Classical and Political Humanitarianisms in an Era of Military Interventionism and the War on Terror Ambiguity, Prescription, Jus in Bello and Jus Ad Bellum

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Classical and Political Humanitarianisms in an Era of Military Interventionism and the War on Terror Ambiguity, Prescription, Jus in Bello and Jus ad Bellum

Matthew Bywater London School of Economics and Political Science graduate [email protected]

Abstract

This paper scrutinises the modus operandi of classical and political humanitarianism: the use of ambiguity and prescription to frame calls for international action to protect civilians, and public commentary on jus in bello and jus ad bellum. It does so by in- novatively considering the perspectives of belligerents alongside those of humanitarian actors, so as to identify how belligerents have responded to the two humanitarian modus operandi, and to ascertain the connection of humanitarian actors to the wars and international military interventions that they have implicitly or explicitly called for or endorsed. The paper finds that the response of belligerents differs from what both classical and political humanitarians expect. Even where humanitarians maintain ambiguity, the intention to will military action remains present and even the documentation and reporting of violence will bolster military intervention. Such consequences will be perceptible to belligerents, who may restrict humanitarian space. When humanitarians advance jus ad bellum perspectives, the humanitarian identity envisioned by classicists is not necessarily compromised. But belligerents are positively influenced by such perspectives only when those perspectives coincide with their own position.

Keywords humanitarianism – humanitarian action – military intervention – war – témoignage – speaking out – advocacy – perceptions – belligerents

The historical period since the end of the Cold War has been a particularly tumultuous one for the humanitarian community. As scores of armed conflicts arose from the ashes of the Cold War order, the humanitarian sector has found

34 Bywater itself repeatedly advocating for international involvement to help guarantee the protection and security of affected civilian populations, calling on multi- ple occasions for Western- or United Nations (un)-led military action. One aid commentator referred to the call for military intervention as “the most striking example of humanitarianism unbound”.1 William DeMars examines the exchange of information between the intelligence and the humanitarian ngo community in the 1990s, including how ngo information served as a prelude and justification for international military intervention, where he noted “the enduring convergence of attention by both communities to the casual linkages between war and humanitarian suffering”.2 Anthropologist Didier Fassin considers the interaction between humanitarians and the military in emergency settings:

the two sides come together…in a reciprocal and asymmetry depen- dency – the military increasingly calling on humanitarians to legitimise their interventions and the latter needing the former to ensure their safety…On a deeper and more subtle level, the two share many more realities and values than they believe or admit to themselves[:]… a habitus,…[a] way of isolating themselves from the surrounding population,…[a] vision of the world and particularly the way they think of local societies as undifferentiated,… [and how they] treat the sovereignty of national states…The relations between the two worlds are…essentially structural – the product of intervention itself… This reality…does not escape local protagonists. Not only do they not draw any practical distinction between the military and humanitarians, who appear to them to belong to the same entity of an intervention that is both massive and remote, but they see no moral difference between the logic of the military and the intentions of humanitarians.3

Still to be ascertained is the extent to which humanitarian agencies can

1 2 legitimately3 claim to keep a distance, as seen by themselves and by bellig erents,

1 A. de Waal and R. Omaar, Humanitarianism Unbound: Current Dilemmas Facing Multi- Mandate Relief Operations in Political Emergencies (1994), at 2. 2 W. DeMars, “Hazardous Partnership: ngos and American Intelligence in Small Wars”, 14(2) Int. J. of Intelligence and Counter Intelligence 193 (2001). doi: 10.1080/088506001300063154; W. DeMars, ngos and Transnational Networks: Wild Cards in World Politics (2005), at 125–7. 3 M. Pandolfi and D. Fassin, “Introduction: Military and Humanitarian Government in the Age of Intervention”, in M. Pandolfi and D. Fassin (eds.), Contemporary States of Emergency: The Politics of Military and Humanitarian Interventions 9 (2010), at 15; D. Fassin, “Heart of Humaneness: The Moral Economy of Humanitarian Intervention”, in M. Pandolfi and D. Fassin (eds.), Contemporary States of Emergency: The Politics of Military and Humanitarian Interventions 269 (2010), at 284–5.

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Classical and Political Humanitarianisms 35 from the military interventions that ensue following their requests for greater international involvement and the wars which they have, implicitly or explicitly, endorsed. To date, no comprehensive study exists of how belligerents respond to security-based advocacy, in a given context or in general. Moreover, almost all studies on perceptions of humanitarian actors in conflict zones confirm the considerable difference between how humanitarians are perceived and how humanitarians see themselves, yet most do not identify why and how different local population groups view particular humanitarian actors and actions.4 This paper enters the long-running debate between the classical and political forms of humanitarianism on how humanitarian actors position themselves in relation to political and military force, war and military intervention. It scrutinises two key dividing lines between the humanitarianisms: firstly, between the use of ambiguity and prescription when making calls for international action to protect civilian populations and, secondly, between commentary on the conduct (jus in bello) and justness (jus ad bellum) of war. Taking an innovative approach in response to the gap in the literature, the paper examines the perspectives of belligerents alongside those of humanitarian actors. Four case studies of armed conflict are drawn upon in which aid agencies have tak en public positions in support of or against international military intervention: Bosnia-Herzegovina, Kosovo, Afghanistan and Iraq, with a concluding reference made to the present-day case of Syria. The paper begins with an overview of the classical-political humanitarianism typology. Section 2 delves into the range of public positions adopted by humanitarian agencies on the four cases of military intervention and war: ambiguous calls for action, prescriptive calls for military intervention and pronouncements on jus in bello and jus ad bellum. This section illustrates the effectiveness and limitations of the respective modus operandi of classical and political humanitarianism from the standpoint of the humanitarian actors themselves. The rest of the paper is devoted to the practical ramifications of humanitarian positioning in the field, that is to say, how the belligerents from the case studies perceived and reacted to classical and political types of positioning. It also depicts how Western-led military intervention impacts the operating environment for humanitarian organisations based in the territories subject to intervention. Section 3.1 draws upon the example of Serbia and tests the classicist assumption that ambiguity represents the best option to avoid

4 D. Dijkzeul and C. Wakenge, “Doing good, but looking bad? Local perceptions of two humanitarian organisations in eastern Democratic Republic of the Congo”, 34(4) Disasters 1139 (2010), at 1145–6. doi: 10.1111/j.1467-7717.2010.01187.x.

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36 Bywater a backlash from belligerents and maintain operational humanitarian space. Section 3.2, drawing upon the examples of Afghanistan and Iraq, examines the opposing classical and political assumptions that pronouncements on jus ad bellum affect, respectively, negatively and positively belligerents and their willingness to accord humanitarian space. This paper identifies the “ambiguity-prescription” quandary, which afflicts classical humanitarian actors who advocate for solutions on behalf of civilian populations at risk of violence while refraining from prescribing a specific political or military action. I argue that this quandary not a quandary simply because coherence dictates that those who will the ends should will the means. When a humanitarian agency takes refuge in ambiguity and avoids calling for military action, any intention to will such action will lurk beneath the surface. Even where agencies stick to the documentation of violence and reporting of abuses, they can inadvertently bolster military intervention. Such consequences will be perceptible to belligerents. As I argue, the line between ambiguity and prescription is far thinner than commonly presumed, as much as from the perspective of belligerents as humanitarians. The ambiguity offered by classical humanitarianism thus falls short. But political humanitarianism also falls into the trap of disregarding the political context, by assuming its rights-based logic somehow sets it apart from the politico-military action that it calls for. The paper thus offers a number of sober lessons for classical and political humanitarians alike. The paper finds that, in practice, the classicist separation of jus ad bellum from jus in bello is equally wanting. It details a number of instances where even classical humanitarian actors have relied upon jus in bello concerns, such as violations of international humanitarian law or the humanitarian consequences of war, to endorse and oppose war, respectively. It also finds that belligerents – and their willingness to accord humanitarian space – are not influenced by jus ad bellum commentary in the way that classical or political humanitarians expect. In the eyes of belligerents, the humanitarian identity envisioned by classicists is not necessarily compromised by forays into jus ad bellum. But belligerents are positively influenced by jus ad bellum perspectives only when those perspectives coincide with their own. When they do not, belligerents are likely to constrict humanitarian space.

1 Classical and Political Humanitarianisms

1.1 The “Politicisation” of Humanitarianism: Historical Evolution Notwithstanding its limited ambition to provide palliative care in the form of emergency relief, humanitarianism is a fundamentally radical notion,

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Classical and Political Humanitarianisms 37

recognising the fundamental dignity and value of humanity and refusing to accept human suffering as inevitable.5 This seeming dissonance goes a long way in explaining why the principle of neutrality has proven so contested, and why “we live in a world of.... humanitarianisms, not a single humanitarianism”.6 Episodes of crisis often produce moments of epiphany or profound r ealisation and result in a drastic change of course. Here, the humanitarian world is no exception.7 The desire “to do more” in the face of suffering by harnessing the political and military power of states has triggered a series of divergences and an organic evolution of humanitarianism away from its classicist roots and towards a more political variant. The key epicentres for this fragmentation of the humanitarian enterprise have involved the figure of Bernard Kouchner: “it is no coincidence that he has become a standard bearer for the political humanitarian creed”.8

1.1.1 Biafra The first epicentre, the Biafran civil war (1967–70), was instrumental in establishing a number of organisations that went on to profoundly challenge Inter- national Committee of the Red Cross (icrc) practices, such as its commitment to strict neutrality and confidentiality and respect of the territorial sovereignty of states. Kouchner, then a young icrc medical worker, came to prominence by leading a group of Red Cross doctors to denounce and publicise the violence against Biafran civilians, later playing a role in founding Médecins sans Frontières (msf). msf has since gone on to encapsulate a dual ethic of refusal, declaring the right to mount cross-border humanitarian operations in violation of territorial sovereignty and to bear witness (témoignage) to violence

5 against6 civilians.9 7 8 9

5 H. Slim, “Fidelity and Variation: Discerning the Development and Evolution of the Humani- tarian Idea”, 24(1) The Fletcher Forum for World Affairs 5 (2000), at 8; D. Rieff, A Bed for the Night: Humanitarianism in Crisis (2002), at 2. 6 M. Barnett and T. Weiss, Humanitarianism Contested: Where angels fear to tread (2004), at 105. 7 In reality, this process of transformation and evolution is far more phased and nuanced than contemporary accounts of history suggest, although “recognising all the ambient difficulties and contingencies actually pays a greater tribute to their innovation than the simpler myth of a moment of indignation”. E. Davey, Idealism beyond Borders: The French Revolutionary Left and the Rise of Humanitarianism (2015), at 47. 8 C. Foley, The Thin Blue Line: How Humanitarianism went to War (2008), at 19. 9 Accounts of the Biafran episode frequently overplay its mythic qualities, which I have sought to avoid. For more nuanced accounts of this historical moment, see: Davey, supra note 7, at 19–49; R. Brauman, “msf and the icrc: matters of principle”, 94(888) irrc 1523 (2012), at 1524–6. doi: 10.1017/S1816383113000283; M.-L. Desgrandschamps, “Revenir sur le mythe fondateur de msf: les relations entre les médecins français et le cicr pendant la guerre du

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38 Bywater

1.1.2 l’Île-de-lumière The following decade, Kouchner chartered a ship called l’Île-de-lumière to rescue Vietnamese refugees trapped in the South China Sea, resulting in a schism between the younger generation of msf and the Biafra-era found- ers who promptly departed the agency. At stake was not the commitment to témoignage itself, but whether it ought to be an inalienable component of alerting the world and prompting a political reaction from governments.10

1.1.3 Droit d’Ingérence Kouchner went on to promote the principle of droit d’ingérence (the right to interfere). With its Biafra-era origins in the moral duty of humanitarian organisations to disregard sovereignty and operate in areas without government consent, droit d’ingérence soon “migrated from non-governmental to governmental terrain” to become a self-declared right of military intervention to provide relief and prevent atrocities.11 This generated dismay among Kouchner’s former colleagues at msf as well as some icrc figures over what they saw as the corrupting influence of politics and military force on the humanitarian enterprise.12 In the Kouchnerian view, humanitarian workers were political actors and “humanitarian crises” were political phenomena that required agitating for the decisive exercise of State power13 and, if necessary, military force.

10 11 12 13

Biafra (1967–1970)”, 146(2) Relations Internationales 95 (2011). doi : 10.3917/ri.146.0095. Like- wise, msf’s exercise of the principle of témoignage was not revolutionary but gradual. 10 B. Kouchner, l’Ile-de-lumière (1980); R. Brauman, Penser dans l’urgence : Parcours critique d’un humanitaire. Entretien avec Catherine Portevin (2006), at 79; R. Brauman, “The msf Experience”, in K. Cahill (ed.), Health, Human Rights and Humanitarian Assistance in Con- flicts and Disasters (2010); A. Mantoux et al., Kouchner vu par… : Rony Brauman, Édith Cresson, Alain Deloche, Olivier De Shutter, Marek Halter, Basile Kamir, Peter Kassovitz, gé- néral Morillon, Jean-Christophe Rufin, Yves Simon, Bernard Tapie (2008), at 112–4; M. Feher, “Constancy in Context”, 24(3) Winsonson International Law Journal 773 (2004), at 778–9; Davey, supra note 7, at 199–200; Rieff, supra note 5, at 97, 309–10. 11 P. Redfield, “The Impossible Problem of Neutrality”, in P. Redfield and E. Boonstein (eds.), Forces of Compassion: Humanitarianism between Ethics and Politics 53 (2010), at 61; T. Allen and D. Styan, “A Right to Intervene? Bernard Kouchner and the New Humanitarianism”, 12(6) J. of Int. Dev. 825 (2000), at 835. doi: 10.1002/1099-1328(200008) 12:6<825::aid-jid711>3.0.co;2-I. 12 Ibid, at 836 ; Rieff, supra note 5, at 98; Mantoux et al. supra note 10, at 98; R. Brauman, “Contre l’Humanitarisme”, La revue Esprit, May 1992. 13 M. Ignatieff, Empire Lite: Nation-Building in Bosnia, Kosovo and Afghanistan (2003), at 55–7.

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Classical and Political Humanitarianisms 39

1.1.4 Humanitarian-Human Rights Convergence In the first decade of the post-Cold War era, human rights organisations observed that “traditional techniques of focusing on individual victims seem…inef- fective in chaotic situations and in the face of mass abuses”14, prompting a move towards advocacy based on mobilising shame and seeking to generate action via the media and governments. Rights-based perspectives, which came to inform humanitarianism, began to view conflict not as something to be eased by humanitarian aid but as a relationship of abuse, one to be remedied by military force.

All human beings…born free and equal in dignity and rights…should act towards one another in a spirit of brotherhood. Whatever “brotherhood” may mean it cannot include making war. The modern human rights tradition sees war as a moral violation and, between the war maker and his victim, human rights activists cannot remain neutral.15

Compromise is not facilitated by the use of rights claim language… Human rights language is also there to remind us that there are some abuses that are genuinely intolerable… [and] when deliberation and compromise have become impossible…Given the conflictual character of rights….there are occasions…when human rights as a politics becomes a fighting creed, a call to arms.16

Humanitarian agencies also began to adopt a more overtly political form of advocacy, moving away from the traditional Red Cross stance of neutrality. They drew increasingly upon international human rights law to guarantee the right of civilian populations to humanitarian relief, and the right of humanitarian agencies to provide this relief but also to assure the right to “protection from violence”. As article 3 of the Universal Declaration of Human Rights reads, “everyone has the right to life, liberty and security of person”. The discourse of rights implies duties on the part of the governments who recognise these rights towards the civilian populations who claim them. Agitating for the ex- ercise14 of military force thus acted as the glue which bound humanitarianism 15 16

14 P. Sané, “Foreword”, in Amnesty International (ed.) Amnesty International Report 2000 5 (2000), at 5–6. 15 M. Ignatieff, The Warrior’s Honor: Ethnic War and Modern Conscience (1998), at 119; D. Chandler, “The Road to Military Humanitarianism: How the Human Rights ngos Shaped a New Humanitarian Agenda”, 23(3) hrq 678 (2001), at 695. doi: 10.1353/hrq.2001.0031. 16 M. Ignatieff, “Human Rights as Politics”, in M. Ignatieff (ed.), Human Rights as Politics and Idolatry (2001), at 20, 22.

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40 Bywater and human rights together: “no version of the intermingling of humanitarianism and human rights makes sense [unless]…military intervention…is one standard response [to crises]”.17

1.2 Politics Classical humanitarianism has always sought to demarcate the boundaries of humanitarianism from the political and military spheres, urging its adherents to resist the “temptation of politics”.18 Political humanitarianism, naturally, proposes a wholehearted embrace of politics. msf, despite having openly espoused a “political humanitarianism…concerned with advocating against injustice and indifference”,19 arguably remains a classical humanitarian actor. It manages to do so by assigning responsibilities to political actors, with the effect of reinforcing the limited responsibilities of humanitarian actors and preserving the classical demarcations. The two humanitarianisms not only diverge on how to approach politics, they diverge over what politics is. For political humanitarians, politics amounts to the allocation and usage of resources and power, in which humanitarian action inescapably participates. For classical humanitarians, politics is held to be the exclusive domain of government and the organisation of life and society by the political power, for which humanitarian action makes no claim to substitute.20 There is another, more radical, critique of politics argued by some classical humanitarians. The essence of politics is the ordering and influencing of society, including the means by which person(s) attain positions from which

17 18 19 20

17 Rieff, supra note 5, at 320. For additional background on the convergence of the humanitarian and human rights communities, see Ibid, at 149–50, 211–2, 311; Foley, supra note 8, at 3–5. 18 L. Minear, The Humanitarian Enterprise: Dilemmas and Discoveries (2002), 120; F. Weiss- man, “Humanitarian Action and Military Intervention: Temptations and Possibilities”, 28(2) Disasters 205 (2004), at 208. doi: 10.1111/j.0361-3666.2004.00253.x; F. Weissman, “l’Humanitaire et la Tentation des Armes”, 59(627) Les Temps Modernes 57 (2004), at 63. doi: 10.3917/ltm.627.0057. 19 F. Terry and J. Tanguy, “Humanitarian Responsibility and Committed Action: Response to “Principles, Politics and Humanitarian Action”, 13(1) Ethics & Int. Affairs 29 (1999) at 33–4. doi: 10.1111/j.1747-7093.1999.tb00324.x. 20 F. Bouchet-Saulnier, The Practical Guide to Humanitarian Law (2002), at 1; P. O’Brien, “Rights-based responses to aid politicisation in Afghanistan”, in P. Gready and J. Ensor (eds.), Reinventing Development? Translating Rights-based Approaches from Theory into Practice 201 (2005), at 202, 226.

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Classical and Political Humanitarianisms 41 they promote their interests and values; engineering change in society entails choosing between rival political projects.21 The classicist reproach goes further, according to which the production of a new political order demands its quota of victims: “the construction of a ‘better world’ invariably comes at a price: the lives of others”.22 A near consistent feature of historical revolutions has been the explicit justification for sacrificing some in the name of a future utopia and collective good. As the infamous saying from the Soviet revolutionary era goes, “you can’t make an omelette without breaking eggs”.23 For classical humanitarians, humanitarian action is by definition the “re- volt of the eggs”.24 They see their role as challenging power by questioning the legitimacy of such deaths, stressing the historical contingency of the division between winners and losers and, in terms of action, addressing relief to “the silent residue of politics”:25 those whose very existence is called into question by their contemporaries. If their form of humanitarian action is to be consistent, it will inevitably clash with all forms of power and politics. In response, classicists claim autonomy: “[one] cannot both adopt and contest the logic of a power that imposes a choice between those who may live and those who may die”.26 They are reticent to participate in designing what will be the security or societal system of the future, mindful that this system will come with its own share of winners, losers and, ultimately, victims. Rather than acting as shapers of the environment, classical humanitarians position themselves as neutral watchdogs for the vulnerable who, if they are to remain coherent, “must remain on the side of the victims and remain as watchdogs for the most vulnerable…Watchdogs cannot have been at the negotiating table to design the system that it eventually will watch”.27

21 22 23 24 25 26 27

21 T. Allen and A. Thomas, “Agencies of Development”, in T. Allen and A. Thomas (eds.), Poverty and Development in the 21st Century 189 (2000), at 193–4. 22 J-H. Bradol, “The Sacrificial Order and Humanitarian Action”, in F. Weissman (ed.), In the Shadows of “Just Wars”: Violence, Politics and Humanitarian Action 1 (2004), at 4–5. 23 H. Arendt, “The Eggs Speak Up” in J. Cohen (ed.), Essays on Understanding 270 (1994), at 275. 24 A. Finkielkraut, “La Responsabilité Humanitaire”, December 1996, https://www.msf.fr/ sites/default/files/1996-12-12-msf.pdf (last accessed 16 May 2018), at 33. 25 M. Foucault, “Face aux gouvernements, les droits de l’homme”, in M. Foucault (ed.), Dits et Ecrits Vol iv 707 (1994), at 708. 26 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 208, 212; Bradol, supra note 22, at 6, 9. 27 Telephone interviews with Joelle Tanguy, former msf-usa Executive Director (Reading, uk, June–July 2014).

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1.3 War and the Use of Military Force In the eyes of classical humanitarians, military intervention to protect civilians is a “political affair par excellence” beyond their legitimate remit and expertise. They generally warn against advocating directly for all forms of military intervention. Political humanitarians are more ready to call for the exercise of military force, and speak openly of beneficiaries’ “right to protection” or “right to security”.

If humanitarian action is not a response to war crimes, agencies cannot call for…a protection force without…appealing to references outside their practices…Any campaign for armed intervention…entails expressing about the recourse to force [and] resorting to a political vision…that substantially overrides the issue of protect[ion]… The call for armed intervention is a political affair par excellence.28

Oxfam believes that every person has a basic right to: a home, clean water, enough to eat, a safe environment, protection from violence, equal opportunity, a say in their future, an education, a livelihood, and healthcare.29 We [Oxfam] are driven by the conviction that the death and suffering caused by armed conflict should no longer be tolerated, and that more can be done to promote people’s right to protection from violence.30

care works…to promote the human rights (including political, economic, and security rights) and aspirations of the poor and marginalized.31 Security rights include all those rights relating to people’s physical security, both in peace time and in conflict. They include the rights to life, liberty, security of person, movement and asylum, as well as freedom from slavery, torture, forced displacement, degrading treatment, sexual assault of any form, and arbitrary arrest and detention.32

28 29 30 31 32

28 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 209. 29 E. Cairns, “A Safer Future: Reducing the Human Cost of War”, Oxfam, July 1997, at 112. 30 Ibid, at 8. 31 P. O’Brien, “Politicised Humanitarianism: A Response to Nicholas de Torrente”, 17 hhrj 31 (2004); ifrc, World Disasters Report (1997), at 35. 32 P. O’Brien, “Benefits-Harm Handbook”, care, September 2001, at 11.

