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Recognition of the ICRC's long-standing rule of confidentiality
Published online by Cambridge University Press: 27 April 2010
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- Research Article
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- International Review of the Red Cross , Volume 82 , Issue 838: Revue Internationale de la Croix-Rouge International Review of the Red Cross , June 2000 , pp. 403 - 425
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- Copyright © International Committee of the Red Cross 2000
References
1 The ICRC's position regarding testimony has been spelled out in the following statement, which reflects 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 jeopardize 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 parhas ties 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.” — Statement of the ICRC of 25 February 1993 on its position regarding the establishment of the ICTY.
2 Exchange of letters, published in IRRC, No. 311, March-April 1996, pp. 238 ff. See also ICTY Basic Documents 1998, p.381.
3 Case No. IT-95–9-PT, 13 April 1999.
4 At the time of writing, pending a decision pubby the Tribunal, it was not clear whether the submission, or for that matter, the expert opinions attached to it, would be made pubby lie. Proper reference to these documents was therefore not possible.
5 Trial Chamber III was composed of: Judge Patrick Lipton Robinson (Presiding), Judge David Hunt, and Judge Mohamed Bennouna.
6 These tasks are inter alia: “a) to under-take 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 cognizance of any complaints based on alleged breaches of that law; b) to endeavour at Protoall times — as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife — to ensure the protection of and assistance to military and civilian victims of such events and of their direct results;” Statutes of the International Red Cross and Red Crescent Movement (1986), Art. 5.
7 The four Geneva Conventions for the Protection of Victims of Armed Conflict, of 12 August 1949, and their Additional Protocols, of 8 June 1977, recognize the special role of the ICRC.
8 The following provisions of the Geneva Conventions 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 Art. 10 of Conventions I, II and III, and Art. 11 of Convention IV, 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 20,121,122 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 Protocol 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 recognized in Art. 24 of Protocol II.
9 Barile, G., “Caractère du Comité International de la Croix-Rouge”, Rivista di diritto internazionale, Vol. 62, 1979, p. 112Google Scholar; Bindschedler-Robert, D., “Red Cross”, Encyclopedia of Public International Law, Vol. 5, 1983, p. 250Google Scholar; Beigbeder, , The Role and Status of International Humanitarian Volunteers and Organizations, Martinus Nijhoff, Dordrecht, 1991, p. 66Google Scholar; Koenig, C., “Observer status for the International Committee of the Red Cross at the United Nations”, IRRC, No. 280, January-February 1991, p. 40Google Scholar; Schlögel, A., “International Red Cross”, in Wolfrum, R. (ed.), United Nations: Law, Policies and Practice, Vol. 2, Martinus Nijhoff, Dordrecht, 1995, p. 815Google Scholar.
10 When it was created, the ICRC was a private humanitarian initiative, sanctioned by a diplomatic conference in 1864. In 1915 it was formally established as a Swiss organization under the Swiss Civil Code. But it has increasingly been recognized as performing public international functions and as being entitled to a distinct international status in respect of the exercise of those functions. The evidence of this recognition is, inter alia: (a) the existence and activities of the ICRC are mentioned by various international humanitarian law treaties; (b) in addition, the ICRC has exercised international functions of various kinds under other international agreements, whether named as a “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 Switzerland recognizes “the international juridical personality and the legal capacity in Switzerland” of the Committee (Article 1), see IRRC, No. 293, March-April 1993, pp. 152–160; (d) also, the ICRC has signed 57 headquarters agreements with States governing the status of its delegations and their staff, as well as other agreements with both States and intergovernmental organizations; according to legal doctrine, these agreements are in the nature of treaties; also, they are generally assimilated to treaties by domestic constitutional law; (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) finally, the ICRC became the first nongovernmental body to be accorded permanent Observer Status to the UN General Assembly (UNGA Res. 45/6, of 16 October 1990, adopted by consensus).
11 Tadic (1995) IICTY JR 485, para. 73.
12 Loc. cit. (note 2).
13 UNGA Resolution 45/6 of 16 October 1990.
14 Statutes of the Movement, preambular para., loc. cit. (note 6).
15 Ibid., Art. 5, para. 2; see also Statutes of the ICRC, Art. 4, para. 1.
16 Loc. cit. (note 14).
17 Ibid.
18 Articles 126 and 143 respectively of the Third and Fourth Geneva Conventions establish a system for the supervision of the internment of prisoners of war and civilian prerogadetainees. In particular, these provisions state that “[r]epresentatives or delegates of the Protecting Powers … shall be able to interview the prisoners/civilian detainees (…) without witnesses”, and that “[t]he delegates of the ICRC shall enjoy the same prerogatives.”
19 Loc. cit. (note 13).
20 Bugnion, F., Le Comité international de la Croix-Rouge et la protection des victimes de la guerre, ICRC, Geneva, 1994, p. 1101. ICRC translationGoogle Scholar.
21 “Some preliminary remarks by the ICRC on the setting up of an International Criminal Tribunal for the former Yugoslavia”, reprinted in Morris, and Schar, (eds), Insider's Guide to the ICTY, vol II, pp. 391–398Google Scholar.
22 Prosecutor v. Tihomir Blaskic, Case No. IT-95–14-AR 108 bis, A.C., 29 Oct. 1997.
23 Bugnion, op. cit. (note 20), pp. 172–176.
24 Perruchoud, R., Les resolutions des Conférences Internationales de la Croix-Rouge, Institut Henry Dunant, Geneva, 1979, p. 46Google Scholar.
25 See resolution A/Res. 260 (III) B, which asked the International Law Commission to look into the question; see also the debate on the 1948 Genocide Convention.
26 Roberge, Marie-Claude, “The new International Criminal Court”, IRRC, No. 325, December 1998, pp. 671–677CrossRefGoogle Scholar.