Françoise Bouchet-Saulnier & Fabien Dubuet
International Legal Director, Médecins sans frontières
She worked as a Consultant for Human Rights in various NGOs and as a Director of Research at MSF-Crash. She wrothe the Practical Guide to Humanitarian Law.
Representative to the United Nations, Médecins Sans Frontières
Lawyer specialized in International Humanitarian Law, Fabien Dubuet has worked for MSF since 1999.
Throughout its history, MSF has refused to fall into the trap of remaining silent when faced with mass crime, reserving the right to speak out in public and to suspend its activity in certain situations.
For MSF, this activity is part of an ongoing effort to define the specific content and precise limits of the responsibility of relief organisations and to view this responsibility in relation to and in interaction with other spheres of political responsibility.The term “humanitarian testimony” is used to describe this activity, but it is a term that has resisted all attempts at precise definition and whose ambiguity has been increased by the advent of the international tribunals. The international board of MSF requested that a historical and educational work be produced on testimony at MSF, recognising that this notion could not be encapsulated in a guideline. This project led to the drafting of a series of historical case studies concerning public statements on a dilemma of humanitarian activity that had given rise to controversy. See the series “MSF speaking out”, edited by Laurence Binet and published by Crash-Fondation MSF and MSF International as from 2004.
The public statements and accusations of MSF are made on the basis of its responsibility as an actor rather than any obligation as a witness. To justify its participation in judicial investigations and proceedings, MSF has grounded its arguments on its status as a witness but also, and more important, that of an interested party and a direct or indirect victim: it was MSF’s status as a victim that allowed the organisation to demand that the truth of certain matters be recognised, and it was as an actor involved in conducting relief operations that it called for a clear division of national and international political responsibilities.This was particularly true of the massacres in Srebrenica and the genocide in Rwanda. “crime of
The changing international context has led MSF to adapt its policy on “testimony” to the new constraints and opportunities arising from the creation of international criminal courts. This adaptation should not be seen as a renunciation of its testimony, even though in seemingly paradoxical fashion it leads MSF to take precautions where judicial proceedings are concerned.
Judicial handling of crimes committed during armed conflict cannot replace the vital functions – filled by humanitarian organisations in general and by MSF in particular – of sounding the alert and demanding accountability while the events are happening. These roles are precisely what need to be redefined today, in both their content and their form, in the light of recent changes in the context. The prospect of judicial sanction may, to be sure, help to make armed groups behave more responsibly regarding the negative consequences of their acts, by posing a threat of sanction in the future. However, the international judicial process comes into play many years after the events, and in conjunction with other modes of political crisis management that will lead courts to select certain crimes and certain criminals, while brushing others under the rug.
The judicial process opens up new possibilities of action for victims. As a provider of medical care, MSF can in some cases provide medical certification that certain crimes and acts of violence have occurred. The reason is that certification of the facts helps to establish individuals’ status as victims, while leaving to these individuals the choice as to whether to seek legal redress at a later time. The implications of this capability go beyond the fight against impunity, since the recently created judicial bodies have new procedures for compensation or indemnification of victims. In this context, medical certification and documentation of acts of violence allow MSF to offset its lack of direct participation in judicial proceedings.
In so doing, MSF remains faithful to the spirit of humanitarian law and to a certain philosophy of humanitarian action that claims to do more than the direct substitution that normally constitutes humanitarian relief, to try to preserve or re-establish the responsibility of the various parties involved for the fate of people in danger, and that accepts a measure of concrete, public confrontation with situations of violence, criminal or otherwise, so as to reveal their mechanisms and their human cost.