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Opinion: "IHL simply ensures some humanity prevails, even in times of war"
The speech below was given by Humanitarian Affairs Specialist Michiel Hofman at an event hosted by the Irish Red Cross to mark the 70th anniversary of the Geneva Conventions.
Medecins Sans Frontieres joins the Irish Red Cross with great pleasure to celebrate the 70th anniversary of the Geneva Conventions.
MSF is a strong supporter of the Geneva Conventions – we would not be able to do our work without it. But we are also worried they are under pressure as never before, pressure coming principally from the logic of counter-terrorism.
Personally – I am not speaking for the whole organisation – I am so worried that I wonder if the Geneva Conventions will be able to celebrate its 75th anniversary in five years’ time.
Counter-Terrorism as a military strategy has a long history. Some of the concepts that are used today were pioneered by French generals during the war of independence in Algeria in the fifties.
Much of the rhetoric used today was introduced by Russia during the war in Chechnya in the nineties. Closer to home, on this Island of Ireland the conflict in the north was also framed in counter-terrorist terms. Terms still used today to justify its divided politics. Ironically, by politicians who themselves were labelled terrorist not that long ago.
But then came the nine-eleven attacks on New York’s twin towers in 2001. This has turbocharged counter-terrorism under the banner of the Global War on Terror.
Governments around the world seized the opportunity to rebrand their own armed uprisings as terrorism. No longer civil wars were portrayed as two parties in conflict, but as brave governments struggling against faceless terrorist threats.
This sea-change has had far-reaching effects. Not only for the nature of warfare itself, but also for the acceptance of humanitarians such as ourselves working inside these conflicts.
The first decade after 9/11 this Global War on Terror was mostly fought with boots on the ground in Afghanistan, a war that included Irish soldiers. Elsewhere the effect was mostly a legal exercise. New expanded lists of proscribed groups and new or stricter counter-terror laws. For humanitarian aid these new rules produced a ‘chilling effect’.
Counter-terrorism laws would still allow for a humanitarian exception. Humanitarians were still allowed to send goods and services to reach people who were in regions controlled by opposition groups now rebranded as ‘terrorists’.
But this humanitarian exception came with a price: having any contact with these groups was now forbidden by counter-terror laws. Humanitarians have no choice to talk to armed opposition groups to negotiate access to the populations they control. This humanitarian exception was not explicit in those laws, merely tolerated.
Many humanitarian organisations decided not to take the risk and stopped providing aid to opposition-controlled areas. For instance, in Somalia, this had lethal consequences: it left hundreds of thousands of people without aid during one of its worst famines in 2011.
Some of this chill also came through the financing of humanitarian aid. Traditional donor countries are also involved in fighting in this ‘global war on terror’.
So not surprisingly, they did not want to finance anything that would strengthen groups fighting against their own armies.
Financing of aid became conditional to all kinds of vetting measures and restrictions on any aid arriving to populations under ‘terrorist’ control. Organisations like MSF, that do not rely on government funding, were able to continue. But with very few other aid agencies around in these so-called ‘terrorist areas’, giving just medical care is not enough.
When there is no more food, water or shelter around a bandage cannot save lives.
This growing hostility towards humanitarian assistance accelerated in the last decade.
Counter-terrorist laws proliferated, in some cases criminalising any form of assistance to populations under so-called ‘terrorist control’. Also, the armed groups themselves started to mistrust humanitarians.
Normally, armed opposition has the most to gain from allowing humanitarians to work. Little else comes into the areas they control. But as they got outlawed and branded as terrorists, the fear of being assassinated by a drone or bombed by a cruise missile became very real. Some of the groups no longer trusted humanitarian organisations to be neutral. Most of these organisations come from the same countries as the drones and missiles they fear.
2015 and 2016 were horrible years for MSF. Hospitals, normally under specific protection by IHL, were suddenly open season for aerial attacks. MSF hospitals were bombed in Afghanistan, Yemen and Syria, many patients and staff lost their lives.
And here is the thing about hospitals bombed from the air: this is not a random act in the chaos of conflict, this is a deliberate act by the armies of a state. Rebel groups do not have air forces. States have air forces, but it is also states that have signed IHL and the primary obligation to abide by it and set an example. You don’t do that by bombing a hospital.
In all three countries, the initial reaction from the states responsible was quite similar. In Afghanistan, the Minister of Defense said publicly that the MSF hospital was used as a Taliban command centre.
Later in private they specified what this means. This assertion was based on reports they received that Taliban patients were seen using their mobile phones in their hospital beds. 32 people were incinerated whilst lying in these hospital beds as a result. In Yemen, Saudi Arabia bombed MSF hospitals 4 times in that same period. The Saudi Military said publicly this was because Houthi terrorists were abusing the protection of the hospitals by staying close to them. Later in private they demanded from MSF to ensure that a perimeter of 100 meters around each hospital was free of any Houthi terrorists.
But MSF are doctors, not policemen. Such a demand is impossible to meet. Hospitals don’t stand in the middle of the desert, they stand inside towns and cities. In Syria in that same period, hospitals supported by MSF were bombed by Syrian and allied forces 77 times.
The Syrian government has been consistently clear in their public stance: they regard all these hospitals as illegal and supported by terrorists. And everyone who support these hospitals, including MSF, is seen as a terrorist-supporting organisation.
The direction of travel is clear. Counter-Terrorism is used by states to claim exceptions to International Humanitarian Law.
Medical organisations are particularly vulnerable, because medical care is the only type of humanitarian assistance that is also available to combatants. Fighters don’t get food distributions or water pumps, but under IHL they are entitled to medical care.
