Key Benefits:
(Plenary Assembly - 22 May 2014)
1. Alerted by several dramatic events, including the murder of 17 local employees of Action contre la faim in Muttur, Sri Lanka, in 2006 (1), the CNCDH adopted on 17 January 2008 a notice on the respect and protection of humanitarian personnel. In this opinion, the CNCDH recalled the legal framework and made recommendations, some of which were implemented (e.g., the adaptation of French criminal law to the statute of the International Criminal Court), while others remain relevant and will be recalled in support of the observations and recommendations made below. Despite some advances in the specific case of Muttur (2), particularly thanks to the perseverance of France, the overall situation of humanitarian personnel and its protection continue to be problematic.
2. Indeed, acts of violence against humanitarian personnel have increased in the last ten years (3). The United Nations recently expressed grave concern over the "strong and constant increase in kidnappings in 2012 and in the first half of 2013" and deplored "with force the deliberate targeting and loss of [humanitarian] personnel in complex humanitarian emergencies, particularly during armed conflicts and post-conflict situations" (4). Attacks do not save the relief provided in the event of natural disasters, nor the actors involved in the consolidation of peace and the restoration of social cohesion. Today, there is even a growing threat to health care, which has led the ICRC to launch a global campaign, Stop Violence against Health Care (5).
3. Through the deterioration of the conditions of intervention of humanitarian personnel, it is the very strength of humanitarian action that can be compromised. The hostile actions against humanitarian personnel are major obstacles to access, on the one hand, humanitarian access to the people and, on the other, populations to the relief and protection afforded by international humanitarian law. Most often, such acts challenge the presence and action of humanitarian organizations in particularly sensitive areas.
4. For this reason, the CNCDH today provides a thorough and enriched opinion by taking into account the events and documents that have marked the past six years. In advance, CNCDH wishes to make three introductory remarks.
5. On the one hand, it highlights the importance of humanitarian action, which allows, in extreme situations of armed conflict, violence or natural disasters, to meet the vital needs of the population (6). This action is protected by law and, as a result, humanitarian actors who exhibit themselves in order to implement it must also be subject to legal protection. The intrinsic value of humanitarian work and the principles of humanity, neutrality, independence and impartiality on which this work is based must be recognized, accepted, respected and defended. Several of the hearings revealed that humanitarian principles have a virtue that is all the more protective because their merit is widely recognized and that they are properly respected.
6. On the other hand, as in its 2008 opinion, the CNCDH emphasizes that, if "the humanitarian organizations are to establish and strictly enforce procedures to ensure the safety of their personnel as to ensure that the damages they might suffer" (paragraph 3), the protection of humanitarian personnel is primarily the responsibility of States. This responsibility lies firstly with the State in whose territory humanitarian action is carried out and, eventually, with non-State armed groups in the event of armed conflict, then with the State of nationality of the humanitarian actor and, ultimately, with the international community as a whole.
7. The CNCDH finally considers, like several individuals or entities auditioned, that one of the major factors of protection is the ability to be accepted by all actors in often complex contexts. Thus, the protection of humanitarian personnel is intimately linked to the acceptance by the surrounding population and the respect for the humanitarian mandate by all actors and belligerents in the event of armed conflict. Acceptance requires humanitarian organizations to develop a thorough and thorough knowledge of the context in which they operate, as noted in General Assembly resolution 68/101, which emphasizes the importance of ensuring that humanitarian personnel "know and respect the national and local customs and traditions of the countries where they are located and clearly expose their mission and objectives to local populations so that they are better accepted, which will contribute to their security (7).
Field of notice
8. Without being able to rely on an official definition of humanitarian personnel (8), the CNCDH is forging its own definition, using various elements to several legal documents that refer to "humanitarian tasks" (9) and "employees providing relief", all referring to both assistance and protection. The CNCDH intends to adopt a broad definition of humanitarian personnel, which means: any person who carries out humanitarian action in accordance with the founding principles of humanity, impartiality, independence and neutrality. This is the whole staff, regardless of the degree of their participation in humanitarian action, including personnel providing logistical support or even maintenance of premises, regardless of their status with respect to their employer (salarie, volunteer, trainee, volunteer) and whatever their nationality (local staff – more and more often referred to as "national" – and expatriate staff from the non-seat country).
