RIGHT TO UNIVERSAL HEALTHCARE AND ITS PROTECTION UNDER INTERNATIONAL HUMANITARIAN LAW

AUTHORS:

Jahnvi Gupta, DNLU Jabalpur

Gunjan Hariramani, MNLU Mumbai

Co-Authored and Edited By: Akansha Singh, RMLNLU Lucknow



Once a great historian, Thomas Fuller said, “Health is not valued till sickness comes”. It is rightly said, we humans take our health problems very lightly until they start affecting our daily routine. In December 2019, a pneumonia outbreak was reported in Wuhan, China.[1] On 31 December 2019, the outbreak was traced to a novel strain of coronavirus, which was given the name 2019-nCoV by the World Health Organization (WHO), later renamed SARS-CoV-2 by the International Committee on Taxonomy of Viruses. Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus.[2]

As on 11 July 2020, there were approximately 563,000[3] confirmed deaths and more than 12.75 million [4] confirmed active cases in the COVID-19 pandemic. In this pandemic outbreak, the Right to universal healthcare must not be compromised and the same is also assured by International Humanitarian Law (IHL), synonymous also known as the law of war or the law of armed conflict. The organisation is the legal framework applicable in warlike situations. As a set of rules and principles, it aims, for humanitarian reasons, to limit the effects of armed conflict. IHL is a part of public international law, which is a broad set of treaties, customary law, principles, and norms. International Humanitarian Law makes an attempt to protect health in armed conflicts or wars by requiring parties to an armed conflict to “ensure that adequate medical care is provided without discrimination to the wounded and sick as far as possible and with the least possible delay[5] The framework traditionally regulated relationships only between States. It has evolved, however, to cover a broad range of actors. IHL is notable in this regard, as it recognizes obligations for both States and non-State armed groups that are parties to an armed conflict. At its core, IHL represents a balance between military necessity and humanitarian considerations in the context of conflict. Humanity, as a cornerstone of IHL, represents the imperative during a conflict to alleviate suffering and save lives, and to treat humanely and respectfully each individual. Military necessity is the justification of measures necessary to achieve a military goal, provided these measures comply with international humanitarian law.[6]

IHL plays a crucial role in the implementation of the right to universal health care which is not non-exhaustive in nature. This right refers to the system of providing essential medical services to an individual or a community so that the receiver (s) do not suffer from the financial crisis. The cost of these services is held up by the government of a particular country through the revenues and taxpayers’ amount.[7] This system aims towards the following:-

● Ensuring equity to all. In other words, to support those sections of the society who are financially incapable of carrying out medical facilities by themselves, without suffering economic crunch.[8]

● Ensuring quality healthcare to all, so that it benefits the receiver and relieves him/her.[9]

● Ensuring affordability in order to protect the beneficiary from facing economic crisis personally.[10]

COVID-19 outbreak has shaken every pillar of a country’s functioning. It has majorly affected the healthcare services and the economy and GDP. During the COVID-19 crisis, Universal

Healthcare Coverage has become even more significant as dealing with such a crisis, a resilient and adaptable health system is required.[11] And IHL is playing an important role in ensuring the same.

COVID-19 has proved to be more than a war against Humankind as the damages caused by the pandemic are way greater than damages caused by World War - II. This pandemic has wrecked and erased millions and billions of people from the planet. In India, suggestions have been coming up for setting up a war-room for every state, which would be storing the emergency medical kits and services. [12]

Similarly, the world-known brand - Louis Vuitton has started the manufacturing of hand sanitizers with the alcohol that was earlier used by them in the manufacturing of perfumes, just like the big companies, during the World War - I and World War - II, had begun the manufacturing of arms, ammunition, ships and tankers, bombers and other war-related items to boost and support the wartime economy.[13]

International Humanitarian Law has released guidelines in order to tackle the COVID-19 situation, which only releases safety measures when there's a war-like situation or ongoing war. IHL deals with wars and armed conflict issues and not medical or virus issues, this proves that at an extent this pandemic is no more an epidemic situation, but a war against enemy COVID- 19.[14] This epidemic demands safety precautions alike an ongoing war or global emergency and the front line doctors are the warriors risking their lives and saving the world from the cruel virus.

This global emergency has caused everybody to stay locked inside their homes, also this has forced a temporary ban on travel and tourism which even the biggest wars haven't experienced. So, let's understand the gravity and cruelty of the virus and maintain social distancing!


