaccination post becomes one and benefits from special protection. COVID-19 vaccination/immunization centers or posts, as long as they are being used exclusively for medical purposes – to conduct PCR tests, temperature screenings, vaccinations – remain protected. In light of the humanitarian purpose of medical units, loss of protection should be interpreted narrowly. Accordingly, conduct should not be considered an act harmful to the enemy if there is doubt whether this is the case. COVID-19 vaccination centers and posts may check and record identities of those that have been screened or vaccinated, which may appear to be an act harmful to the enemy, but as long as this is done for medical purposes, it should not be considered as an act harmful to the enemy. Protection of medical units is not lost if members of fighting parties are in the unit for medical reasons, including for vaccination.
Geneva Call has a unique mandate to engage ANSAs to prevent harmful behavior perpetrated by them against civilians. It carries out its preventive work by engaging in dialogue with ANSAs on humanitarian norms, with the belief that all such entities must be reminded of their obligations in armed conflict. Geneva Call continues to stress that populations living in ANSA controlled areas and contested territories must receive equal access to the COVID-19 vaccine as individuals living under government-controlled areas, knowing there are high risks that the disease will continue to exist and may affect areas outside ANSAs’ control.
Dialogue must be held between states, humanitarian organizations, donors and ANSAs to develop and implement appropriate vaccination plans to ensure victims of armed conflict benefit from vaccination programmes. As we are now faced with a scarcity of vaccines worldwide, it is understood that certain high-risk and vulnerable groups of people must be prioritised in relation to the provision of access to vaccination. However, the international community must continue all actions to ensure that everyone, without discrimination, is offered a fair opportunity to receive safe and effective vaccination as a matter of public health. If the international community wants to truly eradicate COVID-19, engagement with all parties to armed conflict is needed more than ever.
We remains concerned over the situation of civilians in armed conflicts across the globe and potential attacks on COVID-19 vaccination centers and posts as was the case for COVID-19 screening posts. These attacks may have a detrimental impact on the civilian population and public health care, which effects may last throughout the COVID-19 crisis and beyond. Geneva Call recommends parties to armed conflicts to:
- Assign and use COVID-19 vaccination centers and posts exclusively for health purposes.
- Assess the specific functions of COVID-19 vaccination centers or posts posts before engaging in any attacks that may impact their continuous functioning.
- Suspend attacks if it becomes apparent that COVID-19 vaccination centers or posts posts are used for medical purposes.
- Consider agreeing on safety zones in locations where COVID-19 vaccination centers or posts have been set up, that are far removed from military operations, or neutralized zones, where military operations are taking place.
- Endeavor to instate a ‘no weapons’ policy within COVID-19 vaccination centers and posts that may enhance the safety of those seeking screening, medical treatment and/or immunization as well as health care personnel, even if not mandated by IHL.
Geneva Call is ready to support and work with ANSAs towards the enforcement and dissemination of these recommendations and encourages the adoption of Geneva Call’s Deed of Commitment on the protection of health care in times of armed conflict. Through this standardized unilateral declaration, ANSAs agree to refrain from attacking, interfering with, or obstructing health care amongst other positive and negative obligations. We welcome any other special humanitarian agreements or unilateral declarations entailing further and broader obligations on the matter.
[i] COVID-19 Vaccination or Immunization centers or posts: units created to prevent the spread and eradicate COVID-19. Their function is to administer COVID-19 vaccinations to produce immunity to this specific virus and may issue vaccination certificates as well as serve as COVID-19 screening posts. These units may also check identities for the purpose of record keeping of vaccinated individuals, post disease-prevention alerts such as signs and posters at the unit entrances and in strategic places around the unit, among other health-related tasks. Vaccines are usually administered through needle injections. Immunization is often used interchangeably with vaccination or inoculation.
[ii] Exclusivity: COVID-19 vaccination centers and posts must be theoretically assigned to health purposes and practically exclude fulfilling any other tasks that are not health-related.
[iii] Act harmful to the enemy: use of medical units outside their humanitarian functions to interfere directly or indirectly with military operations of the enemy, such as any use for military purposes.