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Classical and political humanitarians have diverged accordingly with regard to the doctrine of the Responsibility to Protect (R2P):

The icrc…is neither for nor against R2P, it expresses no opinion on the measures undertaken by the international community to ensure respect for international humanitarian law.33

“Not In Our Name”: Why Médecins Sans Frontières does not support the ‘Responsibility to Protect.34

[R2P is] the best normative framework to address the protection needs of civilian populations.35

Classical humanitarians, abiding by the principle of neutrality, limit their public commentary to the way in which war is fought (jus in bello) and refuse to pass judgement on whether a war is just (jus ad bellum). They aspire to remain neutral to the political causes of conflict and the motives of protagonists while orientating their concern to the plight of victims and inadmissible military conduct.

The icrc is not neutral in the face of violations of international humanitarian law. What the icrc does not do is take sides in a conflict or ascribe fault to one side or the other. We take conflict as a fact and comment on the conduct of hostilities.36

33 34 35 36

33 International Committee of the Red Cross, “International Humanitarian Law: Answers to your Questions”, February 2015, at 10. 34 F. Weissman, “’Not in Our Name’: Why msf does not support the ‘Responsibility to Pro- tect’”, 29(2) Criminal Justice Ethics 194 (2010). 35 Oxfam-France, “R2P: un principe qui doit devenir réalité”, February 2008. 36 P. Krahenbuhl, “Humanitarian security: ‘a matter of acceptance, perception and behaviour’”. Address given at the High-level Humanitarian Forum, 31 March 2004. https://www .icrc.org/eng/resources/documents/statement/5xsgwe.htm (last accessed 15 May 2018).

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It is the manner in which force is deployed rather than the resort to force per se that is of concern to humanitarian actors....Although humanitarian action remains neutral with regard to the motives that compel protagonists to kill each other, it does not remain so when they decide to attack non-combatants. While rejecting the silence of the Red Cross, msf adhered to the principles of humanitarian action established…when the Red Cross was founded…msf would remain neutral to the political causes of conflict, but would not remain silent about the plight of its victims, nor would it remain silent in the face of war crimes, genocide and massive violations of human rights.37

We neither support nor oppose [armed] interventions…but we do campaign on how such interventions should be conducted.38

Classicists view war in much the same way as they view military intervention to protect civilians: a “political affair par excellence”.39 Most would liken calling for military intervention to supporting war and endorsing the position of one warring party and, as a result, violating the prohibition on jus ad bellum- related commentary:

Gaining access to the battlefield…implies that humanitarians have re- linquished the right to express opinions about the legitimacy of the war aims pursued by the belligerents. There is no reason why an intervention conducted in the name of protecting civilians should constitute an exception to this rule.40

37 38 39 40

37 Bradol, supra note 22, at 14; J. Orbinski, An Imperfect Offering: Dispatches from the Medical Frontline (2008), at 69. 38 Sané, supra note 14, at 5. 39 R. Brauman, Humanitaire: Le Dilemme (2007), at 41–2; 40 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 207.

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Consistent with their embrace of politics, political humanitarians see the phe- nomenon of war as falling entirely within their remit and expertise, and they extend their commentary to jus ad bellum and break down the strict dichot- omy of jus ad bellum and jus in bello.41 Paul O’Brien, leading proponent of a rights-based political humanitarianism, advises that humanitarians advocate against all but the most just wars, such those which seek to prevent genocide.42 The rights-based perspectives that they adopt introduce a discourse of justice and encourage jus ad bellum commentary, such as undertaking moral judge- ments on combatants’ motives and goals and apportioning responsibility for the initiation of hostilities. Moreover, the absolutist nature of human rights law – the right to life is paramount and non-derogable – means that by placing restrictions on the waging of war, one arrives at a point where war is rendered impossible to wage and jus ad bellum and jus in bello effectively coalesce. The paradox behind rights-based perspectives is that they harbour both a readiness to call for military force and a tendency to view war as a moral violation: military force which is moral and legal in its justification and execution, can and sometimes must act as the antidote to the moral violation of war. Political humanitarianism, therefore, lends itself to commenting on the justness and the unjustness of war.

1.4 Means versus Ends Many of the battle lines drawn during the fragmentation of the humanitarian movement relate to how expansive the objectives of public stances should be. If Biafra is characterised as a plain denunciation of unacceptable conditions, then l’Ile-de-lumière represents a more proactive effort to draw in support from the realm of states. Témoignage is defined as communicating the suffering of victims whereas advocacy supports a position or message with an objective or outcome in sight: “humanitarian advocacy is all about deriving an ‘ought’ from an ‘is’”.43 The call for military intervention is simply an advocacy position that proposes a military solution. It is helpful to conceptualise the spectrum of agitation for State action. Trav- elling along the spectrum, one leaves behind ambiguous and inexplicit calls for 41 42 43

41 O’Brien, supra note 31, at 26. 42 Discussion with Paul O’Brien (email, Reading, uk, December 2016). 43 M. Dubois, “Témoignage in msf”, in msf (ed.), My Sweet La Mancha – Voluntary and In- vited Contributions 312 (2005), at 313; A. de Waal, “An Emancipatory Imperium?: Power and Principle in the Humanitarian International”, in D. Fassin and M. Pandolfi (eds.), Contem- porary States of Emergency: The Politics of Military and Humanitarian Interventions 295 (2013), at 297.

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46 Bywater

“more to be done” in favour of clearly spelled-out demands. This is the “temptation of politics”: the act of prescribing a path of action for states to follow. Those belonging to the classical school of thought rely upon ambiguity. Those of a political persuasion adopt prescription and strive to collapse the grey zone on the spectrum of agitation. O’Brien, for instance, presents advocacy on security issues as a logical extension of témoignage.44

Spectrum of Agitation for State Action

Témoignage/Speaking Out Advocacy Calling for military intervention

Where the icrc would advocate respect for international humanitarian law by stating examples where it is breached and calling for it to be upheld, Oxfam would prescribe specific policies of how certain actors should respect their legal obligations. msf has, over the years, fluctuated between ambiguity and prescription before deciding on ambiguity as an operational principle.

Protecting Iraq’s civilian population must be a priority, and the icrc urgently calls for better respect for international humanitarian law.45

The international community should resume aid to the Palestinian Authority…for essential services, including health and education.46

Our actions…have been concrete and led to significant results… but do not attempt to propose global or comprehensive solutions… Our support for some global solutions in the past…turned out to be incompatible with our basic principles.47

44 45 46 47

44 O’Brien, supra note 31, at 36. 45 icrc, “Civilians with Protection”, April 2007, at 1. 46 Oxfam, “Poverty in Palestine: the human cost of the financial boycott”, April 2007, at 9. 47 msf, “La Mancha Agreement”, 25 June 2006, https://www.msf.fr/sites/www.msf.fr/ files/2006_06_24_FINAL_La_Mancha_Agreement_EN.pdf (last accessed 2 March 2018).

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Classical and Political Humanitarianisms 47

Classical humanitarians are expected to expose violence and abuses and invest it with a political visibility and ensure that the victims’ fate becomes a stake in the political debate, to which they have no expertise to propose, all while re- minding states of their responsibilities and commitments.48 Public exposure is sometimes considered by classicists as an end in itself: informing a public moral conscience and allowing the public to conceptualise the suffering of victims, laying down a moral marker for humankind, and conferring moral support to the victims by having their suffering validated and put on the historical record. Some humanitarians describe this as the “purest form of témoignage” in contrast to a change-provoking approach that runs the risk of “instrumentaliz[ing] témoignage, stealing its soul and making effectiveness the ultimate measure of our witnessing”.49 The political humanitarian might say that, unlike success- fully agitating to stop violations and abuses committed against civilians, international awareness of such abuses has no true deontological value. As an ngo worker was once quoted saying, “there is no point in expressing moral outrage without being able to take practical action”.50 But classists are not devoid of any objective. They freely acknowledge that humanitarian action will never suffice in the physical protection of populations in danger. For this very reason, speaking out fulfils the need for some type of complement. msf, for example, has defined témoignage as an “instru- ment of protection for populations”.51 The protocols of icrc and msf require that the expected outcome of public statements be positive. Both agencies also stipulate that any decision to speak out should be in “the interests of the victims”.

48 49 50 51

48 Weissman, l’Humanitaire et la Tentation des Armes, supra note 18, at 69; Dubois, supra note 43, at 316. 49 F. Terry, “Humanitarian Diplomacy: the icrc Experience”, in M. Acuto (ed.), Negotiating Relief: The Dialectics of Humanitarian Space 247 (2014), at 254; H. Slim, Humanitarian Eth- ics: A Guide to Morality of Aid in War and Disaster (2015), at 209; Dubois, supra note 43, at 315. 50 A. de Waal and R. Omaar, “The Genocide in Rwanda and the International Response”, 94(591) Current History 156 (1995), at 158. 51 F. Terry, “Principle of Neutrality: Is it Relevant to msf”, December 2000, http://www .msf.fr/sites/www.msf.fr/files/2000-12-01-Terry.pdf (last accessed 3 March 2018), at 4; F. Bouchet-Saulnier, “Theory and Practice of ‘Rebellious’ Humanitarianism”, 19 Humani- tarian Exchange Magazine 15 (2001), at 17. Most long-term members of msf recognise the need to “justify the obvious incompleteness of msf’s medical interventions with a sense of the wider effects of action. That msf could never save the world through medical treatment alone remains quite clear to its most ardent constituents”. P. Redfield, Life in Crisis: The Ethical Journey of Doctors without Borders (2013), at 111.

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48 Bywater

The icrc must take Question of what… The icrc…weighs up account....of the fact can be expected the chances of success that its responsibil- from public appeals of any pressure that ity is greater when under certain the international it witnesses particu- circumstances.53 community can bring larly serious events to bear on the gov- of which the public ernments to which is unaware.52 these breaches are ascribed.54

msf may speak out Our purpose is to We are not sure that publicly in an effort provoke a response words can always save to…alert the public from those who have lives, but we know that to abuses occur- the capacity and silence can certainly ring beyond the the responsibility to kill.57 headlines.55 address egregious abuses.56

The icrc reserves the right to issue a public condemnation…providing the following condition(s) are met: such publicity is in the interest of the persons or populations affected or threatened.58

52 53 54 55 56 57 58

52 icrc, “Action by the icrc in the Event of Violations of International Humanitarian Law or of other Fundamental Rules Protecting Persons in Situations of Violence”, 87(858) irrc 393 (2005), at 398. doi: 10.1017/S181638310018141X. 53 J. Kellenberger, “Speaking out or remaining silent in humanitarian work”, 86(855) irrc 593 (2004), at 599. doi: 10.1017/S1560775500181052. 54 M. Harroff-Tavel, “Neutrality and Impartiality – The importance of these principles for the International Red Cross and Red Crescent Movement and the difficulties involved in applying them”, 29(273) irrc 536 (1989). doi: 10.1017/S0020860400074878. 55 msf, “Trustees’ report and financial statements”, December 2013, https://www.msf.org.uk/ sites/uk/files/stat_accs_msf_uk_2013_final_signed_1.pdf (last accessed 3 March 2018), at 9. 56 Ibid, at 9. 57 msf, “Nobel Lecture”, December 1999. 58 icrc, supra note 52, at 397; See also Y. Sandoz, “Droit ou devoir d’ingérence, droit à l’assistance, de quoi parle-t-on?”, 74(795) ricj 225 (1992), at 235. doi: 10.1017/ S0035336100104812.

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Classical and Political Humanitarianisms 49

In exceptional cases, it may be in the best interests of the victims for msf volunteers…to denounce.59

When humanitarians bear witness, it is mostly in the register of emotion not reason; they seek to persuade rather than explain.60 All the while, the intentions of humanitarian actors remain present yet concealed. The practise of témoignage represents an evaluation of the most suitable moment to motivate action and impact on a public response; as one long-time aid worker states, the raising of public awareness through témoignage is a tool to “stir up and stimu- late action”.61 This “action” could be triggered either at the international level by the un or a group of states or at the national level by the warring party in question. Interestingly, one msf handbook observed that the agency was more successful at getting governments and the un to take violence against civilians more seriously than altering the violent behaviour of warring parties.62 When it comes to the effectiveness of ambiguity and prescription in engineering the change that humanitarians desire, classical and political humanitarians naturally claim their modus operandi to be the most effective. The latter, however, emphasise that the power of advocacy lies in engaging in matters of a political nature than prescription per se.

Convincing [political powers] to act is not by winning them over by well- thought out general policy arguments but through exposing, through our action, the inequity and injustice of the situation and, when appropriate, creating a public debate about it.63

59 60 61 62 63

59 msf, “Chantilly Principles”, 1995, http://association.msf.org/sites/default/files/docume nts/Principles%20Chantilly%20EN.pdf (last accessed 3 March 2018), at 1. 60 D. Fassin, “The Humanitarian Politics of Testimony: Subjectification through Trauma in the Israeli-Palestinian Conflict”, 23(3) Cultural Anthropology 531 (2008), at 547. doi: 10.1111/j.1548-1360.2008.00017.x. 61 P. Redfield, “A less modest witness: collective advocacy and motivated truth in a medical humanitarian movement”, 33(1) American Ethnologist 3 (2006), at 10, 13. doi: 10.1525/ ae.2006.33.1.3. The aid worker quoted is cited in R. Dechaine, Global Humanitarianism: ngos and the Crafting of Community (2005), at 83. 62 msf-Holland, “Guide to Witnessing and Advocacy”, November 2003, at 34. 63 N. de Torrente, “msf’s Relation to Political Power – Strengthening our independence and building a renewed base of support for humanitarian action”, in msf (ed.), My Sweet La Mancha – Voluntary and Invited Contributions 321 (2005), at 328.

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50 Bywater

There is…a power in speaking out from our anger and indignation over the suffering of fellow humans… [which] should ride the swell of outrage and shock yet be focused into a message.64

Raising awareness about populations in danger is generally far more con- ducive to positive change than telling people how to interpret or act upon the pain of others…Effective témoignage lets the images as testimonies speak for themselves…Emotional reactions based in our proximity can open eyes and, ideally, influence actors…Always start from the reality of the population. Political posturing should be avoided as much as possible by addressing the human costs of a conflict.65

Political bodies are systemic organisms that change dynamically as different forces are brought to bear upon them. Politics and policies do not change in linear ways…It is precisely because the world works this way that ngos must engage in political…debates. Because policy changes occur when forces from a host of different sources form a critical and influential mass, and those influences can come from any source willing to speak up, then the more political ngos become, the more influence they will have.66

Shaping calculations of interest requires conscious engagement in political processes…Aid agencies should consciously engage in political processes in order to realise their objectives. The fiction of apolitical humanitarian action is itself the initial barrier to be surmounted if humanitarians are to have a chance of achieving the goals that they themselves seek.67

2 From the Standpoint of Humanitarians

2.1 Ambiguity-Prescription When a humanitarian actor highlights an unfulfilled political responsibility, they veer towards prescribing specific policy measures to fulfil this responsibility. It is this which renders the classical demarcations attempting to separate 64 65 66 67

64 msf-Holland, “Guide to Witnessing and Advocacy: Advocacy Strategy”, November 2003, at 5. 65 msf-Belgium, “Bearing Witness Strategies and Risks: A Reference Tool for msf Field Workers”, November 2001, at 11, 22. 66 O’Brien, supra note 20, at 219. 67 T. Weiss and N. MacFarlane, “Political interest and humanitarian action”, 10(1) Security Studies 112 (2000), at 142. doi: 10.1080/09636410008429422.

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Classical and Political Humanitarianisms 51 the responsibilities of humanitarian actors from the political and military responsibilities of states so fragile. Human Rights Watch produced a series of reports documenting abuses committed during the Bosnian War; the last complained that the un had been “all talk” and no action in preventing crime against humanity and declared that what was “needed is…political will”.68 In the summer of 1993, a consortium of international relief ngos based in Sarajevo, amongst them the Interna- tional Rescue Committee (irc), issued a statement criticising the weak international response and calling for a more assertive approach.69 Even the icrc became unusually outspoken, calling repeatedly for the international community of states to assume their responsibilities and help end the most serious violations of international humanitarian law:

As President of the icrc, I…appeal to the states…which are the most directly concerned, to use every means at their disposal to seek a peaceful settlement…there will be no hope for an end to this senseless violence until states make firm commitments and fully assume their political responsibilities.70

Classical ambiguity thus began as the modus operandi for humanitarian agencies operating in Bosnia-Herzegovina, but was pushed to the limits by agencies frustrated at the persistently high levels of violence and abuses against the civilian population. A number of agencies jettisoned ambiguity altogether and opted to call for the military action that they deemed necessary to end the killings and expulsions of civilian populations. Late 1992, a consortium of Dutch aid agencies, including the Dutch Red Cross, msf-Holland and the Dutch branch of unicef, launched an appeal for the international community “to use military force to create safe havens for refugees” in the country, and Médecins du Monde (mdm) came out in favour

68 69 70

68 W. Korey, ngos and the Universal Declaration of Human Rights (1998), at 324–5. 69 Telephone interview with John Fawcett, former irc Country Director for Bosnia- Herzegovina (Reading, uk, March 2015). 70 Statement by Mr Cornelio Sommaruga President of the International Committee of the Red Cross at the opening of the International Meeting on Humanitarian Aid for Victims of the Conflict in the former Yugoslavia, held under the auspices of the unhcr, Geneva, 29 July 1992, cited in M. Mercier, Crimes without Punishment: humanitarian action in former Yugoslavia (1995), at 199–202. See also Ibid, at 62, 69; E. Mooney, “Presence, ergo protection? unprofor, unhcr and icrc in the former Yugoslavia”, 7(3) Int. J. Refugee Law 407 (1995), at 427. doi: 10.1093/ijrl/7.3.407; B. Ramcharan (ed.), The International Con- ference on the Former Yugoslavia: Official Papers - Vol I 120 (1997), at 121–3.

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52 Bywater of military intervention.71 Oxfam refrained from calling for wholesale military intervention in support of the Bosnian government on occasion of its insuf- ficient military expertise but, as the war entered its final year, called for nato military action to protect civilians in the safe haven of Tuzla.72 Amidst emerg- ing reports of the large-scale massacre of the inhabitants of the un “safe haven” of Srebrenica in 1995, some forty human rights, religious and humanitarian organisations – including World Vision, Refugees International, us Committee for Refugees, Physicians for Human Rights and Human Rights Watch – came together to form a coalition that would press for a more effective international response. They shortly issued a joint policy statement which declared that “the time has come for multilateral military action to end the massacre of innocent civilians in Bosnia” and called on the us President and the leaders of other major states to “protect civilians in all ‘safe areas’” and “ensure the delivery of humanitarian supplies to the ‘safe areas’, if necessary by employing military force in response to the obstruction of those supplies”.73 Senior figures from msf and Office of the United Nations High Commis- sioner for Refugees (unhcr) also made calls from their organisational positions advocating, to varying degrees, that military force be used. msf-France President Rony Brauman first advocated the use of force on a French radio station in April 1992, declaring that “it’s the hills of Sarajevo that should be bombed. We should declare war on the Serb nationalists”.74 In another telephone interview with rtl the following month, he called for military intervention to protect civilians by any available means.75 Shortly thereafter, 71 72 73 74 75

71 Trouw, “Aid organisations: Intervention in Bosnia is necessary otherwise aid will not reach those who need it” (in Dutch), 8 December 1992, cited in msf, “msf and the War in the Former Yugoslavia 1991–2003”, December 2015, at 61–2; afp, “Campagne de Médécins du Monde en faveur d’une intervention militaire en Bosnie”, 11 December 1992. 72 T. Vaux, The Selfish Altruist: Relief Work in Famine and War (2001), at 35; Discussion with Edmund Cairns, Oxfam Senior Policy Advisor (email, Reading, uk, February 2015). 73 Coalition of 27 ngos, “Joint Policy Statement on Bosnia”, 31 July 1995 (on file with the author). This call is cited in Congressional Record – Extension of Remarks E1620, 3 August 1995 and D. Priest, “Coalition calls for action in Bosnia: Groups want more allied military force used to ‘stop genocide’”, Washington Post, 1 August 1995. For further background of the advocacy process, see: Korey, supra note 68, at 327–8. Most of the humanitarian agencies involved in the advocacy process ultimately refrained from signing the statement. Telephone interview with former Deputy Director of Physicians for Human Rights Susan- nah Sirkin (Reading, uk, July 2014). 74 Cited in A. Vallaeys, msf: La Biographie (2004), at 666. 75 R. Brauman, “Call to an armed intervention”, rtl, 29 May 1992, www.speakingout.msf.org/ en/node/4095 (last accessed 3 March 2018).

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Classical and Political Humanitarianisms 53 he called for Europe to send troops to intervene in Sarajevo.76 Brauman then wrote an article in a French newspaper which detailed his recommendations, which included implementing a “dispositif qui assure une véritable protection de la population civile…une force d’interposition suffisamment puissante pour être dissuasive et imposer l’arrêt des combats”.77 msf-Holland General Director Jacques de Milliano wrote a newspaper article where he called for force to be used to pressure and send a clear signal to the warring parties to cease fighting, making comparisons with the mistakes of the recent military intervention in Somalia.78 msf-International Secretary-General Alain Destexhe, refuting the assumption that any intervention in Bosnia would result in a quagmire, declared that Bosnian Serb forces would easily collapse under the slightest military pressure.79 unhcr logistics director in Bosnia Larry Hollingworth was on the record, time and time again, as calling for the use of force to allow aid convoys to reach Sarajevo and the other safe havens.80 Hollingworth was an advocate of a tougher international approach to the Bosnian crisis that would entail an element of coercion: “we should have been much tougher from the beginning. The un missed the chance to seize the initiative and be forceful and we have seen a gradual chipping away of authority ever since…If we had said from the start ‘either you stop this hassle or we’re off and no-one will get anything’ we would have established some power”.81 After leaving his post as unhcr Special Envoy to the Balkans, Jose-Maria Mendiluce became increasingly forthright, writing that “the legitimate right of the Bosnian people to self-defence…must be guaran- teed both as a matter of principle and, above all, in view of the results to which the arms embargo has led. It will never be possible to implement a peace plan…if that people is not allowed to arm itself…Yes to intervention”.82 The view held by

76 77 78 79 80 81 82

76 Agence France Presse, “Rony Brauman (msf) lance un appel pour que des troupes eu- ropéennes s’interposent à Sarajevo”, 29 May 1992 ; R. Brauman, “L’Europe doit intervenir militairement”, Quotidien de Paris, 30 May 1992. 77 R. Brauman, “La Boucherie à notre porte”, Le Nouvel Observateur, 4–10 June 1992. 78 H. de Witt, “Peace must be achieved by force – de Milliano fears thousands of Yugoslavi- ans will die” (in Dutch). Parool, 31 July 1992, cited in msf, supra note 71, at 51. 79 A. Destexhe, “Bosnie : il n’est pas trop tard pour intervenir”, La Libre Belgique, 29 June 1992. 80 House of Commons Hansard Debates, London, Columns 838, 863, 868, 26 July 1993. 81 Cited in R. David, Slaughterhouse: Bosnia and the Failure of the West (1996), at 210–1. 82 Cited in J.-M. Mendiluce, “Stop the Lies!”, 11 The Bosnian Institute (1995). See also: Rieff, supra note 5, at 144.

