International Activity Report 2005
A simple yet crucial demand: Ensuring that crimes against humanitarian workers do not go unpunished
By Gorik Ooms
General Director of MSF in Brussels

Government and rebel forces fighting in the Russian republic of Chechnya have terrorized the civilian population and limited the ability of humanitarian organizations like MSF to carry out their work assisting vulnerable civilians due to the risk of abduction and other possible harm. © Eddy Van Wessel

We know from experience that humanitarian assistance is both most needed and most threatened in areas where people are suffering because of armed conflict – not because of natural disaster or disease. By definition, therefore, part of the territory in which MSF attempts to deliver assistance is outside of any government's control. This reality makes it somewhat of an empty gesture to call on nations to protect humanitarian aid workers or to urge other governments to pressure those countries in which assaults on aid workers occur.

The Geneva Conventions make clear that states and non-state actors involved in armed conf lict have a responsibility to make sure that all "persons taking no active part in the hostilities" (and this includes humanitarian aid workers) are treated humanely¹. The UN Security Council has even passed a resolution urging "...States to ensure that crimes against such personnel [participating in humanitarian operations] do not remain unpunished...."². With these precedents in mind, should a humanitarian organization like MSF take it upon itself to remind states of their responsibility to protect humanitarian assistance?

We have to consider the argument that calling on governments to protect humanitarian assistance could in fact undermine the impartiality and the independence of humanitarian organizations that are providing aid.

How far to push?

If we extend too far the argument that nations have a responsibility to protect humanitarian assistance, wherever it is delivered and regardless of whether the government has control over a region, then we risk getting a response that says: "We assume our responsibility, but the only way we can assume it is by prohibiting humanitarian workers from going there." This type of reply is more or less what MSF heard from the Dutch government when MSF challenged it to act in the case of its kidnapped staff member Arjan Erkel: "The Dutch government bears a general responsibility for the safety of its citizens. The Ministry advises Dutch citizens traveling abroad, and draws their attention to possible dangers. In its advice to travelers to the Russian Federation, it points to the dangers of conf lict in the northern Caucasus."³

Can we blame the Dutch government for this reply? No institution can be obliged to do the impossible. If a government has an obligation to protect its civilians, but knows – or pretends – that it can't exert any influence on crimes happening in certain areas, then the only protection it can offer is a "no go" order. At the same time, because it has become fashionable in UN and diplomatic circles to mix humanitarian objectives with political objectives – in other words, to try to turn humanitarian assistance into a convenient tool to build peace or to fight terrorism – some national actors might be very keen to embrace or even highlight their responsibility to protect humanitarian assistance.

This assumption of responsibility would give them an alibi to steer humanitarian assistance away from troublesome regions. If we accept that we need some kind of "green light" from governments for our international aid workers to be allowed to work in certain regions, in order for them to enjoy the protection of those governments, then we lose our independence (and in many cases, our neutrality as well, in the event that those governments are not perceived as neutral in the conf lict.) We could accept the principle, then argue that the refusal of the green light is wrong, that the alibi is false, that the government refusing the green light does have some inf luence in the concerned region but refuses to use it for political, diplomatic or economic reasons. But wouldn't this lead us to discussions in which we don't want to be involved?

Is governmental protection the only answer?

Some have suggested that states should exercise their responsibility to protect humanitarian-assistance efforts by offering direct military protection to nongovernmental organizations providing aid. A scholar from a US-based conservative think tank called the Rand Corporation, who also happened to be the wife of the US ambassador to Afghanistan, wrote in The Wall Street Journal in August 2004 that 30 aid workers had been killed in Afghanistan in the past two years, all of them unarmed and working in civilian projects. She suggested that their lack of weapons and soldiers escorts did not protect them but rather only made them easier to kill. She concluded that, in the light of today's reality, security, development and aid were all part of the same whole and that humanitarians would have to operate under the cover of arms – or not at all. But obviously, the armed forces that could offer such protection are seldom neutral in the conflict. Accepting such protection would undermine both our neutrality and our independence.

Behaving like spoiled cats?

In an internal MSF debate, a participant compared MSF's attitude toward protection with the behavior of a spoiled cat, that is, a cat that likes to sit near the feet of the mistress of the house but starts to hiss as soon as she attempts to caress it. In other words, we want protection, but we don't want to be seen as needing or receiving it.

This comparison illustrates the confusion that has been created by our repeated calls for nations to assume their responsibilities to protect humanitarian assistance. The confusion lies between the protection of humanitarian assistance and the protection of humanitarian workers. Organizations like MSF don't mind being caressed, but we don't want to be hugged to the point of suffocation.

