Justice for Attacks against Aid Workers: The Elephant in the Room

Publication Date: 
Thursday, September 21, 2017

This guest blog comes to us from Omar Mekky. Omar is the Regional Legal Coordinator for the Middle East and North Africa with the International Committee of the Red Cross (ICRC), and a Judge at the Egyptian Primary Courts (on leave). He is a PhD candidate in International Law at the Graduate Institute of International and Development Studies, Geneva.

In the early morning of 1 January 2015, I made my way to Sanaa airport to take a flight back to my hometown, Cairo, after a short mission in Yemen. While there, I met Mohamed Al-Hakmi, a colleague and a devoted International Committee of the Red Cross (ICRC) employee, a man who is most importantly remembered for his dedication to humanitarian work.

That cold Sanaa morning, Al-Hakmi, who was known for his pleasant personality, received me with his usual warm smile as we exchanged New Year’s greetings. Once, in 2014 when Al-Hakmi had just joined the team in Yemen, I asked him why he started working for ICRC. Without the slightest hesitation, he said, “I want to help my people, the Yemenis do not deserve what they are going through” – a statement that I personally endorse until this moment.

In September 2015, Al-Hakmi and another ICRC colleague, Abd Al-Karim Azi, were deliberately shot by a gunman who opened fire on their convoy while they were travelling within Yemen. Al-Hakmi and Azi faced the fate of many other aid workers who have lost their lives while trying to help others keep theirs.

Unfortunately, they were neither the first, nor the last, of ICRC's staff that had to be prematurely laid to rest. Within this past month alone, ICRC lost two of its staff members in two separate incidents, on two separate continents. Perhaps the one thing that ties the death of Lorena Perez, who was shot in Afghanistan, to that of Lukudu Emmanuel, who was shot in South Sudan, is that they were both equally tragic.

Growing violence against aid

The targeting of aid workers is a daily threat to the lives of thousands across the globe, one which jeopardizes the safety of the populations they serve and the quality of the aid they deliver. According to the Aid Worker Security Database, in 2016 alone 158 major attacks against aid operations occurred, in which 101 aid workers were killed, 98 wounded and 89 kidnapped.

This trend has dramatically increased in the last decade, leaving the humanitarian “industry” with many unanswered questions. Namely, it remains largely unresolved why these attacks happen, despite a general understanding of contributing factors including the proliferation of non-state armed groups which have unclear command structures, the prevalence of non-international armed conflicts, especially in weak or failed states, the easy availability of small arms, and the out-sourcing of security tasks to private military or security companies. Current conflicts also increasingly feature the deliberate targeting of civilians and civilian objects, and the blurring of lines between military, political and humanitarian action. We have also witnessed the spread of xenophobic anti-Western ideologies and the resurgence of religious fundamentalism. Finally, there has been a general erosion of respect for international humanitarian law (IHL) and the recurrence of violations for which the perpetrators are rarely held accountable.

As a  result of the interplay between all of these factors, the number of relief organizations able, allowed or willing to work in conflict environments has shrunk dramatically over the last decade. Many humanitarian organizations have pulled out from conflict zones after attacks, or at least decreased the deployment of their employees in the field. This means that calls for humanitarian assistance and protection are less likely to be answered, which could spell disaster as it leaves the dire needs of countless victims of armed conflicts largely unmet.

Reasserting protection

Working in armed conflict environments has always been dangerous and always will be. However, it does not take much effort for any objective observer to realize that respect for IHL in armed conflicts is decreasing. As a humanitarian lawyer, this makes me wonder if the existing legal framework to protect aid workers is sufficient to face the challenges of conflicts today and why it often fails those working to help the most vulnerable.

IHL and the rules of war derived from it provide ample protection for aid workers, whether they are treated as civilians not involved in fighting, or as relief workers. For example, IHL obliges parties to a conflict, whether states or non-state armed groups, to distinguish between civilians and combatants. While combatants could be subject to military attacks, targeting civilians is strictly prohibited.

IHL also obliges warring parties to grant both protection and the necessary facilities to humanitarian relief personnel working in the field. The protections afforded to relief personnel are in addition to the long-standing protection provided to medical personnel, whether civilian or military, in international armed conflicts as well as non-international armed conflicts, as long as they are exclusively assigned to medical duties and do not commit any acts harmful to the enemy.

These protections are even represented visually through the famous Red Cross and Red Crescent emblems. The Geneva Conventions and their Additional Protocols specify the use, size, purpose and placing of the emblems, the persons and property they protect, who can use them, and the penalties for their misuse.

Along the same lines, UN and associated personnel are protected by the 1994 Convention on the Safety of U.N. and Associated Personnel, which stipulates that the “United Nations and associated personnel, their equipment and premises shall not be made the object of attack or of any action that prevents them from discharging their mandate”[Article 7]. It also obliges states to take all appropriate measures to ensure their safety and security.

The Rome Statute of the International Criminal Court (ICC) considers as a war crime intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission, as long as such personnel and units are entitled to the protection given to civilians or civilian objects under IHL. The same applies to intentionally directing attacks against buildings, material, medical units and transport, as well as personnel using the recognized distinctive emblems as stated under IHL [Article 8].

There are many legal practitioners who, despite the laws mentioned above, advocate for strengthening the special protection, especially for humanitarian aid workers due to their essential and unique services in providing aid in conflict zones. For purely pragmatic reasons, I am personally convinced of the contrary. Firstly, given our world’s current political environment, I believe that any adjustments to IHL norms will be in favor of weakening humanitarian norms rather than strengthening them. Secondly, the existing legal framework for the protection of aid workers, in my view, is relatively sufficient.