Wounded and sick fighters are ‘hors combat’ and will receive treatment. There is no other way: you can’t expect a doctor in an emergency room to ask patients first who they work for and make their military status a condition for receiving life-saving care. This is at the heart of IHL: the obligation to take care of wounded and sick combatants.
To put it bluntly: humanitarian medics also treat terrorists. This principle is now challenged by states. Now, when a Taliban, Houthi or Nusra opposition fighter is treated in a hospital and uses a phone, this can apparently be enough to bomb everyone inside.
Many, also inside my own organisation, argue that IHL is outdated, states do not respect it anyway, and that IHL is imperfect. Some even object to IHL on principle: by supporting rules of war, you support killing in war, so the argument goes.
It is true, IHL is not perfect. It was written in 1949 in the wake of one of the most brutal inter-state wars in history. Now all conflicts are internal conflicts with other states only engaged by proxy.
The 1972 additional protocols dealing internal conflicts are less strong and signed by far less states. Syria for example never ratified these additional protocols. But I warn those that question, oppose or want to renegotiate IHL. IHL is all we have got. There are no other international legal frameworks which humanitarians can call upon in situations of conflict.
For private humanitarian organisations like MSF, this is a very precarious basis. We don’t have specific mandated roles like ICRC. In fact, we rely on only two words in the whole IHL codex: An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
That’s the whole international legal legitimacy we rely on to demand access to conflict areas and protection for our hospitals.
Yes, IHL is not perfect. But imagine the 1949 Geneva Conventions being proposed for the first time in this day and age. It is unlikely many states would sign up if they did not already exist.
Since 1949, most major powers have not signed up to any other international treaties dealing with conflict. A good example is the International Criminal Court. Those with the biggest armies, the US, China and Russia, did not sign up.
Also, there is a new wave of populist leaders that get elected on promises of sovereign greatness. These populists are also unlikely to sign up to any new constraints on their sovereign power, such as IHL imposes.
Sometimes I believe the only thing stopping these countries pulling out of the Geneva Conventions, is that nobody wants the be the first to do it. Somehow the general public, even if they don’t know any details, associate Geneva Conventions with something good. For now, no country wants to be the first to negate on something the public equates with something positive.
But this public support is eroding.
The fact humanitarians also treat ‘terrorists’ is no longer widely supported or even understood by the public at large. Now the debate is moving beyond just fighters being undeserving of medical care.
Now entire populations apparently don’t deserve live-saving aid, simply because of they come from areas controlled by so-called terrorist groups. The public debate around Al Hol camp in Syria is a case in point.
Al Hol contains around 70.000 people coming from territories formerly controlled by Islamic State. Many of them are the families of former IS fighters. All of them are locked up, with the ‘foreign’ ones – meaning not from Syria or Iraq – in a special high-security section.
The public debate about these people, is whether their presumed affiliation with Islamic State makes them a security risk. For the foreigners the debate centres on whether they should be able to go home.
Home to often European countries.
Some of them have had their European nationality revoked, leaving them stateless, essentially non-existent people. But who are these people that are apparently a security risk: 94 percent of Al Hol are women and children; 50 percent of the children are under 5.
Are we seriously discussing now whether a 5-year-old child is a security risk for Europe?
This obsession with discussing security, means we don’t discuss their needs. Instead, we restrict access to humanitarian aid and debate whether these people have the right to exist at all.
Borno State in Nigeria, home of the notorious armed group Boko Haram, now represents the most restricted area for delivering humanitarian aid. All contact with Boko Haram is forbidden and no humanitarian aid is allowed to enter Boko Haram controlled areas.
The logic is that anyone choosing to stay in these areas, must support the terrorists. Those who fled, arrive in Nigerian Army controlled garrison towns which they can’t leave.
Almost the entire population are women and children. Most men are locked in prison or simply disappear. A few weeks ago, two humanitarian organisations were expelled from Borno by the military.
They were accused of supporting terrorist by, amongst other things, providing medical care to a Boko Haram fighter.
The Theatre Commander for the Nigerian Army in Borno spoke to a meeting of the remaining humanitarian organisations and told them this:
“I want all of you to know that your humanitarian principles are not fair and most especially Neutrality, any organisation that insists on neutrality while I am leading this theatre should be ready to leave or be sent out.” Once humanitarians are told they are no longer allowed to be neutral, IHL is truly in mortal danger.
Neutrality was the guarantee states demanded to ensure humanitarian aid did not become a benefit for the other side. Once neutrality is gone, neither side will be compelled anymore to respect humanitarians or protect their mission.
What does MSF expect of the states?
MSF expects states to respect IHL of course. But that is clearly no longer enough. When MSF and ICRC spoke in front of the security council following the epidemic of hospital bombings, that is what all states did by endorsing resolution 2286 in 2016. However, as MSF observed in that session, as long as four out of five permanent members of the security council still have warplanes bombing over Syria, these word ring hollow.
MSF expects states not only to respect it, by not bombing hospitals and starving entire populations, but to actively and publicly defend IHL. Since 9/11 states have gone out of their way to publicly undermine the very IHL they proclaim to respect. The language of counter-terrorism claims an exception to the rules of war.
This needs to stop.
Defending IHL in public means some uncomfortable messages to their electorate are necessary.
Yes, a terrorist still has the right to medical care, and giving this care is no excuse for destroying the hospital that does so.
Yes, humanitarian aid goes to so-called ‘terrorist-controlled areas’. Some of that aid will probably end up in the wrong hands.
But that is no excuse for starving an entire population or culling an entire gender. IHL is simply a tool to save some lives during the misery of conflict. To do so, IHL puts constraints on power. This is not shameful or a threat to sovereignty. It simply ensures some humanity prevails, even in times of war.