9. The opinion is interested in the issue of the status of humanitarian personnel, in addition to the weaknesses in the implementation of the existing provisions. Then he addresses the situation of national staff – the most numerous – employee of French organizations. In general, the humanitarian mission is carried out by all expatriate and national staff for efficiency, cohesion and complementarity. While they most often run the same risks, some tasks may be more specific to national staff. Finally, the opinion looks at some of the current issues related to the situation of French expatriate staff. On each point, the notice proceeds to an analysis of the situation before sketching avenues of action based on the triptych prevention - repression - reparation, and addressed to the Government in its dual role as a State of nationality of the headquarters of humanitarian organizations and members of the international community.
I. Strengthening the international status of humanitarian workers
10. There is no international status specific to humanitarian personnel in all circumstances. However, protection standards specific to certain situations and personnel may be identified, depending on their mission.
A. - The statement
Obligations in the event of armed conflict, international or non-international
the provisions of international humanitarian law
11. Under international humanitarian law, humanitarian personnel may have minimal benefit from the general protection afforded to the civilian population (10). In addition, some specific mentions of humanitarian personnel in the legal corpus lead to questions about particular protection.
12. These references are provided in the event of international armed conflict, regarding access to victims requiring assistance. Article 71 of Additional Protocol I on the Protection of Victims of International Armed Conflict imposes the respect and protection of "remedies" (11). In the case of non-international armed conflict, international humanitarian law does not contain a similar provision, but the ICRC study on customary international law mentions in Rule 31 that "humanitarian relief personnel must be respected and protected", regardless of the international or non-international character of the conflict (12). The study recalls that, according to the practice collected, the expression "will be respected and protected" covers in addition to the prohibition of attacks, harassment, intimidation, arbitrary detention, ill-treatment, physical and moral violence, murder, beatings, kidnapping, hostage-taking, harassment, abduction, unlawful arrest and detention.
13. In addition, other rules governing access to populations refer to relief organizations and personnel. Thus, Article 142 of the Fourth Geneva Convention states that "the States parties, subject to the measures (...) indispensable to guarantee their security or to face any other reasonable necessity, (...) shall reserve the best reception to religious organizations, relief societies, or any other body that would assist protected persons". They will have to grant them "all necessary facilities as well as their duly accredited delegates, to visit the protected persons, to distribute them relief", being specified that this type of organism can be constituted in the territory of the state of the conflict, another State or have an international character. The State must assist this "supervised personnel" in the fulfilment of its mission and the activities of this staff cannot be limited or restricted, except in the case of "imperious military necessity". In return, relief personnel must "taking into account the security requirements" of the State in whose territory they carry out their duties. However, the State must grant "the facilities necessary for the exercise of their humanitarian activities in favour of the victims of the conflict" to the humanitarian agencies authorized by it and who carry out their activities in accordance with the Geneva Conventions and Additional Protocols (13). However, in the case of non-international armed conflict, the treaty provisions clearly distinguish between national relief and international relief (14).
14. In addition, special emphasis is given to health and religious personnel (15) and specific items are devoted to the staff of national relief societies protected by the emblem of the Red Cross, Red Crescent or Red Crescent, which they wear (16).
15. Thus, with the exception of the general rule of customary law, the approach that is made, in international humanitarian law, non-health humanitarian personnel focuses on their role as a vector of assistance. The protection that is due to it appears more rarely. The protection of humanitarian personnel is considered to be inseparable from unhindered humanitarian access, a corollary of the prohibition of famine as a method of war against the civilian population and the obligation to treat (17). In addition, this protection may vary depending on the activity (medical or non-medical) and the employer organization (emergency or non-medical).
The breach of these obligations
16. The intentionally committed acts of violence against humanitarian personnel may be classified as serious offences under international humanitarian law, for which any State party to the Geneva Conventions has an obligation to seek the alleged perpetrators, to bring them before their own courts and whatever their nationality, or to hand them over to another State for the purposes of prosecution and trial.
17. In addition, the statute of the International Criminal Court defines as a war crime "the intentionally directing of attacks against personnel, facilities, equipment, units or vehicles used in a humanitarian aid mission ... provided that they are entitled to the protection that international law of armed conflict guarantees civilians and civilian objects", whether they take place in the context of an international armed conflict (art. 8.2/iii).
18. In practice and to date, there is little prosecution of the perpetrators of these attacks, either by national or international courts. However, the adoption in March of the resolution of the UN Human Rights Council on justice and reconciliation in Sri Lanka providing for an international investigation into crimes committed in the country during the civil war could be a crucial step towards justice and the fight against impunity (18). The killing of humanitarian personnel in Muttur being included rationae loci and rationae temporis in the field of the investigation, the implementation of this resolution is likely to be a precedent.