The single problem we should all unite to solve, rather, is how to enforce existing laws to better protect aid workers. Needless to say, states have the primary responsibility to ensure the protection of aid workers within their territories and to prosecute those who violate the law. Generally speaking, despite the upward trend in attacks on aid workers, humanitarian organizations do not have much to offer when it comes to questions of prosecution and accountability – with the exception of some specialized UN agencies such as the international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).

In reality, humanitarian organizations often pragmatically prefer not to demand justice on behalf of their staff, due to concerns over losing access or acceptance in the field by demanding the prosecution of some armed actors involved in a conflict. Thus, they count on the states that accepted the presence of the aid workers within their territories to assume these responsibilities and provide protection and justice to the aid workers.

Sadly though, very few incidents of violence against aid workers are ever independently investigated or prosecuted. Even the few cases that have made it to national courts or national investigations in the last decade have made very little progress. It is clear that some states are incapable on the national level of serving justice for attacks against aid operations due to the typical breakdown of the judicial system in conflict zones, while others seem to be unwilling to do so.

Even the existing IHL international implementation mechanisms fail to fill this gap. Médecins Sans Frontières’ (MSF) recent call for an independent investigation and accountability for the bombing of its hospital in Kunduz, Afghanistan, is just one illustrative example of how aid organizations’ hands are tied because of the international implementation mechanisms in use today. MSF called for an investigation by the International Humanitarian Fact-Finding Commission (IHFFC), a treaty based fact-finding entity that works only in the context of international armed conflicts and that has never been used until today. For IHFFC to have jurisdiction over the Kunduz incident, they must acquire the consent of all parties to the conflict (in this case, Afghanistan and the United States) and MSF’s allegations have to be sponsored by one of the 76 states who lodged a declaration accepting IHFFC jurisdiction. Based on the states’ positions, the latter condition seems unattainable, both now and in the foreseeable future.

The ICC is yet to prosecute a single case of violence against aid workers, despite the fact that, according to reports from the court, it has monitored attacks against aid workers and peacekeepers in Sudan and Afghanistan. Given the absence of other venues for effectively addressing these issues, the result is that justice on the international level is quite exceptional, in both senses of the word: how seldom it occurs, and how very limited the people and states who benefit from it are.

In an attempt to decrease the severity of this growing catastrophe, many humanitarian actors are working on advocacy efforts and are campaigning to raise awareness for better respect and protection for aid workers, especially in the field of healthcare. Their voices have recently been heard by international policymakers to a certain extent, though not forcefully enough. The 2015 Health Care in Danger resolution adopted by states in the 32nd International Conference of the Red Cross and Red Crescent and Security Council Resolution 2286 (2016) condemning attacks against medical facilities and personnel are just two examples of states’ collective response to this issue on the international policy level. However, these policies should immediately be translated to effective protection in the field.

A call in the dark

A more dangerous world for humanitarians means less aid, and therefore prolonged suffering for vulnerable populations. Humanitarian work by definition relies on those who do it. Anyone who has ever experienced fear knows how significantly it affects productivity, efficiency and the quality of his or her work. Paradoxically, the more energy we spend defending ourselves against perceived threats, both individually as humanitarians and collectively as humanitarian organizations, the less energy we have to create value. On the other hand, the most crucial, powerful and persistent fuel for performance is a feeling of safety, security and trust in the world around us and in ourselves, again individually as humanitarians and collectively as humanitarian organizations.

This, in my opinion, is the raison d'être of any rule of law, namely to make human beings feel safe. For example, a rule of law that criminalizes robbery is a rule that provides a sense of safety and trust to the citizen that his or her house will not be robbed the moment they leave the house, and if that does happen, that the perpetrator will be punished. This sense of safety and trust allows you to go to work every day, after taking the minimum level of precautions such as locking the doors and shutting the windows, unworried about the properties you left at home. Aid workers today need a similar sense of safety and trust while working in the field. They need to feel that the warring parties are genuinely willing to protect them and to punish those who attack them. Recruitment in humanitarian organizations should not be converted to a “martyrdom industry” where aid workers sign up to sacrifice their lives to save others.

While most quasi-academic articles conclude with a proposed solution to the problem raised, I am not sure I have any. Perhaps because I have not figured it out yet or maybe because I am too close to the puzzle at the moment, being a humanitarian worker myself. The only thing I can say with certainty is that violence against aid workers should not be normalized. The deliberate targeting of those who bring life-saving assistance to those in need should no longer be met by shrugging our shoulders and mourning in silence. It is imperative that states, humanitarian organizations, and all other concerned actors sit together and come to an agreement on the most appropriate way to put an end to these practices.

Each one of the 101 aid workers killed in 2016 is a human being who has family, colleagues and friends whose lives have been changed by this loss. Their families sit around dinner tables without them, their friends get together without them and their colleagues go to missions without them. I am sure they narrate their heroic stories to their kids, friends and extended families, they tell them that they died while helping others live. They speak about their big smiles, humanity and dedication but I highly doubt that they speak about the elephant in the room.

I highly doubt that they speak about justice. For them, just like for many of us, it is better to speak about the bright side of the story because the dark side seems to be very dark. This article is simply bringing attention to the big, screaming elephant in the room. Something must be done before more exchanges of New Year's greetings ring hollow, as aid workers' lives are cut short, too suddenly and too soon.

The opinions expressed in this article are the author's own and do not reflect the view of the ICRC.

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