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Published online by Cambridge University Press: 17 January 2008
What is worse, watching a guilty person walk free or being denied access to a person who may die if left without your assistance? Is it more important to help bring about the wrongdoer's arrest or to help his victim? If a choice has to be made, it is never an easy one. But it is a dilemma that delegates from the International Committee of the Red Cross (ICRC) sometimes find themselves facing, and it is one that can keep you awake nights.1
The author, a former UN Human Rights Officer and since 1996 a Legal Adviser in the ICRC's Legal Division, was the member of the ICRC delegation to the ICC PrepCom in charge of the work relating to the protection of confidentiality. He subsequently worked as a Detention/Protection Delegate in Africa. He is now a consultant <[email protected]>. The views expressed in this article are the author's and do not necessarily reflect those of the ICRC.
1. “Témoigner peut nuire à l'indépendance du CICR”, by René Kosirnik, Deputy Director for International Law and Communication of the ICRC, in Le Temps, 20 Oct. 1999.
2. Hampson, Françoise J., “The International Criminal Tribunal for the Former Yugoslavia and the Reluctant Witness”, I.C.L.Q. vol. 47, Jan. 1998, pp.50–74 Google Scholar; Cogan, Jacob Katz, “The Problem of Obtaining Evidence for International Criminal Courts” Human Rights Quarterly, vol. 22, 2000, pp.404–27.CrossRefGoogle Scholar
3. The full name is: International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.
4. Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric, Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness, No. IT-95–9-PT (27 July 1999). Hereinafter referred to as “the ICTY Decision”.
5. The author wishes to thank the former colleagues who worked on the ICTY case, namely Norman Farrell and Marie-Claude Roberge. Acknowledgment must also be made of the expert opinions presented in support of the case by Professors Crawford, David and Salmon, as well as to Professor Greenwood and Alun Jones, who represented the ICRC before the Tribunal. For full names and titles, see section 2.1 below.
6. At the time of writing, pending a decision by the Tribunal, it was not clear whether the ICRC submission, or for that matter the expert opinions attached to it, would be made public. Proper reference to these documents was therefore not possible. The summary of the ICRC's submission is to a large extent the same as that contained in a previous article by this author. Cf. Jeannet, Stéphane, “Recognition of the ICRC's Long-standing Rule of Confidentiality—an Important Decision by the International Criminal Tribunal for the Former Yugoslavia”, International Review of the Red Cross (IRRC), No. 838, June 2000, vol. 82, pp.403–425.Google Scholar
7. In addition to the arguments summarised below, in its submission before the ICTY, the ICRC also put forward, as an alternative argument, that its information is protected from disclosure by analogy to the doctrine of privilege in common-law systems or the principle of confidentiality which exists in certain civil-law systems.
8. The four Geneva Conventions of 1949 (GC) for the protection of victims of armed conflict and their Additional Protocols of 1977 (PI and PII) recognise the special role of the ICRC. In particular, Arts 126 and 143 respectively of GC III and GC IV establish a system for monitoring the conditions of internment of prisoners of war and civilians. These provisions state that “[r]epresentatives or delegates of the Protecting Powers … shall be able to interview the prisoners… without witnesses”—or civilian internees in the case of the Fourth Convention—and that “[t]he delegates of the International Committee of the Red Cross shall enjoy the same prerogatives”. The humanitarian activities of the ICRC are generally referred to in Art. 9/9/9/10 common to the four GC: “The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian organisation may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of [civilian persons] and for their relief”. Art. 81, para. 1 of PI represents an expanded version of the same provision: “The Parties to the conflict shall grant to the International Committee of the Red Cross all facilities within their power so as to enable it to carry out the humanitarian functions assigned to it by the Conventions and this Protocol in order to ensure protection and assistance to the victims of conflicts; the International Committee of the Red Cross may also carry out any other humanitarian activities in favour of these victims, subject to the consent of the Parties to the conflict concerned”. Arts 10/10/10/11 common to the four GC enshrine in their third paragraph the right of the ICRC to substitute for the Protecting Powers: “If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organisation, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention”. The following provisions of the GC make specific reference to the ICRC: GC I: Arts 3, 9, 10, 11 and 23; GC II: Arts 3, 9, 10 and 11; GC III: Arts 3, 9, 10, 11, 56, 72, 73, 75, 79, 81, 123, 125 and 126; GC IV: Arts 3, 10, 11, 12, 14, 30, 59, 61, 76, 96, 102, 104, 108, 109, 111, 140, 142 and 143. In addition, in accordance with common Art. 10/10/10/11, the ICRC in practice exercises the functions entrusted to the Protecting Power by the following provisions: GC I: Arts 8, 16, 23 and 48; GC II: Arts 8, 19, 44 and 49; GC III: Arts 4, 8, 23, 56, 57, 58, 60, 62, 63, 65, 66, 68, 69, 71, 77, 78, 96, 100, 101, 104, 105, 107, 120, 121, 122 and 128; GC IV: Arts 9, 23, 24, 35, 39, 42, 43, 45, 49, 52, 55, 60, 71, 72, 74, 75, 83, 98, 101, 105, 113, 129, 131, 137 and 145. The relevant provisions in P I are Arts 5, 6, 33, 78, 81, 97 and 98. In addition, Arts 2, 11, 45, 60, 70 and 84 deal with the Protecting Power. The status of the ICRC is also recognised in Art. 24 of P II.