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54 Bywater unhcr staff in the field was that the Bosnian conflict could only be dealt with by “all necessary means”.83 When conflict erupted in Kosovo a few years later, some agencies felt it necessary to prescribe military solutions. Not only had agencies embraced the responsibility of politically-astute aid programming, they had integrated a rights discourse into their operations which rendered them more open to the notion of coercive force.84 In the summer of 1998, Oxfam issued a public statement and wrote to the British Foreign Minister urging for the threat of nato force to enforce a ceasefire: “this is the only remaining option to uphold citizens’ rights in war. This may not be an ideal option, but…it is the least worst option”.85 Advocating “a process that leads to [an] enforced peace”, Oxfam maintained some ambiguity by not commenting on the precise form of military force used to coerce the warring parties.86 Meanwhile, a group of humanitarian ngos working through the relief consortium Interaction wrote to the United States (us) National Security Council encouraging a military response to the threats against Kosovar civilians.87 Shortly beforehand, un Secretary-General Kofi Annan gave a speech at a nato conference where he urged the intensification of diplomacy backed by the credible threat of force: “diplomacy, whether in the Balkans or in Bagh- dad, has to be backed by firmness and by force…Sometimes a convincing show of strength can prevent the need for its use”.88 In a written piece that typifies the classicist position, msf worker Fabrice Weissman advises that in lieu of calling for military intervention or condemning inaction, humanitarians should hold military interveners to account for

83 84 85 86 87 88

83 J.-M. Mendiluce, “War and disaster in the former Yugoslavia: the limits of humanitarian action”, in World Refugee Survey, 10 (1994), at 17. 84 A. Stoddard, Humanitarian Alert: ngo information and its impact on us foreign policy (2006), at 159; M. Barnett and J. Snyder, “The Grand Strategies of Humanitarianism”, in M. Barnett and T. Weiss (eds.), Humanitarianism in Question: Power, Politics, Ethics 143 (2008), at 162. 85 Oxfam Press Release, “Oxfam calls for an enforced cease-fire in Kosovo”, 26 August 1998, Held in: Oxfam archive, ms. Oxfam com/1/3/9, Oxford, Bodleian Library. Extracts from the letter to the British Foreign Minister are cited in Vaux, supra note 72, at 21. 86 Oxfam-gb, “Questions and Answers about Oxfam-Great Britain Kosovo Statement”, 28 August 1998. Held in: Oxfam archive (uncatalogued), Directorate correspondence, Koso- vo, 1998–1999, Oxford, Bodleian Library. 87 L. Minear et al., nato and Humanitarian Action in the Kosovo Crisis (2000), at 63. 88 un, “Secretary-General says lessons learned in Bosnia must be applied emphatically where horror threatens. Press Release sg/sm/6598”, 15 June 1998.

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Classical and Political Humanitarianisms 55 their promises of protection made to the civilian population, which “would not force humanitarian organisations into providing answers they are in no position to give”.89 Likewise, former Regional Manager for Eastern Europe Tony Vaux has since written that Oxfam “should not have made a calculation that the threat of [nato] force would be enough and that actual force would never be needed. It was outside our competence…Our role should have been to analyse what was happening [and] to ask what interests lay behind any expression of ‘concern’ or humanity”.90 In the same piece, Weissman scrutinises a range of calls for military intervention to protect Liberian civilians and reveals how the specific forms of intervention differ considerably. These differences, he states, reflect alternative political visions such as how best to respond – politically and militarily – to the armed conflict in question.91 But even where agencies avoid specifying military intervention, such political visions will continue to lurk beneath any noncom- mittal assertion for a political resolution to an armed conflict. Nowhere was this as manifest as in Kosovo. Most agencies relied completely on ambiguity and adopted a “neither supports nor opposes” formulation.92 What lay behind this formulation was a general view amongst aid workers favouring, prior to and ex post facto, the use of Western military force in Kosovo.93 In its public statements, msf repeatedly called for protection and even affirmed that the us government bore a responsibility to resolve the Kosovo crisis.94 A spirit of interventionism flourished within parts of the organisation: “we considered this war to be necessary…Someone had to oppose [Serb President Slobodan] Milosevic. We didn’t want him to be allowed to commit yet another massacre. As private citizens, we all felt very strongly about this. Overall, within the msf movement, it was a feeling shared by the majority, including the then President of the International Council… [and] among the operational sections…. There wasn’t much debate”. At international meetings, some msf directors and leaders made comments on the lines of “that’s what’s needed, they need 89 90 91 92 93 94

89 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 211. 90 Vaux, supra note 72, at 42. 91 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 209. 92 Foley, supra note 8, at 160. 93 W. Clarke, “The Humanitarian Dimension in Kosovo: Coordination and Competition”, in L. Wentz (ed.), Lessons from Kosovo: The Kosovo Experience 207 (2002), at 214; Minear et al., supra note 87, at 70. 94 msf, “Violence against Kosovar Albanians, nato’s intervention 1998–1999”, June 2014, at 80. The original press releases can be accessed here: http://speakingout.msf.org/en/ node/1093 ; http://speakingout.msf.org/en/node/1213 (last accessed 15 June 2018).

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56 Bywater to start bombing, Milosevic needs to be taken out, they have to give the Serbs a good pounding”.95 The irc head of operations in the region was on the record as stating “you can’t defeat fascism with humanitarian aid. Fascism has to be hit with military force. When it goes violent, you have to use violence”.96 While United Nations High Commissioner for Refugees Sadako Ogata repeatedly highlighted the political nature of the Kosovo crisis “for which there is only a political solution”, she viewed the Serb military presence as the princi- pal cause of the violence and the attitude of the Serb government towards the Kosovo Albanians as the main obstacle to a just and lasting solution.97 Ogata initially cast doubt on the effectiveness of a bombing campaign to resolve the protracted ethnic conflict in Kosovo and declared her concern “on a humanitarian basis” over a period of bombing. But, in a private meeting of the Trilat- eral Commission shortly before the nato military campaign, she described a bombing campaign to be the second-best option, preferable to the deteriorating status-quo.98 The evaluation of unhcr’s response to the Kosovo crisis highlighted that the agency, like many others, was “heavily dependent upon public information for making policy decisions” including the widely held belief that the air strikes would rapidly resolve the situation.99 The immediate effect of the nato military campaign was to undermine civilian protection and rapidly worsen the humanitarian situation, as Kosovo Albanians were forcibly expelled en masse by Serb forces. nato governments saw backing down militarily as tantamount to accepting the status quo – an ethnically cleansed Kosovo – which became inextricably linked with the need to maintain credibility and proclaim victory. Humanitarian and human rights organisations, particularly those that had called for military intervention, effectively found themselves in the same boat as the military interveners.

95 96 97 98 99

95 msf, supra note 94, at 97–8, 103. 96 Rieff, supra note 5, at 214. 97 N. Morris, “Origins of a Crisis”, 3(116) Refugees Magazine 18 (1999) at 18. 98 S. Ogata, “Human Security: A Refugee Perspective – Keynote Speech by Mrs. Sadako Oga- ta, un High Commissioner for Refugees, at the Ministerial Meeting on Human Security Issues of the ‘Lysoen Process’ Group of Governments”, 19 May 1999; S. Ogata, “Conflict Resolution Mechanisms Do Not Match Today’s Conflicts”, The Annual Meeting of the Trilateral Commission, March 1999, http://www.trilateral.org/download/doc/Washington _19991.pdf (last accessed 15 June 2018), at 38–9. 99 A. Suhrke et al., “The Kosovo refugee crisis: an independent evaluation of unhcr’s emergency preparedness and response. Pre-publication edition”, unchr Evaluation and Poli- cy Analysis Unit, February 2000, at 18.

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Classical and Political Humanitarianisms 57

Oxfam declined to call for deploying ground troops to Kosovo and was unable to come to a meaningful public position.100 Physicians for Human Rights (phr), as well as individual field representatives from unhcr and Catholic Relief Services, cautioned against the probable civilian impact of a bombing campaign. While criticising the impact on civilians, phr declined to call for its cessation.101 Christian Aid and some un officials called for a ceasefire.102 From the beginning, the care-Australia team based in Belgrade was particularly forthright and vocal against the bombing campaign.103 Some, such as the unlikely quarter of the French humanitarian sector, opted to support military escalation. mdm urged for a ground offensive while former msf-France President Rony Brauman signed a call for an intensification of hostilities and a ground invasion in a French newspaper where he was mistakenly referred to as “msf honorary president”.104 This hodgepodge of conflicting positions over the appropriate international response arguably reflected underlying political interpretations of the conflict as much as genuine dilemmas over how to respond to the humanitarian situation. By demanding action without specifying the action itself, aid workers un- comfortably reflect the incoherence of the general public faced with situations of mass atrocity. The arduous dilemma of maintaining ambiguity is illustrat- ed best by the following experience of msf. Advocating firmly on the issue of protection of civilians trapped inside Kosovo, the agency took care when 100 101 102 103 104

100 Vaux, supra note 72, at 17–42. The final position adopted by Oxfam was to support the principles set by Kofi Annan for a resolution to the Kosovo conflict. These were as follows a) an end to the Yugoslav security forces’ campaign of intimidation b) the withdrawal of those security forces c) the return of Kosovo Albanian refugees and d) the deployment of an international military forces, cited in W. Shawcross, Deliver us from Evil: Warlords and Peacekeepers in a World of Endless Conflict (2000), at 372. 101 International Council on Human Rights Policy, “Human Rights Crises: ngo Responses to Military Interventions”, 2002, at 23; J. Pilger, “Moral Tourism”, The Guardian, 15 June 1999 ; S. Milligan, “Americans, aid workers flee Serbia”, Boston Globe, 9 October 1998 ; C. Lynch, “us effort to avert Kosovo clash stalls nato says it’s ready for military action”, Boston Globe, 8 October 1998. 102 Shawcross, supra note 100, at 347; Wiles et al., “Independent Evaluation of dec Kosovo Funds: Volume ii”, odi & Valid International, January 2000, at 72. Select Committee on International Development, “Minutes of Evidence. Memorandum from Christian Aid”, 28 April 1999. 103 S. Pratt, Duty of care (2000), at 200. 104 J-C Rufin, “Les Humanitaires et la guerre du Kosovo”, 106 Le Débat 3 (1999), at 14; R. Brau- man et al., ‘‘L’Europe devra reconnaitre l’indépendance du Kosovo: Pour une action militaire”, Libération, 7 April 1999.

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58 Bywater crafting its statements to avoid suggesting the deployment of ground troops or simply questioning the effectiveness of aerial bombardment.105 At a press conference which he describes as the most difficult of his life, journalists continu- ously pointed out to then President of the msf International Council James Orbinski the inconsistency in highlighting the fate of the population trapped inside Kosovo while refusing to call for ground troops:

That is not our responsibility as humanitarians to determine…We’re not going to say if the bombing should go on or stop, if there should be a land war or truce. That’s up to governments. We are simply calling on them to live up to obligations.106

At the press conference, we condemned Milosevic’s ethnic cleansing campaign and said up to one million ethnic Albanians had been forced from their homes in Kosovo but remained unaccounted for. World attention was focused on the fighting between Yugoslavia and nato and on the effort to feed and settle refugees who had fled Kosovo - but what of those who remained? ‘Where are these one million people? What is happening to them?’ I asked. I…insisted on a humanitarian space inside and outside Kosovo that was independent of the belligerents. The inevitable question of whether or not msf would support nato ground troops came from Da- vid Rieff…I refused to answer, saying that nato didn’t need our assent for a unilateral intervention that was happening anyway. Rieff pushed hard, arguing that it was intellectually incoherent not to call for ground troops to stop Milosevic while at the same time highlighting the plight of people still in Kosovo…Mine wasn’t the best argument but for us it was not a question of intellectual coherence but pragmatism. If we provided moral cover for a nato-led ‘humanitarian war’ today, there would be no turning back to a morally coherent claim for an independent humanitarian space tomorrow. For more than an hour, Rieff and other journalists pushed for an answer: ‘Yes or no?’ It was the toughest press conference of my life, but I refused to be drawn in.107

Human rights organisations were also squared with the choice between ambiguity and prescription. Amnesty International Secretary-General Pierre Sané

105 recognised106 that 107

105 msf, supra note 94, at 42, 129, 148. 106 Rieff, supra note 5, at 214. 107 Orbinski, supra note 37, at 329–30.

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[as] international responsibility for the universal protection of human rights has gained wider acceptance over the past half century…many individual Amnesty members believe that armed intervention is the logical next step….As an organisation, Amnesty recognises the danger that the term ‘human rights’ might be usurped to justify the military ambitions of powerful states. Standing apart from the clamour for armed action is difficult I the face of immediate suffering. It means acknowledging our own, painful, limitations…The best we can do is to ensure that whatever route is cho- sen, we do what we can to contain the suffering and to let the powerful know our anger.108

Renewed pressure fell upon human rights workers to engage in prescription. Writer Michael Ignatieff wrote that “the chief argument is over which means we choose to pursue our agreed ends…We need to be as ruthless and determined in our choice of means as we have been high-minded in our choice of ends”.109 Jour- nalist and aid commentator David Rieff declared that “to mobilise mass constituencies and affect public opinion, activists cannot simply call for ‘something’ to be done - but then refuse to say what, exactly, is required”.110 Looking back, a former Amnesty worker notes that “we were demanding that governments show the courage to take action to achieve certain human rights goals without being brave enough ourselves to say what this action should be”.111 Maintaining a stance of ambiguity may not necessarily be judged as lacking coherence. As outside military intervention into an armed conflict becomes an ever distinct possibility, public statements calling for urgent resolution of the conflict in question take on new importance. They risk implicitly supporting or encouraging military intervention, or conveying a perception of doing so. Just a fortnight before the nato bombing campaign, Ogata issued a public statement before the nato bombing which called for an urgent “political solution to put an end to this humanitarian crisis and avert disaster”, which a former unhcr evaluator saw as encouraging military intervention.112 Once

108 109 110 111 112

108 Sané, supra note 14, at 5–9. 109 M. Ignatieff, “Human Rights – The Midlife Crisis”, 46(9) New York Review of Books 58 (1999), at 62. 110 D. Rieff, “The precarious triumph of human rights”, New York Times, 8 August 1999. 111 Foley, supra note 8, at 33–4. 112 M. Barutciski, “A Critical View on unhcr’s Mandate Dilemma”, 14(2/3) Int. J. Refugee Law 365 (2002), at 371. The statement in question is available here: http://www.unhcr .org/3ae6b8104.html (last accessed 15 June 2018).

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60 Bywater the bombing campaign was underway, Annan said publicly that “I deeply regret that…the [Serb] authorities have persisted in their rejection of a political settlement”, adding that while “it is…tragic that diplomacy has failed…There are times when the use of force may be legitimate in the pursuit of peace” and that “the [Security] Council should be involved in any decision to resort to the use of force”.113 The order of his statements, which reiterated the principle of international world governance only after criticising Serbia and resignedly concluding that military force is sometimes necessary to restore or preserve peace, was in- terpreted by his aides and fellow un diplomats as a cautious blessing of nato’s use of force. It also led the New York Times to run an op-ed titled “The Secre- tary General Offers Implicit Endorsement of Raids”.114 Even where agencies refrain from calling for action and stick to documenting and reporting violence and abuses, they can contribute to a developing or ongoing political-military intervention. In Kosovo, this transpired in more ways than one. It is quite clear that humanitarian and human rights reporting, by exerting pressure on Western governments to intervene in Kosovo, helped prepare the ground for military intervention. One msf report even describes a parallel progression of msf’s advocacy efforts and nato threats of armed intervention:

msf decided to inform European public opinion and to increase awareness by publishing communiqués and refugee eyewitness accounts which were reported in the press. The United States and Europe….simul- taneously increased pressure on Belgrade, calling on the Milosevic government to put an end to the violence against Albanian Kosovars or risk an armed intervention by nato.115

The interplay between reporting and the case for military intervention was not always incidental. us State Department officials issued proposed survey forms to human rights researchers such as Physicians for Human Rights to ensure that everyone ask standard questions about violence to aid war-crimes cases.116 The regular unhcr estimates of the numbers of internally displaced within 113 114 115 116Kosovo were included in the un Secretary-General’s monthly reports to the

113 un, “Secretary-General deeply regrets Yugoslav rejection of political settlement; says Se- curity Council should be involved in any decision to use force, sg/sm/6938”, 24 March 1999. 114 J. Miller, “The Secretary General offers implicit endorsement of raids”, New York Times, 25 March 1999. 115 msf, supra note 94, at 10. 116 D. Pearl and R. Block, “Despite Tales, the War in Kosovo Was Savage, but Wasn’t Genocide”, Wall Street Journal, 31 December 1999.

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Classical and Political Humanitarianisms 61

Security Council, which were significant in the adoption of key un resolutions which, in turn, were used by nato to justify threats of military action.117 In September 1998, unhcr gave a closed-door briefing to the Security Council where it identified several overriding needs for humanitarian action in Kosovo, including security and respect of basic rights and an end to hostilities between the warring parties and any further displacement.118 The Security Council then adopted Resolution 1199 which called for a halt to hostilities and demanded that the warring parties “take immediate steps to improve the humanitarian situation and to avert the impending humanitarian catastrophe” and that the Serb government specifically “cease all action by the security forces affecting the civilian population and order the withdrawal of security units used for civilian repres- sion”. The Security Council also agreed, should the measures demanded “not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region”. The following a day, nato issued a warning that Serbia end the violence or be subject to air strikes.119 As the nato military intervention drew nearer, the situation was such that humanitarian agencies were in a position to enable military intervention by simply bearing witness to a massacre. As long-time French aid worker Jean- Christophe Rufin explains, humanitarian action was now in a position to act as a detonator – the casus belli – to the use of nato force:

la gâchette de l’otan, aujourd’hui, est…humanitaire. Il faut du sang, un massacre, quelque chose qui provoque le haut-le-cœur des opinions pub- liques et leur fasse accepter une riposte violente…Les humanitaires…doi- vent savoir que leur parole peut désormais tuer…Les défenseurs de la vie prescrivent désormais la mort.120

117 118 119 120

117 N. Morris, “Humanitarian Intervention in the Balkans”, in L. Minear and H. Smith (eds.), Humanitarian Diplomacy: Practitioners and their Craft 98 (2007), at 110–1. 118 Discussion with Nicholas Morris, former unhcr Special Envoy to the Balkans (email, Reading, uk, June 2014). 119 Shawcross, supra note 100, at 327; Morris, supra note 117, at 112–3. nato Supreme Allied Commander Wesley Clark writes that “Resolution 1199 was adopted under Chapter vii of the un Charter, authorising member nations to use ‘all available means’ to enforce it. While not explicit, this was un code for the use of force if necessary” Clark, Waging Mod- ern War: Bosnia, Kosovo, and the Future of Conflict (2001), at 134 120 Rufin, supra note 104, at 7–12; J.-C. Rufin, “L’Otan, les humanitaires et la mort”, Le Monde, 20 March 1999. In the event, it was not a humanitarian organisation that played the role of detonator. An osce monitoring mission formally attested to killings in a village called Rajak as a “massacre”, which sparked off a set of events leading to the nato military intervention.

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62 Bywater

It is no small irony that one of the most well-known humanitarian refrains is: “we are not sure that words can always save lives, but we know that silence can certainly kill”.121 Shortly after the nato intervention had commenced, msf released a report titled Kosovo: Accounts of a Deportation122 which wove together an epidemio- logical survey and narrative accounts from Kosovo Albanian refugees to affirm the existence of a Serbian deportation policy. First drawn upon conspicuously by the nato spokesman at a daily press conference,123 the report spread the impression that the reality of the abuses served to justify the nato military intervention.124 Many within msf concluded that they had emerged as an “objective ally” of nato.125 The provision of moral legitimacy is, admittedly, a much more subtle form of interaction between humanitarian reporting and military intervention.

When they request military intervention, humanitarian agencies confer a moral warrant upon their intervention and become associated with whatever transpires from the intervention that then materialises. In effect, they become

121 122 123 124 125

121 msf, supra note 57. 122 msf, “Kosovo : Histoires d’une Déportation”, April 1999. 123 nato, “Press Conference by Dr Jamie Shea and Brigadier General Giussepe Marani”, 30 April 1999. 124 J.-H. Bradol, “‘Images du Malheur et Qualité de Secours”, in M. Le Pape and P. Salignon (eds.), Une guerre contre les civils. : Réflexions sur les pratiques humanitaires au Congo Brazzaville 2 (2003), at 20. 125 Telephone interview with Rony Brauman, former msf-France President (Reading, uk, July 2014). Discussion with Fabrice Weissman, msf-Crash Research Director (Reading, uk, April 2014). See also a range of interviews with msf figures in msf, supra note 94, at 188–90.

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Classical and Political Humanitarianisms 63 stakeholders in that intervention. For instance, the public support from humanitarian organisations and figures for the nato intervention was appreci- ated within nato as an additional source of legitimacy.126 Most agencies have come to regret the occasions where they called for military intervention. Yet as we have seen, this sense of stakeholdership also develops from ambiguous calls for action or reports such as Kosovo: Accounts of a Deportation. From the onset of Western military intervention in Afghanistan, humanitarian advocacy on security issues was couched less in the discourse of protecting civilians from premeditated violence and more in the guise of stabilisation and combatting insecurity and lawlessness. Little room was left for classical ambiguity. The norm was to enter into great prescription of the political and military measures that agencies deemed necessary to tackle insecurity. As the Taliban were driven from power by the U.S. military intervention, Mercy Corps, irc, Refugees International and Oxfam lobbied publicly for deploying a un-mandated or multi-national stabilisation/peacekeeping force with the objective of protecting against instability and violent banditry that was interfering with aid distributions, preventing further population displacement, suppressing factional fighting and maintaining law and order in the transition to a post-Taliban governmental structure.127 The agenda quickly moved to expanding the nato-led International Security Assistance Force (isaf) across Afghanistan, for which a range of agencies began to lobby. American ngos advocated greater numbers of troops and InterAction members wrote a sign-on letter to us officials emphasising the importance of security to us officials.128 Christian Aid, Afghan Aid, Care, Save the Children and TearFund sent a letter to the British Foreign Secretary, 126 127 128

126 Telephone interview with Jamie Shea, former nato spokesman (Reading, uk, November 2014). 127 Alan L. Heil Jr., “The Challenge of ‘Winning the Peace’ in Afghanistan”, Washington Report on Middle East Affairs. January/February 2002; voa News, “Relief Agencies Call for Rapid Deployment of Multi-National Force in Afghanistan”, 27 October 2001; O. Kreisher, “Relief agents stress peacekeeping need. Humanitarian groups say aid distribution is dangerous, difficult”, San Diego Union-Tribune, 22 November 2001; us Congress Press Briefing, 21 November 2001, http://www.c-span.org/video/?167434-1/humanitarian-assistance-afghan istan (last accessed 3 March 2018); us Senate Hearing, “107–235: Afghanistan’s Humani- tarian Crisis: is enough aid reaching Afghanistan? Hearings before the sub-committee on Near Eastern and South Asian Affairs and the Subcommittee on International Operations and Terrorism of the Committee on Foreign Relations. 107th Congress, First Session”, 10 October 2001 & 15 November 2001; Oxfam International, “Greater un role needed to prevent starvation and violence”, 22 November 2001. 128 L. Minear, “Humanitarian Action in an Age of Terrorism”, ichrp, May 2002, at 9.

