The fifth edition of the National Humanitarian Conference (NHC) was held on 17 December 2020. Although health constraints weighed on it, particularly because it was organised completely online (except for the final round table), the willingness of the Crisis and Support Center (CDCS) of the Ministry of Europe and Foreign Affairs (MEAE) to organise it against all odds – in close collaboration with French humanitarian NGOs – must be commended.

Many of the topics on its agenda have been waiting – for a long time – for public expression in a quasi-institutional setting, as well as for the beginnings of responses. Faced with the growing concerns of the humanitarian community, it has thus provided useful clarifications and a welcome acceleration of projects which have sometimes been underway for several years (such as bank transfers). In other cases, it has opened up new avenues which are now being worked on and put into practice. It has therefore played its role as a “forum for dialogue”[1] bringing together every actors and actresses involved in humanitarian action: the State, NGOs, Foundations, the Red Cross/Red Crescent Movement, United Nations humanitarian agencies and the European Commission’s DG ECHO.

This NHC brought together more than 500 participants who connected, totally or partially, during the course of the event. This is – it should be noted – far more than the physical capacity of the place where it usually takes place would have allowed.

In many ways, it marks a turning point. Firstly, because for the first time it has been concluded by a President of the Republic, which – unquestionably – enhances his position and reinforces his influence. Emmanuel Macron has – from the outset – kept a long-standing commitment, despite the effects of COVID-19, which he felt of that day. Secondly, because the public authorities listened to the demands of humanitarian actors and made important announcements (summarised in the closing presidential speech).

However, it is still difficult to draw up a complete assessment of the situation, given that, at the time of writing, there has been only a slight setback in time compared to the time when it took place. Beyond the future operational aspects, it is nevertheless possible, by adopting the focus of the law, to highlight several key elements. For – and this is another highlight – the NHC has been strongly illustrated by the importance of the legal fact. A characteristic that can be found in several of the 17 commitments made by the Head of State.

1. Promotion of the primacy of International Humanitarian Law (IHL)

Launch of IHL Square

Throughout the day, the importance of IHL and its full and complete respect was strongly emphasised, before the presidential intervention underlined it in turn. This amplifies France’s investment in this field. It seems obvious for humanitarians, but it is always better when you say it. Especially when concrete measures are or will be implemented, translating the commitments made into practice – beyond declarations. State actions to promote IHL within the armed forces and, more generally, to raise awareness of IHL within all State services, as well as civil society, will now be much more structured. They are part of a concrete programme that is being and will be developed over time. It will involve administrations as well as universities, researchers as well as associations, businesses as well as teachers. This should lead to a strengthening of its application and, above all, provide a better understanding of its fundamental role and the issues at stake.

Special Representative for Humanitarian Action

As part of this political will with regard to IHL, the creation of the post of Special Representative for Humanitarian Action to the United Nations Secretary General (UNSG) – and more particularly the Deputy UNSG for Humanitarian Affairs – will necessarily also have a legal dimension. This Special Representative should have in his or her field of mission the humanitarian law aspects of the work of humanitarian organizations and their employees in the field. Since these actors rely on IHL in order – in accordance with humanitarian principles (in particular impartiality, independence and neutrality) – to gain access to suffering populations and to legally legitimise their interventions.

Several of the NHC’s other main concluding announcements also include significant legal features.

2. Measures of a penal nature

Fight against the impunity of the aggressors of humanitarian workers

The assassinations and attacks committed against aid workers in the 11 months leading up to the HCN had a profound impact on the aid community. Particularly the massacre of seven employees of the NGO ACTED (6 French and 1 Nigerien) in Niger on August 9, 2020, as well as other murders in Nigeria and DRC. Faced with this rise in extreme risks, the issue of the almost general impunity enjoyed by the perpetrators and sponsors of such crimes requires to go beyond the mere technical measures to reinforce staff security.

Putting an end to the scandal of impunity by giving ourselves the means to combat is now becoming crucial. Not only to ensure that justice is done, but also as an instrument of deterrence or – at the very least – of limitation of such acts. The “Crimes against Humanity – Crimes and War Crimes” unit of the National Anti-Terrorist Prosecutor’s Office (PNAT) could therefore be given new functions in 2021. The question of a specific incrimination different from that of “terrorism” was debated during the Conference. Humanitarian NGOs – particularly as this also reflects a strong sensitivity on the part of their employees – should be attentive to the expected developments in this direction.  Beyond this – and with a view to putting an end to this scandal of impunity – some are considering pooling the information gathered by each of them on the potential perpetrators who ordered and were complicit in these abuses. In order to build up reliable and constantly enriched databases. The initiative to create a dedicated structure was not decided at the NHC, but discussions are ongoing and the state is likely to play its part.

Preventing the criminalisation of aid

The threat of criminalisation of humanitarian actors – as a result of the development and strengthening of both national and international legal standards aimed at fighting terrorism – is now a reality and a source of growing concern in the field. It was also widely debated throughout the NHC. From this point of view, the affirmation by the President of the Republic of the specific nature of the humanitarian mission through the task entrusted to the Minister of Justice, of drafting and distributing a circular to all public prosecutors reminding them of it, is a positive and strong signal.

