Georgetown University Law Center Scholarship @ GEORGETOWN LAW

2019

Fighting Novel Diseases amidst Humanitarian Crises

Lawrence O. Gostin Georgetown University Law Center, [email protected]

Neil R. Sircar Georgetown University Law Center, [email protected]

Eric A. Friedman Georgetown University Law Center, [email protected]

This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/2141 https://ssrn.com/abstract=3340144

Hastings Center Report, January-February 2019, 6-9.

This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Health Law and Policy Commons, and the International Humanitarian Law Commons at law

departure” of U.S. personnel even from , where the CDC was working with the DRC Ministry of Health to Fighting Novel Diseases track cases in North .6 The Kin- shasa operations center may be amidst Humanitarian Crises left with as little as one CDC expert. Other countries, such as and the , have followed the U.S. lead and have also withdrawn by Lawrence O. Gostin, Neil R. Sircar, and Eric A. Friedman from . The Trump adminis- tration apparently has adopted a policy he Democratic Republic of the could accelerate and spread within and of zero risk tolerance, fearing a “Beng- Congo is facing two crises: a beyond the DRC.2 Guerrilla and rebel hazi-style” attack. In a vicious cycle, the Tpotentially explosive Ebola epi- groups, notably the Allied Democratic few brave health workers remaining are demic and a major insurgency. But they Forces, fight with government forces under threat, and their inability to con- are not wholly distinct from each other: and international peacekeepers. Yet the tain the has sadly become yet the first is intertwined with the second, long-running Stabiliza- another cause of community frustra- and public mistrust and political vio- tion Mission (MONUSCO) in DRC tion and anger. lence add a dangerous dimension to the has been ineffectual, with UN troops A recent expert consensus statement Ebola epidemic. The World Health Or- themselves targeted as hostile forces.3 urged the Trump administration to de- ganization and other health emergency More than two decades of conflict has ploy all key assets while managing the responders will increasingly find them- destroyed any sense of order and struc- security risk with “smart” peacekeep- selves fighting outbreaks in insecure, ture. Systematic rape, murder, and ing, diplomacy, and community en- misgoverned or ungoverned zones, pos- kidnapping have eroded security and gagement.7 The CDC personnel ban sibly experiencing active conflict. Yet instilled fear.4 Within this quagmire, will certainly result in more disease and the WHO has neither the mission nor Ebola has now spread to (a death in local populations. Deploying the capabilities to navigate these secu- city of about one million people), while needed assistance is not just the right rity threats. We cannot expect that the has vaccinated health workers thing to do; it is also in our national usual strategy will succeed in preparation for cross-border cases. interests. Fighting outbreaks at their when health workers’ lives are directly The WHO has adopted a “ring” source can halt an epidemic before it imperiled and community resistance strategy, vaccinating health workers spreads regionally, even globally. Global runs deep. Tackling health emergencies and individuals at heightened risk of health leadership enhances American amidst complex humanitarian crises re- exposure. The investigational vaccine “soft power.” quires fresh thinking. is highly effective, yet many infected In mid-October 2018, acting under and exposed people are lost to follow- the International Health Regulations, Ebola in the DRC up, often hidden by distrustful family the WHO director-general Tedros members. In an atmosphere of violence Ghebreyesus convened an emergency he Democratic Republic of the and mistrust, vaccination and contact committee, which recognized the po- TCongo is bitterly accustomed to tracing are seriously disrupted. Each tential for cross-border transmission novel diseases and political violence. concussive rebel attack has coincided but did not recommend declaring the The North is with a major spike in cases. North Kivu outbreak a public health the DRC’s tenth Ebola outbreak and The U.S. State Department has emergency of international concern. now the second largest globally, after banned all U.S. personnel from the hot This was a mistake. A PHEIC declara- that in the West African countries of zone, including from the Centers for tion would have underscored the ur- Guinea, Liberia, and Sierra Leone in Disease Control and Prevention and gency and raised the political profile of 2014.1 Making matters worse, com- the U.S. Agency for International De- the health crisis amidst the protracted batants vie for dominance in the re- velopment (USAID).5 In the run-up violence and humanitarian crisis.8 gion, displacing millions of residents to the DRC elections, the State De- Still, for the first time ever, the fleeing violence and disease—which partment also announced an “ordered WHO director-general requested UN

