The Duties of Occupying Powers in Relation to the Prevention and Control of Contagious Diseases through the Interplay between International Humanitarian Law and the Right to Health.

AuthorLongobardo, Marco

TABLE OF CONTENTS I. INTRODUCTION II. THE INTERNATIONAL LEGAL FRAMEWORK APPLICABLE TO THE FIGHTS AGAINST CONTAGIOUS DISEASES: PRELIMINARY REMARKS III. ARTICLE 43 OF THE HAGUE REGULATIONS AS A RESPONSE TO CONTAGIOUS DISEASES IN OCCUPIED TERRITORY A. Contagious Diseases and the Duty to Restore and Ensure Public Health as a Component of Civil Life B. The Conservationist Principle and the Measures Against Contagious Diseases C. Article 43 of the Hague Regulations as a Source of Obligations in Relation to Neighboring States D. Evaluating the Role of Article 43 of the Hague Regulations in Relation to Contagious Diseases IV. NEW RULES EMBODIED IN THE GCIV A. Article 56(1) of the GC [GAMMA]V and the Cooperation Between Occupying Power and Local Authorities 1. Article 56(1) of the GC [GAMMA]V: A Cornerstone for the Fight against Contagious Diseases 2. A Complex Partition of Responsibilities B. Support from the Outside to Prevent and Control Contagious Diseases and Epidemics in Occupied Territory 1. The Duty to Bring Medical Supplies in the Occupied Territory under Article 55 of the GC IV 2. The Duty to Allow Relief from Outside under Article 59 of the GC IV C. Measuring the Occupying Power's Compliance with Articles 55 and 56(1) of the GC IV D. An Assessment of the GC IV in Relation to Contagious Diseases V. CONCLUSIONS I. INTRODUCTION

This Article explores the legal framework applicable to the prevention and control of contagious diseases (1) in occupied territory, including the responsibility for vaccinations. The decision to write this Article originates from the current COVID-19 pandemic, which has been adversely affecting human lives in many occupied areas around the world, such as the Occupied Palestinian Territory (OPT) (2) and Northern Cyprus. (3) Scholars (4) and international nongovernmental organizations (5) have started discussing this complex topic but, to the best knowledge of this author, no comprehensive study has been published. However, contagious diseases in armed conflict and occupied territory are far from a novelty in human history, (6) and this Article explores issues beyond the current pandemic.

At the time of this writing, the tragedy of the COVID-19 pandemic continues to unfold around the world, ripe with grief for the widespread loss of human life and long-lasting impacts on physical and mental health. With different strategies and degrees of success, almost every government in the world engaged in the fight against the pandemic, which has acquired an unprecedented central stage in the public discourse. At no other time in human history have governments been so focused on the protection of the rights to life and health of the people living under their jurisdictions.

In relation to armed conflict, in 2020, the United Nations Security Council (UNSC) demanded "a general and immediate cessation of hostilities" and called upon all belligerents to "engage immediately in a durable humanitarian pause for at least 90 consecutive days, in order to enable the safe, unhindered and sustained delivery of humanitarian assistance, provisions of related services by impartial humanitarian actors,... and medical evacuations." (7) Long gone are the times when contagious diseases did not suspend armed conflicts, but rather fueled hostilities: in ancient epochs, the spread of a contagious disease was not only seen as the result of violating the religiously-dictated law of armed conflict, as reported paradigmatically in the Iliad--the Greeks refused to free the daughter of the high priest Chryses, who had been captured as a war prize, notwithstanding her father's offer of an appropriate ransom (8--)but also a concrete opportunity to gain military advantage, as demonstrated by the plague in Athens during the Peloponnesian war. (9) However, in contemporary times, the situation is entirely different: today, international humanitarian law (10) embodies an array of rules that protects the sick as well as medical personnel during an armed conflict. (11) The international community's aim to mitigate the negative effects of an armed conflict on individuals not taking direct part in the hostilities requires that the sick be spared and treated for their conditions. Not only is the purposeful spreading of infectious diseases no longer permitted, (12) but, as recently demonstrated by the COVID-19 pandemic, the outbreak of a contagious disease is an appropriate reason to suspend hostilities.