It should make it possible – in the context of anti-terrorism (legitimate in itself, of course) – to drastically limit the risks of criminal proceedings. without justification. Especially since – for their part – the ICRC, the vast majority of NGOs and Red Cross/Red Crescent organisations have for several years now put in place particularly elaborate internal and external control mechanisms in this area. It would be welcome if – in the process of drafting the circular – exchanges and dialogue could take place with representatives of French NGOs.

Joint Technical Commission

The creation of a Joint Technical Commission – similarly announced by the President of the Republic – will probably also include this dimension of the fight against impunity. However, given the broader nature of the problem, its legal aspects remain to be clarified. In any case, it seems clear that its remit will include monitoring investigations into attacks against humanitarian workers and acting as a relay between organisations and families and the police and gendarmerie services, as well as the judiciary.

3. Administrative and financial security provisions

Bank transfers and sanctions regimes

Another important aspect of the NHC’s conclusions is the announcement that practical solutions will be put in place within a short period of time (6 months) to remedy the considerable difficulties encountered by NGOs in making bank transfers to certain areas of the planet under sanctions or embargoes. They will probably involve the construction of a tripartite mechanism (State / NGO / Banks) proposed since 2017 by the French humanitarian community.

The law will – in this respect – be a useful tool for framing a practical device. Whether it concerns the nature and content of the documents to be provided or the applicable compliance rules (in order to put an end to practices of over-compliance which – as Emmanuel Macron acknowledged – “unduly hinder the action” of the Organisations). Or the security to be provided to financial institutions in order to allay their fears of being prosecuted on an extra-territorial basis (notably by the United States government) on charges of direct or indirect financing of terrorist structures.

Screening and humanitarian exemption

As for the continued extension – particularly at the request of French, European and international donors – of the screening requirements [or screening in the language of aid] for humanitarian agencies, this was an essential aspect of the preparatory work for the Conference, as well as of several of its round tables and numerous interventions during the conference. It resulted in a strong and explicit demand for legal recognition of a “humanitarian exemption”. Both ICRC President Peter MAURER and Deputy UNSG Mark LOWCOCK supported this request – at the NHC. The recent adoption by the Swiss Parliament of such provisions (and similarly by an African state, Chad) was cited as a reference. However, President MACRON has ruled out the introduction of a blanket exemption, particularly in areas subject to a sanctions regime. He stated his preference for a “case-by-case” treatment.

While French NGOs were undoubtedly disappointed that the principle of exemption was not recognised, they nevertheless noted that the problem of an exemption mechanism is recognised and understood. Consequently, over the coming months, it will be necessary to work with public authorities – particularly CDCS – and the other major national public aid donor, French Agency for  Development (FAD) on the criteria to be determined for this “case by case”. In this respect, a normative mechanism will necessarily have to be put in place, both to objectify them and to avoid any breach of equality and to provide legal security for the organisations. This is all the more necessary as the distinction sometimes made by certain donors between “humanitarian aid” and “development aid” is a grey area, with no real legal basis, and many projects in the field combine these two aspects.

Furthermore, perhaps even more than its predecessors, this 5th NHC, which is far from being an end in itself, will, over the coming year and most of the following year (2022), constitute a source and a reference to which the entire humanitarian sector will draw inspiration. Although – probably – they will continue to promote what could be called these four points: advocacy / pedagogy / proposals / practices in their relations with the State and the various administrations, the 3rd and 4th points will henceforth constitute an essential focus, both from an organisational and normative point of view. The NHC has shown – in an exemplary manner – that in these times of multiple uncertainties and increased, if not excessive, humanitarian needs, actors cannot simply remain at the declarative or demonstrative stage. The imperative – and quickly – is to conceptualise the normative and then implement it in order to facilitate operationality.

Philippe Ryfman

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Who is Philippe Ryfman?

Philippe Ryfman is a specialist in non-governmental and humanitarian issues on the international scene. A lawyer, specialist in the law of associations and foundations as well as in humanitarian law and Expert-Consultant, he is also an honorary professor and associate researcher at the University of Paris I Panthéon-Sorbonne. Co-founder and Coordinator of the Forum Espace Humanitaire (FEH). He works – within teams and think tanks – on the strategic prospective of the NGO and humanitarian action environment up to 2030. Author of various books ” Last published, co-edited with S. Szurek & M. Eudes: Droit et Pratique de l’action humanitaire, Paris, LGDJ, 2019. Last published article: ” Se donner les moyens de lutter contre l’impunité des agresseurs de travailleurs humanitaires “, Alternatives Humanitaires, n° 15, 11/20.

 

 

 

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[1] Term used on the France Diplomatie website in the summary page of the results of the NHC.

More about the NHC : Alain Boinet’s editorial summarising the issues at stake at the 5th National Humanitarian Conference. The article by Françoise Bouchet-Saulnier, MSF’s International Legal Director, on the impact of anti-terrorism measures on humanitarian action. The interview with Thierry Mauricet, Director General of Première Urgence Internationale, on the consequences of sanctions regimes on bank transfers linked to humanitarian action. Videos of the National Humanitarian Conference interventions. Isabelle Moussard, Director of Operations at ACF, on the impact of sanctions regimes. 1:12:38. Coordination Sud’s press release “Following the NHC, first reactions from humanitarian NGOs“.