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Humanitarian protection: The International Committee of the Red Cross and the United Nations High Commissioner for Refugees

Published online by Cambridge University Press:  19 April 2010

David P. Forsythe
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Type
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International Review of the Red Cross , Volume 83 , Issue 843: 5Oe anniversaire de la Convention sur les réfugiés de 1951. La protection des réfugiés dans les conflits armés/50th Anniversary of the 1951 Refugee Convention. The Protection of Refugees in Armed Conflict , September 2001 , pp. 675 - 698
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 The ICRC is recognized in international public law and has signed a headquarters agreement with Switzerland as if it were a public international organization. Nevertheless, the ICRC was formed as a voluntary private medical aid society. It has never taken formal instructions from, or officially reported to, any public authority. In truth the ICRC is sui generis with both public and private characteristics. The private aspects are fundamental.

2 Both the ICRC and UNHCR depend for their operations on the voluntary contributions of the wealthy liberal democracies, These governments contribute more than 85% of the ICRC's total operating expenses, and more than 95% of UNHCR's. The public/private distinction does not matter very much in this regard.

3 Politics in this sense is the process that determines the allocation of things of value. Or in other terms, politics refers to who gets what, when, and how.

4 While the 1950 UNGA resolution creating UNHCR requires it to be a strictly non-political body, that resolution also explicitly requires it to propose, promote, and try to obtain measures for the protection of persons of concern, while supervising refugee norms. A fair reading of that instrument leads to the conclusion that the agency is authorized to lobby for persons of concern, but must try to avoid strategic and partisan affairs. It makes no sense to say that the agency should propose, promote, try to obtain, and supervise, but not participate in the political process that controls protection. That would be an impossibility. The same type of interpretation applies to the ICRC and its semantics about being neutral, humanitarian, and non-political. The ICRC is an advocate for victims of certain conflicts. If you advocate a certain public policy by public authorities, ipso facto you participate in the political process.

5 Recognition of gender, adolescence, orelderly status, among other distinctions, mayof course require special protections.

6 See further Forsythe, David P., Humanitarian Politics: The International Committeeof the Red Cross, Hopkins, Johns, 1977, and Minear, Larry/Weiss, Thomas G., HumanitarianPolitics, Foreign Policy Association, 1995.Google Scholar

7 Traditional lawyers tend to say that whatis legal cannot be political: if one works forthe protection of legal rights, one is not engaging in politics. This traditional way of viewing things is misleading about much socialreality. Law emerges from a political process, and much law is a form of codified public policy. Decisions about implementing legal rights entail much choice about competingpolicies, and about calculations of power.

8 Clear analysis is not helped by the fact that the words “politics” and “political” are widely used in varying, and mostly undiffe-rentiated, ways. As MacFarlane, Neil has indicated, “politics” for many writers “is a residual category, a grab bag of assorted factors that may affect humanitarian action but should not”. Politics and Humanitarian Action, Occasional Paper No. 41, Watson Institute of Brown University, 2000, p. 7.Google Scholar – It should be clear in my essay that first I use politics (with a small “p” if you wish) to refer to a broad process of competing values and public policies, and then secondly (with a capital “P” if you wish) to refer to strategic and partisan struggles for power and advantage often having little to do directly with humanitarian values. While “politics” refers to competing policies, “Politics” refers to who exercises power. The two processes are of course related, but their analytical separation helps in understanding humanitarian protection.

9 Political liberals sometimes violate international humanitarian law and refugee law. The ICRC and UNHCR, to be true to their philosophy of social liberalism, must be relatively independent of all ruling elites so as to work for the equal worth of certain individuals in distress. The agencies' customary and usual allies are the political liberals, because both share the theory of individual value. This fact is reflected in funding patterns. But the political liberals often manifest national interests that cause them to downgrade the importance of certain individuals – particularly “enemies”, “outsiders”, and “members of the other”.

10 MacFarlane, op.cit. (note 8), p. 8.

11 See, for example, the ICRC report on its Internet site, presenting protection and assistance as “two sides of the same coin”. What that “coin” is the ICRC does not indicate. But then not only are health activities distinguished from relief; also relief is separated from protection. “Health and Relief: General Introduction”, extract from “ICRC Special Report: Assistance”, 1 March 2000.