9. See n.10 in fine.
10. The ICRC's right of initiative in connection with non-international conflicts is laid down in Art. 3 common to the GC: “An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict”. Art. 18, para. 1, of P II relating to non-international armed conflicts extends this entitlement to relief societies, such as Red Cross (or Red Crescent) organisations, on the territory of the State party to that instrument. In situations not reaching the threshold of applicability of international humanitarian law, the ICRC can use its humanitarian right of initiative contained in Art. 5.3 of the Statutes of the Movement: “The International Committee may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution”. Text reproduced in the Handbook of the International Red Cross and Red Crescent Movement, Geneva, 1994, p.422. It should be noted that the Statutes have been unanimously adopted by the States Parties to the Geneva Conventions and the Components of the Movement.
11. The guidelines thereon can be found in the IRRC, March/April 1981, pp.76–83.
12. See the Separate Opinion of Judge David Hunt in the ICTY Decision, op. cit. See also Jeannet, op. cit., pp.41–428.
13. The role of the ICRC under Art.5.2(c) and (g) of the Statutes of the Movement is, in particular, “to undertake the tasks incumbent upon it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognisance of any complaints based on alleged breaches of that law”, and “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any developments thereof”.
14. The implications of the ICRC's position regarding testimony have been spelled out in the following statement, which reflected previous positions: “Persons carrying out activities under the ICRC's responsibility cannot be compelled to provide information and/or give testimony relating to any situation covered by the Geneva Conventions, namely international or non-international armed conflicts. This would jeopardise the accomplishment of the ICRC's humanitarian mission, as defined in those Conventions, for the following reasons: 1) it would violate the ICRC's pledge of confidentiality vis-à-vis both the victims and the parties to conflicts; 2) it would undermine the confidence of the authorities and the victims in the ICRC; 3) it might threaten the confidence of the victims and of ICRC delegates; 4) it might cause the ICRC to be denied access to the victims in present or future circumstances.” ICRC, Geneva, 25 Feb. 1993, public statement setting out the ICRC's position regarding the setting up of the ICTY.
15. Cf. n.4.
16. The facts of the case are not outlined in detail in this paper, a) because they are not relevant here, as the decision taken by the Court was a principled one, and b) for obvious reasons related to confidentiality.
17. In its decision, the Trial Chamber supported this approach, making reference to Prosecutor v. Simic. See Case No. IT-95–9-PT, 13 Apr. 1999.
18. See n.4.
19. Trial Chamber III was composed of: Judge Patrick Lipton Robinson (Presiding), Judge David Hunt, and Judge Mohamed Bennouna.
