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Human rights derogations/ restrictions in the time of COVID-19: what is their relevance in situations where an armed group or de facto entity controls territory?

May 22, 2020

Katharine Fortin is an Assistant Professor at Utrecht University where she teaches international humanitarian law and international human rights. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. Katharine has written widely about the framework of law that applies to armed groups in non-international armed conflicts and she is one of the editors of the Armed Groups and International Law blog. She has recently started a 3-year NWO-Veni research project called ‘Dangerous Liaisons: civilian agency, armed groups and international law’.

As we scramble to understand how international law governs the COVID-19 crisis, it has been rightfully said that it is important not to forget the hundreds of thousands of people who are living in territories controlled by armed groups. Although international humanitarian law will undoubtedly protect the people living in these territories, some of the norms found in the human rights framework will also likely be of great relevance to people’s everyday life (see here). Indeed, the norms that have been put most under pressure during this time are dealt with very squarely by the human rights framework: the right to freedom of movement, freedom of assembly, the right to work, the right to education and the right to health. It is interesting to note that of the fourteen countries who have now deposited notifications of derogations to the International Covenant on Civil and Political Rights (ICCPR) since early March 2020, all of them have indicated that they are derogating from Article 12 (right to freedom of movement) and Article 21 (the right to freedom of assembly). These are both rights that are not found in international humanitarian law in non-international armed conflicts

The recent spate of derogations by States in the context of the COVID19 crisis has prompted a lot of fascinating commentary on blogs, with authors studying their legality, desirability and legal effect (see here, here, here and here for just some of these posts). There has so far been no analysis of the effect that State’s derogations could have on the rights of people living in territories under the control of armed groups or de facto entities. There has also been little discussion of whether armed groups themselves might be able to limit their human rights obligations in these (or other) circumstances. The importance of considering this second matter was made clear by the recent post by Marcos Kotlik and Ezequiel Heffes (see here) demonstrating that armed groups are taking very similar measures to States in situations where they control territory: telling people to stay home and closing schools and workplaces. This post provides some initial reflections on these interesting but little-studied issues, focusing its analysis on the ICCPR framework. It starts by examining the practice of State derogations, with respect to territories outside their control. It then continues to see whether there are any means available to armed groups to restrict their human rights obligations in a similar way.

The use of derogations by States suffering a loss of territorial control

When considering the effect of State derogations on territories under the control of armed non State actors or de facto entities, it is first helpful to understand how derogations have previously been used in these contexts. At first glance, it may be thought to make some sense that a State would derogate if it lost control of territory, as the wording of Article 4 of the ICCPR refers to ‘public emergency’ which is ‘threatening the life of a nation’. But it is interesting to note that there have been very few situations in which a State has derogated from the ICCPR in these circumstances. Although both Moldova* (which has little control over Transnistria) and Georgia (which has little control over South Ossetia and Abkhazia) recently submitted notices of derogations during the coronavirus crisis, neither State had previously attempted to derogate from the treaty in relation to their break away regions. Other key States that have lost control over portions of their territory have also not derogated from the ICCPR in these terms or on that basis e.g. Syria and Iraq.

The only instances that I have been able to find where a State has referred a the loss of territorial control in its derogation notices are the notification notices filed by Ukraine. In each of the notifications filed by Ukraine it has first asserted that Russia is fully responsible for the respect and protection of human rights and international humanitarian law in the areas of Donetsk and Luhansk over which it has effective control. In the notifications that Ukraine filed in 2015 and 2016, it seems to be derogating only with regard to the listed districts of Luhansk and Donetsk that were wholly or partially under the control of the Ukrainian authorities. The document does not list localities and districts under the control of armed groups, despite noting that these amounted to 28% of the territory of the Donetsk oblast and 15% of the territory in the Luhansk oblast (see here and here). Reading between the lines, it appears that Ukraine was derogating in territories under its total or partial control to make space for the emergency and military measures it needed to take in order to take back and retain full control of these areas.  In a later notification in 2019, Ukraine does include a list of localities and settlements in Luhansk and Donetsk over which it has lost control (see here). The legal relevance of this list is hard to fathom from the text, but on balance I have the impression that Ukraine is still not attempting to derogate in relation to these areas.

The relative absence of State derogation notices in such situations can be seen to reflect the fact that the philosophy of the derogation regime is to provide a ‘get out clause’ to excuse the deliberate adoption of emergency measures by a State e.g. the passing of emergency laws, prolonged detention, restrictions on movements. The derogation regime is not understood to extend to situations where a State has become unable to adhere to its obligations under human rights law due to a lack of capacity. Although there are some examples of a State derogating in such circumstances (see here for an example of Colombia depositing a notification due to the temporary malfunctioning of its judicial system) one can see that this is generally undesirable, as derogations may be used by States to excuse a lack of effort or lack of capacity. If such practice were to become widespread, the legal framework would quickly lose its normative edge. Derogations in these circumstances would also likely go against the idea that derogations should be temporary (see here for what ‘temporary’ means). Perhaps most importantly, derogations in these contexts are not necessary as it is well known that States are not expected to respect and protect human rights in circumstances where they are prevented from doing so by a de facto situation, such as a separatist regime or military occupation (para 333, Ilascu v Moldova and Russia).

