Decisions concerning the participation of MSF in judicial investigations and proceedings are marked by the constraints specific to humanitarian organisations confronted with crimes.

A- CRITERIA AND REASONS FOR INTERACTIONS WITH INVESTIGATIVE PROCEDURES

The increased number of international interventions to maintain or enforce peace has increased in turn the number and types of organisations present in areas of conflict, as well as the diversity of their mandates. This activism has considerably changed the landscape of such conflicts and blurred the respective roles and responsibilities of the parties on the ground, in particular by subordinating humanitarian efforts to the broader objectives of maintaining peace and international security or combating impunity.International interventions have taken a variety of forms that differ in both their composition and their mandates. On this subject, see the section on peacekeeping in Francoise Bouchet-Saulnier, Practical Guide to Humanitarian Law, Rowman Litllefield. 2007. pp302. The investigative procedures initiated or supported by MSF on Somalia, the former Yugoslavia and Rwanda helped to illustrate the weaknesses in the framework of responsibility associated with the various international innovations concerning conflict management.The investigative proceedings supported by MSF have endeavoured in particular to specify the roles and responsibilities of new international actors in conflict management, particularly peace-keeping forces in their various forms. In the case of Somalia, the aim was to understand how the military forces operating under a United Nations mandate came to use force, including against civilians and humanitarian facilities. In the case of former Yugoslavia and Rwanda, it was more a matter of understanding why the use of force to protect civilians in danger might be refused, in law or in practice, to the international forces charged with precisely this mission. In this respect, the French parliamentary investigation on Srebrenica took our understanding a step further. It was already known that the use of force to protect endangered civilians could be refused when the international contingents did not possess the human and material resources needed. The use of force was not supposed to put the international contingents in danger. This argument was made in various forms to justify the inaction of international troops in the former Yugoslavia and Rwanda. The French parliamentary hearings on Srebrenica explicitly added a new criterion: force could not be used by international troops to protect endangered civilians if such use of force might impede the peace negotiations. Thus, the subordination of the human factor to political considerations was demonstrated at last. In some situations – notably the actions undertaken in 1994 and 1996 in the Great Lakes region of Africa – these procedures were also intended to win recognition of crimes and violence that were denied or disparaged by political or military propaganda.

Thus, MSF has supported judicial or independent investigative procedures in only a limited number of situations. MSF’s actions have not been undertaken in defence of general principles of truth and justice, but pursuant to objective criteria involving its direct operational responsibility.

MSF became involved only in cases of mass crimes committed against a civilian population with which its teams were working. The victims were either people assisted by MSF as part of its relief programmes or humanitarian staff working for MSF.The latter criterion had been invoked as grounds for MSF’s interest in taking action, in the quasi-legal sense of the word, regarding the investigations on Rwanda and Srebrenica. MSF argued that it had been physically harmed by the attacks on its local employees and its patients. The establishment of individual criminal responsibility with a view to punishment was never an overt objective of the investigations initiated or supported by MSF.

In the meanwhile, violence against civilians has become a central issue in the UN’s political, military and judicial management of conflicts – a development that at the same time gives greater weight to issues of propaganda and of the political and military instrumentalisation of these questions.

B- JUDICIAL OBLIGATIONS VERSUS THE INDEPENDENCE OF HUMANITARIAN ORGANISATIONS

The emergence of international tribunals has an impact specific to MSF in that it calls into question MSF’s practice of “testimony” and the ambiguity surrounding this word.

The practice of humanitarian testimony developed by MSF has two main pillars:

- Refusal to conceal mass crimes behind the spectacle – or illusion – of relief activity;

- Willingness to play a role in alerting the authorities and naming those responsible for the violence while the humanitarian effort is in progress.

These two functions are as relevant as ever, and they can be neither “outsourced” nor postponed until judicial action is initiated.

To some members of MSF, broadening the notion of “humanitarian testimony” to include serving as a witness or judicial advocate for the victims seemed to be a logical extension of MSF’s practice of denouncing certain crimes. Internal debates pointed out the paradox between MSF’s public statements denouncing certain crimes and its support for the creation of the International Criminal Court, on the one hand, and on the other its wariness about co-operating directly with the international tribunals.See inter alia the deliberations of the Board of Directors of MSF France at its meeting of 26 March 2004: “Thierry Durand:I think that collaboration with the courts is not negative per se, since we have always associated provision of medical care with the role of testimony. We conduct investigations on our own account to denounce and describe crimes. In addition, we are regularly heard by the Security Council, the Council of Europe, etc. […] Jean-Hervé Bradol: I do not agree with the presentation made in the memo [on relations between MSF and the ICC concerning Uganda], since we start from a single point of view: the effects of the ICC will be negative for our work. The tone of the memorandum is too unbalanced and in opposition to the campaign for the creation of an international criminal court, in which we participated. Expressed in this way, the change in our views on the issue – which is real – of international justice looks like an about-face, the reasons for which are not understandable”.

