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International Activity Report 2021

The regrettable new normal: Navigating humanitarian action in counter-terrorism settings

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International Activity Report 2021 > The regrettable new normal: Navigating humanitarian action in counter-terrorism settings

*Practical Guide to Humanitarian Law - available online in Arabic, English, French and Russian

Counter-terrorism discourse has always formed part of state rhetoric when dealing with non-international armed conflicts. In 1999, the Russian Federation refused to use the words ‘war’ or ‘armed conflict’ when talking about counter-terrorism operations in Chechnya. However, since the attack on the Twin Towers in New York on 11 September 2001, this type of state rhetoric has been transformed into an international legal framework for the global fight against terrorism. Over the last two decades, this framework has been developed and validated under the auspices of the United Nations. 
It’s difficult to precisely measure the specific impact this development has had on impartial humanitarian action, because humanitarian action is influenced by the different characteristics and dynamics of each particular conflict. However, it is clear to see the legal impact of the counter-terrorism framework, and its effect on the security of humanitarian workers and their activities, and on the people they serve. The statistics relating to security incidents reported by field teams reveal a shift in the types of incidents we’re seeing. Attacks, arrests, detentions and accusations levied against humanitarian staff by state authorities are far more prevalent than abductions and attacks by non-state groups. 

Why is it that the medical and humanitarian activities traditionally conducted by Médecins Sans Frontières (MSF) could now be exposing both our teams and our patients to new dangers? 

What these security incidents have in common is that they have resulted from criminal and counter-terrorism laws, imposed by states, that have effectively criminalised certain humanitarian and medical relief activities that are sanctioned by international humanitarian law. International Humanitarian Law, or IHL, is the law of international and non-international armed conflict, and includes rules designed to protect civilians, medical personnel, and their respective structures, and the right to receive impartial medical care. 

Four types of activities undertaken by MSF are especially vulnerable to these accusations of criminal and terrorist complicity: 

  1. The act of providing humanitarian relief to people living in disputed territories or under the control of groups designated as terrorists or criminals may be considered a form of material support for terrorists.
  2. The act of maintaining contact with leaders of armed groups designated as terrorists may be considered a crime in and of itself.
  3. The act of transporting suspected terrorists or criminals for medical or humanitarian reasons may be considered tantamount to organisation of an escape of these alleged terrorists (helping them to leave a battlefield or hide themselves in a medical structure that they will then easily leave without being questioned or arrested).
  4. The act of providing patients suspected of being terrorists or criminals with treatment in healthcare facilities may also be considered an act of criminal complicity, aimed at providing refuge and at concealing criminals and terrorists.

This legal risk is not hypothetical; it has already materialised in several of the places where we work. The particular risk associated with criminal charges is due to the fact that criminal responsibility is always borne by individuals. Regardless of the commitments made by MSF regarding our duty of care towards our staff, we cannot substitute our institutional responsibility for that incurred by individuals. 

Acting without the consent of the government, MSF was considered a terrorist organisation in Syria due to the material support we provided to people living in territories under the control of groups designated as terrorists. MSF staff have been arrested, detained and accused of complicity and terrorist activity. 

In Nigeria, the military prosecutor accused MSF of providing terrorists with material support, on the basis of relief activities conducted for people living under the control of groups considered criminal or terrorist. MSF staff have also been accused of colluding with criminal groups as a result of establishing contact for the organisation of relief activities. In the Democratic Republic of Congo, our staff have been convicted for facilitating contacts with groups considered criminal or terrorist. In Cameroon, MSF staff have been charged and detained for complicity in a terrorist crime because they transported wounded people and conducted relief activities in areas controlled by groups considered criminal or terrorist. 

MSF staff and patients have also been victims of attacks on hospitals by state armies in Syria, Yemen, Afghanistan and elsewhere. They are often claimed as mistakes, but what these attacks have in common is that they are always on facilities where wounded and sick ‘non-civilians’, belonging to groups considered criminal or terrorist, are being treated. 

Since 2016, MSF has been making efforts to take a stand against this trend through political and legal advocacy to the highest level of the UN, calling on member states to recognise the precedence of the rule of IHL over counter-terrorism operations and regulations. 

The main tool to reaffirm this precedence lies in the adoption of humanitarian exemptions in national and international counter-terrorism policies adopted by states and international bodies. This tool will allow humanitarian activities to be exempt from the application of counter-terrorism limitations or sanctions. 

The call to include exemption clauses in UN resolutions and national legislation for humanitarian action conducted in accordance with IHL has begun to bear fruit. The legitimacy of providing humanitarian and medical relief during armed conflict marked by ‘terrorism’ has been reaffirmed, and states now have to ensure that counter-terrorism measures do not undermine humanitarian relief activities sanctioned by IHL. 

This is just a first step. MSF does not defend IHL out of naivety about the power of law, but because IHL maintains that treating ‘enemies’ and assisting people under their control is a legitimate enterprise. International Humanitarian Law as common language remains essential for enabling the protection of teams exposed in conflict areas. 

The best protection for teams in the field is to have a full understanding of not only the usual security risks, but also the new legal risks that are being instrumentalised to undermine the legitimacy of humanitarian relief activities. This should be backed up with support and training to help them negotiate and formalise an operational framework and work practices that are IHL-compatible, and capable of withstanding the terrorist demonisation of the enemy and the criminalisation of humanitarian relief by governments.

Françoise Bouchet-Saulnier is the former legal director, MSF Intersectional Legal Department, and author of the Practical Guide to Humanitarian Law.


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