12 It is less awkward in discourse to say that the two agencies seek to alleviate human suffering for persons of concern especially in emergency situations, and that this humanitarian help has two dimensions – relief and protection. The major problem with these semantics is that they tend to suggest that relief is not a core part of protection.

13 See various ICRC Annual Reports.

14 UNHCR will submit legal papers to national courts in order to try to defend the rights of refugees. The ICRC, while sometimes observing trials, does not participate in war crimes trials, for reasons discussed further on in the text.

15 For recent in-depth histories of the ICRC, see Bugnion, François, The ICRCand the Protection ofVictims of War, ICRC, Geneva (to be published in 2001), and John Hutchinson, Champions of Charity, Westview Press, 1986.Google Scholar More accessible to the general public is the account by Moorehead, Caroline, Dunant's Dream: War, Switzerland and the History of the Red Cross, HarperCollins, 1998.Google Scholar

16 Useful overviews include Loescher, Gil, The UNHCR and World Politics: A Perilous Path, Oxford University Press, 2001Google Scholar, and Goodwin-Gil, Guy S., The Refugee in International Law, Clarendon Press, 2nd ed., 1998.Google Scholar

17 Agreement on the Organization of the International Activities of the Components of the International Red Cross and Red Crescent Movement, IRRC, No. 322, March 1998, pp. 159–177.

18 Independent Report on Kosovo, UNHCR Refworld, Summary, Section 2, 1999, available on www.unhcr.ch.

19 Junod, Marcel, Warrior Without Weapons, Macmillan, 1951.Google Scholar

20 Delorenzi, Simone, ICRC Policy Since the End of the Cold War, ICRC, 1999, pp. 60–62.Google Scholar

21 Favez, Jean-Claude, The Red Cross and the Holocaust, Cambridge University Press, 1999.Google Scholar

22 Human Rights Watch, Uncertain Refuge, April 1997.

23 The ICRC does this on occasion, as when it suspended prison visits in Fujimori's Peru, with an accompanying public statement.

24 The ICRC may elect to stay and work in an unsatisfactory situation, but publish more candid statements about that situation. It may also be guided by the wishes of victims not to be abandoned.

25 Beigbeder, Yves, Le Haut Commissariatdes Nations Unies pour les réfugiés, Presses universitaires de France, 1999, p. 71.Google Scholar

26 It is possible that there is little general truth in this regard, as compared to “truth” in particular situations. In the spring of 2001 the head of the ICRC delegation for Israel and the Occupied Territories commented publicly that it was a war crime for an occupying power to establish permanent settlements for its own nationals in occupied territories. The resulting furore in Israel and the United States raised interesting questions not about discretion in general, but about the effect of this particular public statement at that particular time in regional and global affairs. The ICRC has an evaluation unit that is beginning to look at many aspects of traditional protection.

27 Loescher, Gil, Beyond Charity, Oxford University Press, 1993, p. 137.Google Scholar

28 Op. cit. (note 18).

29 See also Frelick, William, “Refuge rights: The new frontier of human rights protection”, Buffalo Human Rights Law Review, No. 4, 1998, pp. 261–274.Google Scholar–The High Commissioner, Mrs Ogata, having ordered a suspension of UNHCR relief operations given the conditions faced, could have resigned rather than follow the directions of Secretary-General Boutros Boutros Ghali to resume operations. It is not at all clear that the High Commissioner is legally bound to follow the directives of the Secretary-General, as the constituent instrument for UNHCR is silent on this matter.

30 Authors like Philip Gourevitch, in We Wish To Inform You..., Farrar/Straus/Giroux, 1998, who are highly critical of UNHCR, do not discuss at all what the fate of genuine Hutu civilians in need would have been if UNHCR had ceased operations.

31 Morris, Nicholas, “Protection dilemmas and UNHCR's response: A personal view from within UNHCR”, International Journal of Refugee Law, No. 9/3, 1997, p. 494.Google Scholar