An article by Françoise Bouchet-Saulnier on the impact of anti-terrorism laws and sanctions on the security of humanitarian action. Ms. Bouchet-Saulnier is the International Legal Director at Médecins Sans Frontières (MSF) and the author of the Dictionnaire pratique du droit humanitaire (la Découverte).

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While the security of humanitarian actors is a problem recognised by all, MSF believes that the nature of the responses to be made to this problem is a reaffirmation of the legitimacy of humanitarian action, which is undermined in current conflicts, rather than a hypothetical sanction.

IHL builds the legitimacy and security of humanitarian organisations

The acceptance of humanitarian relief in international and non-international armed conflicts is the result of a long political and legal struggle that led to the adoption of International Humanitarian Law (IHL) by all States. The four Geneva Conventions of 1949 were adopted after the Second World War. It is the fourth convention that establishes for the first time in the history of mankind the obligation to protect civilians in time of war. It details the various rights to relief and protection of victims of conflicts and imposes humanitarian imperatives that limit military necessity.

In 1977, after the wars of decolonisation and independence, notably that of Biafra which led to the creation of Médecins sans Frontières, the Geneva Conventions were reinforced by two additional protocols. The second protocol constitutes a new revolution in IHL by extending the right to relief and protection to victims of non-international armed conflicts. In concrete terms, this means that IHL applies to relations between States and non-State armed groups that are parties to a conflict.

In these contexts, IHL builds the legitimacy and security of humanitarian organisations on the requirement of impartiality, neutrality and independence from all actors in the conflict, including States. According to IHL, the presence and security of a relief actor in a conflict field is therefore based on a fundamental legal and practical triptych.

The 3 legs of this triptych concern (i) the right and capacity of humanitarian organisations to engage with State and non-State actors of violence, (ii) the right to respond effectively and impartially to identified humanitarian relief needs, and (iii) the right to give guarantees not to give a particular advantage to one of the parties to the conflict.

This is the main misunderstanding regarding the protection of humanitarian workers in conflict situations. Attacks on humanitarian organizations are a tragic reality, but if the security of humanitarians is to be improved, it is imperative that the remedy proposed is a well-defined diagnosis.

Ensuring that international humanitarian law prevails in the face of anti-terrorist rules

Contrary to certain simplifying discourses, MSF considers that attacks on humanitarians are not linked to the absence of sanctions but to a real loss of legitimacy and neutrality of humanitarian actors in armed conflicts involving non-state armed groups considered as criminals or terrorists.

Pretending to protect humanitarian actors therefore requires concrete, lucid and courageous action to restore their legitimacy and neutrality in the context of the war on terror. In particular, this implies explicitly upholding the rules of International Humanitarian Law, which authorise humanitarian relief, in the face of anti-terrorist rules which, on the contrary, criminalise it. Let us keep it simple and admit that labelling humanitarian actors as terrorist supporters clearly increases the risks and insecurity of humanitarian actors in conflict areas.

Yet, apart from denouncing violations, civil society and many humanitarian actors are largely alien to the content of IHL. For the sake of convenience, they justify their relief actions on a moral imperative, often financed and supported by their home states. However, with the commitment of States in the global fight against terrorism, the whole fragile balance of the right to relief in armed conflict has been shaken.

Anti-terrorism laws tacitly criminalise humanitarian action

From Afghanistan to Syria, from Nigeria to the Sahel, humanitarian actors are perceived by states as allies in the fight against terrorist violence. In return, non-state actors perceive relief actors as the armed arm of states, far removed from the image of the neutral and impartial humanitarian actor.

Whatever efforts humanitarian actors make to counter this perception, they are caught in the stranglehold of anti-terrorism laws which deny them any possibility of effective neutrality and impartiality in these contexts.

Since 2001, the international community of states has equipped itself with a repressive arsenal unprecedented in history through sanctions regimes and anti-terrorism rules. Adopted within the framework of the United Nations, these rules are reflected in the criminal law of each State. For the sake of effective criminal law enforcement, anti-terrorist offences are defined very broadly, often without requiring criminal intent. They thus tacitly encompass and criminalise humanitarian action without providing an exemption for actions in conformity with IHL.

The list of groups designated as terrorists at the level of international organisations is extended to include all those designated as such by each State. These lists are irreconcilable for a humanitarian actor on the ground obliged to deal with the constraints posed by the different States involved in a conflict. These constraints antagonistically include the various armed opposition groups grouped under the heading of terrorism by each of the States involved.

The example of the conflict in Syria illustrates the impossible arbitration between terrorists designated by the Syrian, Turkish, Russian, American or European Union governments, to name but a few.

Thus, despite the rules of IHL to the contrary, relief to populations present in areas controlled by non-state armed groups is treated as financing or material support to terrorists and armed criminal groups.

Entry into territories controlled by these groups is also criminalised under anti-terrorism law. Contact with members of these armed groups – allowed under Common Article 3 of the Geneva Conventions to organize security for relief efforts – is prohibited as complicity, conspiracy or association with terrorist or criminal groups. The medical care of “suspect” wounded and sick persons, as well as their transport, is also considered a criminal activity of material support and complicity. In practice, such medical care leads to arrests or attacks on humanitarian medical facilities and personnel in absolute violation of the obligation to treat without discrimination under IHL.

MSF calls for the inclusion of an exemption clause for humanitarian action in anti-terrorist laws.

This legal risk is not only theoretical. Nor is it the result of a pessimistic reading of existing anti-terrorist law and practice. It is not simply a problem of respect for humanitarian law. It is a clear lack of legal articulation of national anti-terrorist law with humanitarian law which must be recognised and corrected in each State.

