Faced with an emergency, the art of prolonging the wait

Following the 5th National Humanitarian Conference, Françoise Bouchet-Saulnier reviews the progress made by humanitarian organizations in the face of the problems of screening and anti-terrorist sanctions.

The preparation of the 5th NHRC had raised hopes among humanitarian NGOs for a government response to the serious issues that undermine their capacity for action and their security on the ground. The commitment of the Head of State on the humanitarian file was strong and should allow progress on certain issues bogged down in various interministerial arbitrations.  This perspective led to a very strong commitment from the NGOs to make very successful proposals on a limited number of concrete issues.

2 files yet appeared to be a priority for everyone:

  • Strengthen the application and respect of International Humanitarian Law (IHL), which legitimizes and secures the action of NGOs in conflict areas marked by the preference given to anti-terrorist laws over IHL.
  • Fight against impunity for attacks on humanitarian actors. In concrete terms, this means fighting against the criminalization of relief work under anti-terrorist rules and punishing the perpetrators of attacks against NGOs.

The unequal relationship between international humanitarian law and anti-terrorist law.

The unequal relationship between international humanitarian law and anti-terrorist law is based on the fact that IHL is very weakly enshrined in national law, whereas anti-terrorist law reigns supreme through the penal code and very vague definitions of crimes.

This observation, and the remedy to this situation, therefore, presupposes a political will for political action capable of strengthening and clarifying national and international law applicable to humanitarian and medical relief in counter-terrorist contexts.

To this end, we had proposed repairing an oversight on the part of the French legislator by including the reference to international humanitarian law in the French code of criminal procedure (new article 689-15). This is legally indispensable to allow humanitarian actors and judges to make use of international humanitarian law in French law in their assessment of concrete situations.

We had also proposed the inclusion in the penal code of a humanitarian clause under terrorist offenses to specify that these offenses did not apply to impartial humanitarian action carried out in countries in conflict, in accordance with international humanitarian law (new article 421-2-9). The proposal for an ad hoc decision or directive from the Minister of Justice leaves us open to the arbitrariness of the case by case which can in no way guarantee our impartiality, neutrality and security in the areas where we act.

In spite of our requests, contributions and expectations, there has therefore been no debate or legal progress on these concrete topics. The political-bureaucratic blindness continues with a new ordinance asking humanitarian organizations to sort the beneficiaries of humanitarian and medical relief according to anti-terrorist criteria.

On a few topics, the French President’s proposals will have a positive impact for NGOs.

On a few typically political subjects, the French President’s proposals will have a positive impact for French NGOs. One thinks in particular of the welcome announcement concerning the increase in the financial volume of aid provided directly by France or through special drawing rights. The proposal to create the position of Special Correspondent to the UN Secretary General for the preservation of humanitarian space will also, if adopted at the UN level, give more visibility to these issues and test the multilateral consensus or dissensus surrounding them.

At this time of assessment, it is still difficult for us to know whether the different ministerial hierarchies have shown too much caution and have not been able to propose to the President of the Republic the concrete and strong political-legal decisions that we were expecting. It is also possible that the President preferred to postpone these decisions in order to ensure that they are effectively carried by NGOs, administrations and parliamentarians. On the NGO side, we have no choice but to continue to ask for what may seem superfluous in Paris but is vital in our fields of action.

Françoise Bouchet-Saulnier, International Legal Director of Médecin Sans Frontières

Who is Françoise Bouchet-Saulnier ?

Françoise Bouchet-Saulnier, a Doctor of Law and magistrate, is the director of the international legal department of Médecins Sans Frontières (MSF).

She is the author of numerous books and articles on humanitarian action, humanitarian law and international justice, including the Dictionnaire pratique du droit humanitaire (ed. La Découverte, 4th edition 2013), translated into eight languages.

She is involved in defining the rights and responsibilities of MSF’s humanitarian and medical actions in crisis and armed conflict situations concerning general relief to populations and medical assistance to the wounded, sick and victims of violence.

Over the past 30 years, she has contributed to the development of MSF’s policies, practices and public statements on humanitarian action, the defence of humanitarian space, access to victims, the protection of populations from mass crimes, and issues related to international military interventions and international criminal justice.

Ms. Bouchet-Saulnier is a lecturer at the Institut d’Études Politiques de Paris, the Institut Catholique de Paris and the Sorbonne. She is also a member of the editorial board of the International Review of the Red Cross and of the editorial board of the historical studies published on MSF’s major “Public Speaking engagements”.

Mr President of the Republic, let us protect the humanitarian aid which is in danger!

Violence-abuses, massive population displacements in DRC and emergency relief | © Solidarités International

What is referred to as “humanitarian space” implies that relief efforts must be able to access populations in danger within the framework of International Humanitarian Law (IHL) and in accordance with the principles of neutrality, impartiality and independence.

This is unquestionably one of the main issues at stake at the next National Humanitarian Conference (CNH) in Paris on 17 December in the presence of the President of the Republic who announced, at the 75th UN General Assembly on 22 September, that he would present an initiative on the protection, impunity and criminalisation of humanitarian aid at this conference.

