The development of the International Criminal Court: some implications for humanitarian action
by Kate Mackintosh, MSF January 2006

Before the International Criminal Court (ICC) became a reality in 2002, most humanitarian workers thought it was a good thing. Many humanitarian organisations called for an end to the impunity enjoyed by the people who cause the misery that humanitarian workers try to alleviate, and some joined formal campaigns for the establishment of the ICC. There was what seemed an obvious commonality of interest between those campaigning for justice and those trying to supply food, shelter and medical care to the victims of violence and armed conflict. The court does indeed have the potential to benefit the people humanitarians try to assist. At the same time, however, it could make our job more difficult, and more dangerous. This article explores why.

The ICC as a problem

In what would have seemed an almost laughably utopian outcome only five years earlier, states met and agreed on the Statute of the ICC in Rome in 1998. On 1 July 2002, after the sixtieth state had bound itself to the ICC treaty, the court came into existence. A year later, in July 2003, the Prosecutor announced that he was looking into the situation in Ituri in the Democratic Republic of Congo. In July 2004, an investigation was opened in northern Uganda. Investigators are on the ground in both of these locations. The UN Security Council referred the situation in Darfur to the ICC in March 2005, and the Prosecutor is currently analysing seven other ‘situations of concern’, including the Central African Republic and Côte d’Ivoire. The ICC, in other words, is real. It may also be a problem.

In May 2005, the Sudanese authorities arrested the Médecins Sans Frontières (MSF) Head of Mission and Darfur coordinator over the publication of a report detailing the high number of rape victims that MSF had received in its clinics. Coming only two months after the referral of the Darfur situation to the ICC, the intimidatory intent of this action was clear. At the end of October, two aid workers were killed in attacks on humanitarian NGOs in northern Uganda that have been linked to the ICC indictments. These events remind us that the people being brought to justice may well be part of the same group granting us access or guaranteeing our security. On a pragmatic level, and sometimes on a principled one, humanitarian organisations are feeling the need to put some distance between themselves and the agents of international justice.

This might prove difficult. Earlier in 2005, humanitarian staff working in northern Uganda were startled to find representatives of the ICC Prosecutor’s office addressing them at the regular OCHA meeting in Kampala. For the ICC investigators, in search of victims and witnesses to alleged crimes, contacting humanitarian organisations at the OCHA meeting was a logical step. As a UN agency, OCHA has an agreement to cooperate with the ICC, and it was part of its role to facilitate this meeting. For the organisations that work in areas where the Lord’s Resistance Army (LRA) is active, this encounter was alarming. Would the LRA hear distorted reports that agencies had been in a meeting with the ICC? The perception that agencies were cooperating with the court could be dangerous. And, as one humanitarian organisation is generally indistinguishable from another to the majority of people we work with, the actions of one are likely to affect us all.

Cooperating with the ICC or other international justice mechanisms raises the same issues for humanitarian organisations that arise from any other form of speaking out about the atrocities they may have witnessed in the field. Such acts bring us into confrontation with powerful and dangerous people, and may challenge perceptions of our neutrality. We can find our access to people in need denied, and our staff put in danger. Nonetheless, some see cooperation with the ICC (or other international justice mechanisms) as significantly different to other forms of speaking out. It can be seen as more risky, because of the severity of the consequences for indicted individuals, although it is possible to imagine situations where simply publicising what we have witnessed could lead to more immediately challenging outcomes for perpetrators – such as sanctions, or even military intervention – than cooperation with a tribunal, which will inevitably take years to bring a few individuals to trial. It has also been characterised as participation in a fundamentally political and inevitably controversial process, and so as straying too far from neutrality.

Both these views presuppose that we have a choice about whether or not to cooperate with international courts. The question would be different in our home countries, or in the national systems of the countries in which we work, where justice mechanisms have the full force of the state behind them, and a decision not to cooperate could result in a significant penalty. Lying outside a national framework, the ICC is in a weaker position. But do we really have a choice about whether or not to join in? Although the International Committee of the Red Cross (ICRC) has negotiated a specific exemption from the obligation to testify before the court, other humanitarian organisations are not covered. As the law stands it seems that, as in any national jurisdiction, if we are ordered to cooperate we are legally bound to do so. It may be that we can narrow the scope of the issues upon which we could be ordered to testify; for example, a case could be made for exempting humanitarian organisations from the obligation to testify unless the information they provide is of direct and important value in determining a core issue in the case, and cannot reasonably be obtained elsewhere. More significantly, however, we are unlikely as a matter of practice to be forced to cooperate. The ICC has no police force, and must depend on states to enforce any orders it issues. It is hard to imagine a state arresting and transferring a humanitarian witness, especially one of its own nationals, to the ICC in The Hague. For that reason, the ICC is unlikely to make such an order – no court wants to look ridiculous, after all.