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64 Bywater urging for “expansion of isaf’s mandate to include security provisioning outside Kabul”.129 In a letter to the un Security Council, the ngo members of the Agency Coordinating Body for Afghan Relief (acbar) wrote that “we…urge your support for the expansion of isaf to northern Afghanistan…Expanding isaf offers the only practical hope of a non-partisan security force in such areas”.130 The un High Commissioner for Refugees Ruud Lubbers also publicly supported expanding isaf and, once underway, wrote to the nato Secretary-General to express concern about the modest troop pledges and the slow pace of the expansion.131 At the forefront of these advocacy efforts was care who, in wide range of news interviews, public statements and policy briefs, promoted the “security rights and reconstruction needs” of Afghan citizens and called for greater international support for security in Afghanistan, including the expansion of isaf.132 This advocacy process culminated in a public petition signed by almost eighty ngos including prominent humanitarian and human rights organisations. Amidst a deteriorating security situation that included harassment and intimidation of civilians, fighting between ethnic groups and factional leaders, the continued sway of resurgent warlords and drug traffickers, and a sharp increase in the activity of anti-government groups such as Hizb-e-Islami and al- Qaeda and Taliban fugitives, the signatories requested that isaf expand to key locations and transport routes and embark upon a comprehensive program to disarm, demobilise and reintegrate all militia forces outside the control of the central government, so as to ensure implementation of the Bonn Agreement and help prepare for upcoming elections.133 129 130 131 132 133

129 Cited in G. McHugh and L. Gostelow, “Provincial Reconstruction Teams and Humanitarian- Military Relations in Afghanistan”, Save the Children, 2004, at 17. 130 irin, “ngos call for extension of isaf mandate”, 21 June 2002; See also: acbar, “Policy Brief: Provincial Reconstruction Teams and the Security Situation in Afghanistan”, July 2003. 131 R. Lubbers, “Statement to the un Security Council”, 7 February 2002; R. Lubbers, “State- ment to the un Security Council”, 20 May 2004. 132 P. O’Brien, “prts – guaranteeing or undermining a secure future for Afghanistan?”, 18 Forced Migration Review 38 (2003); care, “Policy Brief: care International in Afghani- stan”, January 2003; care, “care calls on international community to address the security vacuum in Afghanistan”, 2003; care, “care Says Ideal Time to Expand isaf Mandate in Afghanistan”, August 2003; P. O’Brien and P. Barker, “Old Questions Needing New An- swers: A Fresh Look at Security Needs in Afghanistan”, in M. Sedra (ed.), Confronting Afghanistan’s Security Dilemma – Reforming the Security Sector 17 (2003); care, “Re- building Afghanistan. A Little Less Talk, A Lot More Action”, October 2002; care, “A New Year’s Resolution to Keep: Secure a Lasting Peace in Afghanistan”, January 2003. 133 icva, “Afghanistan: A Call for Security (Joint ngo Letter)”, 17 June 2003.

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Classical and Political Humanitarianisms 65

It is of a certain intrigue that classical and political humanitarians do not actually clash over humanitarian actors advocating on the issue of security. They diverge only on whether to vaguely assert the need for security (ambiguity) or to call for a set of military measures to impose security (prescription). In a written exchange with then care Afghanistan Advocacy Coordinator Paul O’Brien, then msf-usa Executive Director Nicolas de Torrente acknowledged the need for security in Afghanistan and Iraq whose provision was the obligation of the Occupying Power, and agreed that humanitarian action necessarily extends beyond relief provision to encompass advocacy on protecting civilians.134 Classical humanitarians see the promotion of humanitarian law and principles as a fundamentally non-partisan activity, in contrast to political statements on security issues. They also see the political discourse of rights in the context of armed conflict as partisan and distinct from the compassionate discourse of humanity.135 One aid worker of classicist persuasion has set the condition that any advocacy on issues of violence and protection must not intend or aim to have “partisan political consequences”.136 Note also the words used by another classicist to describe the calls to expand isaf: a “partisan military advance”.137 Despite embracing its political nature, rights-based security advocacy continues to draw upon a sort of ambiguity in the sense that it spurns the political ramifications of what it advocates. O’Brien suggests that humanitarian agencies were able to advocate for isaf expansion while not situating themselves as loyal to the objectives of international military forces:

the rights-based humanitarian…does not claim to be political…but she is not partisan either…She can stand before anti-government forces or scep- tical communities and say: ‘I may work with the government but I am not here for them. I am here for you and your human rights protection’…Rights- based ngos were able to fully engage in the debate over the security rights of Afghans… [and] situate themselves as loyal not to the partisan objec- 134 135 136 137 138 tives of the…military…but to the security rights of the Afghan citizenry.138

134 O’Brien, supra note 31, at 35–6; N. de Torrente, “Humanitarian Action under Attack: Reflections on the Iraq War”, 17 hhrj 1 (2004), at 21–3. 135 A. Donini, “ngos and Humanitarian Reform: Mapping Study. Afghanistan Report”, ngos and Humanitarian Reform Project, May 2009, at 26; Slim, supra note 49, at 120–1. 136 M. Dubois. “Civilian protection and humanitarian advocacy: strategies and (false?) dilemmas”, 39 Humanitarian Exchange Magazine 12 (2008), at 13. 137 K. Gluck, “The struggle to reach people in need” in msf, “International Activity Report 2003–4”, at 10. 138 O’Brien, supra note 20, at 208, 215–6.

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66 Bywater

2.2 Jus in Bello-Jus ad Bellum In all four of the armed conflicts, instances arose where jus in bello acted as the reasoning for involvement in jus ad bellum, placing a distinct complexity upon the entire formula. In the conflicts in Bosnia and Kosovo, several humanitarian agencies drew upon violations of international humanitarian law to advocate for military action in response to these violations. During the 2001 us-led War in Afghanistan, a host of agencies went further, not only advocating a response to the terrorist attacks of 9/11 but also explicitly commenting on the justness of combatting terrorism. Faced with what clearly constituted an illegitimate means of warfare, humanitarians and humanitarian action could not remain neutral. Not only does terrorism violate the prohibition of indiscriminate attacks on civilians, it ne- gates the fundamental distinction between civilian and combatants which lies at the cornerstone of international humanitarian law.139 But in public statements and private communication, condemnation of terrorism crossed over into quasi-open support for the counter-terrorism response. The relief ngo consortium InterAction wrote to the us President acknowledging the “need for a comprehensive approach to attack and weed out terrorism....through military…and other means”, declaring support for the Ad- ministration’s leadership and urging “that those who committed these acts of terrorism be held accountable”.140 In similar correspondence with the White House, Refugees International President Ken Bacon wrote “we have the ability to triumph on both fronts, and we must” and later urged for the us to prevent “the humanitarian crisis…[ from] overwhelm[ing] our military achievements”.141 139 140 141

139 Terrorism is specifically prohibited by international humanitarian law. Article 33 of the Fourth Geneva Convention states that “collective penalties and likewise all measures of intimidation or of terrorism are prohibited”. Article 4 of Additional Protocol ii explicitly prohibits “acts of terrorism” against persons not or no longer taking part in military hostilities. Article 51 of Additional Protocol I and Article 13 of Additional Protocol ii both pro- hibit “acts or threats of violence the primary purpose of which is to spread terror among the civilian population”. 140 InterAction letter to President George W. Bush, signed by Mary E. McClymont, President and ceo, and Nancy A. Aaossey, Chairman of the Board, 19 September 2001. An InterAc- tion insider divulged to me that the letter represented an attempt by the development- orientated ngos to acquire upcoming donor funds. 141 Refugees International, “Letter to President Bush on Afghanistan, signed by Chairman James V. Kimsey and President Kenneth H. Bacon”, 19 September 2001; Refugees Interna- tional, “Afghanistan: Letter to President Bush, signed by Kenneth Bacon”, 30 November 2001; E. Becker and E. Schmitt, “us Planes Bomb a Red Cross Site for a Second Time”, New York Times, 27 October 2001.

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Classical and Political Humanitarianisms 67

A group of United Kingdom (uk)-based humanitarian ngos called for the perpetrators of the 9/11 attacks to be brought to justice.142 Speaking before the us State Department, Ogata emphasised that “the threat of terrorism has not been overcome. The international community must continue to fight for its eradication….We should not allow the continued existence of a failed or destitute country that could turn into a hotbed for terrorism”.143 un High Commissioner for Human Rights Sergio Vieira de Mello later stated that “a brutal attack and exceptional threat may require an extraordinary and unequivocal response”.144 In general, humanitarian agencies, particularly those with American affiliates, were most reluctant to proclaim their neutrality.145 The foray into jus ad bellum also came at the expense of jus in bello. Silence also predominated on much of the conduct of Western military campaign in Afghanistan. The un found it difficult to go public and it became “impoli- tic” for un field personnel to publicly express concern over military tactics. An analysis of the Afghanistan web-pages of Save the Children, Oxfam, and care found not a single critical comment offered about the coalition operation. Only the website of msf referred to the “unacceptably high number of civilian casualties”. But in the six months following the war, none of the ngos operational in Afghanistan had carried out any research into civilian casualties during the war.146 Agencies were reluctant to advocate a pause or halt to the bombing campaign in Afghanistan. The World Food Program (wfp) suspended food convoys for almost two weeks and refused to participate in calls for a pause in the 142 143 144 145 146

142 Refugee Council, “ngos call for restraint in response to terrorist attacks”, 19 September 2001. 143 us Department of State, “Afghanistan: Reconstruction Conference”, 20 November 2001, http://www.c-span.org/video/?167404-1/afghanistan-reconstruction-conference (last accessed 3 March 2018). 144 un, “Daily Press Briefing by the Office of the Spokesman for the Secretary-General”, 4 September 2002. 145 N. Stockton, “The Failure of International Humanitarian Action in Afghanistan”, 8(3) Global Governance 265 (2002), at 268; Rieff, supra note 5, at 250–1. 146 A. Donini, “Humanitarian Agenda 2015: Afghanistan Country Study”, Feinstein Interna- tional Centre, June 2006, at 23; N. Niland, “Rhetoric and Reality: a snapshot from Afghani- stan”, in N. White and D. Klaasen (eds.), The un, Human Rights and Post-Conflict Situations 322 (2005), at 336; N. Niland, “Justice Postponed”, in A. Donini et al. (eds.), Nation-building unravelled: Aid, Peace and Justice in Afghanistan 61 (2004), at 72; N. Stockton, “ngos and Peace Operations in the Post-11th September Context”, in T. Tardy (ed.), Peace Operations after 11th September 2001 139 (2004), at 151–2; I. Traynor, “Afghans are still dying as air strikes go on. But no one is counting”, The Guardian, 12 February 2002.

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68 Bywater bombing to allow relief distribution, claiming that the aerial bombing had not significantly affected their relief operations.147 At one point the agency was subjected to public accusations of information manipulation and media spin by Oxfam. Shortly afterwards, when aid workers in the field were citing serious impediments to food distribution, the wfp Executive Director and usaid Administrator declared the averting of famine in the country.148 Likewise, unicef did not call for a ceasefire during the national immunisation campaign.149 Explaining these operational decisions of an exceptional and historic nature, a un evaluation found that “the highly political nature of the Afghan crisis, the personal interest of world leaders in even minute operational details… meant that…the centre of [un] decision-making moved squarely to the senior- most circles in New York”.150 Writing shortly after the war, aid worker Nicholas Stockton called out the aid sector for its “open behavioural support” in Afghan- istan,151 which complemented the verbal support. Oxfam, Islamic Relief, Action Aid, cafod, TearFund, Christian Aid and the un Special Rapporteur for the Right to Food called for a pause in the bombing to allow relief distributions152 that fell short of a cessation of hostilities.153 Oxfam Director of Policy and Advocacy Campaigns Justin Forsyth described his reluctance in doing so: “the Taliban is an appalling regime, unelected and unsupported by the people…Yes, we were extraordinarily reluctant to call for a halt to the bombing”.154 An evaluation by the agency found some Oxfam staff to

147 148 149 150 151 152 153 154

147 E. Epstein, “Taliban grab biggest un food depots”, San Francisco Chronicle, 18 October 2001. 148 bbc News, “Short clashes with aid agencies”, 19 October 2001; Minear, supra note 18, at 207. 149 A. Donini, “The Elusive Quest: Integration in the Response to the Afghan Crisis”, 18(2) Eth- ics & Int. Affairs 21 (2004), at 25. doi: 10.1111/j.1747-7093.2004.tb00463.x. 150 ocha, “Evaluation of the ocha and unocha Response and Coordination Services during the Emergency in Afghanistan July 2001 to July 2002”, at 12–3. 151 N. Stockton, “Neutrality and Humanitarian Principles in Afghanistan” (on file with the author). 152 L. Harding, “Aid agencies plead for pause in raids”, The Guardian, 18 October 2001; N. Chomsky, “Cette Amérique qui n’apprend rien”, 22 November 2001; Reuters, “un investi- gator condemns bombing of Afghanistan”, 15 October 2001, http://www.afghanistannews center.com/news/2001/october/oct15f2001.html (last accessed 4 April 2015). 153 This may have been the hope among some agencies. A lengthy amount of time was necessary to launch a proper humanitarian operation, and the fast approaching winter meant that any pause to the bombing may well have developed into a longer cessation of hostilities. 154 Cited in P. Toynbee, “Our leaders must decide”, The Guardian, 19 October 2001.

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Classical and Political Humanitarianisms 69 be critical of the advocacy position, describing it as “wimpy” and considering that a stronger humanitarian statement was to call for an end to the bombing which more honestly reflected their concerns.155 Prior to the war, Afghanistan had one of the highest infant mortality rates and the lowest rates of overall life expectancy, with up to a million displaced internally.156 A comprehensive study into the humanitarian impact of the war found that the bombing campaign exacerbated the existing food crisis by “disrupting relief efforts for the 1.5 million Afghans already considered at extreme risk… [and]…interrupting food production”. The campaign also “increased the number of internally displaced persons by approximately 360,000…and it prompted 200,000 others to flee to neighbouring countries”.157 From a purely humanitarian standpoint, it is difficult to see why the war could not be opposed in its entirety. The fact that many agencies, only two years later, relied upon claims of a potentially massive “humanitarian crisis” to argue against the War in Iraq begs the question: was the crisis in Afghanistan also not one best avoided by an absence of war?158 As an aside, in 2001 the un’s human poverty index ranked Afghanistan as the second-worst country to live in whereas Iraq only made thirty-seventh.159 The factors constraining agencies from taking a public stance against the War in Afghanistan were, quite plainly, geopolitical: opposing a war that was politically-charged in the extreme and which appeared all but inevitable. A staff member of one of the agencies that called for a pause in the bombing mentioned to the author that the events of 9/11 meant their organisation could not completely oppose the war. Muslim charities based in the uk also felt

155 156inhibited from developing advocacy positions critical of the war, fearful of a 157 158 159

155 A. Gardner, “Evaluation of Oxfam’s Humanitarian Intervention during the ‘Afghanistan Crisis’”, Oxfam-gb and Nutrition Works, 2002, at 22. 156 Human Rights Watch, “Human Rights Watch Backgrounder. No Safe Refuge: The Impact of the September 11 Attacks on Refugees, Asylum Seekers and Migrants in the Afghanistan Region and Worldwide”, October 2001, at 2. 157 C. Conetta, “Strange Victory: A critical appraisal of Operation Enduring Freedom and the Afghanistan War, Project on Defense Alternatives Research Monograph #6”, Common- wealth Institute, January 2002, at 37. 158 To its own consistency, Mennonite Central Committee was one of the few organisations to oppose the Afghanistan and Iraq Wars in their entirety. mcc, “mcc Executive Com- mittee meets, forms ‘A Call to Faith and Action’”, 1 October 2001; mcc, “mcc us board approves Sept.11-related ‘Call to Action’”, 21 November 2001; mcc, “mcc Delegates Call for Halt to Bombing, Raise Other Concerns About ‘War on Terrorism’”, 5 December 2001. 159 undp, “undp Human Development Report 2001: Making New Technologies work for Human Development”, 2001, at 151.

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70 Bywater domestic backlash at a time of intense media focus upon the Muslim charity sector.160 But looking beyond the geopolitics reveals a wider story. Many others in the humanitarian community felt that the ultimate goal of humanitarianism should be the overthrowing of the Taliban. One mdm worker wrote an article in a French newspaper where he dismissed neutrality as “out of the question” and called for the replacement of the Taliban regime with a new broad-based government with a commitment to reconstructing Afghanistan.161 One very senior unhcr official stated during a briefing to ngos that “speaking for a moment without my [official position’s] hat on, what you have to recognise is that the Afghans had this coming and they have no-one to blame for the bombing but themselves”.162 Many aid workers expected the war to conclude rapidly and expressed their relief following the collapse of the Taliban: “fortunately… the Taliban regime fell much faster than anyone…predicted”.163 Many also felt that only the overthrow of the Taliban would allow Afghanistan’s long-term needs to be addressed.164 This interpretation was echoed by a senior member of the us Administration: “the only reason that humanitarian workers are today back in Afghanistan is because of the us military…It’s important to get that into perspective”.165 A few years later into the Western intervention into Afghanistan, the influential writer on humanitarian issues Hugo Slim echoed this sentiment as well as the justness of combatting terrorism, when he called upon humanitarian agencies to embrace the “moral overlap” between them and the counter- insurgency effort in Afghanistan and in Iraq:

a liberal counter-insurgency doctrine…has much in common…with the concerns and methods of humanitarian and development work…

160 161 162 163 164 165

160 Telephone interview with Omayma el-Ella, former Muslim Charities Forum Operations Manager (Reading, uk, July 2015). 161 M. Barry, “L’humanitaire n’est jamais neutre”, Libération, 6 November 2001. 162 Discussion with anonymous aid worker present at the ngo briefing (email, Reading, uk, June 2017). 163 Oxfam Chief Executive Barbara Stocking, cited in Oxfam-gb Creative Services, “Oxfam Annual Report and Accounts, 2001/2002”, at 9. 164 Rieff, supra note 5, at 250–5; R. Brauman, “From Philanthropy to Humanitarianism: Remarks and an Interview”, 103(2/3) South Atlantic Quarterly 397 (2004), at 399. doi: https://doi.org/10.1215/00382876-103-2-3-397. 165 us Defence Secretary Donald Rumsfeld, cited in M. Kelley, “Pentagon Defends Work Out of Uniform”, Associated Press, 3 April 1999.

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The Coalition and liberal agencies both share a common vision of public goods…Liberal [agencies] with a strong ultimate ethic and ideology around what constitutes the good society have a vision that extends…to a more explicit political project which has much in common with Coali- tion counter-insurgency objectives.166

When it came to the War in Iraq, much of the humanitarian community came out in public opposition on the basis of the humanitarian consequences that war could produce, again dissolving the line between the ostensibly distinct domains of jus in bello and jus ad bellum. A consortium of French ngos – including Première Urgence, mdm, Handi- cap International, Solidarités, Action Contre la Faim and Enfants du Monde- Droits de l’Homme – issued a public statement describing the impending war as “une guerre dont nous continuons de récuser la nécessité compte tenu des possibilités pacifiques de désarmement de l’Irak”.167 Christian Aid director Daleep Mukarji stated publicly that “peaceful alternatives to conflict are not yet exhausted. All parties have a legal - and we believe a moral - obligation to seek the peaceful resolution of this dispute through the un”.168 In a letter delivered to British Prime Minister Tony Blair a month later, the agency wrote that “we do not believe there is yet a ‘moral case’ for war”.169 us-based ecumenical relief agencies lobbied hard against the war and went beyond warning of the immediate humanitarian consequences to present overtly political reasons against taking military action. In a letter released publicly, Church World Service (cws) wrote that “cws has opposed and continues to oppose this pre-emptive war against Iraq…We believe that this war is wrong and unjust…[We] consider this action an illegitimate means of solving the current crisis and a serious violation of the un Charter. This war will have hor- rendous humanitarian consequences in terms of death and human suffering and could potentially destabilise the entire Middle East”.170 American Friends Service

166 167 168 169 170

166 H. Slim, “With or Against? Humanitarian Agencies and Coalition Counter-Insurgency”, 23 Refugee Survey Quarterly 34 (2004), at 34, 44. doi: 10.1093/rsq/23.4.34. 167 acf, Enfants du Monde - Droits de l’Homme, Handicap International, mdm, Première Urgence, Solidarités, “Iraq: Face aux menaces qui pèsent sur les populations civiles, les ong signataires ont décidé de coordonner leur action selon des principes communs”, 3 March 2003. 168 Christian Aid, “Christian Aid urges halt in slide to war”, 30 January 2003. 169 Cited in bbc News, “Archbishops doubt morality of Iraq War”, 20 February 2003; 170 cws, “Church World Service Board of Directors on war on Iraq”, 19 March 2003.

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72 Bywater

Committee (afsc) wrote to the us President to express “how deeply troubled we are by the impending war…As Quaker pacifists, we know from experience war’s consequences…thousands upon thousands may die or spend the rest of their lives in pain and wretchedness, [and there] will be greater unrest in the Middle East and hatred of America…We urge you… [to] use the good instruments of international law[and] international institutions…to resolve our conflict with Iraq”.171 Stop Hunger Now and Mennonite Central Committee (mcc) also spoke out publicly and lobbied privately against the war. The director of the mcc office in Washington dc even undertook a 40-day fast during which he wrote daily letters to the us President.172 The heads of mcc, cws, afsc and Venture Inter- national signed a letter addressed to the us President which read: “we oppose on moral grounds the us taking further military action…Military action…could result in large numbers of civilians being killed or wounded, as well as increasing the suffering of multitudes of innocent people. us military action…[also] has the potential to further destabilise the region…International support for the war on terrorism will erode if the us attacks Iraq without a un mandate”.173 The International Council of Voluntary Agencies released a statement noting that “many of our members have protested the use of war in Iraq…In light of the overwhelming evidence that a war on Iraq will be a humanitarian disaster, we call on you to exercise your responsibilities as world leaders to stop this move to war”.174 Oxfam went the furthest in predicting, in some detail, how embarking on military action would trigger a massive “humanitarian crisis” in Iraq: “with Iraq’s basic infrastructures eroded by decades of war, national mismanagement

171 172 173 174

171 American Friends Service Committee, “Letter to George W. Bush, signed by Paul Lacey”, 20 September 2002. 172 Stop Hunger Now, “Stop Hunger Now visits Iraq”, 11 December 2002; “Letter to George W. Bush from Christian Religious Leaders against War in Iraq”, 30 January 2003, https://blog .nader.org/2003/01/30/letter-to-president-bush-from-christian-religious-leaders-against -war-in-iraq (last accessed 3 March 2018); mcc, ‘mcc executive committee urges congre- gations to protest invasion of Iraq’, 3 May 2002; mcc, ‘mcc us urges lawmakers to consider alternatives to war with Iraq’, 6 September 2002; mcc, ‘mcc petition calls on Canadian Government to avoid War with Iraq, 29 October 2002. 173 Churches for Middle East Peace, “Letter to George W. Bush from fifty-one heads of American Protestant and Orthodox churches and organisations and of Roman Catholic religious orders”, 12 September 2002, http://www.ncccusa.org/news/02news83.html (last accessed 5 March 2018). 174 icva, “Statement by icva Chair Anders Ladekarl from icva Conference‚ ngos in a Changing World Order: Dilemmas and Challenges to World Leaders on Possible War in Iraq”, 15 February 2003.