Expectations are at the highest level for humanitarian organisations faced with a considerable increase in the needs of populations in danger and, at the same time, a multiplication of political-administrative constraints and an increase in the number of wounded, killed and hostages.

Humanitarian aid is threatened in war zones by the collateral effects of fighting, banditry and threats from groups such as Daesch who, let’s not forget, claimed responsibility for the assassination of 7 ACTED aid workers in Niger on August 9th.

Charline, Antonin, Myriam, Stella, Léo, Nadifa, Kadri Abdou Gamatche, Boubacar Garba Soulay. Victims of the 9 August 2020 attack in Niger.

These dramatic incidents, which increased sharply last year, have been compounded by obstacles, obstacles, and even real threats, due to the “sanctions regime and anti-terrorist laws”, to the point that the UN Security Council recognised this danger at the end of 2019.

Sanctioned humanitarian aid.

Indeed, anti-terrorist laws de facto criminalise humanitarian actors who bring relief to populations in territories where so-called jihadist or terrorist groups operate.  These humanitarian actors can thus be considered as accomplices of terrorists and can be brought before the courts and condemned!

At the same time, a series of obstacles or draconian conditions are placed in the way of humanitarian action and dangerously hamper it. Subject to anti-terrorist laws, banks can go as far as refusing transfers of funds, which are essential for aid programmes in war-torn countries where relief is vital in Syria, Yemen and Afghanistan.

In addition, donors who finance NGO projects, particularly in France, impose so-called “screening” measures aimed at controlling NGO partners, suppliers and staff using specialised software. These measures can go so far as to require ‘screening’ for the first euro spent and sometimes even include the recipients of aid, as now required by the French Development Agency (AFD).

Priority to International Humanitarian Law over anti-terrorist laws in conflict zones.

Let us be clear. There can be no question of the humanitarian community “screening” relief beneficiaries in the name of International Humanitarian Law. It is a matter of our security and incidentally that this is not where the terrorists are! On the other hand, the constant screening of suppliers, partners and NGO members at the first euro is simply not feasible. This is precisely what Thierry Mauricet tells us in his interview published on Défis Humanitaires.

If one can understand anti-terrorist laws, all the more so as we ourselves are victims of terrorism in our humanitarian missions and even at home, in France in Paris and Nice, as elsewhere in the world, it is easy to understand the existential incompatibility between terrorism and humanitarianism.

And then, let’s be serious. If we seek to fight terrorism, let us look at the States that support it, the weaknesses that allow it and, unfortunately, the errors that can fuel it without ever justifying it.

MSF hospital in Kunduz after an American bombing triggered by the Afghan army. 2015 © AFP

One can indeed wonder when one hears the Prime Minister and the Minister of the Interior in France acknowledge that we are today paying for decades of denial and weakness.

But there is a broader reflection that must challenge us. Is terrorism, which is always condemnable, artificial intelligence technologies, ambient insecurity, the disintegration of social and national cohesion, not leading us down the dangerous slope of generalised tracing and control inspired by the Chinese model where freedom is in question, as the writer Georges Orwell has already announced.

The President of the Republic can prevent the paralysis of humanitarian action.

That is to say that we are expecting a disruptive initiative from the President of the Republic, Emmanuel Macron, on 17 December at the CNH. And the essential thing for us is that International Humanitarian Law (IHL) prevails and, consequently, the Geneva Conventions and the Additional Protocols that legitimise and protect humanitarians in the exercise of their mission in war zones. And this applies to both States and non-State armed groups.

Consequently, it seems essential that humanitarian actors adhering to IHL and humanitarian principles should have an exemption clause from anti-terrorist legislation in war zones. If France wants to set an example in this respect, it could, as Françoise Bouchet-Saulnier, from MSF, proposes in this edition, include this humanitarian exemption provision in the French penal code in order to preventively protect its nationals who could become victims in the future.

Other important subjects are on the agenda of the CNH (humanitarian nexus – development – peace, climate change, European humanitarian airlift, Humanitarian Strategy of the French Republic, Humanitarian Emergency Fund), and we will report on them in our next edition at the beginning of January.

For the first time, the President of the Republic, Emmanuel Macron, will be taking part in the National Humanitarian Conference and we must welcome this presence which cannot be satisfied with a lukewarm initiative, but which requires a disruptive declaration commensurate with the freedom of action that is indispensable for humanitarian relief in the world.

We do not forget that the President of the Republic declared to the United Nations: “This is why, together with French NGOs and our international partners, we are building an initiative to ensure the effectiveness of international law, the protection of humanitarian personnel and the fight against impunity”. He added: “The neutrality of humanitarian action must be respected and its criminalization must be curbed”.

We can only hope that this will be translated into concrete action.

Alain Boinet

PS 1/I would like to personally thank those who have already given financial support to Défis Humanitaires via the HelloAsso platform.

PS 2/ I need you to continue and develop this humanitarian media that you read regularly, with a big thank you for your donation via HelloAsso.