by Rony Brauman
Past President of MSF France
Associate Professor at the Paris Institute of Political Studies

For the past four years, driven solely, it would seem, by a wish to cultivate the image of a nation that doesn’t pay ransom for hostages, the Dutch government has been taking legal action against Médecins Sans Frontières (MSF) in the Swiss courts. The government’s goal has been to recoup the money it paid in April 2004 to free Arjan Erkel, a Dutch citizen and head of mission for MSF-Switzerland, who had been held hostage for twenty months in Northern Caucasus.

Both the lower court of first instance and, later, the Cantonal Civil Appeals Court in Geneva unequivocally rejected the Dutch claim. They noted the role the Netherlands government played in freeing Erkel, as well as the absence of any prior assurance whatsoever on MSF’s part to repay the money. The opinions delivered by both courts highlighted the unique aspects of humanitarian action in conflict zones and the duty that states have to protect their citizens abroad. The Dutch government appealed to the Federal Supreme Court in Lausanne, which abruptly altered the course of events. On July 10, 2008, it reversed the lower courts’ decisions, ruling that MSF must repay half the ransom to the Dutch government.

While this is an extremely disappointing decision for MSF it also represents a partial defeat for the Hague, which it should be recalled, maintained that it acted solely on MSF’s behalf and bore no responsibility with respect to one of its own nationals who had been taken hostage. Throughout this doggedly pursued legal action, the Netherlands, normally so eager to be seen as a champion of humanitarianism, has revealed its indifference to the commitment of humanitarian workers and their efforts to aid the victims of conflicts.

While we still don’t know the exact reasoning behind the Supreme Court’s decision, the ruling holds MSF and the Netherlands equally responsible. Because of this it is feared that the decision will have no small impact on humanitarian actors.

The legal action brought by the Dutch government takes a serious criminal act involving political manipulation and the trafficking of human beings and essentially recasts it as a mere financial dispute. The federal judges’ decision, handed down in the birthplace of international humanitarian law, sends a negative signal for international public order and efforts to sustain the current balance of relations between states and humanitarian organizations. As a result, it further contributes to the banalization of crimes committed against humanitarian workers. We can be sure, at the very minimum, that it will not improve their security: it absolves a state of the obligations it has undertaken as a signatory of the Geneva Accords.

Whatever its intent, the Supreme Court’s decision presents yet another obstacle to carrying out humanitarian action in conflict zones, action that is already bedeviled by the attitudes of far too many governments.

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 Worrying ruling in court case between Dutch Government And MSF - 15.07.2008 11:03