Genocide, Justice and the Forensic Sensibilities of the International Committee of the Red Cross

Abstract

The International Committee of the Red Cross (ICRC) is a private organization formed, in 1865, under the laws of Switzerland, with the aim of making wars more humane. In order to achieve this aim, the ICRC dedicated itself to the mission of giving succour to the victims of war, and of initiating the adoption of humanitarian rules of conduct of armed conflicts. In the ensuing years, the inter- national community endorsed the work of the ICRC and recognized its roles accord- ingly. In the meantime, there was no international criminal justice system in place to punish those who violated the international law of war. More than a century and a quarter after the birth of the ICRC, the United Nations initiated the creation of an international criminal justice system, with the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, under the powers of the Security Council to maintain international peace and security. The objective was to end impunity for those who would violate international law by committing geno- cide, crimes against humanity and war crimes. In a quite notable development, the ICRC registered in absolute terms its position to the effect that neither it nor those who worked under its auspices may be subjected to testimony before these International Tribunals. The bases offered for this assertion of absolute testimonial immunity are the practical requirements of the work of the ICRC, as well as custom- ary international law which is said to have recognized such a rule. This paper disputes the ICRC's assertion of absolute testimonial immunity as correctly founded in law or principle, although recognizing that the important work of the ICRC does fairly warrant a judicial reluctance to summon ICRC into the witness box. Nevertheless, such reluctance must be invoked on a case-by-case basis, and is not a matter of sub- stantive rule of law.