Allowing government actors to decide where humanitarians can or cannot go and allowing governments to impose military escorts as a condition for protection might well protect humanitarian workers, but kills the principles of humanitarian assistance.

What MSF and others are demanding is respect and non-aggression toward humanitarian assistance, not so much in the sense of physical protection for humanitarian workers through international military bodyguards. Obviously, humanitarian aid workers are not volunteering for martyrdom.

They cannot give assistance where they are targeted by warring parties or criminals. However, if the price to be paid for the protection of humanitarian workers is for them to give up their independence or their neutrality, then humanitarian assistance is no longer being protected, it is being destroyed. In such situations, there is not enough water between the Scylla of being embraced and embedded with military powers and the Charybdis of being caught in a general climate of lawlessness. In such situations, the only remaining option could be to withdraw – which MSF was forced to do recently in both Afghanistan and Iraq.

When we demand that states protect our humanitarian assistance, we're merely asking them to attempt to end those Scylla or Charybdis situations. We're asking them to live up to their commitment to create a space in which humanitarian assistance can operate without having to rely on military protection and without offering up its workers as martyrs. Is that such an impossible demand?

The UN Security Council doesn't ask for that much effort on the part of states. What it does urge is that states do not allow crimes against humanitarian workers to go unpunished. One could debate whether this is sufficient. If all states ensured that those committing crimes against humanitarian workers were found and punished, would it be enough to protect humanitarian assistance? Probably not. However, such a commitment would be a solid start, one for which we are still waiting.

Criminals go unpunished

After 20 months of captivity, MSF head of mission Arjan Erkel was released in April 2004 by his kidnappers. Immediately after the release, the media reported that Dutch Foreign Affairs Minister Bernard Bot had said Erkel's release was the result of negotiations and that he knew who was responsible for the kidnapping. He also said that the Dutch government was involved in securing Arjan's release.⁴

The question of to what extent the Dutch Ministry of Foreign Affairs was involved in securing Arjan's release is the subject of a court case, on which we will not comment here. Far more important for this article – and for the future protection of humanitarian assistance – is the foreign affairs minister's admission that he knew who was responsible for the kidnapping.

As explained, MSF doesn't ask much from states when it comes to protecting humanitarian assistance. We don't ask states to tell us where we can or cannot work, we don't ask states to give us military escorts. But we do demand that states do whatever they can to ensure that crimes against humanitarian workers don't remain unpunished.

Of course, this responsibility cannot start once the suspects are known, it must start much earlier. If the suspects are known, it becomes even more unacceptable that the government of a victim of a crime against a humanitarian worker doesn't even try to "ensure that crimes against such personnel do not remain unpunished." What has the Dutch government done to ensure that the crime committed against Arjan Erkel does not remain unpunished?

What about the murderers of MSF staff members Hélène de Beir (Belgian citizen), Willem Kwint (Dutch citizen), Egil Tynaes (Norwegian citizen), Fasil Ahmad and Besmillah (Afghan citizens) in Afghanistan during June 2004? It was the Afghan authorities who indicated that they had identified a suspect. Their prime suspect was a local police commander, who had been fired before the murders and reinstated afterward. It seems that his intention was to demonstrate that he is a key element in the security of the area.⁵ Ironically, the governments of Belgium, Norway and The Netherlands are all donors to the Law and Order Trust Fund for Afghanistan, which has as its first objective to ensure the "nationwide payment of police staff salaries." ⁶

For a whole year, rather than ensuring that these murders would not go unpunished, these governments unknowingly contributed to the salary of the prime suspect! It took an intense lobbying campaign on the part of MSF and others before the prime suspect was jailed and a case was brought against him.

Humanitarian aid organizations are not asking for so much. We are not demanding safety guarantees for our workers. We are asking states not to commit crimes against humanitarian workers, and if others do, to do everything in their power to ensure that these crimes don't go unpunished. It's an essential condition to ensuring that the people needing humanitarian assistance receive it.

¹ First, second, third and fourth Geneva Conventions, common article 3 (1).
² UN Security Council resolution 1502 (2003)
³ Statement issued by the Ministry of Foreign Affairs on the Arjan Erkel case/ransom money (undated)
⁴ Expatica News, "Aid worker surprised by release", 13 April 2004
⁵ "Pourquoi ils ont tué Hélène De Beir" and "Badghis, un modèle de fief maffieux", Le Soir, 5 July 2004.
⁶ UN Development Program, "Law and Order Trust Fund for Afghanistan"