Obligations in situations other than armed conflict
19. In situations of violence that do not reach the threshold of an armed conflict, or in natural disasters, as in any other situation, international human rights law is intended to apply: right to life, prohibition of torture and inhuman and degrading treatment and punishment, right to physical integrity, etc. Humanitarian personnel are of course entitled to these rights.
20. However, contrary to what exists for human rights defenders (19), there are no specific provisions in the field of human rights for the protection of persons carrying out a humanitarian mission. However, the need for respect and protection for humanitarian personnel is not necessarily different from what it is in times of armed conflict.
21. In any case, each humanitarian actor remains under the general protection of the State of which he is the national and which, as the case may be, may also be the State in whose territory the humanitarian mission takes place.
B. - Towards a specific protection of all humanitarian personnel in all circumstances?
22. The Convention on the Safety of United Nations and Associated Personnel, adopted in 1994, covers personnel deployed in an UN operation. It therefore covers a very specific field.
23. In addition, the United Nations regularly addresses the issue of the protection of humanitarian personnel in various ways. The most solemn example was the adoption of the Security Council resolution on this subject in 2003 (20). Reference is also made to humanitarian personnel in resolutions on specific crises (21) and in resolutions on the protection of civilians (22). The General Assembly of the United Nations has adopted every year since 1998 (23) a resolution entitled "Security and security of humanitarian personnel and protection of United Nations personnel". The last of these resolutions, adopted on 13 December 2013, recalls that the primary responsibility for security and protection of humanitarian personnel rests with Governments.
24. Thus, several elements demonstrate a growing concern of the international community regarding the security of humanitarian personnel. However, this attention has not yet resulted in the realization of a uniform and consistent legal regime that would apply to them. For CNCDH, such a regime would be desirable and protective for humanitarian personnel.
C. - Recommendations
25. All State responsibilities for the protection of humanitarian personnel should be highlighted. In accordance with Article 1 common to the Geneva Conventions and Additional Protocols, States parties have pledged to "respect and enforce" the rules of international humanitarian law. The obligation to respect is imposed on the parties to the armed conflict, but the obligation to enforce concerns all States bound by the Geneva Conventions, that is, all States. It is in this context that France's action must be registered and strengthened. Finally, each State having a primary role in "the initiative, organization, coordination and implementation of humanitarian assistance" (24) in its territory, is responsible for ensuring the safety of those involved in this assistance.
26. The XXXI Red Cross Conference focused on the implementation of international humanitarian law and adopted a quadrennial action plan inviting States to: " Ensure that members of their armed forces receive instruction to respect the physical integrity and free movement of humanitarian personnel and goods, in accordance with international humanitarian law; adopt at the national level the necessary measures, including legislative measures, to fulfil their obligations with regard to acts arbitrarily impeding humanitarian assistance, as well as to prevent, and punish, as appropriate, attacks on humanitarian personnel and goods; and to ensure that perpetrators of attacks against humanitarian personnel, including against those who use distinctive signs in accordance with the Geneva Conventions and their Additional Protocols, are required to report to the public on their actions. In addition, States, on a joint initiative of Switzerland and ICRC, consider the possibility of establishing effective mechanisms to better enforce international humanitarian law (26).
27. Moreover, given the specific nature of the provisions of international humanitarian law relating to humanitarian personnel, it would seem useful to enrich or clarify the content of that protection. Thus, the "medical function" enjoys a special treatment in international humanitarian law, while activities that indirectly contribute but essential to health (health, access to water, sanitation, nutrition) are never mentioned.
R1. The Government should contribute to the implementation of the protective provisions of international humanitarian law.
In this context, it should:
- R1.1. - To explicitly recognize the customary value of Rule 31 of the study of the International Committee of the Red Cross on customary international humanitarian law;
- R1.2. ― Manifesting a strong indignation and strongly condemning any human and intentional security incidents involving humanitarian workers and whatever the nationality of the victim, calling not only for the creation of security conditions for humanitarian workers, but also for the prosecution of those who were at their origin and thus contribute to the realization of the wrongfulness of these acts;
- R1.3. ― Conducting outreach activities on the specific theme of respect for and protection of humanitarian personnel for security personnel in institutional development or reconstruction phases, but also non-State armed groups;
- R1.4. ― Propose a resolution within the framework of the 2015 International Conference of the Red Cross and Red Crescent Movement on the Protection of Humanitarian Personnel and work on the drafting of a good practice guide to clarify the extent of personnel involved in the provisions of international humanitarian law;
- R1.5. ― Integrate the protection of humanitarian personnel in a revised version of the humanitarian strategy of the French Republic, adopted in 2012, for example as part of the mid-term evaluation planned for 2014;
- R1.5. accepting the jurisdiction of the International Fact-Finding Commission established by Article 90 of Additional Protocol I to the Geneva Conventions and supporting the extension of its jurisdiction to non-international armed conflicts;
- R1.6. ― Continue its diplomatic and judicial action to help strengthen domestic legislation for crimes under the Rome Statute.
