Silent Witness or Undercover Cops: Exploring the Role of Humanitarian Actors in Promoting Accountability
Humanitarians are increasingly exasperated with the lack of respect for international humanitarian law in a number of contemporary conflicts. Many are regularly calling for those violating the basic tenets of the law of war to be held accountable and in this context, it is worth examining the potential role these same actors can play in relation to such accountability mechanisms.
When frontline humanitarians witness horrific acts, what activities can and should such actors undertake to promote accountability for violations of international law? Is it possible for humanitarian actors to have their operational space respected, if at the same time they seek to address some of the root causes of the conflict, and promote and/or contribute to holding violators of the law to account? What activities would be considered appropriate, and which would not? To what extent can they promote accountability without undermining their humanitarian character? This blog will explore some of the issues that such dilemmas raise, how they have been addressed in the past, and what issues need to be further addressed in the context of today’s conflicts.
Setting out the challenge
As just one recent example highlights: Syrian doctors have played a growing role in evidence collection, advocacy, and the promotion of accountability in response to the regular targeting of hospital infrastructure and medical practitioners, acts that likely violate international law and norms. Yet such actions also raise a dilemma in a context of increasing concern over threats against medical and humanitarian workers in the field. Namely, if humanitarian actors specifically are seen to be involved in activities that could negatively impact a warring party—such as promoting accountability for perpetrators of violations—this is likely to further increase threats against them. At the same time, given the observations and exposure of frontline humanitarian workers to potential war crimes and other atrocities, practitioners working in the field can play an important role in promoting measures to address the underlying causes of a given protection crisis. For example, if a reported chemical weapon attack occurs, should humanitarian actors collect biomedical samples not only in a manner required for the most appropriate medical response, but also in a manner suitable for criminal investigation by a court or some other quasi-judicial body such as an international commission of inquiry? The possibility of such actions promotes a degree of reflection on the extent to which humanitarians should play a role in promoting accountability.
From informal to formal accountability
There are a range of ways and means in which humanitarians can play a role in relation to accountability, which itself is not one uniform concept or mechanism. These range from data collection to public advocacy; providing information to commissions of inquiry and courts; and at the most formal end of the spectrum, testifying before courts and tribunals.
With regard to the latter, one humanitarian organisation with a clear legal position and protection in this regard is the International Committee of the Red Cross (ICRC), which maintains explicit legal protection from being called to testify before international courts. The ICRC is considered to have privileged exemption from providing evidence before international tribunals, a notion that the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court (ICC) have both confirmed. The rationale is that, even though the goals of both institutions can be seen as promoting respect for the law, “the ICRC also has a mandate to assist and protect victims and therefore cannot forego/risk losing its access to them.” If the ICRC is seen to contribute to formal accountability mechanisms such as criminal tribunals, it is believed likely that warring parties will consider the price of granting access to be too high. The position of the ICRC is far from surprising, given the centrality of confidentiality to their work. The ICC has confirmed under Article 73 of their Rules and Procedures that information in the hands of the ICRC is not subject to disclosure, including testimony. Interestingly no other humanitarian agency is subject to the same professional privilege, however according to some “the rules do allow other humanitarian organizations to prove that their information is confidential”. When it comes to actively providing testimony and information to such courts, it doesn’t appear that international non-governmental organisations have a clear position. Importantly, “developments show that the ad hoc tribunals have adopted the proactice of submitting reports produced by some humanitarian and human rights organizations as evidence for the prosecution, in some cases without the author having to testify in court.”
When we move away from the array of issues surrounding engagement with tribunals and courts and look toward softer accountability measures, such as ‘naming and shaming,’ the issues become more nuanced. MSF has made an organizational commitment to speak about and denounce atrocities, although in certain contexts—e.g., Yemen—the organization has been confronted with the very tensions between maintaining access and promoting accountability that the ICRC strives to avoid. Additionally, UNICEF has extensive humanitarian programs across the globe, yet at the same time is also one of the co-chairs for the Task Force of the Secretary-General’s annual report on Children and Armed Conflict. In this capacity, the organization serves as “the eyes and ears of the Office and monitor and report on grave violations committed against children.” The report includes a list in which actors seen to be the most egregious offenders, including states and armed non-state actors, are publically listed. It was in response to this very list in 2016 that Saudi Arabia put pressure on the UN to ensure that it was not listed, threatening to withdraw funding from humanitarian programs if it was included. Whilst there are many further concerns to be discussed on this topic, including ethical dilemmas in humanitarian funding, the important thing to note is that there does appear to be a genuine interest for states to not be included in such a list due to the degree of embarrassment and press attention.
Acceptable compromises and risks
Hence, one overarching relevant question is: to what extent do humanitarians compromise their own activities when associated with such processes?