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Classical and Political Humanitarianisms 73 and twelve years of sanctions, another war in Iraq will have devastating humanitarian consequences…For that reason, Oxfam remains convinced that military action is unjustifiable”.175 care Country Director for Iraq Margaret Hassan briefed the un and British parliamentarians, where she stated that “the Iraqi people are already living through a terrible emergency…They do not have the resources to withstand an additional crisis brought about by military action”.176 A wide range of agencies also forecast catastrophic scenarios facing the Iraqi population in the event of war,177 which verged on outright opposition to the war. Two msf workers pondered in writing whether the humanitarian reasons being advanced to oppose the war reflected difficulty in expressing open disapproval of the war, “[finding] expression through the operational lexicon”.178 Under British charity law, registered charities “must have charitable purposes only… [An] organisation’s purpose cannot be a charitable purpose if it is not for the public benefit, including if it is: a political purpose”.179 Any advocacy or public stances must advance an agency’s core purpose and relate to its mandate: humanitarian and poverty alleviation. In other words, uk-based agencies are not free to make political commentary or oppose war on political grounds, a constraint which two former staff members from the uk-based agencies which had opposed the Iraq War raised in conversation with the author.180 One of Oxfam’s advocacy coordinators later wrote that “[Oxfam] became increasingly concerned [by] the invasion of Iraq…partly out of a fear that the history of infra- structure would be repeated…but primarily out of fear for the invasion’s consequences on the wider Middle East”.181 Victim-centred justifications substituted

175 176 177 178 179 180 181

175 Oxfam International, “Oxfam Briefing Paper - Iraq: Humanitarian-Military Relations”, March 2003; Oxfam International, “Oxfam Briefing Paper - Protecting Iraq’s Civilians”, January 2003. 176 Cited in J. Burke, “Obituary: Margaret Hassan”, The Guardian, 17 November 2004. 177 These various warnings are cited in P. Salignon, “Guerre en Irak : Les Représentations Humanitaires en Question”, 8 Humanitaire 43(2003); R. Brauman and P. Salignon, “Iraq: In Search of a Humanitarian Crisis”, in F. Weissman (ed.), In the Shadow of Just Wars 269 (2004). 178 Ibid, at 274–6. 179 Charity Commission for England and Wales, “Guidance: What Makes a Charity”, Septem- ber 2013, at 3. 180 Telephone interviews with the two former staff members in question (Reading, uk, January to March 2015). 181 E. Cairns, “R2P and Humanitarian Action”, 6 Global Resp. to Protect 146 (2014), at 149. doi: 10.1163/1875984X-00602004.

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74 Bywater for the overtly political, and arguably more compelling, reasons for opposing the Iraq War: the false problem statement that Iraq was developing weapons of mass destruction, the diversion of international political attention and military resources away from Afghanistan, the risk of a violent insurgency and civil war in Iraq and long-term instability in the region. Placing further strain on the jus in bello-jus ad bellum formula were their assertions that diplomatic solutions to resolve the impending conflict had not been exhausted. Humanitarian agencies habitually encourage the parties to a conflict to reach, or continue attempting to, a peaceful settlement. Does reaf- firming the continued possibility of negotiations or disputing their exhaustion represent a leap into the domain of justness? It was clear that the humanitarian community lacked any consensus on whether querying the legitimacy of governments’ recourse to war (jus ad bellum) fell within the humanitarian mandate. msf declined to comment on the possibility of a humanitarian emergency prior to the war, and later criticised other agencies’ for employing the term “humanitarian crisis” with such vigour.182 It also became apparent that many agencies did not see themselves as commenting on issues of jus ad bellum at all. For instance, the French ngo consortium, which claimed that peaceful options for disarming Iraq had not been exhausted, circulated a paper internally which warned against “prendre la forme d’une démarche pacifiste contre une décision de guerre qui ne nous ap- partient pas et qui n’est pas de la responsabilité des ong”.183 Attention on issues of jus ad bellum, despite those perspectives being anti- war, came again to the detriment of jus in bello. Within a year of the war, the anti-war camp had made no concerted effort to raise the issue of war crimes committed by international military forces – such as the preventive machine- gunning of individuals approaching international military forces or the use of cluster bombs in urban zones – or to call for an international inquiry.184 The un Security Council refused, in a high-profile vote, to provide its authorisation for the Iraq War. But neither the Security Council nor the Gen- eral Assembly, collectively or formally, questioned the legality of the war.185

182 183 184 185

182 msf, “Activity Report 2002-3”, at 72–3; Brauman and Salignon, supra note 177. 183 Consortium of French ngos, “Prise de position sur la situation en Irak et opportunité d’une visite préalablement au déclenchement d’un éventuel conflit”, 10 February 2003 (on file with the author). 184 Bradol, supra note 22, at 15. 185 A. Suhrke and D. Klusmeyer, “Between Principles and Politics: Lessons from Iraq for Hu- manitarian Action”, 17(3) J. Refugee Studies 273 (2004), at 276; G. Loescher, “Living after tragedy: the un Baghdad bomb one year on”, in A. Bavefsky (ed.), Human Rights and Refugees, Internally Displaced Persons and Migrant Workers 123 (2006), at 125.

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Classical and Political Humanitarianisms 75

Following the invasion, the Security Council passed Resolution 1483 which recognised the authority of the American and British governments as occupying powers and, by calling upon them to assist “the formation…of an Iraqi interim administration”, helped install the new regime. By formally approving the occupation, the Security Council indirectly endorsed the war. The Security Council then recognised the authority of international military forces for “the maintenance of security and stability…including by preventing and deterring terrorism” (Res 1511 & 1546). The second resolution appropriated the language of the War on Terror by effectively grouping all armed opposition groups as “terrorists”.186

2.3 Political Choices The experiences of humanitarian agencies throughout all of the conflicts cov- ered here show that the classical demarcations – on maintaining ambiguity or separating jus in bello from jus ad bellum – have proven themselves difficult to maintain. Yet doing away with these demarcations in pursuit of a political approach raises more questions than answers. More often than not, humanitarians find themselves in a multi-faceted Catch-22 situation.

2.3.1 Ambiguity-Prescription The side-effect of public stances in bolstering military intervention is insidious and understandably difficult to square for organisations that limit themselves classical ambiguity. But we must consider whether this side-effect is entirely unintended? The architects behind the msf report Kosovo: Accounts of a Deportation opted for the word “deportation” to emphasise the right of return and “invoke a moral and legal obligation on the side of the international community to intervene”.187 It is also no coincidence that those within msf who dismissed the risk of nato instrumentalization of the report privately supported the nato

186 187 military188 action, and vice versa.188 When, as in Kosovo, there is an ongoing

186 G. Hansen, “Humanitarian Agenda 2015 Iraq Country Study: Taking Sides or Saving Lives: Existential Choices for the Humanitarian Enterprise in Iraq”, Feinstein International Cen- tre, June 2007, at 33. 187 J. Jansen, “Letter from msf-France Board Member to msf France board members”, 20 April 1999, http://speakingout.msf.org/en/node/1260 (last accessed 3 March 2018). See also the comments of former msf-France President Philippe Biberson, cited in D. Ma- thieu, Bombes et bobards: propagande, bourrage de crâne, mensonges et manipulations de la guerre du Kosovo. 24 mars–10 juin 1999 (2000), at 41. 188 P. Dauvin, “‘Kosovo : histoire d’une déportation’ ou la chronique d’une prise de parole publique dans une ong internationale”, in J. Simeant and P. Dauvin (eds.), O.N.G et Humanitaire 35 (2004), at 54–5.

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76 Bywater

military intervention with the stated objective is the return of refugees, the relationship between humanitarian and military action is arguably one where the former concedes its own limitations and defers to the latter. Ultimately, what is the point of advocating if not to engender an international reaction? Should humanitarians take ownership for the consequences of their reporting by proposing specific policy measures as opposed to simply reporting facts? The downsides of ambiguity remain far from resolved by adopting prescription. Firstly, prescription may further legitimise military intervention. Had more agencies specified a military solution to the Kosovo conflict, nato stood to benefit. In this sense, classical ambiguity is not comparable to the incoherence of the general public, for humanitarians have a far wider range of im- peratives to consider such as inadvertently bolstering or legitimising a military intervention. Secondly, the inclusion of policy proposals alongside facts and data in humanitarian reports risks undermining the perception of objectivity. Although the data contained in Kosovo: Accounts of a Deportation contradicted the most radical nato claims such as mass-killing and genocide, this did not stop Western politicians from presenting the report as confirming the reality of abuses which served to justify the nato-led war; the lesson here is that the quality of data is no guarantee of avoiding manipulation.189 This re-awoke the debate within msf over exerting control over how their public statements are utilised by governments, a popular option being to insert a “disclaimer” into the report refuting the concept of humanitarian war. Any disclaimer carried the risk of undermining the objectivity of the entire report by presup- posing there to be an ulterior objective behind the presentation of facts and data. The only area of middle-ground was to stress more clearly the contradictions between nato claims and the report’s findings. Ambiguity, while unable to counter unwanted manipulation and legitimisation, preserves certain qualities. We arrive upon the crucial but very open question whether ambiguity or specification is more likely to realise the type of intervention that humanitarians are seeking. Put otherwise, if he who wills the ends must will the means, must one specify the means in order to achieve them? In all four the cases of armed conflict,190 some form of international military intervention did follow prescriptive calls for military action. But there was 189 190

189 J.-H. Bradol, “How Images of Adversity affect the Quality of Aid”, in M. Le Pape and P. Salignon (eds.), Civilians under Fire: Humanitarian Practices in the Congo Republic 1 (2003), at 23. 190 Iraq is excluded here, since no humanitarian organisation called for military intervention in the country.

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Classical and Political Humanitarianisms 77 often a mismatch between what humanitarians sought and the intervention that came about. The case of Kosovo showed that the parameters of an intervention are as important as the intervention itself. By exerting pressure on Western governments to intervene, humanitarian and human rights groups contributed to the imperfect nature of the nato military intervention: an aerial bombing campaign which provided no protection to civilians trapped inside Kosovo. But even where the nature of the intervention was defined, this did not alter the shape of the developing military intervention. Calls from some human rights organisations for ground troops, for example, built popular and policy-maker approval for an intervention limited to bombing.191 In the case of Afghanistan, isaf expansion across the country was executed by Western governments, but in such a way that, as one Crisis Group report observed, “protecting and promoting the fledgling institutions of the [Afghan] state…stood at the centre of security arrangements rather than security for the population”.192 Moreover, it is impossible to determine conclusively the influence of humanitarian actors, relative to other variables, in instances where international military intervention transpired. nato officials made explicit and repeated references to ngo advocacy in Afghanistan during private presentations – “the issue that would not go away” as a un policymaker described it – as one of the reasons for expanding isaf.193 Yet the influence of humanitarian ngos was but one variable in a wider equation, including the geopolitical interests of the intervening Western governments, resource assessments in the Iraqi theatre and the deteriorating security situation in Afghanistan. O’Brien writes that “we are but one voice in a complex political matrix. We cannot dictate the humanitarian future of threatened populations, but we may be able to influence them by engaging in political debate”.194 The way in which humanitarian actors exercise their influence is also important. For humanitarian workers, the decade of the 1990s is widely regarded as the “humanitarian moment” in terms of political influence and g eographical

191 192 193 194

191 L. Mahoney, “Military Interventions in Human Rights Crises: Responses and Dilemmas for the Human Rights Movement”, The International Council on Human Rights Policy, March 2001, at 14. 192 icg, “Rebuilding the Afghan State: The European Union’s Role. Asia Report N°107”, November 2005, at 7. 193 A statement sent by care and irc calling for nato to do more to ensure the security of ordinary Afghans was referenced in repeated PowerPoint presentations by nato officials. O’Brien, supra note 20, at 215, 219–20, 228; O’Brien, supra note 31, at 35. 194 Ibid, at 34.

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78 Bywater reach, viewed by some as a “golden age”.195 Aid commentator Alex de Waal described the actions, information and presence of relief agencies as a “major determinant of Euro-American policy”.196 A senior humanitarian ngo director stated candidly at the time that “we have become hugely powerful, filling the political vacuum and influencing international opinion. Very often what we say goes”.197 But as one in-depth study showed, humanitarian actors found that they exercised greater influence via their role as information providers rather than humanitarian issue advocates. That is to say, operational humanitarian ngos impacted on policy by providing field-level information – particularly images and stories of human suffering – which provided international policy- makers with an understanding of crises which helped shape policy decisions. Advocacy efforts – such as pressuring, lobbying and issuing public statements and calls for action – that attempt to modify the interests and preferences of decision-makers and influence specific policies had a very modest effect on policy decisions. This suggests that ambiguity may yield more power than prescription, but on an indirect basis. The author of this study, analyst Abby Stoddard, urged that humanitarian ngos address the flaws in their information function – mainly the “inadver- tent, haphazard and ill-considered” nature of their impact on international policy – as well as the impotence of their advocacy role, by bringing together improvements in field-level information collection analysis, increased political awareness and the development of data-driven, strategic advocacy approaches with a view to merge the realms of information providers and humanitarian issue advocates.198 Such an approach effectively aims to utilise the best of ambiguity and prescription. A shift towards prescription has certainly taken place. The appearance of ngo consultation has become part of international governance, with governments actively encouraging humanitarian actors to enter the political arena and engage in prescriptive advocacy.199 Humanitarian actors have, as one author writes, 195 196 197 198 199

195 Telephone interview with Samantha Bolton, former msf Communications Coordinator (Oxford, uk, August 2014). 196 A. de Waal, Famine Crimes: Politics and the Disaster Relief Industry in Africa (2004), at 134. 197 Former Save the Children-uk Regional Director Peter Hawkins, cited in F. Fox, “Condi- tioning the Right to Humanitarian Aid? Human Rights and the ‘New Humanitarianism’, in D. Chandler (ed.), Rethinking Human Rights: Critical Approaches to International Poli- tics 19 (2002), at 22. 198 Stoddard, supra note 84, at 198. 199 Torrente, supra note 63, at 329.

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learn[ed] the governance vocabularies of political science, economics or military science in order to enter the practical world of statesmen. The best modern humanitarian professionals combine fidelity to humanitarian ends with pragmatism about means. They endeavour to speak both from outside statecraft, calling it to humanitarian ideals, and from within statecraft, as a realistic strategist for humanitarian ends.200

2.3.2 Jus in Bello-Jus ad Bellum In much the same way that ambiguity reinforces the objectivity of humanitarian reporting on violence and abuses, humanitarians may find it most effective to call into question the justness of a war (jus ad bellum) by not taking an explicit position on the issue of justness. The experience of the International Crisis Group (icg) in the run up to the Iraq War is a case in point. Due to inter- nal divisions, the organisation was forced to abandon a report on the impending war that stated the case for military intervention as misconceived, instead producing a report that focused solely on the pros and cons of each side of the argument. In the view of former icg President Gareth Evans, the balanced report ultimately proved more influential and efficient as an indictment of the war than one that concluded that the case for war had not been made.201 Yet relying exclusively on jus in bello arguments to oppose war, as many humanitarian agencies did regarding the Iraq War, is unlikely to produce the strongest set of arguments against the war in question. It also produces incon- sistencies, as seen in the uneven response of the humanitarian community to the wars in Afghanistan and Iraq. For classicists, the sound domain is one where they hold military interveners to account for their promises of protection.202 But even this approach can veer close to commenting on jus ad bellum, for example if agencies raise concerns about certain types of military intervention or specify that a military intervention should be avoided. One report on humanitarian action concluded that “the scope of legitimate involvement in these questions [can] extend to whatever is considered likely to improve the humanitarian condition of affected populations, potentially limitless in its range”.203 200 201 202 203

200 D. Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004), at 329–30. 201 G. Evans and M. Feher, “Principled Pragmatism: Gareth Evans interviewed by Michel Feher”, in M. Feher (ed.), Non-Governmental Politics 118 (2007), at 125. 202 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 211. 203 odi, “hpg Policy Brief 28: Humanitarian Advocacy in Darfur: The Challenge of Neutral- ity”, October 2007, at 6–7.

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80 Bywater

Once agencies begin commenting on jus ad bellum, questions of consistency arise, namely whether agencies obliged to comment on the justness of every war? Bearing in mind that all wars create victims, if jus in bello acts as the determinant for passing judgement on jus ad bellum, what threshold to rely upon? This is a question to which only a pacifist humanitarian agency has a response. Then, does the refusal to pronounce a war as unjust (as in Afghanistan) amounts to implicitly endorsing its justness? Such suspicions will be ampli- fied if an agency combines comment on jus ad bellum with calls for military intervention. De Waal once argued that calling for a ceasefire is a political act in which humanitarian organisations engage voluntarily.204 The same can be said for the decision to declare oneself opposed to wars, or more precisely to do so non-consistently: it becomes a political affair par excellence in its own right. A non-consistent opposition to wars risks favouring victims of Western military intervention unpopular with the general publics of the intervening states, at the expense of the many other conflicts worldwide. In one sense, this is unavoidable given that the influence of the Western-dominated humanitarian sector will be greatest in Western democratic societies where more willingness exists to listen to civil-society actors. Put simply, is it better to speak out against war some of the time than never at all?

2.3.3 The right of aid workers to call for military intervention as private citizens There is an important question as to the right of individual relief workers to support a war or pronounce their opinion on issues of a military nature. If they are not to lose their civil rights upon adhering to an international ag ency,205 another resolution to this question is needed. Some formal guidance has been produced by msf, whose founding charter affirmed that members of the agency must “refrain from passing judgement or publicly expressing an opinion – favourable or unfavourable – with regard to events and to the forces and leaders that accept their aid”.206 A motion passed a few years later stipulated that “the fact of belonging to msf may in no circumstance serve as an element of personal promotion. Any member of msf speaking in the name of the organisation can only do so if duly authorised by the organisation”.207 In general, none of the 204 205 206 207

204 A. de Waal and R. Omaar, Rwanda: Death, Despair and Defiance (1994), at 664; de Waal and Omaar, supra note 1, at 32. 205 Rieff, supra note 5, at 258. 206 Brauman, supra note 9, at 1526. 207 Cited in O. Weber, French Doctors: les 25 ans d’épopée des hommes et des femmes qui ont inventé la médicine humanitaire (2000), at 239.

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major humanitarian agencies offer much in the way of organisational policy on this issue.

3 In the Eyes of Belligerents

3.1 Prescription As the nato bombing of Serbia began, suspicion and outright hostility fell upon international aid agencies present in the country. The offices of many agencies were sealed by police and their bank accounts frozen. International organisations also came under increasing scrutiny; Western cultural institutes in the capital Belgrade, along with McDonalds and the offices of the Helsinki Committee, were demolished or sealed. The state media levelled accusations at aid agencies of having provoked the nato bombing,208 with unhcr sin- gled out for the most criticism. Rumours spread that foreigners had planted beacons on buildings to help guide nato-launched missiles, and antennae from aid agencies’ vehicles and office roofs were removed by police on such grounds.209 The account of an imprisoned aid worker recounts that the greater the intensity of the bombing, the more beatings and abuse meted out to political prisoners.210 Hostility towards foreigners became increasingly rampant among the general population. It became increasingly difficult for foreigners to drive around Belgrade, and locals accused the drivers of one aid agency of siding with foreigners and operating with nato agents.211 At aid distribution points, beneficiaries often remarked “first you bomb us and then you throw packages at us” to aid agency staff.212 How the parties to a conflict might react to a public statement is one, deeply practical, reason why a humanitarian agency would opt for ambiguity. Accord- ing to conventional classicist wisdom, entering into the specifics of political and especially military intervention runs the risk of agencies being held responsible for the initiation, authorisation, shaping and design of the said intervention. The warring parties targeted by the military intervention may then 208 209 210 211 212 213judge aid workers as partial or complicit and deny them access.213 As merely

208 msf, “Operations in Balkans Update 12”, July 1999. 209 Morris, supra note 117, at 114; abc, “Four Corners: care on Trial”, 1999. 210 Pratt, supra note 103, at 282. 211 Ibid, at 149, 163. 212 M. Skuric-Prodanovic, “Serbia: Exclusion and its Consequences”, February 2001, http:// www.odi.org/sites/odi.org.uk/files/odi-assets/events-documents/3781.pdf (last accessed 3 March 2018), at 5. 213 Dubois, supra note 43, at 316; Torrente, supra note 134, at 23; Weissman, l’Humanitaire et la Tentation des Armes, supra note 18, at 61–2, 71–2.

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82 Bywater taking a public stance against a belligerent can come at the cost of expulsion or serious sanction,214 a call for military intervention would presumably engender a harsher reaction. As this section demonstrates, this conventional wisdom merits some reconsideration. Following unhcr’s briefing of the Security Council in September 1998, the outgoing President of the Security Council reported that unhcr “had used stark words to make clear that the international community was facing a humanitarian disaster as a result of the Serb offensive. Following that briefing, the majority of the Council members had underlined the need to take action…[and] the Council adopted Resolution 1199”.215 When un High Commissioner for Refugees Sadako Ogata met with Serb President Slobodan Milosevic in Belgrade shortly thereafter, he complained that unhcr reports and its numbers of internally displaced persons had been used to adopt Resolution 1199 and justify nato threats of military action.216 As the nato bombing drew closer, the official media and senior government officials accused unhcr of seriously exaggerating the plight of Kosovar civilians and held the agency responsible for “provoking” the war.217 Once the bombing had begun, the situation deteriorated and accusations of spying and that unhcr was instrumental in “negative reporting for the West” were levelled at its aid staff.218 unhcr also received threats made by phone. All this culminated in the head of mission being summoned to the Ministry of Foreign Affairs, accused of passing information to nato, shouted at repeatedly and reportedly issued with death threats219 before being requested to leave the country. In stark contrast, at the time of Oxfam’s call for military intervention in August 1998, Oxfam local staff in Belgrade were not subject to

214 215 216 any217 sanction or even questioning.220 218 219 220

214 F. Terry, Condemned to Repeat? The Paradox of Humanitarian Action (2002), at 21; D. For- sythe, “Naming and Shaming: The Ethics of icrc Discretion”, 34(1) Millennium 461 (2005), at 464. The most well-known example of this scenario is the swift expulsion of msf from Ethiopia in 1984 following its denunciation of the forced resettlement policies of the Ethi- opian military regime. 215 un, “Press Briefing by Security Council President”, 30 September 1998. 216 Shawcross, supra note 100, at 327–8; Morris, supra note 117, at 113. 217 Email message from the un High Commissioner for Refugees to all unhcr staff (on file with author), 31 March 1999. 218 Discussion with Eduardo Arboleda, former unhcr Deputy Representative in Serbia (email, Reading, uk, November 2014). 219 Pratt, supra note 103, at 152, 168, 178. 220 Telephone interviews with Oxfam local staff (Reading, uk, 2014–5). Given the close monitoring of the office’s operations by the state security apparatus, it is almost impossible that the call passed unnoticed.

