Humanitarianism and international criminal justice

NGOs have played a crucial role in lobbying for international legal responses to abuse, and have been instrumental in gathering testimony and evidence. But how relevant are these activities to the work of humanitarian organisations?

Slobodan Milosevic’s appearance at the Inter-national Criminal Tribunal for the Former Yugoslavia (ICTY) in July 2001 may well mark a watershed in the development of international criminal justice. His indictment in May 1999 marked the first time a sitting head of state had been charged by an international tribunal. The Pinochet case, which targeted a retired head of state, had paved the way, and there have been demands for other similar trials. In Cambodia, for instance, negotiations have taken place between Prime Minister Hun Sen and UN Secretary-General Kofi Annan over some form of ‘international’ tribunal to try surviving leaders of the Khmer Rouge. Yet the rapid progress towards an international criminal justice system masks a deeper truth: that, more than half a century after the Geneva Conventions and the principle of universal jurisdiction for human-rights abuse, impunity still prevails. Nations have been reluctant to honour their obligations to seek out and bring to trial those who contravene the Convention and other instruments of international law. One hundred and twenty states agreed in Rome in July 1998 on a statute for an International Criminal Court for war crimes, genocide and crimes against humanity. But opposition, notably from the US, means that the powers and jurisdiction of such a court will be circumscribed, if it is established at all.

What role for humanitarians?

Given the reluctance of governments to implement international legal instruments as effectively as they might, it is left to civil society to challenge the impunity that perpetrators of human-rights abuse, genocide or war crimes often enjoy. Human-rights groups clearly have a central role to play in witnessing, reporting and publicising breaches of human rights, and organisations like the International Federation of Human Rights Leagues work on the ground to protect and support local human-rights workers. But the extent to which humanitarian organisations can, or should, be involved in questions of international justice is still under debate.

Humanitarian organisations are often present in the field alongside the victims of abuse. They thus have the capacity to sound the alarm, and their statutes often assert this witnessing role. Indeed, for some organisations justice is an intrinsic part of humanitarian action. The fight against impunity is a form of relief, and the need for justice is as urgent as the need to eat or to receive medical care. Yet by engaging in the fight for justice, humanitarians find themselves becoming entangled in politics. Human rights, justice, democracy – these are quintessentially political issues. Should they then be part of the humanitarian agenda, in which impartiality and neutrality are the cardinal principles? When humanitarians gather testimony against, for instance, war criminals, as has happened in Kosovo, are they jeopardising their access to the vulnerable?

Humanitarianism, justice and Kosovo

The Kosovo conflict put these issues into stark relief. One of the more striking outcomes of the NATO air campaign was its use – or abuse – of the word ‘humanitarian’ to describe a military operation. Thus, the ‘humanitarian’ space has been expanded to include what were previously generally accepted to be discrete areas to do with force, diplomacy, development – and also notions of justice and criminality. Humanitarianism and justice must necessarily go together. There is no infringement of humanitarian principles here because testimony and witnessing is an integral part of what being humanitarian means. But in Kosovo, humanitarian organisations have been cast as the lead actors. The encroachment of military agencies into spheres traditionally the province of humanitarian organisations has para-doxically encouraged humanitarian organisations to venture further into matters to do with justice. These developments have perhaps been encouraged by a decade of anger and frustration about what has been happening in the Balkans, and also by donor governments keen to see the management of human rights included within humanitarian activities. Thus, humanitarians have been demanding, perhaps too publicly, the ‘new’ legitimacy that their involvement in issues of justice is deemed to confer. At the same time, we are no longer sure whether testimonies are gathered from refugees for the sake of the international tribunal, or whether they are just another means of mobilising public interest – and justifying NATO’s bombing campaign. Let there be no mistake: Action Against Hunger has also collected testimony in an effort to understand what has happened in Kosovo. And NGOs are the first to proclaim this quasi-political form of commit-ment. But we must be careful lest this role of bearing witness in so visible a way rebounds, denying us access to victims in some future humanitarian crisis.

Kosovo is the exception that proves the rule: in most contemporary conflicts, there is not such political will on the part of Western governments to relieve the suffering of victims of abuse. In conflicts, NGOs are often the last international entities to remain in the field, after the diplomats and UN personnel have been evacuated. It is in such situations that bearing witness by humanitarian workers is vital. But it is the testimony of victims as gathered by humanitarian workers, not the testimony of these workers themselves, that is useful in a criminal court. Aid workers are no substitutes for a court’s investigators, nor can they take charge of an inquiry. When NGOs themselves denounce violations of the law in their areas of operation, they are going much further than merely collecting testimony for the ICTY. There are links between humanitarian relief and the defence of human rights, but this does not imply the full identification of the one with the other.

Impartiality, neutrality and humanitarianism

Under international law, an organisation is deemed ‘humanitarian’ if, with complete impartiality, it seeks to relieve human suffering. Impartiality is the Hippocratic oath of a humanitarian organisation, and an operational principle that seeks to match relief to need in situations in which available resources are always limited. Impartiality finds expression in a rule of distribution that is proportional to needs and their urgency, established according to a standard analytical grid. Impartiality is therefore assured by the principle of non-discrimination. In theory, it is for states to guarantee these humanitarian principles. In practice, NGOs are subject to pressure to violate this principle.Unlike impartiality, neutrality is not defined in international humanitarian law, but set out instead in the charters of numerous humanitarian organisations themselves. By neutrality, humanitarians mean that they claim no political agenda. This creates a dilemma when it comes to bearing witness to abuses of human rights; denouncing atrocities against a population, be it Tutsis in Rwanda, Albanians in Kosovo or Rohingyas in Burma, is equivalent to denouncing the perpetrators of these atrocities. Is this a political act? Alternatively, remaining silent would amount to complicity with the abuser – again, a political act?

An intractable dilemma?

The debate over whether testimony is irreconcilable with access is an old one, and it can pose intractable dilemmas for humanitarian organisations. We must remember that bearing witness is a crucial element in protecting victims – but we must also not lose sight of the fact that humanitarians are only one part of a wider, evolving system of accountability and international justice. As humanitarians, we must insist on our impartiality – but we must also reject the implications of a fully neutral stance in the face of violations of human rights.

Carole Dubrulle is Head of Project, Action Contre la Faim-France. This article is an edited extract from The Geopolitics of Hunger, 2000–2001: Hunger and Power (Boulder, CO: Lynne Rienner for ACF, 2001). To order a copy, contact EDS, 3 Henrietta Street, London WC2E 8LU. Tel: +44 (0)207 240 0856; Fax: +44 (0) 207 379 0609; e-mail: orders@edspubs.co.uk.