The perceived blurring of the lines between humanitarian work and accountability has caused tangible consequences in the past. In Darfur, following the ICC indictment of President Omar Al Bashir, 13 of the largest international aid agencies were kicked out of Sudan for fear that they would provide testimony before the tribunal. The potential relationship between humanitarian actors and the ICC always provides the starkest example of the relationship between humanitarians and accountability mechanisms, as well as the inherent dangers of being aligned with such mechanisms. It would be worthwhile to further assess the role, if any, humanitarians have played in providing information before cases at the ICC, and the associated consequences of doing so. For example, what has been the level of engagement with technological innovations meant to assist humanitarian and other actions in confidentially reporting on atrocities? And furthermore, to what extent has such engagement been useful, especially in light of the difficulties sometimes encountered by the ICC relating to third party evidence.
Equally worthwhile would be to explore the role that humanitarians play in precursor activities to criminal action, such as providing information to international commissions of inquiry. To what extent is this an accepted practice of humanitarian practitioners and investigative actors? What are the risks? Does confidentially always minimise the risk of retaliation against affected parties?
Conceptual, pragmatic, or security problem?
The main humanitarian principle that seems to be implicated in this question is neutrality. What does it mean for humanitarians to not take sides in conflicts characterised by brutal and systematic targeting of civilians, in potential violation of international law? When it comes to speaking out, or not, is this largely a principled concern, or in fact a pragmatic assessment? Does being outspoken or engaging in accountability mechanisms likely result in denials of access by warring parties or attacks on humanitarian actors or operations?
In contrast to the traditional notion of neutrality in which public silence was central, new humanitarianism seems to have broadly accepted the importance of speaking out and engaging in advocacy. The more demanding and challenging question relates to the next steps: other than calling for action, what direct role should humanitarian consider to facilitate public pressure to promote accountability mechanisms. Additionally, once activated, what level of engagement is appropriate with regard to formal processes such as commissions of inquiry and other investigations? What are the risks of any engagement? The answer is likely to be highly nuanced, context- and organization-specific, but would undoubtedly benefit from further reflection and analysis.
Walking a fine line?
The example of the UNICEF monitoring mechanism regarding grave violations against children demonstrates the possibility of balancing the two hats of humanitarian and watchdog. Yet, it is important to acknowledge the inherent challenges or compromises of such a dual function. Can humanitarians freely speak out and condemn the very same actors that they rely on for granting access? The extent to which UNICEF has addressed this challenge would be interesting to investigate further.
The two examples of the ICRC and criminal testimony and UNICEF’s child rights blacklist set themselves at opposite ends of a spectrum, with many other relevant mechanisms and forms of engagement falling in between, including national and international commissions of inquiry, truth commissions, and sanctions bodies. Does engagement with processes along this spectrum become highly context specific, or are there some common aspects which can be shared? Is confidentiality in engagement, normally standard procedure for international commissions of inquiry, a necessary prerequisite for engagement? Does the watchdog role performed by UNICEF represent the ceiling for humanitarian engagement with accountability, or the mid-point? How aware are humanitarians of the risks associated with such engagement, and would more evaluation be necessary and possible?
Without question, there are an array of challenges facing humanitarians when assessing their level of engagement with various mechanisms designed to hold warring parties to account for violations of international law. The parties they are looking to hold to account are often the very same individuals that control access to vulnerable populations. It would appear necessary to have a more in-depth discussion and assessment in order to further explore these dilemmas and questions. By exploring such questions and issues, it should be hoped that creative and nuanced ways can be developed, including policy guidance, in which humanitarians can, on the one hand, more comfortably walk the line between securing crucial access to those in dire need, and on the other hand, remain important players in the ongoing battle for accountability.
Senior Legal Researcher
Stephen Wilkinson is a senior legal researcher with the Advanced Training Program on Humanitarian Action, specializing in international humanitarian law (IHL) and human rights in armed conflict. Previously he was a Legal Officer with the United Nations, a Legal Advisor with the Diakonia International Humanitarian Law Resource Center in Jerusalem and researcher with the Geneva Academy of International Humanitarian Law and Human Rights. He has engaged in numerous projects with both the United Nations and academic bodies relating to the monitoring and investigation of international humanitarian law. Other previous work includes time in Cambodia as a legal researcher on child sexual violence and for the United Nationals Relief and Works Agency in Lebanon. He has also engaged in recent consultancies addressing IHL and human rights issues in Syria and Mali. He holds an LL.M (distinction) from the Geneva Academy of International Humanitarian law and Human Rights, as well as an LL.B (hons) from the University of Leeds. In addition he is a PhD candidate at the University of Geneva. He has also previously worked with us on the MRF project.