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”.