Despite these debates, MSF’s caution regarding the obligation to provide legal testimony (clearly expressed as early as 1993 in its policy on relations with the ad hoc international tribunals) has been confirmed on a number of occasions. It was reiterated, on the basis of the same arguments, on the creation of the International Criminal Court. In addition to the fears already mentioned in the case of the ad hoc tribunals, the International Criminal Court places additional constraints on and raises new challenges for the activity of humanitarian NGOs.

Although the creation of the ICC is good news for humanitarian NGOs, it faces them with a new challenge: that of redefining the independence and complementarity of humanitarian action and judicial action. This is not a matter of questioning the desirability of either judicial or humanitarian activity, but rather of understanding how and why these two activities, both of which are useful and legitimate, are largely incompatible and governed by different motivations and modes of operation.

For humanitarian NGOs, it is important to optimise the workings of the ICC to clarify the responsibilities of humanitarian organisations and obtain increased respect for their mission. To this end, it is necessary that the role of the international justice system should not weaken that of humanitarian organisations or take precedence over it. It can at times be more tempting to judge and condemn violence from a distance than to undertake relief actions in such situations.

In the negotiations over the Rome Treaty, MSF had requested appropriate measures to protect victims, witnesses and the personnel of humanitarian organisations before the future Court. MSF had also insisted that the burden of the investigations and evidence of these crimes should not be borne mainly by humanitarian workers or the victims themselves.See inter alia the deliberations of the Board of Directors of MSF France at its meeting of 19 March 1998.

1- THE NECESSARY INDEPENDENCE OF HUMANITARIAN ACTIVITY

If humanitarian organisations are to enjoy legitimacy,By legitimacy,we mean the rules and principles to which relief efforts are subject under humanitarian law. Justice is not one of these, whereas independence is one of the crucial attributes of humanitarian action. they must be independent with respect to all parties involved, all forms of pressure and the pursuit of other objectives. It is perfectly legitimate for humanitarian workers and victims to desire justice, just as they may desire peace, but these wishes must not lead to the subordination of relief efforts to this other objective.

The problem is that the main characteristic of judicial proceedings lies in the fact that they are obligatory for all. Neither victims, nor witnesses, nor of course the accused have a choice as to whether they will participate. National law recognises jurisdictional immunity for certain very limited categories of individuals, such as diplomats, so as to ensure their independence.

The existing tribunals do not allow MSF to decide its policy on co-operation on a case-by-case basis, nor to choose whether it prefers to testify for the prosecution or the defence. If MSF agreed to participate in proceedings before the international tribunals, it would be giving a commitment to place its personnel and documents at the disposition both of the Prosecutor and of the victims or defendants.

This constraint was clearly seen in the Talisman trial in the United States. A group of victims brought charges against this Canadian oil consortium for violations of human rights and crimes committed in Sudan, where it was operating oil leases. The victims’ complaint was based on documents produced by human rights organisations and MSF, describing the fate of the people living in and around the leased oilfields. Exercising its right to defend itself, Talisman demanded before the US judge that MSF open its archives to Talisman’s scrutiny and divulge the names of those involved in drafting the document, either as witnesses or as investigators. MSF’s pleadings before the US court led to an agreement between MSF, the defence and the prosecution, in which each party agreed not to use these documents in actual proceedings, in order to let MSF and the other organisations remain exempt from the constraints associated with such judicial use.Letter from the law firm Simpson, Thacher and Bartlett,New York, 16 December 2004.

2- JUDICIAL ACTION AND THE SECURITY OF RELIEF WORKERS

The ad hoc international tribunals for the former Yugoslavia and Rwanda were designed to serve as complementary instruments for operations to keep or restore the peace. The work of these tribunals was conducted simultaneously with the continuation of the conflict – and of the crimes that accompanied it. In this case, it is all the more necessary to distinguish the role of the relief worker from that of the judicial investigator or witness. This trend was confirmed with the advent of the ICC, which is designed as a means of influencing the behaviour of belligerents and bringing pressure to bear on them, within the framework of broader peacekeeping of peace-building actions.