The situation in occupied territories resonates with the overall evolution of the law in relation to contagious diseases in armed conflict but, at the same time, is different. An occupation is a portion of an ongoing armed conflict where, as a result of the use of armed force, a state has taken control of a territory without any legal title. (13) International law strikes a delicate balance between the hostile character of the occupation and the need to protect the interests of the ousted sovereign and the local population. As a result, the occupying power is placed under the duty to administer the occupied territory temporarily without being the sovereign. (14) However, the situation of occupied territories can be equated neither to a peacetime situation--when the vertical relationship between the government and the individual under its jurisdiction is governed mainly by human rights law--nor to a situation of hostilities--when international humanitarian law mainly requires belligerents to discriminate between civilians and persons hors de combat on the one hand, and combatants on the other, allowing the killing of the latter except if said killing is done in certain inhumane ways. During an occupation, the occupying power must take care of the enemy civilians, striking a subtle balance between hostile and peacetime features of the relationship between the occupying power and the local population. (15) This delicate balance characterizes the actions to prevent and control contagious diseases, including the responsibility to provide vaccinations in occupied territory. A number of relevant international law rules govern the measures that an occupying power must take to prevent and control contagion in areas under its occupation. This Article analyzes the duty to prevent and control contagious diseases, taking into account international humanitarian law, international human rights law, and other applicable rules of international law. These rules are analyzed here in relation to contagious diseases that have plagued occupied territories in the past, as well as the spread of COVID-19 since December 2019; indeed, it is impossible to ignore the fact that recent events have raised difficult questions on the extent of the responsibilities upon occupying powers in relation to COVID-19. (16) This Article mainly aims at describing the legal framework applicable to the prevention and control of contagious diseases in occupied territories in order to identify who is responsible for adopting the relevant measures, including vaccinations and prophylactics. Only limited analysis is devoted to the legality of the specific measures undertaken in some specific occupied territories, which are taken into account only as examples of relevant practice or to emphasize gaps in the law.

The analysis is structured as follows: Part II provides a general overview of the applicable international legal framework pertaining to dealing with contagious diseases in occupied territory. Part III analyzes Article 43 of the 1907 Hague Regulations, emphasizing how this provision applies to the prevention and control of contagious disease and, at the same time, describing its limitations. Part IV addresses the role of the rules embodied in the 1949 Fourth Geneva Convention, concluding that they complement in an effective way the responsibilities of occupying powers against contagious diseases by providing a complex partition of responsibilities with the local authorities. Part V summarizes the results reached through this research and offers some conclusions on the legal framework applicable to contagious diseases in occupied territories.


    This Part discusses the role of international law in dealing with contagious diseases. Situations of occupation are mainly governed by international humanitarian law and, in particular, by three international treaties: the Fourth Hague Convention (17) and the annexed Regulations of 1907 (Hague Regulations), (18) which reproduces with marginal modifications the Second Hague Convention and Annexed Regulations of 1899, (19) the 1949 Fourth Geneva Convention (GC IV), (20) and the 1977 First Additional Protocol (AP I). (21) The Hague Regulations and the GC IV apply to every state in the world, since the former reflects customary international law, and the latter has been ratified by every state in the international community. Disagreement on whether the entirety of the AP I reflects customary international law suggests that this treaty should be applied only to states parties. (22) However, some of the rules in the AP I correspond to customary international law and should be applied as such. (23)

    Over the last half century, it has become clear that international human rights law conventions ratified by the occupying power are applicable to its actions in the occupied territory. To summarize a complex debate, suffice it to say that in light of the case law of the International Court of Justice (ICJ) (24) and international human rights bodies, it is possible to conclude that international human rights law is applicable along with international humanitarian law during an occupation. Any normative conflict between the two bodies of international law should be resolved through interpretation in light of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), (25) which demands that international humanitarian law be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT