How to protect humanitarian actors in the context of anti-terrorist armed conflicts: relegitimise or sanction?

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).


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.

©Faith Njeri Kariuki, ambulance driver at MSF’s Maison Lavande – which also houses the trauma room – in Mathare, Kenya, checking a patient’s vital signs. Photo taken by Paul Odongo on 4 May 2020.

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.

The entrance to a psychosocial centre, Afghanistan / ©Médecins Sans Frontières

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.

MSF hearing at the UN Security Council Counter-Terrorism Committee, 14 June 2016 / ©MSF

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”.

 

Security and development in the Sahel: a book to understand … and to act.

Pierre Brunet gives a rich and clear summary of the book Security and Development in the Sahel, published by Harmattan, edited by Peer de Jong.

L’Harmattan [1] has published a book that summarises, in a digestible number of pages, the interventions, analyses and reflections exchanged during the symposium “Security and Development in the Sahel, from Concept to Reality”. This event was organised by the Themiis Institute and the Europe-Mauritania association, at the Paris headquarters of UNESC0 on 1 October 2019.

Quite often, this type of report or symposium minutes is a dry, complex thinkum, aimed at a narrow readership of academics or specialists. This is not the case with this book, which reads like a multi-voiced but fluid, homogenous, coherent and above all clear analysis. Mixing inventory, concrete diagnoses, speaking examples, global vision and presentation of the “field of the possible” in terms of solutions to a problem that is already too advanced as far as this Sahel region is concerned, it attempts to answer this question: How can we fight against the multifaceted insecurity that plagues the countries in the area, while at the same time building the means to offer a future to both the victims and the actors of this insecurity (often the same ones…)?

The development-security continuum, a Copernican revolution for European thinkers

Moreover, this book is a counterpoint – or an echo – of Serge Michailof’s essay “Africanistan”, which I also had the opportunity to review for Défis Humanitaires. In his book, Serge Michailof insisted on the need for “developers” in the broadest sense to “dare” to engage in the construction of tools ensuring long-term security, tools without which all development efforts are lost in the sands… And in L’Harmattan’s book, it is very often the observation of the need to “dare” to engage in the construction of a development that is sustainable, viable and capable of meeting the immense expectations of a population destabilised by numerous simultaneous shocks (including, for example, beyond insecurity, climate change), a young population and exponential demographic growth, that is asserted. And this is often done by the military, which is far from neglecting the need for military combat, on the ground, in the face of the numerous armed groups taking advantage of the disintegration, disappearance or abandonment of the state and its services in huge regions. Without development prospects, no military victory will ensure real security change in the long term.

Distribution of CASH, Mali, 2017 / ©Solidarités International

This ‘continuum’, to use a buzzword, between development and security, as the Mauritanian Major General Ould Sidi Mesgharou writes, is a Copernican revolution for many European development thinkers who for a long time wanted to see and theorise only the continuum between development and democracy, which seemed to be natural and in a way self-sufficient.

But it is not only European developers who have been challenged in their approach by the emergence and rise of insecurity in the Sahel. As Maman Sambo Sidikou, Executive Secretary of the G5 Sahel, points out in his introduction, “Terrorism is relatively new in the Sahel and has caught us by surprise”. Drawing the consequences of this “strategic surprise”, the same Maman Sambo Sidikou concluded his remarks by affirming the need for the G5 Sahel and also for African and European leaders in the broadest sense involved in resolving the situation, to take relevant, effective and tangible action, which implies “acting differently and going outside its comfort zone”.

A contradiction to be resolved between security expectations and those of the population

This effective action, intervening as well, and in synergy, in the field of the military as well as the institutional and development fields, implies a certain number of prerequisites that I will mention in conclusion, but it already presupposes, as Maman Sambo Sidikou points out, to decide – or at the very least to arbitrate clearly – between security expectations, As for this region of the Sahel, Western allies of African countries… and the expectations of the populations living there… The former, beyond the fight against terrorism, expect the defence and security forces of the countries in the Sahel to “secure the borders”, i.e. “prevent the international mobility of migrants towards the North”, while the populations living along the route of the latter subsist today, to a large extent, from this migration, which consumes and nourishes the local bursar, all along the way… Peer de Jong, Vice-President of the Themiis Institute, even speaks, in his intervention, of “a situation which has ended up generating a profitable economy of disorder whose crossed interests progressively lead to a state of endless war”.

A contradiction to be resolved, therefore, all the more so as the needs and economic expectations of the population in the Sahel are staggering .

Vertiginous, because population growth in the Sahel – as Serge Michailof had already demonstrated in his book – is explosive. Franck Galland, who works for the ES consulting engineering firm he manages, recalls the figures: the population of the G5 Sahel countries will double in the next twenty years. For example, Niger, which had 3.5 million inhabitants in 1960, has 20 million today, will have 35 to 40 million in 2035 and more than 50 million in 2050… As Alain Antil, Director of the Sub-Saharan Africa Centre of the French Institute of International Relations (IFRI), states, “The demographic explosion is not a problem in the absolute, but de facto it accentuates all the problems, starting with the basic service needs of the populations, which are already difficult to cover. If we take only the primary need for access to water, Franck Galland points out that 150 million Sahelians are already facing huge challenges on this issue, with per capita water availability having decreased by more than 40% over the last twenty years. As for the “economic expectation” in itself, the situation is almost worse: Alain Antil explains that the economies of the zone only have the capacity to create, in terms of good jobs, not even 10% of the annual needs of new arrivals on the labour market.

Transit site, IOM, Cameroon, 2014 / ©Solidarités International

“The war in the Sahel reveals the inadequacy of our European development models to the emergency”.

A decisive part of the misfortune gnawing at the region is, according to many speakers, a form of renunciation, blindness or avoidance on the part of many of the politicians in power. Alain Antil states that “everyone pretends to believe that the security apparatus, and by extension the states, govern their territory”… To illustrate this “absence of elites’ outburst”, he cites as an example (an intervention made before the coup d’état of 18 August 2020) the case of Mali, where “the political course seems to run smoothly in Bamako, without major changes, while more than half of the national territory is now controlled by others than the state”. However, as Peer de Jong points out, “the war is becoming international and spreading”. And he goes further, pointing out that this war-insecurity that is taking hold and spreading leads to fears of contagion towards the South and the Gulf of Guinea, which could lead to a “Somali-style” development. Peer de Jong said that “the Gulf of Guinea is now within reach, suggesting the possibility of a chaotic zone and the possible establishment of “multi-purpose caliphates” between the Mediterranean and the Atlantic. Finally, Peer de Jong underlines that “the war in the Sahel reveals the inadequacy of our European development models to the emergency”. He specifies this urgency, detailing how the deterioration of the security situation, combined with the absence of the state in the territories, allows the unlimited development of highly organised cross-border crime based on the GATs (Armed Terrorist Groups), crime with multiple activities (trafficking in arms, drugs, migrants, etc.), which benefits everyone, between “narcoterrorism” and “islamic terrorism”.

It is therefore urgent to win the war, because, as the Mauritanian colonel N’Diawar N’Diaye states, and even if the stakes of development are, at the same time, essential, “this war will be won militarily or will not be won”. Peer de Jong goes on to explain that “the objective is no longer simply to destroy an invisible enemy with less and less rudimentary means, but to encourage the emergence of an environment that is hostile to it. It is therefore necessary to act on the biotope of this adversary of which he himself is sometimes a stranger, by favouring the emergence of a space that is resistant to the presence of an Islamist terrorist force or not”. The objective is therefore no longer simply the “constantly renewed” destruction of terrorists, but rather action in favour of populations likely to bring their aid and to switch to assistance to armed groups.

It is in this respect, as Peer de Jong points out, that “the fight against violent extremist groups, by its obviously political purpose, is akin to a counter-revolutionary war”. And he continues: “Any counter-insurgency war implies methodical and long-term actions at the level of the threatened state.

Only a strengthened state presence can embed security

The objective is therefore clearly the people. Peer de Jong, again, sets out the concept and the method: security is mainly provided by the effective presence of the state as far away as possible (access to water, education, health, administration, police, gendarmerie, army, justice). It is a question for the state to reach the most distant and therefore the most destitute, by setting up the essential and regalian services in a sustainable way. Only this effective and honest presence (especially in the area of justice) can entrench security wherever the army has taken back territory from the enemy. The ultimate objective is therefore to “put in place a policy of dissociation (GAT-population) by carrying out continuous security and development actions as close as possible to the centres of life”.