6 HASTINGS CENTER REPORT January-February 2019

© 2019 The Hastings Center. Permission is required to reprint. Security Council action on behalf of health workers, including through in- the alternative is to allow dangerous global health security.9 On October 30, tentional targeting.15 All this violence diseases to go unchecked, threatening the Security Council condemned politi- has occurred despite Security Coun- countries, regions, and the globe. cal attacks, demanding “full, safe, im- cil resolutions condemning attacks on Peacekeeping. Peacekeepers are sup- mediate and unhindered access for the health workers and facilities.16 Inter- posed to act as a neutral force, sepa- humanitarian personnel.”10 Incredibly, national humanitarian law proscribes rating warring factions and providing though, it called on warring parties to attacks on health workers, but it does “space” for diplomacy to end hostilities. “respect” international humanitarian not apply to humanitarian workers. The Yet where communities feel alienated law—a plea sure to fall on empty ears in UN, mindful of this gap in legal protec- from decades of violence—including a conflict where violations are the norm, tion, has nonetheless refused to extend rape, torture, and possibly genocide19— while doing little to enhance peacekeep- the Geneva Conventions to include hu- peacekeepers can become engulfed in ing operations or mobilize funding. The manitarian personnel.17 the conflict. Humanitarian organiza- Security Council urged the DRC to tions have also resisted armed pro- take responsibility for security, despite A Blueprint for Fighting Disease tection because they want to serve as the Congolese military’s own record of in Conflict Zones mediators, health advocates, and heal- repression and weak capacities. ers.20 Consequently, the United Nations Commissions established in the af- iven these trends, it makes little must fundamentally reform peacekeep- termath of the 2014 Ebola outbreak in Gsense to use the same public health ing conducted in a health emergency. West Africa urged decisive UN action playbook that has worked in the past. The Security Council should provide when a health emergency rises beyond Health workers must be able to oper- peacekeepers with a mandate and mo- the WHO’s mandate and capacity.11 ate freely and safely to bring infectious dalities fit for the purpose of quelling a Now is that time, both because of the diseases under control. Political vio- health emergency. Separate from other urgency of the DRC epidemic and to set lence undermines public health’s abil- peacekeeping missions that may be op- a precedent, leading the way for future ity to reach contagious, exposed, or erating, such a health peacekeeping mis- complex health emergencies. Fighting at-risk individuals to conduct vaccina- sion’s mandate should specifically be to disease in conflict zones and disaster tion campaigns and contact investiga- safeguard the public health response, settings is rapidly becoming the new tions or to separate the sick from the deploying sufficient forces to enable normal. We need to plan accordingly. healthy through isolation or quarantine. health workers to operate safely. This Consider just a few recent examples Health workers and patients must have requires peacekeeper training on health in which have coincided secure access to clinics and hospitals for emergencies and working cooperatively with political violence. In December diagnosis and medical treatment. At the with first responders. To build trust, 2018, the WHO was forced to extend a same time, first responders must gain forces should be trained on the values PHEIC for wild polio, which is stub- the public’s trust. If local communities and strategies of “community polic- bornly persisting in war-torn Afghani- fail to cooperate, if they hide sick fam- ing”—engaging community members stan and Pakistan. Taliban fighters have ily members, if they follow unsafe burial as partners, listening to their concerns, killed dozens of polio vaccine workers, rituals, or if they go underground or flee and respecting their rights and dignity. threatening countless others.12 the conflict, an outbreak can rapidly Peacekeepers must work with anthro- In Yemen, cholera has killed several spin out of control. Further, misinfor- pologists and local leaders to value local thousand people, as the country’s health mation can endanger health workers. culture, customs, and languages. Peace- system unravels due to civil strife and In 2015, Guinean villagers slaughtered keepers must build trust and security foreign aggression. Beyond disease, the health workers under the belief that from the bottom up, rather than from people of Yemen are dying from starva- they were spreading Ebola.18 the top down. tion.13 Haiti, another country with weak Here, we offer a blueprint for fight- Diplomacy. A classic tool of state- governance, has unsuccessfully fought a ing diseases in complex humanitarian craft, diplomacy needs to become a cholera epidemic ever since UN person- emergencies. The building blocks of central piece of the global response to nel inadvertently introduced the disease security and trust include high-level health emergencies during complex following a devastating earthquake in political support, street-level diploma- humanitarian crises. The clear aim of 2010. cy, community engagement, enhanced negotiations with belligerents and com- In unstable countries and regions, funding, and protection of health pro- munity members would be safe entry health workers are at major risk. In fessionals working in conflict or disaster and a secure working environment 2018, Boko Haram killed and abducted zones. When epidemics rage in hostile for health and humanitarian workers. International Committee of the Red environments, high-income countries While overall conflict resolution is nec- Cross personnel in Nigeria. The ICRC’s should not stand idly by but, rather, essary, the immediate goal should be plea for mercy did not save the health join the WHO and local health workers to create the respect and trust needed workers’ lives.14 In Syria, rebels and gov- on the ground, where assistance is badly for impartial and independent health ernment forces have killed hundreds of needed. This is all far from simple, but and humanitarian workers to function.