International humanitarian law and COVID-19: Right to universal healthcare

While all human activities have basically paused around the world due to Covid-19, places such as Yemen, Syria, Congo, and South Sudan, have not seen much of a slowdown in military activity. The number of people in armed conflicts, enfeebled by years of fighting in wars, devastations, erosion of basic services(like food, health, educations), and displacement, are especially vulnerable to the spread of Covid-19 in the current pandemic. Most of the people depend on the humanitarian relief for their own survival and those people are the populations under siege or cut off from basic services that are needed for them to live, detainees, and displaced persons. As nations take measures to avoid the spread of Covid-19 (such as restrictions on international travel, social distancing), freedom of movement of humanitarian workers, transport of medical equipment, medicines and other goods, and humanitarian operations are hindered, leaving some people without support and help. Finding an equal balance between the legitimate right or duty of States to protect and ensure the public health and well-being, and the requirement for humanitarian relief and access by impartial humanitarian organizations is much awaited and this is thing is done by International humanitarian law (IHL) or also called the law of armed conflict and under this, IHL provisions give parties to the conflict, third States and international humanitarian organizations significant ground rules to guide the dialogue on humanitarian access and the provision of humanitarian activities, including when a pandemic, like Covid-19, erupts in times of armed conflict. IHL rules governing humanitarian access, in conjunction with general international law, set a framework of laws for what each party may and may not do while striking an equitable balance between health necessities, military essentials, and humanitarian action.[15]

Protection of Right under IHL:

Medical personnel, facilities, and transport

As shown by the outbreak of Covid-19, what is the necessity now? Sufficient staff and well-equipped medical facilities are necessary for providing medical care on a large scale. Under International Humanitarian Law or for that matter under any circumstance, medical personnel, units, equipment and transports exclusively allocated to medical purposes must be duly respected and protected under all situations. There must be an assurance and maintenance of medical hospitals and establishments by the occupying power in the occupied region. Also, protecting services and ensuring good public health and hygiene is the sole motive of IHL in the current scenario. In addition to this, IHL has also given the possibility of setting up hospital zones for the diseased that may be purely dedicated to addressing the current pandemic. All these provisions are explicitly stated in Rules 25, 26, 28, 29, and 35 ICRC Customary IHL.

Water

Though the earth’s territory is covered with 70% of water, still there is a crisis for potable water in many parts of the world. Clean Water supply is one of the most important jobs at this time. In wars and armed conflicts, all the installations which were made for providing potable water to the people were destroyed by fighting over decades.[16] Any interruption with water supply means that hundreds and thousands of people will be left with no water, which means no way to sanitize themselves and their place which is the basic requirement for stopping the spread of this disease. Rules 15 and 54 ICRC CIHL Study clearly states that IHL prohibits attacking or destroying any objects which are meant for human survival which includes installations of drinking water also and constant care must be taken during military operations to spare these important objects.

Humanitarian relief[17]

Humanitarian action in countries affected by armed conflicts and wars is crucial in saving lives throughout the current crisis. Under Rules 55, 56 ICRC CIHL of international humanitarian law, each party associated to armed conflict bears the first responsibility to satisfy the essential desires of the population under its control. Impartial humanitarian organizations like the ICRC have the proper right to supply their services. Once relief schemes are agreed by the parties involved, the parties to the armed conflict and third States shall permit and facilitate the fast and unimpeded passage of the humanitarian relief subject to their right of control (e.g. by adjusting any pandemic-related movement restrictions to allow victims to access humanitarian goods and services).

Sanctions regimes and other restrictive measures. The COVID-19 outbreak requires the mobilization of significant humanitarian resources, at present, that often lack in War hit countries. Sanctions and other restrictive measures currently can impede impartial humanitarian action in these regions, to the detriment of the most vulnerable and endangered. Sanctions, regimes and other precautionary measures that hinder Unbiased humanitarian organizations, such as the ICRC, from carrying out their exclusively humanitarian activities in a significant manner are incompatible with the letter and the spirit of international humanitarian law. States and international organizations that enforce such measures should confirm that they are parallel to international humanitarian law and do not have a grievous impact on the principal humanitarian response to COVID-19. They must devise effective mitigation measures, such as humanitarian exemptions which benefit the impartial humanitarian organizations.

Persons specifically at risk[18]

People with old age or disabilities or vulnerable to diseases or medical history have lower immune as compared to others. Transients, shelter searchers, and exiles are especially vulnerable to episodes of COVID-19 because they are open to harsh environments and are also restricted from accessing fundamental administrations like medicinal services. Rules 109, 110 and 138 ICRC CIHL Study states that IHL provides aid to wounded and sick people and evacuates them and proper medical care help and care is provided.

Internally displaced persons, migrants, asylum seekers, and refugees[19]

People who are certainly at risk for severe illness, if infected by COVID-19 are older persons, those who have a weak immune system, and those with pre-existing health conditions. Other people, especially people with disabilities, may have to deal with different barriers such as communication, physical discomfort, etc. in accessing required health-care services as well as difficulties in implementing the required hygienic measures to prevent infection. For example, social distancing could be not possible for those people who completely rely on the support of others for everyday tasks. It is required by International Humanitarian Laws to respect and protect wounded and sick persons, in addition to taking all possible measures to search for them and evacuate them without discrimination as soon as humanly possible. It is required that they receive assistance with the least possible delay that is required by their condition without discrimination. In addition to this, International Humanitarian Law provisions afford specific protection to older persons and persons with disabilities who are affected by armed conflict.