Children participating in a handwashing quiz, Niger, 2014 / ©Solidarités International

As Peer de Jong acknowledges, “this form of action, which constantly mixes political, security and development action, requires a large number of staff. In any case, it is structurally part of the medium term. The return of people’s confidence in the State is not necessary, it can only be built over the years. The method, moreover, must be adapted to the particularities of each country or zone, because, as Christophe Bigot, France’s special representative in the Sahel, points out, “Over an area of five million km2 , we cannot have the same approaches”. Finally, other issues that are sine qua non should be examined, such as the non-representativeness, in most of the G5 Sahel countries, of regional or ethnic diversity in the size of their armed forces, as underlined by Alain Antil.

For without representativeness, the quality of the relationship between government forces and the population is altered, and this is central because it is vital that the human environment, in the words of Peer de Jong, “is favourable to government forces. Without this support, it is illusory to think of regaining control of lost areas. Regaining a foothold in a region, effectively controlling it, can only be achieved through the cohesion – almost connivance – that must exist between government forces and the people. The latter must feel ‘part of the country’, which implies a real work of perception of belonging and the construction of nation-states in the Sahel”.

What forces are needed to lead this struggle? As Senegalese Lieutenant General Babacar Gaye, a Senegalese army general, says, “the UN model of population protection developed in the Democratic Republic of Congo and summarised by the concept of ‘presence as protection’ does not work satisfactorily in the Sahel. The adaptation of the UN tool to the threat in the Sahel should – in order to restore the moral standing of the blue helmets and thus the credit of the Organisation – be part of a more global approach to security, more focused on the root causes of conflicts, their prevention and peacebuilding”.

So, invent, or reinvent (Peer de Jong speaks for the armies of the Sahel to “recover their ancestral know-how”), a new form of military forces adapted to the challenges of the Sahel?

Combining security missions and regalian missions: the Mauritanian example

The example of Mauritania was examined in depth in this colloquium (due, among other things, to the sponsorship of the Europe-Mauritania association). The Mauritanian army has successfully trained and operated, in parallel, GSIs (Special Intervention Groups) equipped with armed pickups, capable of springing up and acting alone and far away, in autonomy, constituting a rapid, rustic force supported by the air force; on the other hand and in synergy, the Mauritanian general staff has implemented nomadic groups, often equipped with camels. These nomadic groups, somewhat resurrecting the ‘Saharan companies’ of the ‘colonial’ era, have the capacity to patrol in depth for a very long time in regions that they know, to move around where even 4X4s do not pass, to blend into the landscape, and, in addition to security missions (search and destruction of GATs, fighting and ambushes of opportunity) to carry out regalian missions with very remote populations, to follow simple development programmes aimed at the immediate satisfaction of the needs of these populations, and to offer police services (fight against cattle thieves, etc.). ). Knowledge of the terrain, rusticity, adaptability, autonomy and versatility… At a time of high-tech warfare and UAVs, the most effective long-term response may not be where we thought it would be…

Malian Tuareg refugee camp in Mberra, Mauritania, 2013 / ©Solidarités International

Other, much more “macro” tools are also needed. In this respect, Christophe Bigot detailed the creation of the Sahel Alliance in July 2017, under a Franco-German initiative with the World Bank and the EU. This new approach “makes it possible to devote more funds to the Sahel but also to reform the way development is done by reaching vulnerable areas, by using actors other than the State when the latter is absent, through non-governmental organisations (NGOs), local authorities or companies”. Finally, France has proposed a new framework for relations between the Sahel countries and their partners, called the “Coalition for the Sahel”. This new framework, led by Christophe Bigot himself, aims to “give a new impetus and to direct/energise efforts in four directions: the fight against terrorism, strengthening the military capabilities of States, support for the return of administrations to the territories and development aid”.

Reading this book gives a sense of hope, even if the findings and diagnoses are sometimes uncompromising. There are solutions, within reach, that is to say, a willingness. It remains for political, administrative and military leaders to respond to the prerequisites implicit in these solutions; lucidity, courage, a sense of responsibility, transparency, integrity, a willingness to include at all levels all the communities making up each country in the Sahel, a readiness to coordinate closely with neighbours and allies and to give themselves the means for this long-term fight, proximity to the reality on the ground… and a high degree of vision.

Pierre Brunet

Writer and humanitarian

Consult Pierre Brunet’s biography.

1] “Security and Development in the Sahel – From Concept to Reality”, edited by Peer de Jong, L’Harmattan editions.