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This state of affairs was one of an intriguing role reversal. The scenario assumed by classicists befell the agency that had not issued a public call for military intervention (unhcr) and eluded the agency actually had done so (Oxfam). An explanation for these contradictions can be found in the treatment of Oxfam at the time of its call for military intervention. The Serbian Bezbednosna Infromativna Agencija/Security Information Agency displayed much greater interest in the collection of information and its overseas transmission than in public statements, often inquiring about agencies’ situation reports with an apparent view to discover if aid organisation staff were recruited by or relaying information to foreign intelligence services.221 A call for military intervention seems not to have been viewed as a potential security threat in the same way. This preoccupation with information collection and transfer was also demonstrated by the arrest of care-Australia head of mission Steve Pratt while attempting to leave the country with a large amount of information contained in sitreps, which resulted in the charging of three care staff for espionage and a conviction for passing information to “foreign organisations” i.e. their organisation’s international and national incarnations. Their arrest, trial and conviction, in spite of the care-Australia team’s public anti-war position, clearly illustrates the lesser attention paid to aid agencies’ public positions. The authorities overestimated the individual leverage of unhcr, but correctly identified a cause and effect between its reporting and the military intervention in a way that they apparently did not vis-à-vis Oxfam. This is not to suggest that public statements were not taken into account at all. The Serb authorities directed criticism against unhcr for not condemning the air strikes.222 Sergio Vieira de Mello, leading a un needs-assessment mission to Serbia and Kosovo, spotted a poster on the door of a city hall with an image of a skull capped by a un helmet, and tried unsuccessfully to explain to the Serb authorities and civilians that the un had not authorised the war and was distinct from nato. He bemoaned “the predicament the un is in…What the Serbs are saying…is ‘the un is no better than nato. Because you didn’t stop nato from doing this, you are all the same’”.223 It is safely surmised that the treatment

221 222 223

221 Telephone interview with Tamara Tutnjevic, former Oxfam Programme Officer in Serbia (Oxford, uk, October 2014). According to Yugoslav law, “sending information to a foreign organisation” was a criminal offence although information transfer (in sitreps for example) from humanitarian field teams to head offices and to national sections of the humanitarian agency in question did not constitute such an act. 222 Email message, supra note 217. 223 S. Power, Chasing the flame: Sergio Vieira de Mello and the fight to save the world (2009), at 254–5.

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84 Bywater of the arrested care-Australia workers would have been considerably worse in the absence of their anti-war stance.224 It is tempting to read too much into these anecdotes and draw universal rules for humanitarian action. One might observe the finely-worded statement issued by Oxfam and extrapolate that calls for military intervention which ab- stain from identifying a perpetrator (much like a typical icrc public denunciation) or call for the impartial application of military force (much like a un Chapter vi peacekeeping operation) will prove less contentious to belligerents. A call for military intervention will never be considered as “impartial” by the belligerent in question and the Serbian government was free to interpret Ox- fam’s call in the way it chose to. Yet the wording of a call for military intervention matters. A less finely worded call than Oxfam’s which strong sentiment among Serb public opinion may have prompted the government to come down harshly on Oxfam. Timing is another important factor, connected to wording by the advent of global media. Oxfam’s call passed relatively unnoticed in the public realm in both Britain and Serbia; such a set of events may no longer be possible due to massively increased information flows. When it comes to measuring the impact on humanitarian space, we would do better to consider aid agencies’ public statements not based on whether they are neutral but what threat – real or perceived – they pose to belligerents. The overriding factor, even if not a universal rule, is whether belligerents view calls for military intervention as contributing to military intervention. In this light, the ultimate success of a call for military intervention is key. The nato military intervention occurred almost seven months after Oxfam’s call. Had it occurred closer to the call, or had Oxfam issued its call closer to the actual event, the reaction of the Serbian government may well have differed. In general, the government paid closer attention to public statements once the nato bombing was underway, evidenced by one of the Oxfam press releases issued during this period which resulted in a message of disapproval relayed from government ministries to local staff.225 Likewise, it was not un Secr etary-General Kofi Annan’s statement made in the summer of 1998 calling for diplomacy to be backed by the threat of force226 which most

224 225 226

224 Telephone interview with Christopher Lamb, former Australian Ambassador to Federal Republic of Yugoslavia (Oxford, uk, February 2016). For Steve Pratt’s own view on this question, see Pratt, supra note 103, at 200. 225 Telephone interview with anonymous former member of the Oxfam office in Belgrade (Reading, uk, September 2014). 226 un, supra note 88.

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Classical and Political Humanitarianisms 85 provoked the ire of the Serb government. Instead, his comment made during the second day of the nato bombing, criticising Serbia for rejecting a political settlement and appeared to equivocate on the legality of the nato military action,227 led to an angry response from the Serbian envoy to the un who lashed out the absence of criticism of nato’s “aggressive” attack.228 Larry Minear has warned of the danger that belligerents may view humanitarian organisations as message-transmitters to international political arenas, channels through which pressure for military engagement can be mobilised.229 This plays out in more ways than one. In the classic case of moral hazard, rebel groups feel emboldened and use international organisations present on the ground to mobilise pressure for military intervention and even to directly present the case for such intervention, both of which occurred in Kosovo to some degree. The term “message transmission” is ironic but just as relevant with regard to the additional factor of information-collection/intelligence-gathering. The extent to which a government actively perceives humanitarian organisations as message-transmitters, whatever the message, will depend on the ultimate success of the message transmission. It is unclear whether the legitimisation offered by msf reporting was regarded as a meaningful contributor to the political-military process or was even visible to the Serbian authorities, not least because Kosovo: Accounts of a Deportation was released once the military intervention had already begun. Drawing definitive conclusions is difficult. The apparent response to the exposing of Serb violence against health workers was to spread stories of spying and weapons trafficking.230 The authorities also objected to the surveys of Kosovo Albanians being carried out near the Serbian border.231 The authorities were capable of reacting selectively to suit their day-to-day purposes, even playing upon confusion between msf and mdm. Kouchner’s past calls for the use of military force in Bosnia-Herzegovina were raised by Serb police in a meeting with an msf Head of Mission,232 but Brauman’s call – which included recommendations for recognising Kosovo’s independence and arming the Kosovo 227 228 229 230 231 232

227 un, supra note 113. 228 Miller, supra note 114. 229 Minear, supra note 18, at 138–9. 230 See the comments of msf Belgium-France coordinator in Kosovo Tim Boucher, cited in msf, supra note 94, at 61–2. 231 msf-Belgium, “Board Meeting Minutes”, April 1999, http://speakingout.msf.org/en/ node/1248 (last accessed 3 March 2018). 232 msf Belgium-France coordinator in Kosovo Tim Boucher, cited in msf, supra note 94, at 61–2.

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86 Bywater

Liberation Army – did not lead to any visible counter-response.233 This selec- tive reaction indicates that, as we shall later see, belligerents do not necessarily constrict humanitarian space in automatic or proportional response to the public positions adopted by agencies. The public positions adopted by the various aid agencies did not appear to impact on their ability to maintain operations in Serbia or launch a mission in Kosovo. Rather, the national origin of aid agencies was a key factor as well as their status as an international organisation (i.e. icrc and the un agencies) or a non-governmental organisation. At the onset of the nato bombing campaign, local newspapers stated that organisations from “aggressor countries” would not be allowed to continue their activities. One television station said it expected for all Westerners to leave the country within 24 hours. Neither of these came about, but the rejection of expatriate visas was widespread in the duration and aftermath of the military campaign. The local employees of one agency were specifically informed by the authorities that non-aligned countries would find it easier to acquire visas than nato member states and advised to avoid emergency staff of American and British nationality. At the same time, the state media stressed the increasing quantities of humanitarian aid being sent by “friendly” countries such as Rus- sia, Ukraine, Belarus, Greece and Japan. Aside from denying access to mistrust- ed foreign elements, government policy may have reflected a wish to punish international aid agencies for the bombing.234 Visas were refused, with no official or explicit reason ever provided, to the Belgian and Swiss and even, initially, to the Greek sections of msf. msf-Greece did ultimately succeed in obtaining visas from the Serb Embassy in Greece, allegedly with the help of contacts via the Greek Orthodox Church and the Serbian Red Cross via the Greek government.235 One anecdote, which reveals the thinking within the Serb government, comes from an msf employee of Greek nationality who entered Serbia not with msf-Greece but some time later with msf-Switzerland. Upon meeting the Serbian High Commissioner for Refugees, his first comment to her was “you’re Greek, how the hell you are here with the bad msf and not the good msf?” 236 In his first interview with the international media, Milosevic drew a distinction between the icrc and unhcr and other agencies: “even now International 233 234 235 236

233 Telephone interview with anonymous former member of the msf office in Belgrade (Reading, uk, 30 December 2014). 234 The Serbian government had many reasons to oppose the presence of foreigners, including the isolation of the country, maintaining a monopoly on information and concealing ongoing crimes being committed in Kosovo. 235 msf, supra note 94, at 173, 196. 236 Telephone interview with the msf aid worker in question (Reading, uk, December 2016).

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Red Cross and unhcr can get back, I cannot tell you for every single humanitarian organisation because some so-called humanitarian organisations were organised to support terrorism or to support separation movements….We believe that International Red Cross and unhcr can cover all those needs if they want to help the refugees and that is something that is never under any question, they can come whenever they want.”237 The un was permitted to conduct a needs assessment mission in both Serbia and Kosovo and the icrc, following a personal intervention by its President, re-entered Kosovo in the final weeks of the war. The treatment of foreign journalists by the Serbian government and authorities confirms the patterns of belligerent behaviour outlined. After the bombing commenced, all registered foreign journalists were ordered out of the country on the grounds of preventing the dissemination of information that could be used by nato for intelligence purposes and, as a government edict declared, because they “by their reporting…strengthened the aggressive acts of nato forces aimed at violent destruction of…the territorial integrity of Serbia and Yugoslavia”. A Canadian journalist was initially refused the right to stay in a hotel in Kosovo due to his home country having broken off diplomatic relations with Serbia. Another journalist found that his past work in publicising violations against the Serb minority in Croatia helped persuade a police sergeant to allow him to cross the Serbian border.238

3.2 Jus ad Bellum A core premise of classical humanitarianism is that any foray into jus ad bellum will undermine credibility among belligerents and civilian populations and impact adversely on humanitarian space as a result. For this reason, voic- ing perspectives on the justness or unjustness of war stands in clear violation of the classical school of thought.

Modern humanitarian action developed out of armed conflicts…by asking, “who needs help because of this war?” instead of “who is right in this war?” These origins are not recalled as a dogma to condemn some heresy, but to stress the continued importance of this position if aid is to be effective.

To ask the military to respect the right of humanitarian organisations to deliver aid to non-combatants while denying its right to fight wars would 237 238

237 khou-tv, “Slobodan Milosevic interviewed by Ron Hatchett”, 19 April 1999, https:// www.c-span.org/video/?122772-1/yugoslav-president-interview (last accessed 3 March 2018). 238 S. Taylor, inat: Images of Serbia and the Kosovo Conflict (2000), at 34, 48; P. Watson, Where War Lives (2007), at 208–9, 213.

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88 Bywater

be viewed as evidence of hostility. To refrain from judging the combatants’ motives and goals…is the price humanitarian organisations must pay if they are to gain access to the battlefields and assist all the victims, to whatever side they belong.

Nous prononcer pour ou contre la guerre [serait] au risque de perdre l’impartialité qui nous permet de venir en aide aux civils, sans discrimination et de façon désintéressée.

Pronouncement with regard to the parties’ responsibility for the out- break of conflict would obviously be detrimental to the active role it is required to play in the conflict in aid of all the conflict victims.

The neutral and impartial nature of humanitarian action is undermined when an organisation…opposes a war because it will generate victims. These actions serve to compromise the credibility of humanitarian organisations in the eyes of belligerents and civilians.239

Political humanitarians contend that “if one believes that belligerents listen to humanitarians and constrict humanitarian space as a result, it is at least possible that they are influenced by humanitarian perspectives on the [ justness] and [unjustness] of war”.240 They are more ready to believe that engagement on issues of jus ad bellum can have a positive impact. Despite the growing body of literature on humanitarianism and local perceptions, there is nothing in the way of studies that scrutinise the competing claims made by classical and political humanitarians on the issue of jus ad bellum. This section examines whether and in what ways the some of the parties to the conflicts in Afghanistan and Iraq have been influenced by perspectives on justness and unjustness, and how this might impact on the actors advanc- ing such perspectives and humanitarian space overall.

3.2.1 Perspectives of Unjustness/Opposing War Almost all un staff members felt opposed the us-led invasion, especially those in the un Secretariat and Secretary-General Kofi Annan: “we all know the military action was taken in defiance of the Council’s position…Lots of people in this 239 240

239 Brauman and Salignon, supra note 177, at 272–3; Bradol, supra note 22, at 13–4; Salignon, supra note 177, at 2; Y. Sandoz, “‘Droit’ or ‘devoir d’ingérence’ and the right to assistance: the issues involved”, 32(288) irrc 215 (1992), at 222; Torrente, supra note 134, at 12. 240 O’Brien, supra note 31, at 34.

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Classical and Political Humanitarianisms 89 building including myself, were against the war…I never supported the war… I didn’t think it was wise to go to war”.241 But in the run-up to the war, Annan chose not to denounce the impending invasion in unequivocal terms, confiding to his colleagues “do we really think this war can be avoided or delayed if I speak out?” Instead of adopting fiery oratory, he emphasised procedure and the requirement that any decision for war rested with the un Security Council, going only so far as to state that otherwise military action “would not be in conformity with the Charter”.242 When pressed by a persistent journalist more than a year after the war, only then did Annan classify the war as “illegal”.243 As he writes in his autobiography, “I had up to that point always sought to retain my ability to engage both sides of the deep global divide by avoiding an outright condemnation of the illegality of the war”.244 un High Commissioner for Hu- man Rights Sergio Vieira de Mello, who later became the Secretary-General’s Special Representative in Iraq, also felt opposed to the war.245 He did not speak out either and refused to join in rallying the heads of un agencies to jointly oppose the war, telling those closest to him that “nobody is going to listen to me anyway, and it will interfere with my ability to help the Iraqis down the road”.246 The careful reader will see from these statements that Annan and Vieira de Mello alike were relying on deeply classicist logic. At first glance, this type of rationale appears well-suited. The initiators of the invasion of Iraq not take kindly to publicly-voiced criticism and at times sought retaliation. When Annan explicitly commented that the Iraq War was “illegal”, the reaction from Washington and London was swift and furious, who launched a barrage of attacks against Annan and the un.247 us officials assigned to Iraq showed themselves mistrustful of the un team

241 242 243 244 245 246 247

241 Power, supra note 223, at 406, 500; S. Meisler, Kofi Annan: A Man of Peace in a World of War (2007), at 243, 257. 242 Ibid, at 235, 243, 250; Power, supra note 223, at 368. 243 bbc News, “Excerpts: Annan interview”, 16 September 2004. 244 K. Annan, Interventions: A Life in War and Peace (2012), at 357. 245 Eager to see Saddam Hussein’s regime replaced, Vieira de Mello was tempted to support the war. In an op-ed, he questioned how the Security Council could be dating weapons of mass destruction in Iraq without considering Saddam Hussein’s mass destruction of civilians. Despite having become a supporter of military intervention to protect civilians over the years, he ultimately concluded that the invasion would endanger the Iraqi people well as the un, confiding to the un Secretary-General’s chief of staff that he “didn’t believe in this war”. Power, supra note 223, at 365–7, 386. 246 Ibid, at 366–7, 372. 247 Meisler, supra note 241, at 275; Annan, supra note 244, at 357.

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90 Bywater assigned to Iraq. As Vieira de Mello’s biographer recounts, “[they] had not for- gotten the un Security Council’s refusal to support the war”.248 Senior figures in the us administration objected to the appointment of Lakhdar Brahimi as un Special Representative in Iraq, on account of his strong opposition to the war. Their preferred candidate, with some enthusiasm it should be said, was Sergio Vieira de Mello,249 who did not oppose the war publicly and, in his meetings with British and American officials, never focused on issues of unjustness.250 With a view to avoid undermining the case for war, the us military imposed tight controls on information in the run-up to hostilities so as to forestall open debates on the (un)justness of the war, which served to limit effective inter- agency planning.251 ngos receiving usaid funding were instructed to “clear any and all publicity or media-related matters tied to their funded-activities through usaid first” and pressured to agree to a clause that read “contact with the news media…shall be notified to and coordinated with” press officers, which a number of ngos refused.252 Prior to the war, American-based ngos met with us government officials to clarify the extent to which ngos could operate freely inside Iraq, during which funds were offered that were made con- ditional on forming a clear chain of command between Coalition authorities and ngos.253 The us army imposed security conditions on ngo movements. Meanwhile, the Humanitarian Operations Centre (hoc) established by coalition military forces claimed the authority to grant and deny entry into Iraq,254 although the fact that it never made an organised pushback against anti-war humanitarian ngos suggests that their strident voices did not represent a suf-

248 249 ficient250 threat to the Coalition’s activities.255 The strained relations between 251 252 253 254 255

248 S. Power, “The Envoy: The un’s doomed mission to Iraq”, The New Yorker, 7 January 2008. 249 Ibid; Meisler, supra note 241, at 268–9; Power, supra note 223, at 385. 250 Power, supra note 223, at 403–4. 251 S. Gordon, “Military-Humanitarian Relationships and the Invasion of Iraq”, J. of Hum. Ass. (2004). 252 Centre for Effective Government, “An Attack on Nonprofit Speech: Death by a Thousand Cuts (Full Report)”, date unknown, http://www.foreffectivegov.org/node/1507#en18 (last accessed 3 March 2018); R. Read, “Aid Agencies Reject Money Due to Strings”, Oregonian, 6 June 2003, https://www.globalpolicy.org/component/content/article/176/31478.html (last accessed 3 March 2018). 253 L. Sunga, “Dilemmas facing ngos in coalition-occupied Iraq”, in D. Bell and J.-M. Coicaud (eds.), Ethics in Action: The Ethical Challenges of International Human Rights Nongovern- mental Organizations 99 (2006), at 105. 254 Hansen, supra note 186, at 7; K. Blanchet and B. Martin (eds.), Many Reasons to Intervene: French and British Approaches to Humanitarian Action (2011), at 71. 255 Discussion with Greg Hansen, former aid worker and independent consultant (Oxford, uk, February 2016).

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Coalition authorities and ngos, owing partly to the pressure not to publicly criticise us government policy, further impeded cooperation and coordination with the Occupying Power upon whom ngos were reliant for security and lo- gistical support. Therefore, in very practical terms, perspectives of unjustness complicated the maintenance of humanitarian space. In an example which reminds us that perspectives of the unjustness of war will vary from actor to actor, the local partners of Christian Aid in the northern Kurdish region of Iraq disagreed with to the agency’s anti-war stance.256 We now turn to the belligerent more disposed to drastically restricting humanitarian space: the Iraqi government. The Iraqi government had long viewed international aid as a component of the international community’s strategy to weaken and demean it. Prior to the war, it helped promulgate widespread suspicion of foreigners and international aid workers were often regarded as spies. The war had only a slight effect on the government’s “strictures and sen- sitivities” and agencies remained highly restricted in their movements. Many foreigners were expelled under the pretext of illegally using satellite phones.257 Two msf workers were detained by the security services for a lengthy period, owing to their use of satellite phones.258 And yet, as the war grew closer, the government multiplied initiatives in the hope of either averting or prepar- ing for conflict, inviting a number of Western journalists, legislators, a former weapons inspector and anti-war groups.259 An international medical agency negotiating with the Iraqi authorities on a potential intervention in public hospitals found that the authorities’ cooperation varied in keeping with the international pressure being placed on the government.260 In the decade preceding the war, the government frequently requested that international organisations operating in Iraq condemn the un-authorised embargo and sanctions. The government clearly placed some value on the effect – albeit not the intrinsic value – of these organisations’ public positions. In the

256 257 258 259 260

256 Telephone interview with Alison Kelly, Christian Aid Head of Policy (Oxford, uk, March 2015). 257 Hansen, supra note 186, at 27; G. Hansen, “Briefing Paper 6: Perceptions of Humanitarian- ism in Iraq”, ngo Coordination Committee in Iraq, January 2008, at 3; de Torrente, supra note 134, at 13–5; Salignon, supra note 177, at 6. 258 msf, “Freed aid workers tell of prison torture”, 13 April 2003, http://www.msf.org/en/ article/freed-aid-workers-tell-prison-torture (last accessed 3 March 2018). 259 icg, “Iraq Briefing: Voices from the Iraqi Street”, December 2002, at 2. The government’s rationale for accepting international organisations was most likely that, in the event of war, they could serve as witnesses to civilian casualties or as human shields or hostages. 260 F. Calas, “Présentation du travail de préparation opérationnelle”, Minutes of meeting of msf-France Board of Directors, 28 February 2003.

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92 Bywater run-up to the conflict, anti-war groups such as the “human shields movement” were welcomed into the country. It is therefore quite plausible that the anti- war humanitarian agencies present in Iraq in the run-up to the conflict could have actively utilised their opposition to the war to facilitate preferential treatment from the Iraqi government through a form of public solidarity. None of the agencies or their local partners attempted to do so, at least not openly. In the course of the author’s enquiries, no evidence emerged to suggest that these agencies or local partners succeeded in influencing the government positively, even inadvertently; the unanimous opinion of all agency staff was that their respective agency had not accrued any preferential treatment.261 Notably, the Iraqi officials responsible for detaining the msf workers did not enquire into the agency’s “neither for, nor against” position on the war.262 The Iraqi population found it difficult to distinguish between the roles and activities of the various international and local actors operating in the country but, when able to do so, ascribed impure motives to aid workers and agencies less on the basis of their national origin but on their perceived affiliation with the “occupiers”.263 Local residents of areas affected by intense military activity held aid agencies and foreign and local aid workers in much lower regard – and vice versa – reaching deep suspicion in the worst-afflicted areas where residents regarded them as “spies”. In the areas to the north and east of Bagh- dad, some residents mentioned being “insulted” by the appearance of agencies working alongside “those who occupy us” and seeking to “put a nice face on the occupation”.264 In one particular incident in a city north of Baghdad, the head of mission of one agency was accosted by a member of the public who asked “what are you doing here? One minute you are bombing, the next you are trying to save lives”.265 In at least one select case, a public position served to remedy

261 262 263 264 265

261 The anti-war agencies present in Iraq were admittedly few, mostly working with a combination of local partners and expatriates. They are as follows: Premiere Urgence, Mennonite Central Committee, Church World Service, Stop Hunger Now and Venture In- ternational. Telephone interviews with former staff members from each of these organisations (Reading, uk, January to April 2015). 262 Discussion with François Calas, one of the msf workers detained by the Iraqi authorities (email, Reading, uk, October 2015). 263 Hansen, supra note 186, at 28, 44. 264 Hansen, Perceptions of Humanitarianism, supra note 257, at 3; G. Hansen, “The ethos- practice gap: perceptions of humanitarianism in Iraq”, 90(869) irrc 119 (2008), at 12. 265 M. Mcharg, “msf’s Medical Assistance and the New Generation of Military Operations”, in K. Coppock (ed.), msf Medical Assistance and the New Generation of Military Operations 18 (2010), at 19.

