The 1990s saw a renewed focus on law and humanitarian principles in the official language of the UN and national governments, and in the language of NGOs. But no one should pretend that this represents a moral victory for law and principles.
Reference to the law is always strongest at precisely those moments when respect for it disappears. Only when ethnic cleansing had reached its logical conclusion in the former Yugoslavia, and genocide had run its course in Rwanda, did talk of law and justice replace talk of realpolitik. These massacres shattered the illusion of an all-powerful humanitarianism, underlining the limitations of humanitarian action and raising questions about how endangered populations should be protected. Caught between the requirements of peacekeeping, human rights and humanitarian law, how are NGOs to make use of humanitarian law without sacrificing their freedom of operation, and without giving in to legalistic hypocrisy or outright pragmatism?
Humanitarian action and human rights
Reflecting a desire to improve the quality and standards of humanitarian action, a number of initiatives emerged after the disasters in Rwanda and the former Yugoslavia. These initiatives also affirmed the importance of making respect for human rights an integral part of humanitarian action, and basing that action on principles. This desire was embodied in projects such as Sphere and the use of humanitarian mediators. It is reflected in the codes of conduct drawn up by a number of countries with a view to standardising humanitarian practice. It was also reflected in UN-implemented strategic frameworks designed to make humanitarian action part of a broader project that includes the restoration of peace, respect for human rights and economic reconstruction.
This tendency towards a more global approach is an attempt to group humanitarian action together with peacekeeping, the restoration of democracy, and human rights. It is comforting, because it obscures the relatively modest impact of humani-tarian action in situations of conflict or crisis, by integrating it within a grander design of conflict resolution and the restoration of peace. It is also more comfortable for humanitarian organisations because it places the limited action of each into a broader framework. For example, humanitarian organisations that witness massive crimes need only convey the information to their human-rights counterparts, thereby avoiding the difficult choice between denunciation and silence.
However, this blurs the distinction between each organisations area of responsibility. In a context where human rights are an element of international diplomacy, giving confidential information to human-rights groups might be regarded by the authorities as clandestine, suspicious and subversive. Passing on information in this way hardly ensures the safety of humanitarian staff working in the field. Moreover, it may make protecting the populations concerned subject to the specific agenda of human-rights diplomacy.
Relief operations thus become a pawn in a power game that is perilous for humanitarianism. By participating in this process, humanitarian organisations become prey to the weaknesses and failures of the entire system. If, for example, it becomes impossible to maintain peace, humanitarian organisations lose their neutral status in the eyes of whichever warring party has rejected the peace. As a result, people living in the territories controlled by such parties are deprived of all relief activity. A genuine conditionality of humanitarian aid has gradually taken hold, in the name of peace and human rights. This violates the only absolute principle of humanitarian action: impartiality. This principle dictates that humanitarian aid obey no other imperative than that of human or individual need.
The strength of humanitarian action resides in the relevance of the action itself, and in the independence in the face of power that makes the humanitarian presence in the field acceptable to warring parties. This independence is reflected in respect for the operational principles governing the practical side of conducting relief actions. We must therefore go beyond the comforting notion of a humanitarian community. Humanitarian action is not enough to guarantee respect for human rights, and may not be used as a bargaining chip to secure such respect. Simply referring to human rights is not an adequate or appropriate way of guaranteeing the quality of humanitarian action.
Humanitarian law and human rights
Beyond human rights in general, there exist more precise commitments and rights for which humanitarian organisations are more particularly responsible. Human-rights conventions state general principles for the treatment of individuals by governments. These rights are often limited in periods of conflict, and it is governments that are charged with upholding them. The conventions accord no specific rights to NGOs. Human rights allow for acts of denunciation, but they do not constitute a frame of reference for humanitarian relief operations.
Humanitarian law, on the other hand, is concerned with periods of armed conflict. It is enshrined in four conventions signed in Geneva in 1949, and in two additional protocols of 1977. These laws set out specific rules regarding protection and assistance to vulnerable people in situations of conflict. The laws also define the rights conferred upon the ICRC and humanitarian organisations to provide humanitarian assistance to endangered popu-lations independently of governments and warring parties.
Some NGOs see the law only as a source of constraint and limitation. Yet it is thanks to the specific provisions of humanitarian law that NGOs are able to claim independence in their actions with respect to governments; demand access to victims; assert control over the distribution of relief; enter a countrys territory without prior consent in order to bring medical relief to the wounded and the sick; and identify and denounce war crimes and crimes against humanity. Humanitarian law ensures that offers of relief made by independent and impartial humanitarian organi-sations cannot be considered interference in a countrys internal affairs. It provides minimum rights that help to guarantee the survival of vulnerable people in situations of danger. It traces the limits between human-rights violations and crimes against humanity. It authorises and regulates relief action, and gives responsibility for such action to independent organisations.
In the conventions mentioned above, states explicitly recognise specific rights of NGOs, and entrust certain responsibilities to them. Impartial humanitarian organisations are responsible for verifying the overall situation of endangered populations, and ensuring that they receive aid. The organisations implement relief operations aimed at protecting such people from the various threats posed by the conflict. The responsibility of humanitarian NGOs is directed mainly towards negotiating the concrete conditions governing their aid actions, rather than denouncing violations of law or justice after the fact.
Responsibility and humanitarian principles
Humanitarian responsibility should not be confused with the monitoring of human-rights violations. Nor should humanitarian responsibility be delegated to human-rights organisations. Improving humani-tarian action requires strengthening the framework and principles which are in its area of responsibility. The responsibility of humanitarian organisations is directly related to their role as actors present during situations of violence.
Humanitarian organisations are responsible for negotiating relief conditions with the warring parties, in accordance with humanitarian law. They are charged with bearing witness to the obstacles encountered while fulfilling their mission to assist and protect populations. They are also responsible for denouncing situations in which relief has been diverted from its objective, or where the presence of humanitarian organisations is used to endanger the people these organisations are supposed to be protecting.
Relief organisations have sometimes been authorised to provide aid merely in order to give a semblance of normality to situations where populations have been subject to violence and abuse. In a situation of this kind, humanitarian organisations must be able to evaluate the real nature and effectiveness of their action. Many NGOs are still at a very early stage when it comes to assuming such responsibilities. They mostly limit themselves to generalised debates on the moral dilemmas surrounding humanitarian work, but are not willing to accept the risk of denouncing these abuses, or in some cases abstaining from relief action.
Some humanitarian organisations believe that they have no responsibility and no capacity to influence the political, military or economic context of their actions, or their potential manipulation and corruption. But silence cannot be a precondition for operational freedom. Speaking out is precisely what allows NGOs to assume their responsibilities as relief actors, and is an essential counterweight to the significant political, military and economic constraints imposed upon their actions.
Public statements represent an essential and legitimate aspect of humanitarian action, which call into question the dogma of operational freedom at all costs. Public statements express that part of humanitarian responsibility that cannot be delegated to other organisations. Public statements by humanitarian organisations constitute, in extreme circumstances, a guarantee of the quality of their action, and an act of protection for endangered populations. They shatter the relationship of passive complicity that is created between the executioner and relief personnel. However, such statements must focus on the quality of humanitarian space, rather than respect for human rights. They derive not from general moral or legal considerations, but from the knowledge that there is an operational responsibility that is specific to humanitarian organisations.
Françoise Bouchet-Saulnier works at the MSF Foundation, Paris. This article is drawn from the MSF International Activity Report 2000. The report is available on the MSF website at www.msf.org/publications/activ_rep/2000/index.htm.