Today, this is true of the three situations referred to the International Criminal Court: the DRC, Uganda and Sudan. All three countries are still in conflict, and the referral of the situation to the ICC is part of the overall international process of conflict settlement.

The safety of relief workers could be compromised in the event of any confusion between their provision of emergency assistance and of information on the prevailing situation, on the one hand, and any contribution they might make to international judicial action on the other.

It is not easy to evaluate the extent to which the risk to relief personnel in the field would be increased by their participation in judicial proceedings. It has always been recognised, however, that the security of humanitarian personnel depends in particular on the belligerents’ perception of the organisation’s independence and of the strictly humanitarian and transparent nature of its activity.

The desire to participate in judicial proceedings would entail a genuine risk for humanitarian organisations: that of no longer being able to maintain their presence and to continue relief operations in situations of conflict. They would then be obliged to fall back on denunciation of crimes, pending the punishment of the perpetrators and the possible judicial rehabilitation of victims.By way of example, we may note that MSF’s activities in Kivu and Ituri are conducted in an area where a number of war criminals (Kony, Nkunda etc.), under indictment or investigation by the ICC, have taken refuge and remain active.

Having refused to let humanitarian activity be incorporated into the broader activity of peacekeeping, it would have been inconsistent for MSF to subordinate its relief activity to the higher obligation and constraint of justice.

3- DEPENDENCE WITH RESPECT TO TRIBUNALS AND NATIONAL GOVERNMENTS

In contrast to the ad hoc international tribunals for the former Yugoslavia and Rwanda, the ICC takes action only when national courts are unwilling or unable to try the cases themselves. Its international jurisdiction is thus a jurisdiction by default, in that the failure of the national justice system must first be established or acknowledged.

This rule adds a further constraint concerning any judicial testimony by relief organisations. It would be inconceivable that some organisations and witnesses would co-operate only with the ICC and would refuse to do so with national courts.

This measure, initially intended to circumvent governments that refuse to prosecute crimes in their national courts, is also used by certain governments to obtain judicial sanctions against their political and military adversaries. For example, it was the governments of the DRC and Uganda that referred to the ICC Prosecutor the crimes committed in conflict-ridden areas of the country where the central government’s authority was not established and where the national courts could not function. The Prosecutor attempted to limit the perception that the ICC was being instrumentalised by explaining that, in both cases, the Court would have jurisdiction not only over crimes committed by the rebel forces but also those committed by the other parties to the conflict. It is nonetheless true that, as the Court is responsible for prosecuting the most highly placed criminals, this criterion is particularly aimed at leaders who might refuse to participate in or endanger peace agreements.This judicial policy has been tried out and implemented by the mixed court for Sierra Leone.

In this context – politicisation of judicial handling of crimes at a time of ongoing conflict – the overt participation of relief organisations in ICC investigations would engender additional risk for both international and local humanitarian personnel and would further limit the possibility of gaining access to certain areas of the country, as well as the possibility of dialogue with the most marginalised and radicalised armed groups.

Similarly, an attempt to justify why NGOs would give certain information to the international court but not to national courts would lead to a political debate over internationalism versus national sovereignty. Governments would be tempted to criticise foreign NGOs that refused to participate in national court proceedings, thus depriving the national courts of the evidence they needed to do their job. These tensions could also lead to accusations that the NGOs had destroyed or falsified evidence.

These risks are not theoretical. They arise regularly in the field, notably when MSF refuses to reveal the identity of the victims of sexual violence to the country’s police authorities. In such cases, some people accuse the organisation of concealing the victims to prevent the police from doing its job and to hamper the restoration of law and order, while others insinuate that MSF refuses to give the victims’ names to the police and judiciary because it simply invents these victims. MSF’s arguments on why it refuses to co-operate and disclose names will not be heard unless these arguments apply to both national and international tribunals.

The referral to the ICC of the crimes committed in Darfur illustrates the real impact of these changes. After the controversy over whether these crimes could be termed genocide, the United Nations Security Council supported the deployment of an inter-African international force and over-rode the Sudanese government’s objections by giving the ICC jurisdiction to investigate and try the crimes committed in the region. The ICC Prosecutor, however, instead of accepting the jurisdiction just attributed to him by the Security Council, declared that he should first examine the efforts made by the Sudanese government to bring to justice a number of military and militia officers who were responsible for the crimes committed in the province.

The Sudanese government therefore set up a special military tribunal to try the alleged perpetrators of these crimes.Special military tribunals were created for each state (North, West and South Darfur) by an order in 2001. Specialised criminal courts were created by an order in April 2003. The creation of this military tribunal raises obvious practical issues regarding MSF’ cooperation to trials.

4- HUMANITARIAN ACTIVITY AND OBSTRUCTION OF JUSTICE

Humanitarian organisations’ whistle-blowing role when violence occurs is very different from the judicial process of establishing individual criminal responsibility. The purpose of the report published by MSF Holland on the rapes in Darfur, for example, was to alert the international community that these crimes were being committed. However, if the report were to be used in trials before the Sudanese courts or the ICC, MSF Holland would be obliged to divulge the names of victims and witnesses.

MSF’s refusal to provide the court with this information and with medical certificates could come under the heading of obstruction of justice.

In this respect, it should be noted that after arresting the head of mission and field manager of MSF Holland following the publication of the report on the rapes in Darfur, the Sudanese authorities did ask MSF to provide the names of victims and medical certificates. Their accusation that MSF had lied was based in particular on MSF’s refusal to provide this information.

MSF field teams already face this type of dilemma. In Darfur, even before the incident discussed above, the field teams were under police pressure to report rape cases whose victims received care in MSF health stations. As rape is a crime, it was a legal requirement in Sudan to report such cases to the police. In the ensuing clash on this subject, the police accused MSF of giving international publicity to these rapes while preventing the local authorities from prosecuting them.

In the DRC, MSF also encountered a request that it co-operate with the national police and justice system. Here again, as part of the ICC’s examination of the situation in the country, the justice ministry had asked the health authorities to report all cases of rape. MSF was therefore requested to make its medical reports available to province-level public health physicians.Letter from the Attorney General of South Kivu dated 2 July 2004 concerning information, including names, on victims of sexual violence or violence by firearms or edged weapons. Among other reasons for this request, it was important to the DRC authorities to show that the national justice system was working in certain provinces, as the crimes referred to the ICC concerned only the eastern provinces of the country and the referral was motivated by the government’s inability to control these areas. MSF’s refusal to co-operate was based on its general principle of refusal to participate in judicial proceedings and preservation of medical privilege.

This type of situation is now frequently encountered in countries where MSF has missions. To be able to resist these demands, MSF must rely on a coherent policy and closely reasoned legal arguments concerning its participation in judicial proceedings and its policy on testimony.

This general policy must be able to hold two elements in balance:
the principle that MSF does not participate directly in judicial proceedings,The non-participation principle is justified by reference to a special immunity arising from the purpose of humanitarian activity. This immunity has been partly recognised by the international tribunals. It is based on the recognition that: - the role of a humanitarian organisation is a role in the public interest that stems from international agreements and consists in providing assistance in situations of violence, bearing witness to violations of humanitarian law and alerting the proper authorities to these situations; - judges must respect this general-interest role by granting special exemptions and protective measures to humanitarian organisations before the courts.
humanitarian and medical practice that respects the rights of victims and medical privilege.MSF’s refusal to participate in judicial proceedings should not, however, contribute to the disappearance of the fact and evidence of certain crimes, nor deprive victims of their right to be recognised as such. The medical practice of MSF can remain in compliance with the law on victims, in particular, by issuing public reports that certain crimes are being committed and, at the individual level, by providing medical certificates to the victims of rape or armed violence. After that, it will be up to the victims to decide if and when they wish to bring charges or testify. It is the victims who will evaluate the risks and benefits of doing so, according to the procedural guarantees offered to them at the national or international level.In many situations, defending medical privilege also allows MSF to avoid subordinating the requirement to provide care to those of denouncing crimes and identifying victims to the police. Medical certificates make it possible to attest to an individual’s status as victim and to preserve the evidence for any later action that might be taken.

International judges have recognised the incompatibility between relief activity and judicial activity, and have agreed to limit the obligations to which humanitarian organisations are subject. Paradoxically, however, it is humanitarian organisations that must continue to clarify this incompatibility in order to dispel the remaining ambiguities between humanitarian testimony and legal testimony.

The challenge consists in redefining the meaning and the form of humanitarian organisations’ role in sounding the alert concerning certain crimes, in an international judicial environment that is profoundly changing.