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IHL protections for medical units and personnel: do they extend to COVID-19 screening sites and vaccination centres?

The COVID-19 pandemic is a little over a year old and has wreaked havoc around the globe. As the world continues to learn how to live with COVID-19, how to treat it and how to try combat it, armed conflicts persist.

ICRC, 4 November 2020, Yemen. Aden, COVID-19 treatment center. A health personnel looking at a radiography. Photographer : AL SELWI, Basheer

The COVID-19 pandemic is a little over a year old and has wreaked havoc around the globe. As the world continues to learn how to live with COVID-19, how to treat it and how to try combat it, armed conflicts persist.

This is despite calls for the temporary suspension of hostilities to allow healthcare systems, already crippled after years of conflict, to come to grips with the pressures of the pandemic. Of course, in situations where armed conflict continues, international humanitarian law (IHL) (also known as the law of armed conflict or the laws of war) remains as relevant as ever. Indeed, perhaps even more relevant given its extensive protections for medical units and personnel, and the fact that the world is facing its biggest health crisis since the Spanish flu (1918-1920).

Given the relevance of IHL to the current global health crisis, how far do its protections extend? Do the protections extend to the COVID-19 screening sites, from those at the entry to shops to those in contested territories or at territorial borders? And with the development of a number of COVID-19 vaccines, and the increasing emergence of vaccination clinics and centres, do the protections extend to COVID-19 vaccination centres?

In short, yes. Read on to find out why and if these protections could ever be lost.

The rule

According to the key instruments of IHL, notably the Geneva Conventions of 1949 and their Additional Protocols, fixed and mobile medical units cannot be attacked in times of armed conflict. This includes civilian medical units in addition to military medical ones. The respect and protection of medical units is also considered to be a rule of customary international law for both international and non-international armed conflicts. While Additional Protocol I to the Geneva Conventions provides for some requirements for civilian medical units in international armed conflicts, there is no such distinction in Additional Protocol II for non-international conflicts. The focus of this piece is non-international armed conflicts.

Defining medical units

IHL defines medical units as establishments or other units that are permanent or temporary, such as hospitals, blood transfusion centres, medical depots and medical and pharmaceutical stores. Medical units must be exclusively assigned to medical purposes, namely the search for, collection, transportation, diagnosis or treatment – including first-aid – of the wounded and sick.

The use or function of a medical unit at the relevant time determines whether a facility qualifies as a medical unit, regardless of why it was actually built in the first place. For example, family planning mobile posts, which do not offer medical treatment, would continue to fall under this term as long as their function is still health-related. Moreover, medical units regardless of who they are established by – civilian, military or armed non-state actors – fall under this term.

Establishments that do not directly care for victims of armed conflict, namely the wounded and sick, but endeavour to reduce the number of victims by preventing diseases are also considered to be medical units. Therefore, if the function of COVID-19 screening posts and vaccination centres is entirely medical, it is reasonable to conclude that they would meet the definition of medical units entitled to protection under IHL.

The obligation to respect and protect medical units

According to IHL, medical units need to be respected and protected in all circumstances and must not be the object of an attack. The obligation to respect means medical units must not be attacked or harmed in any way; nor may they be interfered with. The obligation to respect medical units extends to COVID-19 screening posts and COVID-19 vaccination centres as long as their function remains health-oriented. For example, a party to an armed conflict would comply with the obligation to respect by not preventing, denying or limiting access to health care or preventing supplies and services, including COVID-19 screening services and/or COVID-19 vaccination offered by specific posts or centres. 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, a party to an armed conflict would be fulfilling the obligation to protect by allowing and facilitating the passage of vaccines, vaccination supplies and designated health personnel to conduct vaccination. Medical units, including screening posts and vaccination centres, 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.  

Can medical units lose their protection?

Under IHL, personnel working in medical units may be equipped with light individual weapons for their own defence or for the defence of the wounded, sick and civilians that are in their charge for medical purposes, such as medical screening. Irrespective of the permissibility of personnel armed with light individual weapons, the presence of armed personnel (especially members of fighting parties) in medical units generally places the facility at greater risk of attack and jeopardises the safety of medical personnel and patients within the medical unit. Therefore, having armed personnel should be avoided at COVID-19 screening posts and vaccination centres to prevent increasing the risk for medical personnel and patients attending these units.

Personnel in medical units may be fighters that have temporarily been assigned to fulfil medical duties exclusively and for a limited time period, or permanent medical personnel. All medical personnel benefit from protection under IHL. Personnel providing assistance in medical units lose this protection if they commit acts harmful to the enemy outside their humanitarian functions, such as direct participation in hostilities by using force against enemy fighting forces (other than self-defence). This may render them liable to attack and endanger the medical unit.

Medical units have ‘functional’ protection rather than ‘status’ protection. For example, a vaccination centre that is used as a military barracks is not a medical unit, however a barracks equipped and used as an improvised vaccination centre becomes one and benefits from special protection. Exceptionally, medical units lose their protection if they are being used outside their humanitarian function for acts harmful to the enemy. This includes not only engaging in combat activities but also sheltering able-bodied fighters who are not serving temporary or permanent medical functions. 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. In these circumstances, medical units lose protection only if and for such time as they constitute military objectives.

Under IHL, the cornerstone principle of distinction demands that parties to armed conflict only engage military objectives, whether these are objects or individuals. This principle also recognises that if there is any doubt about the civilian character or the function of COVID-19 screening posts, parties to armed conflicts must presume they are still civilian objects that benefit from protection. Additionally, if dual-use objects — referring to an object that is being used for both civilian and military purposes (i.e. COVID-19 screening posts that offer disease prevention support and also serve as military checkpoints) — become ‘military objectives’, a warning should be given with time for the medical unit to cease the military activity, and if this does not happen, any attack against them must guarantee that the ‘collateral damage’ is not excessive in relation to the direct military advantage anticipated from the attack and that precautionary measures are adopted to minimise harm to the civilian population.

Conclusion

Indeed, COVID-19 screening posts and vaccination centres, as long as they are being used exclusively for medical purposes – such as medical checks, temperature screenings, PCR tests, vaccinations – are protected by IHL. However, the law explained clearly presents practical challenges including when COVID-19 screening post or vaccination centres have a dual use or when the presence of armed personnel/weapons within these medical units endangers them. It is crucial that states and armed non-state actors alike conduct in depth assessments before conducting any military activity/operation and respect the key provisions of IHL that allow medical personal to respond adequately to this enormous health crisis being faced globally. 

With thanks to Ximena Galvez Lima and Daniela Gavshon for this blog entry.

Ximena Galvez Lima is the Regional Legal and Policy Coordinator for Geneva Call’s Eurasia Unit. Ximena holds a Masters degree in International Law from the Graduate Institute in Geneva with special focus on International Humanitarian Law (IHL), International Human Rights Law and International Criminal Law; and a law degree from the Bolivian Catholic University ‘San Pablo’. She has published articles on the protection of health care during COVID-19, gang violence and legal conflict qualification of conflict grey zones in Latin America, naval mines and IHL, the protection of peasant rights, and the international drug control system.

Daniela Gavshon is a member of the NSW IHL Advisory Committee at Australian Red Cross and is the Director of Truth and Accountability Program at the Public Interest Advocacy Centre.