July 17, 2008

by Rony BRAUMAN
Former president of MSF-France
Associate Professor at the Institute of Political Studies in Paris

For the past four years, driven solely, it would seem, by a wish to cultivate the image of a nation that pays no ransom for hostages, the Dutch government has been taking legal action against Médecins Sans Frontières (MSF) in the Swiss courts. The government’s goal has been to recoup the money it paid in April 2004 to free Arjan Erkel, a Dutch citizen and MSF-Switzerland head of mission, who had been held hostage for twenty months in Northern Caucasus.

Noting the role the Netherlands government played in freeing the hostage, as well as the absence of any prior assurance whatsoever on MSF’s part to repay the money, both the lower court of first instance and, later, the Cantonal Civil Appeals Court in Geneva unequivocally rejected the Dutch claim. The opinions delivered from the benches of both courts highlighted the unique aspects of humanitarian action in conflict zones and the duty States have, moreover, to protect their own citizens abroad. The Dutch government’s final appeal went before the Federal Supreme Court in Lausanne, which abruptly altered the course of events. On July 10, 2008, it reversed the Geneva courts’ decisions, ruling that MSF must repay half the ransom to the Dutch government.

While this is an extremely disappointing decision for MSF it also represents a partial defeat for the Hague, which it should be recalled, maintained that it acted solely on MSF’s behalf and bore no responsibility with respect to one of its own nationals who had been taken hostage. Throughout this doggedly pursued legal action, the Netherlands, normally so eager to be seen as a champion of humanitarianism, has revealed its indifference to the commitment of humanitarian workers and their efforts to aid the victims of conflicts.

While we still don’t know the exact reasoning behind the Swiss high court’s decision, the ruling makes it clear that the court holds MSF and the Netherlands equally responsible. Because of this it is feared the decision will have no small impact on humanitarian actors.

Qualified though it may be, the success of the legal action brought by the Dutch government takes a serious criminal act involving political manipulation and the trafficking of human beings and recasts it, essentially, as a mere financial dispute. The federal judges’ decision, handed down in the motherland of International Humanitarian Law, sends a negative signal for international public order and efforts to sustain current balance of relations between States and humanitarian organizations. As a result, it further contributes to the banalization of crimes committed against humanitarian workers. We can be sure, at the very minimum, that it will not improve their security: it absolves a State of obligations it has undertaken as a signatory of the Geneva Accords.

Whatever its intent, the Supreme Court’s decision constitutes yet another obstacle to carrying out humanitarian action in conflict zones, already bedeviled by the attitudes of far too many governments.

Rony BRAUMAN
Former president of MSF-France
Associate Professor at the Institute of Political Studies in Paris

This article was originally published in French in the Swiss newspaper La Tribune de Genève.