January-February 2019 HASTINGS CENTER REPORT 7 Much as diplomacy helped secure the most countries have failed to meet IHR for, and respond to future public health Taliban’s agreement to allow health standards, including for laboratories, crises in hotbeds of violence and human workers in Afghanistan to carry out surveillance, risk communication, and suffering. Political actors will need to as- polio vaccination,20 negotiations could human resources. And high-income sume their responsibilities if humanitar- result in an agreement that insurgents countries have virtually ignored their ians and health workers are to carry out would avoid interfering with the public responsibilities for international assis- theirs. health response. tance. The U.S. launched the Global Acknowledgment and Disclaimer Deployment of all needed assets. A Health Security Agenda in 2014 to ex- zero-risk policy for deployment of per- pand capacities, and it recently recom- This project was supported by Nation- sonnel from the United States and other mitted itself to the GHSA at the GHSA al Institutes of Health research training high-income countries is a recipe for Ministerial in Indonesia. Yet Congress grant # D43 TW009345, funded by the failure. The WHO and the DRC have has not reauthorized GSHA funding. Fogarty International Center; the NIH requested U.S. deployment to the Ebola Investing in preparedness is much less Office of the Director, Office of AIDS Research; the NIH Office of the Director, hot zone. The CDC could fill signifi- costly than crisis response. Developing national, inclusive Office of Research on Women’s Health; cant capacity gaps, such as surveillance, The National Heart, Lung and Blood laboratory testing, and contact investi- health systems is a sure way to build public trust. Beyond health systems, in- Institute; the National Institute of Men- gations. Other public agencies, such as tal Health; and the National Institute of ternational assistance should extend to USAID and the National Institutes of General Medical Sciences. This project Health’s Fogarty International Center, meeting basic needs such as clean wa- was additionally made possible by Afya could provide peer-to-peer training in ter and nutritious food. The public is Bora Consortium Fellowship, which is diagnostics, treatment, and the safe use much more likely to view foreign health supported by the U.S. President’s Emer- of personal protective equipment. workers as a force for good if their pres- gency Plan for AIDS Relief through fund- Just as the CDC has expertise in ence comes with tangible long-term, ing to the University of Washington under emergency response, the State Depart- sustained improvement in health and Cooperative Agreement U91 HA06801 social services—even as ensuring such from the Health Resources and Services ment has diplomatic and intelligence Administration Global HIV/AIDS Bu- capacities, and thus the responsibility to needs should hardly depend on a health crisis that poses international risk. reau. The views expressed in this essay are act. The diplomatic power of the Unit- those of the authors; the essay does not ed States extends beyond intelligence represent the views of the NIH. and mediation to political leverage. Toward a New Public Health Playbook President Obama, for example, secured 1. D. Haynes, “Ebola Outbreak in DR an unprecedented Security Council Congo Is Second Worst in History,” United he standard public health playbook Press International, November 29, 2018. resolution, which was a milestone in Tis still vital, combining therapeutic 2. J. Burke, “‘The Wars Will Never Stop’— ultimately bringing the West African countermeasures such as vaccines and Millions Flee Bloodshed as Congo Falls Apart,” Ebola epidemic under control. Bringing antiviral medications with public health Guardian, April 3, 2018. hostile parties to the negotiating table, measures such as surveillance, contact 3. L. Gberie, “Intervention Brigade: as recently occurred in Yemen, requires End Game in Congo?,” Africa Renew- investigations, and hygiene. But in an al, August 2013, https://www.un.org/ high-level political attention. That level era when health emergencies coincide africarenewal/magazine/august-2013/ of political action has been sorely miss- with complex humanitarian crises, we intervention-brigade-end-game-congo. ing in the DRC. cannot expect the old public health to 4. Burke, “‘The Wars Will Never Stop.’” The United States should urgently succeed; we must adapt to the world 5. S. Scutti, “Ebola Experts Pulled from create a strategic plan for future deploy- Congo amid Ongoing Outbreak,” CNN, Oc- we live in. Where distrust and insecu- tober 15, 2018. ment of expert personnel to conflict rity run deep, politics, diplomacy, and 6. U. S. State Department, “Democratic zones. Rather than having zero risk tol- peacekeeping become vital assets. With Republic of the Congo Travel Advisory,” De- erance, the United States should manage the United Nations Security Council, cember 14. 2018, https://travel.state.gov/con- the risk by shoring up security, engaging the Trump administration, and Western tent/travel/en/traveladvisories/traveladvisories/ diplomats, and embedding U.S. person- democratic-republic-of-the-congo-travel-advi- allies standing idle while international sory.html. nel in ongoing international humanitar- health actors struggle, the interconnect- 7. L. O. Gostin et al., “Ebola and War in ian operations through, for example, the ed epidemics of violence and disease es- the Democratic Republic of Congo: Avoid- United Nations. calate. ing Failure and Thinking Ahead,” Journal of International assistance. The Inter- The Ebola crisis in parts of West the American Medical Association, November national Health Regulations require ev- 29, 2018, https://jamanetwork.com/journals/ Africa spurred major reforms to the jama/fullarticle/2717586. ery nation to create core health system WHO’s health emergency program. 8. J. Ducharme, “Health Workers in South capacities to detect, report, and respond The ongoing Ebola and humanitarian Will Be Vaccinated As the DRC Ebola to health emergencies, and they charge crisis in North Kivu ought to similarly Outbreak Spreads: Here’s What to Know,” states with providing international as- transform how we understand, prepare Time, October 17, 2018. sistance to build those capacities.21 Yet