20. For a more thorough analysis of the decision, cf. Jeannet, op. cit., pp.408–125.
21. At its creation, the ICRC was a private humanitarian initiative sanctioned by a diplomatic conference in 1864. In 1915 it was formally established as a Swiss organisation under the Swiss Civil Code. It became increasingly recognised, however, that it was performing public international functions and that it was therefore entitled to a distinct international status in respect of the exercise of those functions. The evidence of this recognition is, inter alia, as follows: (a) the existence and work of the ICRC are provided for in various international humanitarian law instruments; (b) in addition, the ICRC has exercised international functions of various kinds under other international agreements whether as a named “third party” or as a party to the agreement in its own right; (c) the ICRC's relationship with Switzerland is based on an agreement concluded on 19 March 1993, in which the host country recognises “the international juridical personality and the legal capacity in Switzerland“ of the Committee (Art. 1)—cf. IRRC, No. 279, 1990; (d) also, the ICRC has signed 57 headquarters agreements with States governing the status of its delegations and their staff (recognising inter alia immunity from legal process), as well as other agreements with both States and intergovernmental organisations. According to the literature, these agreements are in the nature of treaties; also, they are generally assimilated to treaties in the constitutional law of the States concerned; (e) in certain other States, international privileges and immunities are granted unilaterally, in recognition of the special role of the ICRC—e.g. in the United States, pursuant to the International Organizations Immunities Act (PL 79–291 as amended by PL 100–204); (f) so far as the United Nations is concerned, the ICRC became the first non-governmental body to be accorded permanent observer status (General Assembly Resolution 45/6 of 16 Oct. 1990, adopted by consensus). On the ICRC's status in the literature, see inter alia: Barberis, Julio, “El Comité internacional de la Cruz Roja como sujeto del derecho de gentes”, in Swinarski, Christophe (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Martinus Nijhoff, Dordrecht, 1984, pp.635–641 Google Scholar; Barberis, Julio, “Nouvelles questions concernant la personalité juridique internationale”, RCADI, 1983–1991, tome 179, pp.145–304 Google Scholar, especially p.175; Bindschedler-Robert, Denise, “Red Cross”, in Encyclopedia of Public International Law, Amsterdam, North Holland, 1983, vol. 5, p.255 Google Scholar; Broms, Bengl, “Subjects: Entitlement in the International Legal System”, in Macdonald, R. S.J., and Johnston, Douglas, Essays in Legal Philosophy, Doctrine and Theory, Dordrecht, 1984, pp.635–641 Google Scholar; Christian Dominicé, “La personalité juridique internationale du CICR”, in Christophe Swinarski (ed.). op. cit., p.663; Dominicé, Christian, La personality juridique dans le systè;me du droit des gens, Theory of International Law at the Threshold of the 21st Century, Essays in Honour of Krzystof Skublnzewski, The Hague, Kluwer Law International, 1996, p.158 Google Scholar; Dupuy, Pierre-Marie, Droit international public, Paris Dalloz (2nd ed.), p.186 Google Scholar; Guggenheim, Paul, Traité de droit international public, Genève, Georg, 1953, p.289 Google Scholar; Mosler, Hermann, “Subjects of International Law”, in Encyclopedia of Public International Law, Amsterdam, North-Holland, 1983, vol. 7, p.455 Google Scholar; Paul Reuter, “La personalité juridique internationale du Comité international de la Croix-Rouge”, in Christophe Swinarski (ed.), op. cit, Martinus Nijhoff, Dordrecht, 1984, pp.783–791.
22. Seen.8.
23. Seen.10.
24. So far as the United Nations is concerned, the ICRC was initially treated as a non-governmental organisation within the meaning of Art. 71 of the Charter and ECOSOC Resolution 1296 (XLIV), and had limited consultative status. Butin 1990 it became the first non-governmental body to be accorded permanent observer status (see Schlögel, 819; “The ICRC Is Granted Observer Status at the United Nations”, IRRC, No. 279, 1990, pp.581–586). The Permanent Representative of Italy, speaking on behalf of the 21 co-sponsors, stressed that “[t]he special roleconferred upon the ICRC by the international community and the mandates given to it by the Geneva Conventions make it an institution unique of its kind and exclusively alone in its status” (Statement of H.E. Mr V. Traxler, Permanent Representative of Italy, UNGA 45, 31st meeting, 16 Oct. 1990). General Assembly Resolution 45/6 of 16 Oct. 1990 was adoptedby consensus. It recalls the mandates conferred on the ICRC by the 1949 Conventions and “the special role carried onaccordingly by the [ICRC] in international humanitarian relations”. Speaking after the vote, the United States delegate referred to the ICRC as “… a unique international organisation with a unique international legal standing stemming from its mandate under the 1949 Geneva Conventions … No other such humanitarian organisation possesses the ICRC's unique legal personality as recognised by its specific responsibilities under international conventions” (statement of Ambassador J. Moore, Alternate Representative of the United States, UNGA 45, 31st meeting, 16 Oct. 1990).