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Classical and Political Humanitarianisms 93 such military-humanitarian conflation. mcc found that its opposition to the war helped gained the trust of some Baghdad-based Iraqi civilians.266 Given the multiplicity of armed actors that came to comprise the insurgency against the Western military presence, it is difficult to ascertain how humanitarian perspectives on the unjustness of the Iraqi War would appeal to the various groups. Taking into account the perspective of the belligerents, one would presume an anti-war position to have a positive perception among the Sunni nationalist, former Baathist regime elements and foreign jihadists who made up the insurgency. The logic of the insurgency was one of destabilisation: to create a sense of insecurity and disrupt vital services so as to intensify anti-Western feelings among Iraqis and, at the same time, influence Western public opinion over the value of occupying Iraq. The choice of targets appeared largely indiscriminate. Aid workers from a broad range of international organisations were afflicted by murders, kidnapping and other violent incidents, as were journalists and foreign diplomats. Incidents of violent targeting affected, among others, the wfp, United Nations Development Programme and the International Office for Migration. Even the arch-classicist icrc was shown not to be inviolable, when its Baghdad office was subjected to a car bomb attack.267 It is difficult to ascertain the extent to which insurgents made distinctions, either on the basis of nationality or on organisational position, between the foreigners they targeted. From the viewpoint of the international agencies which publicly opposed the Iraq War, none felt they had inadvertently facilitated any protection or immunity from the insurgent groups in Iraq;268 nor did they attempt to do so either. French ngos felt that their originating country’s opposition to the war provided them with more protection than ngos originating from countries occupying Iraq.269 There is clearly some truth to this. Militant group Islamic Army in Iraq, responsible for kidnapping two French journalists in 2004, set a

266 267 268 269

266 Telephone interview with Ronald Mathies, mcc Executive Director Emeritus (Reading, uk, February 2015). 267 icrc, “Iraq: Two icrc employees killed in Baghdad bomb attack”, 10 October 2003; hrw, “A Face and a Name: Civilian Victims of Insurgent Groups in Iraq”, October 2005, at 74. 268 This was the unanimous opinion of the same representatives from the anti-war humanitarian agencies. 269 C. Rodriguez, “Negotiating the legitimacy of humanitarian action in Iraq”, in L. Minear and H. Smith (eds.), Humanitarian Diplomacy: practitioners and their craft 108 (2007), at 125.

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94 Bywater condition for their release that the French government reaffirm its position on the illegality of the Iraq War. After their release, the group clarified that “they were [ freed]…in response to appeals…and in appreciation of the French government’s stand on the Iraq issue”.270 One of the journalists, conversing with his captors, enquired into the relevance of his nationality: “I [asked] them, if I was an American or British journalist, [would] you…treat us like you have done until now? And they [said] no. The journalists…represent your country. So you are French, even if you are [a] journalist, you are representing your country. If you’re American, British, you’re representing your country. It means Blair and Bush[‘s] policy and so you are occupying the country”.271 A particularly tragic example is that of care worker Margaret Hassan, of dual British-Irish nationality, whose much-publicised criticism of the war272 would, one assumes, have made her an unlikely target for insurgents. She was kidnapped and eventually executed by an unidentified militant group that used her to pressure the British government to withdraw troops from Iraq. In one of the videos, she was coerced into claiming that she gave information to American officers and that “we [care] worked with the occupation forces”.273 To this day, the militant group remains unidentified and the exact motives of her kidnappers unclear. Such executions of hostages in Iraq were normally intended to recruit adherents and mediate support from sympathisers inter- nationally,274 yet this militant group seemed uninterested in group publicity. It seems almost futile to ask whether her anti-war stance had any bearing on their decision-making. Likewise, an appeal by the Irish government for her release, emphasising her Irish citizenship and hoping to draw upon Ireland’s non-participation in the Iraq War, was to no avail.275 One Fallujah-based imam with ties to the insurgency, justified the killing in

270 271 272 273retaliation for the summary execution by an American soldier of a wounded 274 275

270 bbc, “Georges Malbrunot”, 29 June 2005; bbc, “French journalists freed in Iraq”, 21 December 2004. 271 Democracy Now!, “French Reporter Kidnapped by Iraqi Resistance For 4 Months Says Bush Brought Al Qaeda to Iraq”, 8 June 2005. 272 Burke, supra note 176. 273 D. Stringer, “Weeping hostage begs Blair not to move troops”, The Independent, 21 October 2004; R. Fisk, “The tragic last moments of Margaret Hassan”, The Independent, 6 August 2008. 274 A. Houen, “Martyrdom and Hostage Executions in the Iraq War: The Cases of Kenneth Bigley and Margaret Hassan”, in A. Houen and D. James (eds.), Martyrdom and Terrorism, Pre-modern to Contemporary Perspectives 252 (2014), at 253, 269. 275 The Guardian, “Kidnappers threaten to hand aid worker over to Zarqawi”, 3 November 2004.

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Iraqi taking refuge in a mosque. When reminded by his journalist interviewer of Margaret’s opposition to the war, he responded that “I am not in the group [that executed her] to be able to judge. I didn’t express an opinion”. He also made threats of violent massacre against the Vatican and, when reminded that the Vatican had also opposed the war, stated that “that’s not true. It was camouflage. If he was against the war, why didn’t he condemn the attack on mosques? For our part, we condemned the attacks against churches”.276 Other elements of the insurgency called publicly for Margaret’s release, although they did not refer to her anti-war stance. A message posted on a website used for publications by militant groups signed by “The Al-Qaeda Group of Jihad in the Land of the Two Rivers” led by Jordanian militant Abu Musab al-Zarqawi read: “we call on those responsible for her captivity unless she is proven to be collaborator…We never kill people who we are not supported to kill. We only kill those who fight us and kill our people”.277 The commander of one group of insurgents in Fallujah condemned the kidnapping and called for her release, telling reporters “this woman works for a humanitarian organisation. She should not have been kidnapped…She was a humanitarian. The resistance did not kidnap her”.278

3.2.2 Perspectives of Justness/Supporting War A reverse analysis is now in order. If perspectives of unjustness of war can positively influence a belligerent on whom the war is waged, then perspectives of justness will no doubt negatively influence the same belligerent with attendant consequences for humanitarian space. Very few international actors, let alone humanitarian ones, operating in post-war Iraq openly supported the Iraq War. But with the passing of Security Council Resolution 1483, the United Nations was widely seen as having indirectly endorsed the war, or at least providing some retrospective legitimacy. The impact on local perceptions cannot be underestimated. Vieira de Mello reported that Iraqis complained to him that the resolution legitimised the occupation.279 The resolution, and the broader positioning of the un, emerged as a factor in the Canal Hotel bombing targeting the United Nations Assistance Mission in Iraq which killed several un officials including Sergio Vieira de Mello. 276 277 278 279

276 J.-P. Perrin, “La résistance va tuer tout le monde”, Libération, 18 November 2004. 277 bbc News, “‘Zarqawi’ call to release Hassan”, 6 November 2004; abc News, “Statement calls for Hassan release”, 5 November 2004. 278 J. Sturcke, “Rebel militias deny holding British aid worker Hassan”, The Independent, 24 October 2004. 279 irin, “Interview with un Special Representative Sergio Vieira de Mello”, 14 July 2003.

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96 Bywater

Responsibility for the attack was claimed by al-Qaeda in Iraq. In reference to Resolution 1483, the instigator al-Zarqawi declared that “we destroyed the un building…the friends of the oppressors and aggressors. The un has recognized the Americans as the masters of Iraq”.280 The suicide bomber, an Egyptian militant known as Abu Farida al-Masri, stated in a video recording that the un “wanted to cut Iraq into pieces”.281 The bomb maker Abu Omar al-Kurdi was later captured and interrogated by un investigators, where he provided a rare insight into the rationale of those who target international actors. Al-Kurdi explained how, in his view, “the resolutions of the un were not just…A lot of Islamic countries have been through injustices and various occupations and foreign troops using the un resolutions…against Muslim people under the name of the un. Maybe the un is not the one issuing these resolutions but there are superpowers using the un. Crimes are committed in Islamic countries and so we wanted to send the message to this organisation”. He also faulted the un for not having prevented the war: “the compromise can be before the fight but not after the fight and if the un wanted to rescue the people, it should have intervened before the catastrophe took place”.282 A statement issued by another Iraqi militant group claiming responsibility for the attack on the un also faulted the un for the same reason, asking “where was the un when the us and Britain waged war on Iraq?”283 It also emerged that Sergio Vieira de Mello was not the collateral damage of the attack but the intended target. al-Kurdi also recounted how al-Zarqawi had explained to the designated bomber that Al-Qaeda’s decision-making council had ordered the strike because a senior official was housed there who, as al- Kurdi’s recalled, was “the person behind the separation of East Timor from Indo- nesia and who was also the reason for the division of Bosnia and Herzegovina”. He continued, “the purpose of the attack was to send the message and [it was] not like a military operation that is a victorious or failing operation…If Sergio had not died then half of the message would have been sent”.284 The bomber, an Egyptian militant known as Abu Farida al-Masri, stated in a video recording that “God will give me the head of a Christian” and that they targeted Sergio Vieira de Mello specifically because he “had been used like a surgeon’s scalpel to cut East Timor from Indonesia and cut up Yugoslavia”.285 In the months pre-

280 ceding281 the attack, bin Laden had publicly offered to reward with ten thousand 282 283 284 285

280 pbs, “Transcript: Frontline – The Insurgency”, 21 February 1999. 281 J. Steele, “De Mello killer revealed”, The Guardian, 10 July 2004. 282 Cited in Power, supra note 223, at 515. 283 hrw, supra note 267, at 75. 284 Power, supra note 223, at 515. 285 Steele, supra note 281.

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Classical and Political Humanitarianisms 97 grams of gold to “whoever kills Kofi Annan or the president of the un mission in Iraq or its representatives”.286 An al-Qaeda communiqué released afterwards described Vieira de Mello as “the personal representative of America’s criminal slave, Kofi Annan, the diseased Sergio de Mello, criminal Bush’s friend…who tried to embellish the image of America, the crusaders and the Jews in Lebanon and Kosovo, and now in Iraq. He is America’s first man where he was nominated by Bush to be in charge of the un…and he is the crusader that extracted a part of the Islamic land [East Timor]”.287 Much of this rhetoric may simply have been ex post facto justifications for violence as well as a convenient means to help elevate the attackers’ own beliefs and attract future adherents to their cause. Even classicist humanitarians such as de Torrente acknowledged that “the attack on the un compound in Baghdad and other serious security incidents seem[ed] part of a strategy by extremists to sharpen divisions and intimidate anyone not espousing their cause”.288 But the attack on the un did not take place in a political vacuum. The un Security Council is the main arbiter on issues of international military intervention as well as occupation and recognition of territorial independence. As such, its positioning on a range of conflicts has drawn the ire of al-Qaeda: “The un is an organisation of unbelief…and is a tool used to implement the Zionist/Crusader resolutions, including the declarations of war against us and the division and occupation of our lands”.289 The narrative adopted by al-Qaeda has depicted Western-led military interventions as manifestations of a Christian colonialist and Zionist crusade. In particular, the international diplomatic and/or military pressure placed upon Sudan and Indonesia to grant independence, respectively, to South Sudan and East Timor, or the partition of Bosnia-Herzegovina following us-led military intervention, all fuel theories of a Western attempt to dismember Muslim-majority countries and create subservient Christian statelets.290 Senior al-Qaeda figures have referred to the partition of Mandatory Palestine and the creation of Israel: “who issued the Partition Resolution on Palestine in 1947 and surrendered the land of Muslims to the Jews? It was the United Nations in its resolution in 1947…They gave Palestine as a gift to the Jews so they can rape the land and humiliate our people…All the in- ternational286 resolutions which bit chunks off [Palestine] and allowed the pr esence 287 288 289 290

286 B. Berner, The World According to Al-Qaeda (2006), at 25. 287 Cited in C. Hitchens, “Why ask why?”, Slate, 3 October 2005. 288 Torrente, supra note 134, at 22. 289 Bin Laden, cited in L. Mansfield, Al-Qaeda 2006 Yearbook: The 2006 Messages from Al Qaeda Leadership (2007), at 123–4. 290 B. Lia, Globalisation and the Future of Terrorism: Patterns and Predictions (2005), at 82.

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98 Bywater of Israel on it – from the partition resolution to Resolution 1701 – are null and void, non-binding resolutions. It is our duty to…cast off these resolutions and wage war on them”.291 In direct contrast to its positioning vis-à-vis Iraq, the un Security Council has never approved Israeli control of the Palestinian territories and has even called for the withdrawal of Israeli forces. Although terrorism is a weapon of resistance to occupation in both contexts, the un and international humanitarian agencies have suffered little in the way of violent attacks from Palestin- ian militants.292 This relative security merits closer consideration. Why have international humanitarian actors found a way to operate in occupied Pales- tine but could not in occupied Iraq? An essential precondition for international humanitarian actors to operate effectively in situations of occupation is the perception that they act independently of the occupying power, particularly where this power is the object of widespread hostility among the local population.293 Where a perception of autonomy is lacking, humanitarian actors risk generating violent opposition. During the trial of al-Kurdi, he added to his earlier statements that “my country has been occupied by foreign troops without any international legitimacy… Where the countries are occupied, it is legitimate to resist the occupier…The ones who cooperate with the occupier should receive the same treatment that the occupier receives”.294 But if the un was attacked for legitimising the occupation, why should the occupation’s lack of “international legitimacy” have made the un a target? In the event that the un authorised the war and provided such legitimacy, what then would be the implications for its vulnerability? Some humility is in order; we still know and understand little into the thinking of the instigators of such attacks. We now turn to Afghanistan where, following the 9/11 terrorist attacks, a range of humanitarian actors voiced their perspectives of the justness of combatting terrorism and called for military intervention in the country. What might have been the perception of the Afghan parties to the conflict and how did they react? 291 292 293 294

291 bbc, “Bin Laden rails against Crusaders and un”, 3 November 2001; pbs, “Transcript: Frontline – The Insurgency”, 21 February 1999; A. al-Zawahiri, “Realities of the Conflict between Islam and Unbelief”, 29 December 2006. https://scholarship.tricolib.brynmawr .edu/bitstream/handle/10066/5018/zaw20061229.pdf?sequence=3 (last accessed 15 May 2018). 292 Suhrke and Klusmeyer, supra note 185, at 275. 293 Brauman and Salignon, supra note 177, at 284–5. 294 Power, supra note 223, at 515–6.

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Prior to the War in Afghanistan, an indigenous Afghan tradition complemented by an international jihadist vision made recurrent attempts to portray Western humanitarian agencies as tools of infidel imperialism and engineer their departure.295 Viewed as political auxiliaries to Western power, relations between agencies and the “international community” tended to deteriorate in synergy. When the American government fired cruise missiles on a training camp allegedly housing bin Laden, for example, assailants shot two un officials the following day.296 Long ambivalent or downright suspicious of Westerners, the onset of the us-led War in Afghanistan likely pushed the Taliban leadership to assume that aid workers were spies. Possibly acting on the guidance of their al-Qaeda guests, the Taliban declared themselves unable to guarantee the security of expatriate aid staff and ordered them out of the country.297 Humanitarian agencies had their communications restricted or shut down altogether, and food supplies and other equipment looted from their offices by armed groups associated with the Taliban.298 Afghan un staff were beaten by Taliban loyalists in several cities and their vehicles stolen. Attacks on the offices of unhcr, unicef and some ngos by Taliban fighters in Afghanistan and pro-Taliban/anti-Western mobs in Afghanistan and in neighbouring Paki- stan followed suit.299 Writing in the aftermath of the War in Afghanistan, aid worker Nicholas Stockton commented that “‘to not engage in controversies’ is the cornerstone of neutrality…Under international humanitarian law the Taliban had the right to

determine295 what constituted ‘controversy’”.300 One can only ponder over which 296 297 298 299 300

295 M. Semple, “Rhetoric, Ideology and Organizational Structure of the Taliban Movement”, usip, January 2015. 296 F. Calas and P. Salignon, “From Militant Monks to Crusaders”, in F. Weissman (ed.), In the Shadow of Just Wars: Violence, Politics and Humanitarian Action 66 (2004), at 76, 82; Power, supra note 223, at 232. 297 A. Rashid, The us and the Failure of Nation-Building in Pakistan, Afghanistan and Central Asia (2008), at 172. 298 ocha, supra note 150, at 12; P. Hoffman and T. Weiss, Sword and Salve: Confronting the New Wars and Humanitarian Crises (2006), at 154; K. Clark, “The Struggle for Hearts and Minds: The Military, Aid, and the Media”, in A. Donini et al. (eds.), Nation-Building Unravelled: Aid, Peace and Justice in Afghanistan 83 (2004), at 91; E. Becker and E. Schmitt, “A Nation Challenged: The Bombing; us Planes Bomb a Red Cross Site”, New York Times, 27 October 2001. 299 W. Shawcross, “The un’s poisoned chalice”, Evening Standard, 11 October 2001; W. Shaw- cross, “Killing with kindness in Afghanistan”, Financial Times, 9 October 2001; Rieff, supra note 5, at 250–1. 300 Stockton, supra note 145, at 267.

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100 Bywater public statements issued by the humanitarian community represented the biggest controversy. By asserting the justness of the combatting terrorism, the entire community effectively positioned itself in favour of the War in Afghanistan, whose objective soon became deposing the Taliban regime. As for the requests for a peacekeeping force and isaf expansion, none of these calls for military intervention were directly aimed at driving the Taliban from power. But they all shared the goal of securing a post-Taliban peace. If “to support [a] war entails a commitment to rebuild that order on new foundations”,301 committing to the new order veers perilously close to supporting the overthrow of the previous order. In the context of Afghanistan, state-building formed part of a larger plan to promote one type of regime over another.302 Establishing a monopoly on the use of force has always been a central ingredient of state-building. But in a conflict over the legitimacy of ruling the country, formally accepting international military forces or the central Afghan government as the legitimate provider of security represents an implicit denial of authority to the armed opposition. As the conflict has resurged, the isaf mission has undergone a transformation from a peacekeeping role to one of counter-insurgency. The public petition to expand isaf also contained explicit references to “terrorist groups”, “al-Qaeda and Taliban fugitives” and “elements hostile to the Afghan government” as “continuing challenges to the authority of the central government”.303 It remains unclear whether the Taliban leadership even spotted the public statements on the justness of combatting terrorism or the initial calls for a foreign intervention force. The release of most of these overlapped with the collapse of the Taliban’s powerbase. By the time agencies were calling for the foreign intervention force, the Taliban had abandoned the capital and fled to their stronghold of Kandahar. Ministerial structures whose role was to track relevant parts of the public debate, such as the Foreign Ministry, Ministry of Culture and the State-run news agency, had all disintegrated.304 National

301 302 303 304

301 M. Ignatieff, “Friends Disunited”, The Guardian, 24 March 2003. 302 P. O’Brien, “Old Woods, New Paths and Diverging Choices”, in A. Donini et al. (eds.), Nation-Building Unravelled? Aid, Peace and Justice in Afghanistan 187 (2004), at 193. 303 icva, supra note 133. 304 No ministerial structures existed in Kandahar, although a few people in Taliban leader Mullah Omar’s office were responsible for monitoring the international media, such as the chief of staff and press spokesman. The Taliban government had also invested significantly in mobile phones which gave them some international connectivity. Discus- sion with Michael Semple, Afghanistan expert (email, Reading, uk, November 2015).

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Classical and Political Humanitarianisms 101 staff from Oxfam and Mercy Corps were active in Kandahar but no security incidents linked to agency public statements were officially recorded.305 The full resurgence of the Taliban and the unification of its leadership structure occurred in the aftermath of the public calls to expand isaf.306 Either at the time or ex post facto, the role of humanitarians in calling for this military expansion was not overlooked. Quite remarkably, a humanitarian negotiator recounts how a senior Taliban representative, while defending the practice of claiming responsibility for attacks on aid workers, commented that “aid organisations called for nato to intervene”.307 One of the few figures in the aid community to speak out against isaf expansion at the time was caritas head Martien van Asseldonk, who gave his opinion to one news agency: “minimising outside interference is much more healthy”.308 Oxfam’s chief executive from this period Barbara Stocking has since expressed regret, conceding that “in retrospect, I don’t think that I thought this through enough…A war will still going on with the Taliban…We were effectively taking sides”.309 msf most consistently and most vocally criticised the aid sector’s stance: “by making such a call, a majority of the international aid system aligned its efforts with the West’s security agenda…This solidified the perception that the entire aid system was supporting the Afghan government and international coalition forces in their effort to defeat the insurgency…to the point where… [aid workers] were becoming viewed as legitimate targets”.310 Many commentators have pointed to a shift in the perception of interna-

tional305 humanitarian agencies among Afghan armed opposition groups. Aid 306 307 308 309 310

305 Telephone interviews with George Devendorf, former Mercy Corps Director of Global Emergency Operations (Reading, uk, October 2014), Mark Bartolini, former irc Vice- President and Director for the Middle East and Asia (Oxford, uk, August 2014) and John Fairhurst, former Oxfam Country Director for Afghanistan (Reading, uk, January 2015). 306 The Taliban was re-organised into a ten-man leadership council, the Rahbari/Quetta Shura, and publicly announced mid-2003. The following months were spent attempting to bring disparate groups of Taliban under its control, and the Quetta Shura only became operational in 2004. Discussion with Antonio Giustozzi, Afghanistan expert (email, Read- ing, uk, October 2014). 307 Discussion with the humanitarian negotiator in question (email, Reading, uk, February 2015). 308 irin, “Renewed calls for isaf to be expanded as mandate is extended”, 28 November 2002. 309 P. Gill, Today We Drop Bombs, Tomorrow We Build Bridges: How Foreign Aid Became A Ca- sualty of War (2016), at 240. 310 M. Hofman and S. Delauney, “Afghanistan: A Return to Humanitarian Action”, msf, 18 March 2010; msf, “msf suspends Activities in Zhare Dasht Camp, Afghanistan”, 3 Decem- ber 2003.