The effect of derogations by States on ANSAs/ de facto entities

It is interesting that the recent notifications of Moldova* and Georgia sought to extend their derogations to the whole of their territory (see here and here), despite these States having lost control over parts of their territory. It raises the question of whether derogations by States in these circumstances could ever be said to have legal effect in a territory under the control of armed groups. And if so, whether an armed group could rely on such a derogation to avoid a violation? Or whether the act of derogation should provide a reason for an international organisation to hold the armed group to account to a lesser standard, with respect to the derogated rights? These are questions without easy answers. They first require a consideration of the source of human rights obligations for armed groups: customary international law or treaty law (see here, here and here for this discussion). If the source of human rights obligations is customary international law – and many statements by international accountability mechanisms seem to support this view – the question of the territorial State’s derogations from its obligations probably has less relevance. Even when it is accepted that armed groups can also be bound by human rights treaty law (as I have argued), it is unclear whether a derogation by the State party to the treaty could be held valid in the relationship between that group and the people living under its control. The principles of legality and rule of law require derogations to be accompanied by a proclamation of emergency. There is also an expectation that emergency powers will be implemented through national law, as affected populations have the right to be aware of the new legal rules, so that they can adjust their behaviour. While a country with a break-away region may have proclaimed an emergency and passed emergency laws, I am sceptical about whether these actions by the State would have meaningful effect in the break-away region.

Armed groups derogating from human rights law

This leads me to the final question of whether armed groups can themselves subject rights such as freedom of movement or freedom of peaceful assembly to restrictions. This question is not only relevant to these COVID19 times, as armed groups very often operate in settings where an ‘emergency dynamic’ has become the normality. The issue of whether armed groups can derogate from human rights treaties has hardly been examined in the literature (except very briefly here). It has been mentioned already that the term ‘derogation’ is linked to the treaty law system of human rights law which is undeniably State-based, in its procedural and institutional architecture. This is seen in the wording of Article 4 of the ICCPR which requires derogations to be based on an ‘emergency facing the nation’ and requires derogating States to notify ‘other States Parties’. The whole philosophy of derogations is based on the sovereignty principle, in that it gives States the opportunity to ‘take back’ a portion of their sovereign rights, in circumstances where the existence of their nation is a threat (see here). In a situation of armed conflict, there are several conceptual obstacles with the idea that an armed group should be able to utilise that mechanism. Perhaps most importantly, it could be questioned whether armed groups have anything equivalent to sovereignty over their territory that can be legitimately defended under international law by a restriction of rights.

But when the wording ‘emergency facing the nation’ is applied to a situation of pandemic, one might argue that it makes conceptual sense that an armed group should also be able to rely upon such a clause. Here, the focus could be on a people-oriented concept of emergency, rather than a national security concept of emergency. We then need to consider the relevance of procedural aspect. Although some human rights treaty bodies have recently showed signs of a willingness to extend their scope to armed groups (see here) and although literature and practice seems to be creeping towards a gradual acceptance of armed groups being bound by human rights law (see here, here , here and here), armed groups remain outside the procedural mechanisms of the human rights system (see here). It is not clear how much this matters in this instance, as Article 4 requires notifications to be submitted to the UN Secretary General. Even more significantly, there is a debate as to whether a notification is even needed for a derogation to have legal effect (see here, here and here).

Armed groups placing limitations on the enjoyment of human rights

On balance, I think it makes better conceptual sense to say that armed groups can put restrictions on their human rights obligations through limitations, rather than derogations. There has been a lot of questioning over the last months whether it iseven appropriate to be talking about derogations in the time of COVID-19, in relation to the key rights which are repeatedly being derogated from i.e. the right to freedom of association and the right to freedom of movement. Indeed, the Human Rights Committee stated long ago that when the treaty text provides the opportunity for rights to be limited, derogations are inappropriate (see General Comment 29). It repeated this view recently in its statement on the COVID-19 crisis giving explicit mention of Article 12 (right to freedom of movement) and Article 21 (the right to freedom of assembly). Expressing a preference for this route may offer some protection against attempts to effect a wholesale suspension of a treaty provision by way of derogations (a practice which although prohibited, is nevertheless sometimes attempted, see here and here). States are encouraged to articulate their limitations according to the framework of legal protections that are well known (i.e. law, necessity, proportionality, prohibition of discrimination).

Should it be agreed that this is the correct way to proceed (for a convincing defence of the derogation system see here), this does not get us completely out of the woods when looking at armed groups. The language surrounding limitations found in, for example, Articles 12 (right to freedom of movement) and 21 (the right to freedom of assembly) of the ICCPR also provides challenges when applied to armed groups. First, it requires consideration of how terms like ‘in conformity with the law’ and ‘provided by law’ should or can be interpreted. This question has been much analysed of late in relation to discussion on armed groups and detention and fair trial (see e.g.  here and here). It also requires attention to how terms like ‘national security’ and ‘democratic society’ should or could be interpreted when it comes to armed groups. In my view, none of these terms need be seen as insurmountable obstacles, but they are certainly issues that need more focused consideration (see here, p165-6).

Conclusions

This post has identified and analysed the different ways in which restrictions on human rights may be implemented in territory held by armed groups and de facto entities. It has raised several issues for further consideration and also pointed out some procedural and conceptual problems. Ultimately, the conclusions of this post reinforce the message regarding the extreme vulnerability of individuals living outside the control of the de jure government. While remaining ‘rights-holders’, these individuals find themselves outside the scrutiny of the human rights procedures dedicated to protecting these rights.

NB: Actions taken by armed non State actors to adopt policies and implement measures to prevent and mitigate the spread of COVID-19 can be tracked here on Geneva Call’s ANSA COVID-19 Response Monitor.

*Moldova notified its derogation to the UNSG on 18 March 2020. It notified the UNSG of the termination of those provisions on 18 May 2020.

My thanks go to Kushtrim Istrefi for his useful comments on an earlier version of this post.

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