Within the European Union:
- R1.8. – In the event of an incident, raise a mass expression of condemnation within the European Union so that it publicly demonstrates the importance attached to the respect and protection of humanitarian personnel;
- R1.9. – In the event of the kidnapping of humanitarian workers or violence against them, including local workers, request an emergency meeting of the Council of the European Union's Humanitarian Aid and Food Aid (COHAFA);
- R1.10. ― Acting to make the issue of the protection of humanitarian personnel a major focus of the implementation of the European Union guidelines on the promotion of international humanitarian law.
R2. ― The Government should contribute to the creation of an international status of humanitarian personnel by supporting the development of applicable standards regardless of whether or not an armed conflict exists.
It should:
- R2.1. ― Promote within relevant international forums and multilateral meetings in which France (UN, OIF, EU, France/Africa, EU-Africa, EU-ASEAN, etc.) participates the reflection on the protection of humanitarian personnel and actively support the adoption of texts (resolutions, codes of conduct) on the respect and protection of humanitarian personnel, whether in conflict or in the absence of conflict;
- R2.2. ― To support this advocacy on the model that exists for human rights defenders (supra note 18);
- R2.3. ― Propose, as a member of the United Nations Human Rights Council, the creation of a mandate as Special Rapporteur on the protection of humanitarian personnel;
- R2.4. ― Conclude (bilateral) or act (in case of multilateral action) in the sense of the conclusion of agreements (MOU) systematically including the theme of respect and protection of local humanitarian workers as expatriates;
- R2.5. ― To include in the European Union's humanitarian implementation plans for each intervention country the issue of the protection of humanitarian workers;
- R2.6. ― Consider creating an aggravating circumstance in French criminal law when acts of violence are committed against humanitarian personnel employed by French humanitarian organizations, apart from armed conflict.
II. - To promote a better situation of local/national humanitarian workers
A. - The statement
28. In its 2008 opinion, CNCDH had already emphasized the "special vulnerability of local personnel of humanitarian organizations" (paragraph 6). Resolution 68/101 2013 of the United Nations also recalls that "it is necessary to pay special attention to the safety and security of locally recruited humanitarian and United Nations personnel, who constitute the vast majority of victims and are particularly vulnerable to attacks, including kidnapping, harassment, banditry and intimidation" (27). More specifically, national staff is much more numerous than expatriated personnel and is therefore the largest proportion of victims of attacks (28).
29. Obligations for the protection of humanitarian personnel under international law do not distinguish between expatriate and national personnel and require that each State take appropriate measures to prevent and repair attacks on humanitarian personnel. These measures are all the more important for national staff as they work in the territory of their country, which is not always in a position to provide full protection to them; He is also sometimes the perpetrator of the violence and the staff is unauthorised to refer to. In addition, locally recruited employees cannot, unlike expatriated employees, benefit from the consular protection of their State. As a result, the role of other States is essential to them.
30. Humanitarian organizations employing national staff must establish security, protection and repair measures equivalent to those applicable to expatriate personnel. Indemnification in the event of an incident is often proportional to compensation, which is the function of the standard of living in the country. Most organizations mobilize to ensure equitable treatment for national staff (29) and some have adopted a specific policy on national human resources. However, they must submit to national legislation on social protection, labour law, insurance law, etc. This is more often much less protective than French legislation. In addition, support to families, psychological and professional support, with reclassification opportunities, remains more difficult to put in place for national staff. In addition, if relocation measures within the country are often possible, evacuation out of the country in the event of extreme danger is hardly possible for national nationals who cannot be "exfiltered" from their own country. However, exceptional measures, such as emergency visa issuance, should be conceivable.
31. In the event of a security incident abroad against personnel of a French humanitarian organization, there is therefore a difference of care depending on whether the victim is expatriated or not, due in particular to the limitations imposed by the law in force in the country in which the humanitarian action takes place. The establishment by the French Government of concrete measures to improve the situation of local/national employees of French humanitarian organizations should then be considered.
