COVID-19 Op-ed

International humanitarian norms and health care obligations of non-state armed groups: Ethnic armed organisations in Myanmar during the Covid-19 pandemic

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Stan JaggerDr Stan Jagger’s doctoral research
focused on international humanitarian norms and ethnic armed organisations in
Myanmar. He has worked as a consultant with local education and research
organisations in Myanmar over the last 8 years

In March 2020, in response to the Covid-19 pandemic, UN
Secretary General Antonio Guterres called for a global ceasefire. While the
UN is a central pillar of the international system of recognised states,
globally, many conflict actors are non-state armed groups. Long-established
ethnic armed organisations (EAOs) in Myanmar, such as the Karen National
Union (KNU), the New Mon State Party (NMSP), the Restoration Council of Shan
State (RCSS) and the Kachin Independence Organisation (KIO), have for decades
operated welfare services in their areas of control, including provision of
basic healthcare (Davis & Jolliffe, 2016). EAO- associated or
accepted civil society organisations (CSOs), with support from a few
international NGOs, have also promoted international humanitarian norms to
these EAOs who have also engaged with those norms as part of their own
legitimacy and nation-building projects (de la Cour-Venning, 2019). For
example, EAOs, including the KNU, NMSP, and the Karenni National Progressive
Party (KNPP) (although not the KIO thus far), have made Deeds of Commitment
(DoC) and enacted policies for the protection of children from the effects of
armed conflict and recruitment (Geneva Call, 2016). The DoC are unilateral
declarations made by non-state armed groups for compliance with humanitarian
norms expressed through the international NGO, Geneva Call. Humanitarian
norms in the context of Geneva Calls’ DoCs refer to the international
humanitarian law (IHL) and international human rights law (IHRL) standards
that are applicable to armed non state actors (Decrey-Warner, Somer,
& Bongard, 2012). The EAOs’ existing provision of health services
also correspond with IHL obligations for healthcare and protection of
civilians in non-international armed conflicts. However, the EAOs’
declarations, policies and actions as demonstrated in the case of the DoC for
protection of children, often gain little international recognition or
support.IHL includes obligations for non-state armed groups with implications
for provision of health care. Non-state armed groups are specifically
recognised in Common Article Three to the four Geneva Conventions of 1949
(Myanmar is a state party) applying to “armed conflict not of an
international character” including obligations to protect the “wounded and
sick.” Additional Protocol II 1977 to the Geneva Conventions (Myanmar is not
a state party), applies specifically to protection of civilians in
non-international armed conflicts. Article 18 (2) extends obligations to
armed groups and their state military opponents to allow provision of
“foodstuffs and medical supplies” to civilian populations by an impartial
humanitarian actor. This point is of considerable relevance in Myanmar, in
terms of the Myanmar military’s (the Tatmadaw) ongoing denial of access for
local and international humanitarian organisations to internally displaced
persons (IDP) camps in EAO-controlled areas (Amnesty International, 2017;
Human Rights Watch, 2020). While Myanmar is not a party to Additional
Protocol II, norms applying to access for humanitarian assistance and
 the humane treatment of both combatants and civilians, including the
sick  within the control of armed actors (whether state or non-state)
have, more broadly, become an accepted part of customary IHL (Henckaerts
& Doswald-Beck, 2005: 306-308).IHL and IHRL have also sometimes been
included within ceasefire or peace agreements between governments and
non-state armed groups (Mack & Pejic, 2008). The 2015 Nationwide
Ceasefire Agreement (NCA) in Myanmar includes ten signatory EAOs mostly from
southeast Myanmar, including the KNU, NMSP and RCSS. However, Myanmar’s
largest EAOs in the north and northeast of the country, including the United
Wa State Army (UWSA) and the KIO, have not joined the NCA The NCA does not
explicitly refer to IHL or IHRL, but it does include EAO and the Tatmadaw
obligations for protection of civilians, including access to health care
(NCA, Article 9) and provision of humanitarian assistance (NCA, Article 10),
which are important considerations in IHL. However, actual political progress
with the NCA has been minimal and militarisation in ethnic areas has often
increased alongside continued restrictions on humanitarian assistance to
non-government-controlled areas by the Tatmadaw. These restrictions impact on
health care for internally displaced persons (IDPs) and others living in
conflict-affected and EAO-controlled areas.EAOs, including the KNU, KIO,
NMSP, KNPP and RCSS have instituted various measures in response to Covid-19.
These have included establishing emergency response committees, closing
border crossings that they control, distributing protective equipment,
conducting temperature screenings of returning migrants, procuring some
limited test kits, and establishing quarantine areas (Htusan, 2020; Hkawng,
Fishbein & Nitta, 2020; Mai Hla Aye, Nay Yan Oo, Jolliffe &
Batchelor, 2020). These steps demonstrate that, to some extent, those EAOs
are addressing IHL obligations regarding assistance and healthcare to
civilian populations in their areas. These actions also echo agreements to
uphold humanitarian norms some have previously made, such as in relation to
protection of children from armed conflict and recruitment. However, EAOs and
their associated welfare services have limited capacity to implement
Covid-19-related health measures, or access to external assistance to do so.
Moreover, despite a claimed Tatmadaw ceasefire (excluding Rakhine state) and
establishment of a government-led committee to coordinate with EAOs on
Covid-19, the Tatmadaw has obstructed or attacked some EAO health responses.
For example, forced closure and burning of KNU Covid-19 screening check
points, attacks on RCSS medics while undertaking health checks, and general
resistance to EAO measures, such as travel restrictions or border closures, instituted
by EAOs in their areas (Progressive Voice, 2020; Karen Peace Support Network,
2020).To address the scale of the threat to health posed by Covid-19 in
Myanmar, Myanmar authorities need genuine political will to coordinate
constructively with EAO health providers and allow access for national and
international humanitarian organisations to support existing healthcare in
EAO-controlled areas. This is especially urgent in EAO areas with IDPs. This
would be a vital step to improving the response to Covid-19 in remote
conflict-affected areas that hold implications for the health response in the
rest of the country. It would also recognise the role played by EAOs in
provision of health care to their constituent populations as part of meeting
their IHL obligations. Such developments would present a positive step for
progressing currently stalled ceasefire negotiations and, in turn,
potentially encourage better compliance with IHL obligations by the Tatmadaw,
which has been needed long before the present crisis.References:Additional
Protocol to the Geneva Conventions of 12 August 1949 and Relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8
June 1977
.Amnesty International. (2017). All the
Civilians Suffer: Conflict, Displacement, and Abuse in Northern
Myanmar
. London: Amnesty International.Article
3, common to the four Geneva Conventions,
1949.
Davis, B., & Jolliffe, K. (2016). 
Achieving health equity in contested areas of Southeast Myanmar.
Yangon, Myanmar: The Asia Foundation.de la Cour-Venning, A.
(2019). Revolutionary Law Abidance: Kachin Rebel Governance and
the    Adoption of IHL in Resistance to Myanmar State
Violence. International Criminal Law Review, 19, 872-
904.Decrey-Warner, E., Somer, J., & Bongard, P. (2012). Armed
Non-State Actors and Humanitarian Norms: Lessons from the Geneva Call
Experience. In B. Perrin (Ed.), Modern Warfare: Armed Groups,
Private Militaries, Humanitarian Organisations, and the Law
(pp.
73-86). Vancouver, Canada: UBC Press.Henckaerts, J-M,. &
Doswald-Beck, L. (2005). Customary International Humanitarian Law
Volume I: Rules.
Cambridge, UK: Cambridge University Press.Hkawng
J, T., Fishbein, E,. & Nitta, Y. (May 3, 2020).  Myanmar’s
ethnic conflicts obstruct COVID-19 aid to minorities. Nikkei Asian
Review.
https://asia.nikkei.com/Spotlight/Coronavirus/Myanmar-s-ethnic-conflicts-obstruct-COVID-19-aid-to-minoritiesHtusan,
E. (April 21, 2020). Bracing for the coronavirus in Myanmar’s rebel-held
borderlands. The New Humanitarian. https://www.thenewhumanitarian.org/news/2020/04/21/Myanmar-coronavirus-Rakhine-Kachin-Karen-conflictHuman
Rights Watch. (March 4, 2020). Myanmar: Civilians caught in surge
of fighting.
https://www.hrw.org/news/2020/03/04/myanmar-civilians-caught-surge-fightingInternational
Committee of the Red Cross. (2012). The Geneva Conventions of
1949.
Geneva, Switzerland: ICRC.Jolliffe, K. (2014).
Ethnic Conflict and Social Services in Myanmar’s Contested
Regions
. Yangon, Myanmar: Asia Foundation.Kachin News Group. (May
12, 2020). EAOs Cautious About Collaboration with Govt’s COVID-19
Coordination Committee, Insiders Say
https://kachinnews.com/2020/05/12/eaos-cautious-about-collaboration-with-govts-covid-19-coordination-committee-insiders-say/?doing_wp_cron=1589295186.5095660686492919921875&fbclid=IwAR3esZPVoa3Pan1DngC3DkFDVQboVEMbJhgULgmHWvTMES3QDCbeGv3r_9kKaren
Peace Support Network. (June 2020). Virus Warfare: Burma Army
destruction of Karen community defences against Covid-19.

KPSN.Mack, M., & Pejic, J. (2008). Increasing Respect for
International Law in Non-International Conflicts
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K. & Batchelor, R. (June 1, 2020). Covid-19 response
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. Asia Foundation/
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(2015). Available from, https://peacemaker.un.org/sites/peacemaker.un.org/files/MM_151510_NCAAgreement.pdfNyein
Nyein. (April 28, 2020). Myanmar sets up Covid19 committee with rebel armies.
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of Covid-19
. Progressive Voice. https://progressivevoicemyanmar.org/wp-content/uploads/2020/06/Final_PV-COVID-19_Report-2020.pdf

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