We should not lose sight, meanwhile, of how reluctance to cooperate could appear to the victims. There is a moral trade-off involved in trying to keep out of the justice process. We may justify this stance to ourselves because it protects our ability to carry out our core mission, but it may be hard to explain to the people we are feeding and treating why we refuse to stand up and talk about the crimes we have seen committed against them. This becomes clearer if we look at some hypothetical examples.

In July 2004, the International Rescue Committee (IRC) published a mortality survey for the DRC. In the course of that survey, IRC workers must have interviewed hundreds of people about difficult events in their and their family’s lives. Would it be legitimate, hypothetically speaking, for the IRC to refuse to repeat that information in court, even though this might spare hundreds of individual victims the necessity of going through a traumatic courtroom experience? To take another example: MSF sometimes provides medical certificates to survivors of violent trauma, including rape, in the belief that these patients can use them, if they wish, to pursue legal proceedings. What if some of these victims testify before the ICC, and MSF is asked to confirm the authenticity of the medical certificates? Could MSF legitimately refuse to do so, even though this might undermine a former patient’s claim?

If we are obliged to cooperate, either for legal or moral reasons, it should be possible to arrange some degree of confidentiality, so that only the defendant knows the name of the witness and the humanitarian organisation, for example. The ICC judges can order this kind of measure in order to protect the ‘safety, physical and psychological well-being, dignity and privacy of victims and witnesses’, and similar provisions have been used to protect humanitarian organisations and their staff in the international tribunals in Yugoslavia, Rwanda and Sierra Leone. It is also possible to pass on information on a strictly confidential basis to the prosecution or, potentially, the defence, which cannot be used in evidence but may help them with their investigations.

The ICC as part of the solution

Legitimate concerns about the problems the ICC may pose for humanitarian operations should not blind us to its potential to improve the situation for the people we try to help, both directly and through the protection of humanitarian assistance. After all, if the ICC manages to fulfil its promise and provide some kind of deterrent to abuse, we could see more respect for international humanitarian law, even – possibly – fewer wars.

On a practical level, the ICC could give us leverage in negotiating with those in control – either for better treatment of the civilians in their power (because they could be prosecuted for any violence or ill-treatment), or for permission to provide humanitarian assistance to those populations. In particular, where there is a blatant attempt to block humanitarian access to civilians as part of a war strategy, this is a crime within the jurisdiction of the court.

Four crimes can be prosecuted at the ICC: genocide, crimes against humanity, war crimes and aggression. Crimes against humanity are defined as widespread or systematic attacks against a civilian population, and can take many forms – murder, torture, deportation, extermination are among those listed in the ICC Statute. Extermination explicitly includes ‘the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population’. Thus, if someone blocks our access in order to increase the suffering of the people we are trying to reach, this is an international crime. If this takes place in a country which has ratified the ICC Statute (and 100 had, by November 2005), that person can be arrested and tried before the ICC. These are sharper teeth than we are used to having at our disposal.

The ICC Statute could also increase our own protection. Attacks on humanitarian workers can be prosecuted as war crimes by the ICC, because the ICC can take action in response to attacks on civilians. The Statute lists as a distinct crime attacking ‘personnel, installations, materiel, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the charter of the United Nations’, although this only reinforces our existing protection from attack as civilians. This means that, even where we know that the state authorities of the country in which we are working would be unwilling or unable to prosecute those who attack us, we (like the civilians living in the territory) are protected by the ICC. Once the ICC has shown that it can get its hands on some of its indictees, and actually has defendants in the dock, this thought may give our attackers pause.

Conclusion

With the coming into force of the ICC comes a new understanding of the problems it could cause us in the field. It is important to think about how to control relations with the court, but we should not lose sight of the ICC’s potential to work for the benefit of the people we try to assist, or of how we can use it as an additional tool to negotiate support for humanitarian action.


References and further reading

Jacques Stroun, ‘International Criminal Jurisdiction, International Humanitarian Law and Humanitarian Action’, International Review of the Red Cross, no. 321, December 1997.

Stéphane Jeannet, ‘Recognition of the ICRC’s Long-standing Rule of Confidentiality – An Important Decision by the International Criminal Tribunal for the Former Yugoslavia’, International Review of the Red Cross, no. 838, June 2000.

Françoise J. Hampson, ‘The International Criminal Tribunal for Yugoslavia and the Reluctant Witness’, (1998) 47 I.C.L.Q. 50.
Rome Statue of the International Criminal Court: http://www.un.org/law/icc/statute/romefra.htm.

 

Kate Mackintoshis the international law adviser to MSF-Holland. This article is written in a personal capacity. Kate’s email address is: kate.mackintosh@amsterdam.msf.org.

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