B. - Recommendations
R3. – The Government should take concrete steps to compensate
the special difficulties faced by local/national staff
Thus, it should:
― R3.1. ― On the basis of the fund to guarantee victims of terrorist acts, propose the creation of a special fund to compensate employees of French humanitarian organizations who are victims of attacks, regardless of their nationality;
- R3.2. ― Implement, as recommended in 2008, a mechanism to temporarily accommodate, in emergency proceedings, in French territory, at the request of the French humanitarian organization concerned, any employee from the country of humanitarian action who would be subject to specific threats related to this activity;
R4. - The Government should take measures to ensure
better protection of local/national workers
Thus, it should:
― R4.1. ― Exercising advocacy for local/national humanitarian workers in the countries in which these humanitarian workers are under pressure;
- R4.2. ― To promote at the European level the idea of drawing inspiration for this purpose from the "cross" protection of European States (30) and to involve the delegations of the European Union in order to show European solidarity on this subject.
- R4.3. ― Encourage third States to enact legislation to respect and protect humanitarian personnel in and out of armed conflict.
III. - To help create an environment conducive to the work of organizations
and protection of French humanitarian personnel
A. - The statement
32. Despite all the precautions that can be taken by humanitarian actors, it is essential to recognize that in the security of humanitarian personnel, all risks cannot be eliminated. If humanitarian organizations are to prevent, to the extent possible, security incidents against their personnel, they cannot be asked to control everything and fortiori to refrain from accessing certain areas without violating the principles of assistance, humanitarian imperative, independence and impartiality and without prejudice to the nature of humanitarian action, which, by essence, is intended to practice in complex and dangerous areas.
33. The CNCDH recalls, as it had already done in 2008, that "the alert to travellers" broadcast on the website of the Ministry of Foreign Affairs and on security in different countries of the world is not opposable to humanitarian organizations whose mission is precisely to act in dangerous areas. The Minister for Foreign Affairs recently recalled that: "Access to victims of disasters or armed conflicts is the very essence of humanitarian action," in accordance with "the obligation to provide assistance, where civilian populations and victims need it" (31). In this regard, the French Government's practice of suggesting that French humanitarian organizations avoid going to certain areas and reminding them of their responsibilities as employers appeals to the CNCDH, which emphasizes that the dissemination of security alerts is intended to help ensure security and not to release the State from its responsibility for protection.
34. In addition, the device set up by Article 22 of the Act of 27 July 2010 on the external action of the State should be clarified since it provides for the possibility for the State to demand the reimbursement of all or part of the expenses incurred in the occasion of relief operations abroad for the benefit of persons "having deliberately exposed to risks that they could not ignore". The CNCDH recalls the comments made in April 2011 to the Minister of Foreign Affairs: the indication that the reimbursement of expenses incurred would not be required in the case of "legitimate motives derived in particular from professional activity" or in the case of a "emergency situation" does not appear to be a sufficient guarantee. Article 22 is likely to be applied to humanitarian personnel whose professional activity entails risks of which, in the event of relief, the expenses of the State. In his response to the CNCDH, the minister stressed that the objective of this device was not to interfere with the freedom of persons working in the humanitarian sector. Nevertheless, the law should be clarified on this point by a decree of application.
35. The CNCDH finally considers that the safety of humanitarian personnel employed by French organizations is a collective responsibility of the State and non-governmental humanitarian agencies. The French State cannot deprive itself of this responsibility. As a result, it should not be disengaged or hampered by humanitarian organizations, but rather contribute to the preservation of humanitarian access as secure as possible, while respecting the nature and principles of intervention of humanitarian organizations. France must thus defend an environment conducive to humanitarian access in which actors work for people.
B. - Recommendations
R 5. ― The Government should integrate the issue of insecurity
as an inherent parameter of humanitarian action
For this, he should:
- R5.1. ― Adopt the decree on the conditions for the application of section 22 of the Act of 27 July 2010 in a timely manner to clarify unambiguously that humanitarian personnel are outside the scope of this article and ensure that humanitarian workers are not considered to be persons who have deliberately exposed themselves by travelling to dangerous countries (32);
- R5.2. - Clarify the fact that the mention of areas not recommended to the French on the Ministry of Foreign Affairs site does not apply to humanitarian personnel;
- R5.3. ― To provide, as a funder, better care in funded projects for security costs, including those relating to national staff;
- R5.4. ― Acting with other donors to ensure that R4ils do the same, particularly within the framework of principles and good practices for humanitarian assistance (33).
Opinion unanimously adopted.
