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Fabien
Dubuet

Representative to the United Nations, Médecins Sans Frontières

Lawyer specialized in International Humanitarian Law, Fabien Dubuet has worked for MSF since 1999.

Over the course of its history, MSF has revealed and denounced the misappropriation of humanitarian activity and serious acts of violence against the civilian populations benefiting from its relief operations. In so doing, the organisation has in some cases taken the initiative to call for national or international investigations, or has add its voice to such calls for investigation. This activity, in turn, has gradually led to MSF involvement in national and international judicial proceedings that seek to establish, not the political responsibility of the actors involved, but the criminal responsibility of the individual perpetrators of these crimes.

This document attempts to reconstruct the forms taken by these initiatives and the reasons why they were undertaken, with the aim of identifying and clarifying the demarcation between humanitarian testimony and legal testimony.

It seems important to reconstruct the main unifying thread of these actions in order to adapt MSF practices to the changing international context of humanitarian action. This context has been transformed in particular by the recent creation of the International Criminal Court (ICC), a permanent international organ of criminal justice with extensive powers.The creation of the ICC is merely one characteristic feature of the changes in the context of humanitarian action. Other factors also affect MSF's activity of public testimony, such as the development of propaganda and disinformation specifically concerned with violence against civilians in current conflicts, as well as the radicalisation and further polarisation of the international context in connection with the expansion of the war on terrorism.The creation of the ICC was the culmination of a broader wave of change characterised by a new conflict management policy within the international organisations. This policy is based on the integration and coordination of international diplomatic, military, humanitarian and judicial actions. It calls into question the independence of humanitarian activity with respect to other forms of political and military action, and blurs the difference between human rights organisations and certain humanitarian organisations.

In this document, the phrase “investigations and judicial proceedings” covers the various forms of proceedings with which MSF has been involved in regard to situations of serious violence against civilians: the parliamentary investigative commissions of national governments, investigations by international institutions, and national and international criminal courts having a mandate to prosecute war crimes, crimes against humanity and genocide.

In some cases, MSF took the initiative in instigating these proceedings; in others, MSF was obliged to decide whether it should co-operate with existing proceedings.

The creation of ad hoc international tribunals in 1993 and 1994, followed in 1998 by that of a permanent international tribunal (the ICC), have had a considerable impact on MSF practice regarding “testimony”. Indeed, the emergence of international judicial proceedings marked a turning point between the goal of establishing “historical or political truth” and that of establishing “judicial truth”.

The characterisation of situation no longer occurs on the ground, the very time of events and with the aim of influencing their course. It comes years later, following a long judicial process of checking and cross-checking witnesses’ testimony and other evidence.

In this context, MSF was obliged to reconsider the status of its testimony. Testimony was no longer a matter of free choice demonstrating the organisation's independence with regard to the perpetrators of violence; rather, it became a legal obligation that undermined the independence of relief organisations and required them to submit to the requirements of the judicial process.

This document endeavours to retrace all of these actions and interactions through the history of MSF's participation in investigations and proceedings aimed at establishing political, historical or judicial facts.

The first part describes the forms of these actions, their objectives and the issues that provided the grounds for them and determined the procedures used. The framework provided makes no claim to be exhaustive; rather, it describes the main actions of this type taken by MSF.In the case of Ethiopia, the actions described were undertaken by the French section of MSF, over the objections of the Belgian section among others. In most of the other cases, the actions were initiated and led by a country section but supported by the entire MSF movement. Since 1995, there has been an international policy for the MSF movement concerning relations with international tribunals. There is no such international policy document on participation in investigations, but the various initiatives taken in this regard have not given rise to internal polemics between sections. The present document will therefore not refer to differences between the sections of MSF.

The second part offers an analysis of this practice to determine the criteria for and the forms of future MSF actions concerning mass crimes.The author of this article has been head of the legal department of MSF France since 1991, working regularly for the International Bureau of MSF in conjunction with all sections of the MSF movement. The author has thus been directly involved in most
of these activities, but particularly those undertaken by MSF France. The document is therefore not an external, arm's-length analysis but a descriptive summary of MSF practices that explains the reasoning behind them and marks out an overall policy framework.