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The value of international humanitarian law in the time of COVID-19

A pandemic is not an armed conflict, so how can the laws of war help shape the response and the aftermath?

By Emily Camins

At deeply destabilising times like these, one might be forgiven for thinking that nothing but the immediate response matters, or that the urgency of the response gives rise to loopholes or a licence to rewrite the rule book.

As we hunker down, we have an opportunity to ponder broader questions about the value of such rules and their fitness for purpose, both now and when we emerge on the other side. With many States invoking the language of war as they seek to combat COVID-19, what value does international humanitarian law (IHL, or the laws of war) offer as we navigate through this exceptionally challenging time?

First and foremost, while the COVID-19 pandemic has disrupted individuals and societies across the globe, perhaps irrevocably, it is important to remember that armed conflict continues in some parts. In war-torn countries like Syria and Yemen, people are already living with the reality of severely strained, or sometimes completely ravaged, health care systems. Added to that, people detained in crowded prisons or fleeing violence in refugee camps lack access to adequate sanitation or space for physical distancing. Armed conflict and its effects do not spontaneously stop on account of a pandemic. While the UN Secretary General has called for an immediate ceasefire to allow all communities to confront and address the health crisis, in some countries, parties to the conflict might choose not to heed that call. In those situations, IHL – which aims to reduce suffering, spare the lives of those caught up in the fighting and protect healthcare workers and facilities – must be respected. If anything, a pandemic brings into sharp relief the importance of ongoing compliance with such rules.

Secondly, although many societies are presently caught up in an almost existential crisis and fighting for the survival of life as we know it, it is worth remembering that both humanity and the laws of war have weathered similar storms before. While perhaps not occurring in our lifetime, one need only flick through a history book to find times of similar existential crisis: the Second World War; the Spanish Flu; the Bubonic Plague; the Thirty Years War. From each of these crises, history demonstrates the resilience of both humanity and profound philosophical thought. Augustine’s theory of the just war, Grotius’ treatise on war and peace, Vattel’s insights into the regulation of conflict, Kant’s deontological ethics, to name but a few; these philosophies have endured and perhaps grown stronger from being tested in times of crisis. In a similar vein, the International Red Cross Red Crescent Movement (Movement), which was established in 1863 to help nations respond to and recover from armed conflict, expanded its scope following the Spanish Flu pandemic. It has now been responding to crises – armed conflict, natural disasters, pandemics and disruption – for the past 150 years in over 190 countries. And it has seen how time and again, communities not only endure these crises, but grow more resilient as a result of being tested by them. Underpinned as it is by such notions as humanity, impartiality and universality, and grounded in principles of IHL, the Movement encapsulates and represents enduring ideals, adapted for times of both war and peace.

Which brings us to the third point. An unprecedented and momentous crisis such as this prompts one to ponder the utility and foundations of the laws which regulate our lives. For instance, the sudden need for increasingly draconian measures to address the growing pandemic might cause one to question the relevance of human rights law and democratic norms. With an invisible biological ‘enemy’ killing many thousands, fundamentally disrupting society and upending national economies, many States are exercising emergency powers and invoking the rhetoric of war. But this is not an armed conflict, and describing it as one might inadvertently decrease respect for the laws of war. What relevance, then, does IHL have?

Most likely, COVID-19 will not bring an end to war, nor lead to the demise of the nation State. As Plato wrote, ‘Only the dead have seen the end of war.’ After the world emerges from this pandemic, in a state of deep uncertainty, instability and flux, armed conflict is, regrettably, likely to be a given. And we will need laws to moderate it more than ever. The principles of IHL, forged in the fire of armed conflict over hundreds of years, strike a delicate balance between competing demands of humanity and military necessity. IHL is carefully calibrated to protect those not taking part in the fighting – such as civilians and wounded soldiers – and to limit certain means and methods of warfare while States pursue armed conflict. Let us strive to ensure these principles are respected as our focus shifts away from the immediate response to COVID-19.

Fourthly, beyond the regulation of armed conflict, perhaps the fundamental ideals found in IHL – particularly the moderating force of humanity – can also guide and inspire our broader response to COVID-19 even if the laws of war themselves don’t apply outside of the realms of armed conflict. Yes, we should take those measures which are necessary against the virus, but we must do this in a way which preserves our humanity. We are all in this together and the principle of humanity, which can inform the decisions of individuals, communities and States, will help us in our collective efforts to manage the challenges posed by COVID-19. Whether this means staying at home for the protection of others, calling loved ones and safely checking on your vulnerable neighbour, or, like our wonderful healthcare workers, treating those with the disease, this centuries-old principle, born of war and wielded by the Red Cross and Red Crescent Movement for over 150 years, can help us survive this crisis with minimum casualties.

Eventually, societies and the world will emerge from this pandemic, blinking, into the sunlight. The world will have changed, but our humanity will remain steadfast. In this moment, we will have an opportunity to build our societies up again, and to build them better and stronger than before. In so doing, let us not forget the lessons learned by those before us, who rebuilt their countries after world wars and global disasters. Let us draw on these existing rules and principles with fresh eyes, and challenge ourselves to be better.

Emily Camins is a Volunteer and Chair of the WA IHL Advisory Committee at Australian Red Cross. Read more about Emily and our other volunteers.