In 2011, I negotiated in Afghanistan with the Taliban, the Afghan government, and the United States to establish a trauma hospital in the northern city of Kunduz that would care for the wounded and sick, regardless of who they were.
Initially hostile to the idea that Taliban fighters should have access to treatment, the American and Afghan governments, both signatories to the Geneva Conventions, eventually relented that medical care for wounded and sick soldiers – on both sides of a conflict – lies at the heart of today’s rules of war.
Between 2012 and 2015, Médecins Sans Frontières treated thousands of patients – mostly civilians, but also Taliban and Afghan army patients. This we celebrated as a win for impartial humanitarian action.
But front lines changed, and during a fateful week in October 2015 when the Taliban took control of the town, US and Afghan counter-terrorism forces declared the entire area, and the people in it, as hostile territory.
I still shudder remembering what happened next. Arguing that Taliban fighters had “taken over” our hospital, the United States bombed it five times over the span of two hours, until it burned to the ground, with everyone in it. The only Taliban inside were patients – hors combat. I would return to Afghanistan shortly after to mourn the lives of 48 staff and patients who died that day, some scorched to death in their hospital beds.
The bombing of our hospital in Kunduz was condemned around the world, and the United States ultimately financially compensated the families of the victims. But an independent investigation to determine why the hospital was bombed was denied.
It is an extreme example of what can go wrong when the impartiality of humanitarian action is not respected.
A new bill before the Dutch government threatens to make the same mistake.
“Having to obtain permission from a state on ill-defined political criteria for seemingly arbitrary designated areas will severely impede efforts to provide lifesaving aid.”
Today, the Dutch Senate’s Commission on Justice and Security hears testimony, including from me, on the proposed counter-terrorism law (35125).
The law proposes to criminalise citizens’ travel – without Dutch government permission – to areas it designates as controlled by ‘terrorist’ organisations. The criteria upon which such permission will be granted are not clear.
Aimed originally at preventing Dutch citizens from joining the so-called Islamic State, this broad new law has serious inadvertent effects on me and many others in many other places around the world.
As a Dutch aid worker regularly travelling to such areas to deliver lifesaving medical assistance, this new law, if adopted, essentially obliges me to prove I have no terrorist intentions prior to saving lives.
This remarkable reversal of the burden of proof not only restricts and endangers my own profession, but violates the humanitarian principle of impartiality that populations trapped in conflict rely on. This principle guarantees that their needs, not which side of the front line they find themselves, determines their access to assistance.
Impartiality is the core tenet of humanitarianism relief and a principle The Netherlands subscribes to in its own aid policy and as a signatory to the Geneva Conventions.
Introducing secondary criteria, such as who controls the region, as a factor in whether aid can be dispatched effectively breaches this core principle.
The Dutch law provides an exemption for EU, UN, and International Committee of the Red Cross staff, but amendments to include all humanitarians were rejected. The key argument seems to be that it is difficult to define a humanitarian worker.
Other countries don’t see this difficulty. Australia and the United Kingdom, hardly countries that can be accused of ‘being soft on terrorism’, have already adopted similar laws. While these laws remain problematic in many other aspects, Australia and the UK did find it possible to grant a blanket exemption for humanitarians. They used the definition supplied by international humanitarian law: humanitarian aid is action by individuals or organisations that abides by the rules of impartiality.
This is not an obscure legal problem or a cerebral argument on abstract principles, but a decision that will have real-life consequences.
When counter-terrorism trumps IHL, the consequences can be deadly – as the Kunduz bombing so sadly showed.
The proposed law may not represent a blanket ban on aid to ‘terrorist’-controlled areas, but having to obtain permission from a state on ill-defined political criteria for seemingly arbitrary designated areas will severely impede efforts to provide lifesaving assistance.
In northeast Nigeria, the consequences of this logic have deprived entire populations trapped in areas controlled by armed groups such as Boko Haram of any assistance. Nigeria applies far-reaching domestic counter-terrorism laws, which, like the proposed Dutch law, require aid agencies to get permission from the state to enter areas outside of its control. This permission is never granted. As a result, anyone unlucky enough to be trapped inside gets no aid.
Similar laws in Syria have led to the criminalisation of almost all humanitarian aid in opposition-controlled areas, with aid agencies such as MSF that continue to provide care accused of supporting terrorism, and people trapped in besieged areas, such as East Aleppo and Eastern Ghouta, left without any assistance at all.
Anti-terror laws in Kenya, Somalia, and Ethiopia make it all but impossible for staff from these countries – on which almost all aid operations rely – to provide any assistance to populations trapped in regions in Somalia controlled by the militant group al-Shabab. As a result, people in such areas, which make up about 70 percent of the country, receive only a fraction of the aid going to government-controlled areas.
For a medical organisation such as ours, the consequences of such legislation are even more dire. Under international law, both civilians and combatants have a right to medical care. This was one of the main purposes of the Geneva Conventions, which allow special protection under IHL for an impartial humanitarian body that collects the wounded and sick. Combatants receiving medical care are considered hors combat and have the same status as civilians. This means MSF has the legal right – and responsibility – to treat everyone, even ‘terrorists’ and even in ‘designated areas’.
The Netherlands, as a signatory to the Geneva Conventions, should ensure that humanitarian exemption clauses are consistently included in their criminal and counter-terrorism regulations, including this draft law.
As a Dutch aid worker, I cannot apply for permissions that will violate my impartiality, delaying or even denying aid based on a political decision. So I face a stark choice. Do I stop working in such areas, or avoid returning to The Netherlands, where I may be prosecuted?
Saving lives is not a crime. Under international law, preventing me from doing so is.
Hofman conducts research and training for MSF and provides the medical charity with operational support. He has led MSF missions in Afghanistan, Bosnia, Brazil, Burundi, the Democratic Republic of Congo, Kosovo, Liberia, Russia, South Sudan, and Sri Lanka.
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