Detainees[20]

We all are aware of the living conditions of the detainees. Their place of living is overcrowded, has poor or no hygiene, and lacks ventilation which becomes a huge challenge for the people there because all these conditions are not favourable for diseases like Covid-19 as this condition will make them more vulnerable. Under Rules 118 and 121 ICRC CIHL Study, it is clearly given that IHL should provide help to detainees’ health and hygiene and it must be safeguarded, also sick detainees must receive the required medical aid and care at the specific time.

Conclusion

COVID-19 represents a dramatic new threat to life in war-torn countries. International humanitarian law (IHL) provides an important legal framework that gives crucial safeguards to people suffering from armed conflicts. This overview summarizes a number of the important provisions of IHL which will be particularly relevant during the COVID-19 pandemic. highlighting rights from Adequately staffed and well-equipped medical facilities to Water supply facilities, rights of a group of people, including older persons, those who have weakened immune systems, or those with pre-existing health conditions, are at particular risk for severe illness if infected by COVID-19, rights of poor Detention facilities, Internally displaced persons, migrants, asylum seekers, and refugees are particularly exposed to outbreaks of COVID-19. IHL has acted as a Conveyor in leading the countries to take Humanitarian action which is essential in saving lives during the ongoing crisis.

[1] The Editorial Board (2020-01-29)., "Is the World Ready for the Coronavirus?—Distrust in science and institutions could be a major problem if the outbreak worsens". The New York Times, (July 13, 2020, 2.16 P.M.) . [2] WHO, CoronaVirus, ( July 13, 2020, 2.18 P.M.) .) https://www.who.int/health-topics/coronavirus#tab=tab_1. [3] Express Web desk , Global Coronavirus Updates,12 July: Spain holds regional elections amid pandemic, The Indian Express, (July 13, 2020, 2.30 P.M.) https://indianexpress.com/article/world/global-coronavirus-updates-12-july-6501812/. [4] Ibid. [5]Respecting and protecting health care in armed conflicts and in situations not covered by international humanitarian law – Factsheet, International Committee of the Red Cross, (July 13, 2020, 2. 36 P.M.), https://www.icrc.org/en/document/respecting-and-protecting-health-care-armed-conflicts-and-situations-not-covered. [6] International Humanitarian Law, INTERNATIONAL JUSTICE RESOURCE CENTRE, (july 13, 2020, 2. 43 P.M.),https://ijrcenter.org/international-humanitarian law/#:~:text=International%20humanitarian%20law%20(IHL)%2C,the%20effects%20of%20armed%20conflict. [7] Kimberley Amadeo, Universal Healthcare in different countries- Pros and Cons of each, The balance, (July 11, 2020, 1.34 A.M.) https://www.thebalance.com/universal-health-care-4156211. [8] WHO, Universal Health Coverage and Health financing, (July 11, 2020, 1:56 A.M.) https://www.who.int/health_financing/universal_coverage_definition/en/. [9] Ibid. [10] Ibid. [11] Amirhossein Takian, Mohsen Aarabi and Hajar Haghighi, The role of universal health coverage in overcoming the COVID-19 pandemic, The BMJ Opinion, (July 11, 2020, 3.33 A.M.), https://blogs.bmj.com/bmj/2020/04/20/the-role-of-universal-health-coverage-in-overcoming-the-covid-19-pandemic/ . [12] Gajendra Haldea, Coronavirus crisis: For survival, fight Covid-19 pandemic like a war, Financial Express, (July 13, 2020, 1. 56 P.M.) https://www.financialexpress.com/lifestyle/health/coronavirus-crisis-for-survival-fight-covid-19-pandemic-like-a-war/1972778/. [13] Adrienne Bernhard, COVID 19-What we can Learn From wartime efforts, BBC, (July 13, 2020, 1.45 P.M.)https://www.bbc.com/future/article/20200430-covid-19-what-we-can-learn-from-wartime-efforts. [14] ICRC, IHL Rules on Humanitarian Access and Covid-19, ReliefWeb, (July 13, 2020, 2.16 P.M.) https://reliefweb.int/report/world/ihl-rules-humanitarian-access-and-covid-19. [15] IHL Rules on Humanitarian Access and Covid-19, relief web, (Apr 8, 2020), https://reliefweb.int/report/world/ihl-rules-humanitarian-access-and-covid-19. [16] COVID-19 response in conflict zones hinges on respect for international humanitarian law, ICRC, (Apr 16, 2020), https://blogs.icrc.org/law-and-policy/2020/04/16/covid-19-response-respect-international-humanitarian-law/. [17] Supra Note 2. [18] Supra Note 2. [19] Rebecca Blumenthal and Catriona Murdoch, COVID-19 and Humanitarian Access for Refugees and IDPs: Part 2 – Syria and Bangladesh, Justice Security, (April 9, 2020), https://www.justsecurity.org/69570/covid-19-and-humanitarian-access-for-refugees-and-idps-part-2-syria-and-bangladesh/. [20] Emily Camins, The value of international humanitarian law in the time of COVID-19, Australian Red Cross, https://www.redcross.org.au/stories/ihl-blog/ihl-and-covid-19.

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