8 HASTINGS CENTER REPORT January-February 2019 9. World Health Organization Direc- 15. “Attacks on Health Care,” World September 13, 2010, at https://www.theatlan- tor-General’s Office, “UN Security Coun- Health Organization, accessed December tic.com. cil Meeting on the Ebola Outbreak in 20, 2018, http://www.who.int/emergencies/ 20. International Committee of the Red North Kivu, Democratic Republic of the attacks-on-health-care/en/. Cross, Report on the Use of Armed Protection Congo: Dr. Ghebreye- 16. “Health-care Workers Suffer Attacks Ev- for Humanitarian Assistance (Geneva, Swit- sus, Director-General,” October 3, 2018, ery Single Week,” International Committee of zerland: ICRC and International Federation, https://www.who.int/dg/speeches/2018/ the Red Cross, May 3, 2018, https://www.icrc. December 1995), https://www.icrc.org/eng/ un-security-council-ebola-north-kivu/en/. org/en/document/icrc-health-care-workers- resources/documents/report/57jneg.htm; 10. United Nations Security Council, Reso- suffer-attacks-every-single-week; United Na- “The ICRC and the Use of Armed Guards,” lution 2349, October 30, 2018, http://undocs. tions, “Security Council Adopts Resolution International Committee of the Red Cross, org/S/RES/2439(2018). 2286 (2016), Strongly Condemning Attacks January 30, 1997, https://www.icrc.org/eng/ 11. L. O. Gostin, et al., “Toward a Com- against Medical Facilities, Personnel in Con- resources/documents/news-release/2009-and- mon Secure Future: Four Global Commissions flict Situations,” May 3, 2018, https://www. earlier/57jncq.htm. in the Wake of Ebola,” PLoS 13, no. un.org/press/en/2016/sc12347.doc.htm. 20. Z. Babakarkhail and D. Nelson, “Tali- 5 (2016): 1-15. 17. International Committee of the Red ban Renounces War on Anti-polio Workers,” 12. A. Smith, “Polio-Related Murders Kill Cross, IHL Database: Customary IHL: Prac- The Telegraph, May 13, 2013. More Than the Disease Itself,” Newsweek, No- tice Related to Rule 25, Medical Personnel, 21. L. O. Gostin et. al, “The Global Health vember 28, 2014. https://ihl-databases.icrc.org/customary-ihl/ Law Trilogy: Towards a Safer, Healthier, and 13. L. Dean, “Yemen Desperately Needs eng/docs/v2_rul_rule25. Fairer World,” Lancet 390 (2017): 1918-26. Health Workers: Unfortunately, Many Are 18. A. Phillip, “Eight Dead in Attack on Eb- Fleeing,” GlobalPost, May 3, 2015. ola Team in Guinea: ‘Killed in Cold Blood,’” DOI: 10.1002/hast.970 14. “Nigeria: Boko Haram Executes Second Washington Post, September 18, 2014. Female Aid Worker,” Al Jazeera, October 15, 19. R. Bonner, “, Eastern Congo, 2018. and the Meaning of Genocide,” The Atlantic,

January-February 2019 HASTINGS CENTER REPORT 9