25. Op. cit, n.12.
26. See also Stéphane Jeannet, “ Testimony of ICRC Delegates before the International Criminal Court”, IRRC, No. 840, Dec. 2000, pp.993–1000.
27. See Marie-Claude Roberge, “The New International Criminal Court”, IRRC, No. 325, Dec. 1998, pp.671–677.
28. See Art.5.2(c) of the Statutes of the Movement, op. cit. For the work on Elements of Crime, cf. Knut Dörmann, “Preparatory Commission for the International Criminal Court: the Elements of War Crimes—Grave breaches and violations of Article 3 common to the Geneva Conventions of 12 August 1949”, IRRC, No. 839, Sept.2000, pp.771–795; Knut Dörmann Preparatory Commission for the International Criminal Court: The Elements of WarCrimes—Other serious violations of the laws and customs applicable in international and non-international armed conflicts, IRRC, March 2001 (forthcoming); Knut Dörmann, War Crimes in the Elements of Crimes, in Horst Fischer/ClausKreΒ/Sascha Rolf Lüder (eds), International and National Prosecution of Crimes Under International Law: Current Developments, Berlin Verlag Arno Spitz, Berlin (forthcoming).
29. It must be noted that by making reference to the Statutes rather than to international humanitarian law, the clause would cover ICRC activities in situations not reaching the level of an armed conflict, and therefore falling below the threshold at which this law becomes applicable. Therefore, the privilege also covers activities pursuant to the ICRC's right of humanitarian initiative—see last paragraph of n.10.
30. Knut Dörmann and Claus Kress, “Verfahrens und Beweisregeln sowie Verbrechen- selemente zum Römischen Statut des Internationalen Strafgerichtshofs: eine Zwischenbi-lanz nach den ersten zwei Sitzungen der Vorbereitungskommission f”, Humanitäres Völkerrecht—Informationsschriften, Heft 4,1999, p.202.
31. The ICTY Decision was taken on 27 July 1999. The fact that it recognised an absolute right of the ICRC to nondisclosure based on customary international law would undoubtedly have been extremely helpful in convincing the diplomats who had doubts about the draft rule. Unfortunately, it was not until 8 October that this decision was made public, that is several weeks after the end of the second session of the PrepCom. Faithful to its rule of confidentiality, the ICRC did not use this information until the next session (29 Nov.–17 Dec. 1999), during which discussion on the draft rule was, in any case, not reopened formally.
32. See Donald P. Piragoff, “Protection of National Security Information”, in Roy S. Lee (ed.), The International Criminal Court, the Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp.270–294.
33. Rule 73: “Privileged communications and information: (…) 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence of, the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b) Such information, documents or other evidence is contained in public statements and documents of ICRC. 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees.6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and the ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court's and ICRC's functions.” PCNICC/2000/INF/3/Add.1.
34. See Donald P. Piragoff, op. cit.; Behrens, Hans-Jörg, in Triffterer, Otto (ed.),“Commentary on the Rome Statute of the International Criminal Court, Observers' Notes, Article by Article”, Nomos Verlagsgesellschaft, Baden-Baden, 1999, p.910.Google Scholar
35. See e.g. Amnesty International, “The International Criminal Court: Drafting effective Rules of Procedure and Evidence for the trial, appeal and revision” July 1999, AI Index: IOR 40/12/99, p.17.
36. See “International Humanitarian Law and Protection”, Report of the Workshop 18–20 November 1996, Flüe, Carlo von (ed.), ICRC, Geneva, 1997 Google Scholar; “Protection—toward Professional Standards”, Report of the Workshop 17–19 March 1997, Flüe, Carlo von and Daudin, Pascal (eds), ICRC, Geneva, 1998 Google Scholar; “Workshop on Protection for Human Rights and Humanitarian Organizations, Doing Something about It and Doing It Well”, Report of the Workshop Held at the ICRC, Geneva, 18–20 January 1999, Flüe, Carlo von and Maio, Jacques de (eds), ICRC, Geneva, 1999 Google Scholar; report on fourth meeting forthcoming. See also Bonard, Paul, “Modes of Action Used by Humanitarian Players, Criteria for Operational Complementarity”, ICRC, Geneva, 1999.Google Scholar
37. For some elements of answer, see: “The People on War Report, ICRC worldwide consultation on the rules of war”, Report by Greenberg Research, Inc, ICRC, Geneva, 1999 (refer in particular to the section on war crimes, pp.44–47).Google Scholar