Humanitarian Actors’ Engagement with Accountability Mechanisms in Situations of Armed Conflict – Workshop report

The Individualisation of War Project explores the tensions arising from the increased prominence of the individual in the theory and practice of armed conflict. One manifestation of this process of individualisation are the endeavours to enhance accountability for violations of international humanitarian law (IHL) and international human rights law (IHRL).  These include the establishment of international and national tribunals and non-judicial mechanisms such as commissions of inquiry, and the imposition of targeted sanctions.  These are important measures for promoting compliance with the law and, consequently, enhancing the protection of civilians, but their implementation can give rise to tensions with humanitarian actors’ activities to provide protection and assistance, often to the same civilians.  Humanitarians frequently have valuable first-hand information on violations or are in direct contact with affected communities.  However, the risk exists that if they share this information with accountability mechanisms – or are suspected of doing so – this may undermine their operations (and those of others) and put their staff and beneficiaries at risk.  This is not a new tension, but it has become more prominent following the establishment of a number of international criminal tribunals in the 1990s.  Its extent has increased further as the Security Council has imposed sanctions against groups and persons considered to have committed violations of IHL with increasing frequency.

Humanitarian actors have reacted to this tension in a variety of ways.  At one end of the spectrum is the International Committee of the Red Cross (ICRC) which ordinarily will not cooperate with national or international tribunals.  The majority of its headquarters agreements grant its staff immunity from being called to testify before national courts; and the Rules of Procedure and Evidence of the International Criminal Court (ICC) expressly note that information, documents or other evidence generated by the ICRC is not subject to disclosure, including by way of testimony.

United Nations (UN) agencies, funds and programmes are in a different position, at least when it comes to the ICC.  In the 2004 Negotiated Relationship Agreement between the International Criminal Court and the UN the UN has undertaken to cooperate with the ICC.  This cooperation has included the provision of assistance to the Court’s organs – the Prosecutor, but increasingly also the Defence – by making available documents and information generated or obtained by the UN.  UN staff have also been made available for interviews, and some have testified before the Court.  In an effort to balance the desire – and obligation – to cooperate with the ICC with the possible adverse consequences of doing so, much of this information was, in the past, provided on condition of confidentiality and solely for the purpose of generating new evidence, in the understanding that it would not be disclosed to other organs of the Court or to third parties, without the UN’s consent.

Accountability mechanisms also have tensions to address.  In the case of the ICC the need to balance the protection of witnesses and other sources of information with the needs of a fair trial that respects the rights of the accused and the needs of victims came to the fore in two recent cases, where documents provided to the Prosecutor by the UN on this basis were considered to contain information that was potentially exculpatory or material to the preparation of the defence.  As a result, it is not clear whether and, if so, to what extent UN agencies may continue to cooperate with the ICC in this manner.

The full report can be accessed here.