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102 Bywater worker Fiona Terry and others have argued that the War on Terror provoked a groundswell of opposition to the Western world which “transformed the image of mainstream aid organisations…from that of benign infidels to agents of Western imperialism spreading values…contrary to those of conservative strains of Islam”.311 Likewise, Antonio Donini has maintained that the international aid community is perceived in much of the Islamic world as having sided with Western-backed belligerents in Afghanistan and Iraq and, by result, in the broader War on Terror: “aid agencies are seen as embedded in an externally- driven nation-building process that is being attacked by insurgents…The Taliban and other insurgents tar the un and ngos with the occupiers’ brush”.312 A field study by the Overseas Development Institute (odi) with Taliban cadres unearthed a sense that agencies were aligned with international military forces and partial to one side in the conflict, resulting in “deep and prevalent hostility” and even support for targeting them in some cases.313 During one year, the Afghan ngo Security Office (anso) noted a rise in “political targeting”: insurgents groups launched attacks against aid agencies and labelled them as “supporters of the international military or government” without any attempt to prove the allegations or understand agencies’ objectives and activities.314 In one particularly notorious incident, an icrc water engineer was captured and executed on the orders of a Taliban commander.315 Another study of violence against aid workers concluded “direct or wholesale targeting” to be taking place in Afghanistan and other conflict zones where “Western-based

311 312 313 314 315

311 F. Terry, “The icrc in Afghanistan: reasserting the neutrality of humanitarian action”, 93(881) irrc 173 (2011), at 176. doi: 10.1017/S1816383111000026; E. Rubin, “In the Land of the Taliban”, New York Times, 22 October 2006; H. Slim, “‘How We Look: Hostile Perceptions of Humanitarian Action”, paper presented at the Conference on Humanitarian Coordina- tion, Wilton Park Montreux, 21 April 2004; S. Ladbury, “Why do men join the Taliban and Hizb-i Islami? How much do local communities support them?”, Cooperation for Peace and Unity, August 2009, at 15–6; S. Barakat et al., “dfid Understanding Afghanistan – Strategic Conflict Assessment – 2.4 Final Report”, Post-war Reconstruction and Develop- ment Unit, York University, November 2008, at 27. 312 Donini, supra note 149, at 24–6; Donini, supra note 146, at 6; Donini, supra note 135, at 28– 30; A. Donini, “Humanitarianism Unraveled”, Feinstein International Centre, May 2010, at 3. 313 A. Jackson and A. Giustozzi, “hpg Working Paper: Talking to the Other Side: Humanitar- ian Engagement with the Taliban in Afghanistan”, odi, December 2012. 314 anso, “Quarterly Data Report 2008 Q4”, January 2009, at 4. 315 Terry, supra note 311, at 175–6.

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international humanitarian organisations are judged as partisan…[and] perceived as wholly part of a Western agenda”.316 The narrative diffused amongst Taliban commanders and fighters has por- trayed any foreign presence as attempting to subvert people from Islam and instrumentalize the territory of Afghanistan. The various stands of this narrative are captured in a fatwa signed by former Taliban leader Mullah Omar, which stipulated that every Muslim had a duty to wage jihad “at a time when America has invaded Islam’s limits and the Muslim and oppressed nation of Afghanistan”. It warned that anyone who “helps the aggressive infidels and joins their ranks under any name or task” deserved death and requested the “Muslim people of Afghanistan” to either wage jihad against the us forces or at least separate themselves from the Americans, “their allies and their puppet government… so that Muslims are differentiated from Christians”. The statement also warned that from thereon, people working with international military forces or the Af- ghan government would “be considered Christians by God and [by] the Muslims” and would face punishment.317 The first version of the Taliban Code of Con- duct (Layha) referred to international ngos as “tools of the infidels… [that]…in the guise of serving…are destroying Islam, so all their activities are banned”.318 The narrative is just as pronounced at the lower levels of the Taliban hierarchy; one Taliban fighter claimed that aid agencies “work under the universal powers who drink the blood of Muslims” and “have converted people to Christi- anity”.319 Some groups of Taliban were, at one point, terming everyone in aid circles as “Americans”.320 With its Janus-faced aspect, a constructed narrative is distinct from the genuinely organic nature of a perception. Rhetoric and ideology have permitted the Taliban to maintain high levels of violence.321 The Taliban narrative al- lows for the targeting of humanitarians and other civilian actors by dismissing those killed as complicit in espionage, propagating Christianity or partaking in 316 317 318 319 320 321the occupation of Afghanistan. Likewise, al-Qaeda has accused its opponents

316 A. Stoddard et al., “hpg Policy Brief 34: Providing Aid in Insecure Environments: 2009 update”, odi, April 2009, at 6. 317 A. Tarzi, “Afghanistan: Neo-Taliban Free to Communicate with Media”, rfe/rl, 9 August 2005. 318 K. Clark, “The Layha: Calling the Taleban to Account”, Afghan Analysts Network, July 2011, at 29. 319 A. Jackson, “hpg Policy Brief 61: Negotiating perceptions: Al-Shabaab and Taliban views of aid agencies”, odi, August 2014, at 2–3. 320 S. Azarbaijani-Moghaddam et al., “Afghan Hearts, Afghan Minds: Exploring Afghan perceptions of civil-military relations”, baag/enna, June 2008, at 37–8. 321 Semple, supra note 295, at 5.

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104 Bywater of waging a global war on Muslims and designates them as “crusaders”, “follow- ers of the Cross”, “Jews” or “infidels”.322

Taliban spokesman Mohammad Hanif: We have not threatened anybody except those who work for Christians and foreigners.

Taliban commander Mullah Dadullah: We do not target innocent civilians, hospitals, markets etc. The offices or buildings we have targeted and burnt are those used by mercenaries to convert young Afghans to Christianity.

When we abduct foreigners, we aim at harming…the American government that is occupying our country…According to them, anyone who supports the occupation is an unarmed civilian for them. In fact, any foreigner who comes to Afghanistan is according to us an armed fighter, and not a civilian.323

Al-Qaeda in Iraq leader Abu Musab al-Zarqawi: Islam does not differenti- ate between civilian and military [targets] but rather distinguishes between Muslims and infidels…Muslim blood must be spared…but it is permissible to spill infidel blood.324

The Taliban narrative has continued, as the two statements below indi- cate, to manipulate humanitarian identity and align the international aid sector with Western governments:

Taliban spiritual leader Mullah Omar: Muslims! Identify the enemies of your religion: Jews and Christians, America, Great Britain, the United Na- tions and all Western humanitarian organisations are the worst enemies of Islam and humanity.

Taliban spokesman: Organisations like Médecins Sans Frontières work for American interests and are therefore targets for us.325

322 323 324 325

322 P. Marshall et al., Blind Spot: When Journalists don’t get Religion (2009), at 32. 323 Human Rights Watch, “Lessons in Terror: Attacks on Education in Afghanistan”, July 2006, at 34; Al Jazeera, “Interview with Taliban Military Coordinator Mullah Dadullah”, 20 July 2005; Al Jazeera, “Interview: Mullah Dadullah”, 13 May 2007. 324 Reuters, “Al-Qaeda’s Zarqawi backs killing civilian infidels”, 7 October 2005. 325 L. Hammond, “The Power of Holding Humanitarianism Hostage”, in M. Barnett and T. Weiss (eds.), Humanitarianism in Question: Politics, Power, Ethics 172 (2008), at 179–80.

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Classical and Political Humanitarianisms 105

Spectacular events such as the killing of unarmed humanitarian workers are “performative act[s]” of violence: the objective is to project a shockingly powerful image of the belligerent and its capabilities. By manipulating humanitarian symbols through attack, belligerents hope to appeal to audiences both near to and far from the site of the act of violence, win over public support and loyalty in the conflict zone and also in the global arena where potential supporters are in a position to offer public, material or financial support to the war effort.326 The Taliban view communication as a force multiplier and on a par with combat. Actions are undertaken for their broader impact on perceptions and magnification of the movement’s capabilities. Also, the violent acts of others are falsely claimed by Taliban spokesmen who are well-positioned to influence the media and a national and global audience.327 In the same way, the Taliban tend to peruse the announcements and statements of key international bodies, think-tanks and ngos and use what most in their favour or to deny, denounce or deflect any criticism,328 or to suit their military purposes as and when they see fit, for example, as an ex post facto justification for violence. It is less a question of cause and effect, and more that a reaction occurs to an event as a pretext to carry out a pre-existing objective. This of course is part and parcel of how conflicts are fought; all belligerents use and abuse their own media scanning and public positioning as part of their overall politico-military strategy. The public statements of humanitarian agencies are treated no differently. And yet the prominent public position of supporting isaf expansion, which fits neatly into the Taliban narrative of humanitarian complicity with foreign occupation, has not been used extensively, if at all.329 Crucially, there are no publicly reported cases of retaliation against specific aid agencies who publicly supported isaf expansion. The first edition of the Layha, which banned the activities of international ngos and accused them of destroying Islam, makes

326 327 328 329

326 Ibid. 327 J. Nathan, “Reading the Taliban”, in A. Giustozzi (ed.), Decoding the New Taliban: Insights from the Afghan Field 23 (2012), at 23–4; Tribal Analysis Center, “The Quetta Shura: A Trib- al Analysis”, October 2009, at 11; icg, “Asia Report No. 158: Taliban Propaganda: Winning the War of Words?”, July 2008, at 1, 32–3; T. Nissen, “The Taliban’s information warfare: A comparative analysis of nato Information Operations (Info Ops) and Taliban Informa- tion Activities”, Royal Danish Defence College, December 2007, at 7–9. 328 Discussion with Tim Foxley, independent political and military analyst specialising in issues concerning Afghanistan (email, Reading, uk, December 2014). 329 If an English-language statement issued by any of the Taliban spokesmen citing aid agencies’ support for isaf expansion exists, it has not been widely distributed.

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106 Bywater no mention of isaf expansion. Nor was it identified by the odi field study with Taliban cadres; the sense of alignment with one side in the conflict related to alleged espionage and collaboration with international military forces and the central government.330 It is quite possible though that the lack of opportunistic usage indicates a more fundamental impact on Taliban perceptions. The Taliban’s narrative has also evolved to suit the political and military context, namely when the Taliban came to administer territory and bear responsibility for local constituencies. The goods and services that international aid agencies provide suddenly became useful to military commanders in control of territory. This required the removal of the accusatory rhetoric towards international ngos contained in the Layha. The reality of Afghanistan is one where at least twenty-six aid agencies have engaged with the senior leadership of the Taliban, including a number of agencies funded by British and American governmental aid departments.331 For several years now, anso has been of the view that the Taliban do not systematically target humanitarian ngos.332 The icrc and msf passed from being primary designated targets of the Taliban to engaging directly with its leadership, although the fluid nature of the Afghan battlefield reminds us that this can easily change. The lesson that msf has drawn from its experience is that attacks against humanitarian workers reflect developments in the political and military context, not some global phenom- enon which obeys general laws such as a real or assumed lack of neutrality, or the Western nature and orientation, on the part of humanitarian workers.333

3.2.3 Findings If positioning on the (un)justness of war is to influence belligerents and impact upon humanitarian space, it will depend ultimately on the position and perspective of the belligerent in question: if it is waging the war, or if the war is being waged against it. The belligerent’s perspective remains unchanged but can coincide with that of a humanitarian partner, allowing for influence to be exercised – with

330 331 332 333

330 Jackson and Giustozzi, supra note 313, at iii, 15–7, 26, 31; A. Jackson and A. Giustozzi, “hpg Policy Brief 50: Talking to the other side: Taliban perspectives and aid and development work in Afghanistan”, odi, December 2012. 331 Jackson and Giustozzi, supra note 313, at 10; A. Jackson, “Negotiating perceptions: Al-Sha- baab and Taliban views of aid agencies”, hpg Policy Brief 61, August 2014, at 3. 332 anso first made this observation in 2009, see anso, Quarterly Data Report 2009 Q4, Janu- ary 2010. 333 F. Weissman, “Violence against Aid Workers: The Meaning of Measuring”, in F. Weissman and M. Neuman (eds.), Saving Lives and Staying Alive: Humanitarian Security in the Age of Risk Management 55 (2016), at 63–5.

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Classical and Political Humanitarianisms 107 a view to expanding humanitarian space – as part of a solidarist approach to humanitarian action. Solidarity presupposes “a similarity of views that enables us to act on their behalf”.334 The fact that such an approach was an unthinkable prospect for the Western humanitarian agencies present in Iraq is telling. It suggests that a true commonality is only possible with Western governments. When the belligerent’s perspective clashes with that of the humanitarian partner, it is entirely plausible that it will constrict humanitarian space; the rather unfortunate lesson here is that impressions of a negative nature are probably easier to impart upon belligerents than those of a positive nature. The humanitarian identity that classical humanitarians view as being compromised by forays into jus ad bellum is unlikely to feature in the eyes of a belligerent. Whether “the benefits of apolitical humanitarian action…outweigh the good that can be done through political engagement on the [un]justness of war”335 should be considered in this light. Political humanitarians believe that belligerents target humanitarians not on account of their political views but their vulnerability: “humanitarians do not control or even significantly influence humanitarian space…If [the] aim [is] to terrorise humanitarians, then the more innocent and apolitical their targets, the more effective [belligerents] would be. In reality, it is far more likely that [agencies are] targeted simply because they [are] Western soft targets”.336 Classical humanitarians concede this risk but stress that it is best mitigated by “establishing transparent relationships…based on an unambiguous humanitarian identity”.337 Neither of these assertions stands up to scrutiny. Humanitarians are targeted for reasons which, ultimately, say more about belligerents and their aims than about humanitarians and their public positions. It is for this reason that a classicist agency striving for neutrality can be attacked, as the icrc can testify to in Afghanistan and Iraq, for no seemingly explicable reason. But it does not follow from the inability of classical humanitarians to guarantee themselves complete immunity from attack that political humanitarians can engage in what classicists see as “controversies of a political nature”, such as calling for military intervention or making pronouncements on jus ad bellum, without any adverse consequence for humanitarian space. For their own reasons, belligerents will not necessarily constrict humanitarian space in an automatic or proportional manner to the public position of humanitarians. Yet the potential for a negative reaction is very much there,

334 335 336 337

334 Vaux, supra note 72, at 114. 335 O’Brien, supra note 31, at 34. 336 Ibid, at 34–5. 337 Torrente, supra note 134, at 6.

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108 Bywater even if it does not always transpire. For exactly the same reason, jus ad bellum commentary in solidarity with one belligerent will not always reduce the probability of violent targeting. In this light, it is easy to see why classicists deny themselves the double-edged tool to influence belligerents that is jus ad bellum commentary. Classical humanitarianism understands war and violence to be extensions of the political. For classicists, humanitarian space is best maintained by en- suring its separation from the political and violent. Such space is viewed as finite, so they affirm that, if reduced, it is due to increased space available to the political violent and vice versa. Political humanitarianism holds that humanitarian space and the political/violent do not operate in a zero-sum context.338 In the final analysis, both groups of humanitarians seem to be reading the reality of armed conflict through the lens of their own identity.

Conclusions

Postscript: Syria The ongoing conflict in Syria shows that the phenomena and behaviour patterns identified by this paper, which concern humanitarians as well as belligerents, are far from specific to context or time. Following the first usage of chemical weapons in 2013, msf went public regarding the massive influx of patients suffering from neurotoxic symptoms into msf-supported hospitals, stating that this “renders humanitarian action itself merely meaningless…The effectiveness of humanitarian action in this kind of environment is incredibly difficult, questionable in fact”.339 By almost pre- cipitating an international military intervention as Western governments pre- pared retaliatory military measures against the Syrian government, the agency fulfilled the function of “detonator”. msf then felt obliged to clarify publicly that it did not attribute responsibility for, or even scientifically confirm, the neurotoxic agent and that its public statements should not be used to justify

338 339 340any military action.340

338 P. Hansen, “Preserving Humanitarian Space in a Long-Term Conflict”, in K. Cahill (ed.), Human Security for All: A Tribute to Sergio Vieira de Mello (2004), at 152–3; D. Warner, “The Politics of the Political/Humanitarian Divide”, 81(833) irrc 109 (1999). doi: 10.1017/ S1560775500092397. 339 msf, “Syria: Thousands suffering neurotoxic symptoms treated in hospitals supported by msf”, 24 August 2013; bbc News, “msf-backed hospitals treated Syria ‘chemical victims’”, 24 August 2013. 340 msf, “Response to Government References to msf Syria Statement”, 28 August 2013; msf, “Syria: msf statements should not be used to justify military action”, 28 August 2013.

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Classical and Political Humanitarianisms 109

Some agencies drew upon the jus in bello basis of aggravating civilian suffering to warn against the approaching military intervention. The head of the icrc delegation in Syria warned of the consequences of military escalation: “further escalation will likely trigger more displacement and add to the humanitarian needs, which are already immense”. Oxfam opposed the military intervention outright, issuing a statement which read “we support action to end the bloodshed…and prevent any further violence against civilians. However, the proposed military intervention is not intended to end the conflict, and our concern is that a military strike could possibly widen the conflict and civilian casualties”.341 The opportunistic use of humanitarians by belligerents for their own purposes continues, such as deliberately aligning humanitarians with Western governments. Armed groups such as Islamic State and Jabhat al-Nusra declared that “foreign ngos are infidels and so not welcome”342 along with Western journalists. After executing one journalist, Islamic State released a statement containing a “direct refutation against those who portray Western journalism and humanitarian aid as purely innocent…The war against Islam…is a media war as well as a military and intelligence struggle”.343 msf has suffered accusations from the Syrian government that it is run French intelligence.344 Refusing to support military intervention in Syria or the general principle of R2P has not secured msf any access to government-held areas,345 confirming that opposition to war alone cannot influence belligerents enough to widen humanitarian space.

Buyer’s Remorse? Noting the increased humanitarian advocacy towards the end of the 1990s, a study of British agencies mused whether it represented a last resort of a thwarted humanitarian community with little power at the field level or the

341 342 343 344 345

341 icrc, “News Release 143/13 – Syria: a human tragedy with alarming consequences”, 29 Au- gust 2013; Oxfam, “Oxfam verdict on the G20 summit”, 6 September 2013; Oxfam, “Oxfam’s position on a ‘punitive’ attack on Syria”, 6 September 2013, http://okeeffewoodworks.com/ oxfams-position-on-a-punitive-attack-on-syria (last accessed 3 March 2018). 342 J. Soussan, “Security Issues and Practices in an msf Mission in the Land of Jihad”, in F. Weissman and M. Neuman (eds.), Saving Lives and Staying Alive: Humanitarian Security in the Age of Risk Management 109 (2016), at 115. 343 Dabiq, “A message from Sotloff to his mother days before his execution”, September 2014. 344 R. Spencer, “‘msf run by French intelligence’, says Assad regime”, The Telegraph, 17 Febru- ary 2016. 345 J. Davenport, “‘In Defence of the Responsibility to Protect: A Response to Weissman”, 35(1) Crim. Just. Ethics 39 (2016), at 49.

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110 Bywater emergence of a distinctly new and vocal humanitarianism?346 Writing the following decade, Vanessa Pupavac alleged that the practical consequences of collapsed humanitarian space for individual humanitarian missions had registered more with aid agencies than the moral dilemmas raised by humanitarian enforcement.347 The humanitarian moment of the 1990s has since given way to a general reticence towards military intervention and, in the case of msf, to speaking out lest their public statements be used by governments to mount military intervention.348 In their view, clearly, “if testimony…was one of the means to politi- cise humanitarianism, it [has] also played a role in its militarisation”.349 msf has now formally announced that it cannot support the doctrine of R2P.350 Even Oxfam, unique among the main humanitarian agencies for its high-profile enthusiasm and overt support for R2P, has taken on board that “R2P [is] actively supported by only a small number of governments, and open to misuse even by them” and that “international action to uphold R2P – and perhaps even the protection of civilians as well – [are] more contested concepts than ever before”. Re- futing “any existential contradiction between humanitarianism and R2P… [since] little could be more humanitarian than to protect civilians from mass atrocities”, and continuing to advocate for the protection of civilians and to support R2P as an international norm, Oxfam is increasingly cautious over invoking R2P for fear that it would “simply fuel the hostility to Western aid workers and Western- based humanitarian agencies that many now feel”.351

Implications of Classical and Political Ambiguity One of the main frustrations to which humanitarians are condemned is that of exposing violence towards civilian populations without necessarily halting that violence.352 Their frustration is only magnified by an interaction with military interveners that is far more intertwined than many would care to admit. 346 347 348 349 350 351 352

346 H. Slim and I. McConnan, “A Swiss Prince, a Glass Slipper and the Feet of 15 British Aid Agencies”, dec, 1998, at 24. 347 V. Pupavac, “The Politics of Emergency and the Demise of the Developing State”, in D. Eade and T. Vaux (eds.), Development and Humanitarianism: Practical Issues 27 (2007), at 44. 348 F. Weissman, “Silence heals…from the Cold War to the War on Terror, msf Speaks Out: A Brief History”, in F. Weissman (ed.), Humanitarian Negotiations Revealed 177 (2011), at 196. 349 E. Weizman, Least of all Possible Evils (2011), at 46–7. 350 Weissman, supra note 34. 351 Cairns, supra note 181, at 151–5. 352 Weissman, Humanitarian Action and Military Intervention, supra note 18, at 208.

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Classical and Political Humanitarianisms 111

Among the humanitarian community, there runs a “common desire to finesse humanitarian action with the ability to speak out or shoot out while also maintaining immunity within [a] conflict”.353 The discrepancy whereby human life and dignity is defended without confronting those who inflict suffering is not always addressed. Few acknowledge that once “the people employ the humanitarian community as its protector, then any hope of neutrality…is destroyed”.354 As one writer on humanitarian issues has argued, humanitarian space “may be circumscribed – or expanded – by the actions of political and military authorities; it may also be enlarged – or contracted – by humanitarian actors themselves”.355 The classicist rationale of msf for not yielding to prescription in Kosovo was to avoid offering moral warrant to the Western military intervention: “if we provided moral cover for a nato-led ‘humanitarian war’ today, there would be no turning back to a morally coherent claim for an independent humanitarian space tomorrow”.356 But as humanitarian organisations had helped lay the ground for the intervention, then the warrant had already been provided in part, if not quite in full. Is it plausible to expect a neat separation of the humanitarian identity from that of the military interveners when the military intervention materialises following a public expression of outrage from humanitarian actors? Perhaps now we can come to terms with the pervasively hostile attitude in so many countries which sees aid staff as tools of Western interests and hid- den agendas, as aligned with Western military forces and, in particular, as a conduit to foreign interference such as military intervention. Some of the consequences have been an increasing assertiveness of governments to deny humanitarians access – or place bureaucratic obstacles in their way – in addition to a willingness on the part of radical non-state actors to violently target them. As Hugo Slim once remarked, “they may see us better than we see ourselves”.357 As for advocates of rights-based political humanitarianism, they contend that their form of security-based advocacy does not situate them alongside the objectives of Western-led international military forces: “Rights-based ngos were able to fully engage in the debate over the security rights of Afghans… [and] situate themselves as loyal not to the partisan objectives of the…military…but to the security rights of the Afghan citizenry…The rights-based humanitarian…can

353stand before anti-government forces…and say ‘I may work with the government 354 355 356 357

353 H. Slim, “Positioning Humanitarianism in War: Principles of Neutrality, Impartiality and Solidarity”, in S. Gordon and F. Toase (eds.), Aspects of Peacekeeping 125 (2001), at 127. 354 Dubois, supra note 136, at 10. 355 Minear, supra note 18, at 5. 356 Orbinski, supra note 37, at 330. 357 Slim, supra note 166, at 44.

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112 Bywater but I am not here for them’…Of course, what she says will mean little if actions do not follow”.358 It is precisely the “actions that do follow” that create these effects. Nor ought this to come as a surprise to the bearers of rights work, for whom it is “not always about win-win solutions” since “injustice is not an acci- dent [but] a form of violence for which someone is responsible…Discrimination prevails not out of ignorance of alternatives but because someone gains from marginalising others”.359

358 359

358 O’Brien, supra note 20, at 207–8, 215–6. 359 Ibid, at 224.

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