MSF has had the hard experience of this reality and since 2015 has documented such accusations, arrests, convictions and attacks against its staff, patients and hospitals in several countries in conflict with anti-terrorist laws and practices.

In 2016, MSF alerted the UN Security Council’s Counter-Terrorism Committee on this issue. MSF called for the inclusion in anti-terrorism resolutions and international sanctions regimes of an exemption clause specifying that relief actions carried out by impartial humanitarian organisations in accordance with International Humanitarian Law do not constitute terrorist offences.

Since then, this request has been tirelessly pursued by MSF, the ICRC (International Committee of the Red Cross) and other major actors in international humanitarian action. In 2018, before the CNH (National Humanitarian Conference), MSF clearly expressed this risk and called for action by France on this issue. At the end of 2019, the UN Security Council recognised this danger and called on States to limit the impact of anti-terrorism measures on humanitarian action in conflict situations in accordance with humanitarian law. This was achieved thanks to a strong mobilization including France and other European countries with the support of major humanitarian organizations.

The integration of international humanitarian law in France is still very imperfect

Although the lines have begun to move at the international level, they remain fixed at the internal level in France.

The integration of international humanitarian law into French law is still very imperfect since, for example, the code of criminal procedure does not provide for the French judge to apply the Geneva Conventions. Under these conditions, how can the French judge take international humanitarian law into account in his arbitrations on the application of French anti-terrorist law? This is all the more problematic as IHL contains the definition of impartial humanitarian organisations and protected personnel who may act in conflicts.

French criminal law also does not contain a clause recognising the legitimacy of humanitarian actors and actions in the face of unintentional terrorist offences such as financing. Incorporating a humanitarian exemption clause into national criminal law is the only way to recognise and ensure recognition of the legitimacy and protected status of humanitarian personnel in conflict areas. It removes ambiguity around charges of criminal complicity against relief organizations. It also makes it possible to limit the indictment of a French humanitarian aid worker in the courts of another country.

How can humanitarian actors clarify their legitimate and protected legal status in countries in conflict if the governments of our own countries prefer to maintain criminal ambiguity about their status and activities?

By doing so, France would be giving real and not just symbolic protection to French humanitarian actors. It would also set a strong example to all countries in which humanitarian actors, whether French or not, are deployed.

The legal feasibility of this clarification is already proven by the adoption of humanitarian exemption clauses in the national law of several Western and Southern countries. MSF has shared these concrete examples with the French authorities but without any results to date. The humanitarian exemption included in Chad’s new anti-terrorism law should be highlighted, supported and duplicated in all other countries, whether or not they are in conflict.

The fight against impunity will not be enough to strengthen the security of relief actors.

However, despite the consultations undertaken, the French government’s current proposals mainly focus on the fight against impunity and the strengthening of sanctions against the perpetrators of attacks on humanitarian actors. These proposals may have a symbolic impact on public opinion, but the security of relief actors is not a matter of the symbols or the security and legal illusions which underlie them.

Indeed, impunity for attacks against humanitarian actors should not be allowed to be linked to the fact that these crimes are not already enshrined in existing international and national law. Under International Humanitarian Law, an attack on a relief actor is a war crime. Under anti-terrorist law and all national criminal codes, it is a terrorist crime or an assassination. Fighting impunity does not imply creating a new offence in which each country will decide for itself who is a humanitarian actor authorised or not to act on its territory. This would signal the disappearance of the right of access for impartial humanitarian organisations and a return to the right of states in conflict to control relief efforts.

Impunity for attacks against humanitarian actors has the same causes as all other crimes committed in conflicts. Impunity for attacks on humanitarian actors has the same causes as all other crimes committed in conflict, but it is particularly difficult to conduct impartial investigations to establish facts and accountability in contexts of propaganda and armed violence. This is even more evident when it comes to investigating attacks committed by state armed forces. The International Criminal Court has experience of this, as have all national courts dealing with acts committed abroad.

With regard to attacks committed by terrorist non-State armed individuals or groups, existing criminal law at national or international level is the most comprehensive criminal law ever made available to Judges and States. The difficulty in such cases is to apprehend alive individuals who are most often killed in special military and security operations. Although they rarely appear before the courts, there is no impunity as far as they are concerned.

In these conditions, it is difficult to see how the threat of a new sanction will improve the security of humanitarian actors. Indeed, this threat already exists and has little impact on attacks by governments. With regard to NSAGs, the threat of a new sanction seems even less of a deterrent since these individuals are already considered by national laws of countries as terrorist criminals even outside of specific attacks on humanitarian actors.

France’s priority is to restore the legitimacy of humanitarian status in anti-terrorist laws.

This is why MSF has clearly distanced itself from certain French proposals by insisting on the priority for France to actively contribute to restoring the legitimacy of the humanitarian status protected by IHL in national and international anti-terrorism laws. This is a prerequisite for any other desire for protection. It is also an urgent necessity in order to limit the insecurity that we face on a daily basis in conflict zones.

We look forward to a clear position from President Macron on the exemption of humanitarian action from terrorist offences in conflict situations. We know that this action requires far-sightedness and determination at the highest political level to avoid deafness and false administrative prudence. Unfortunately, we note that CNH 2020 did not include MSF’s participation in its round table on counter-terrorism but included it in the more general debates of the round table on IHL.

Until our appeal is heard by the real decision-makers, our actions in conflict areas will remain subject to legal ambiguity, deprived of the support to which we should be entitled in a humanist democracy that respects its commitments in terms of humanitarian law.

Françoise Bouchet-Saulnier

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”.