Note for humanitarian organizations on cooperation with international tribunals (original) (raw)

2004, International Review of the Red Cross

Humanitarian organizations are in a privileged position to observe what happens in war. Perhaps with the exception of war correspondents-"embedded" or otherwise-no other individuals from outside the conflict area get to see what goes on in its midst. Medical humanitarian organizations will often be exposed through their work to the detail of violence committed against civilians; but all humanitarian organizations operational in conflict are likely to witness the brutal effects of the fighting. It is not surprising then that as tribunals-international or otherwiseare set up to try atrocities committed during a war, those tasked with bringing the perpetrators to justice turn to humanitarian organizations to see what evidence they can offer. For many such organizations, and the people they employ who may have personally witnessed atrocities, the question of whether or not to cooperate with prosecutions is fraught. On the one hand, many support, and even promote, the establishment of war crimes tribunals and the bringing of war criminals to justice, all the more so if they themselves have had contact with the victims of these crimes. On the other hand, and from a more organizational perspective, they worry about compromising neutrality, forfeiting access to victims and putting themselves and their staff at risk. This article sets out the legal tools available to humanitarian organizations to control any cooperation with international tribunals. It addresses such questions as: can humanitarian organizations be forced to testify? Can they hand over information on a confidential basis? And if they do give evidence, can this be kept out of the public domain? * Kate Mackintosh is international humanitarian law adviser to Médecins sans Frontières-Holland. Note for humanitarian organizations on cooperation with international tribunals KATE MACKINTOSH* Affaires courantes et commentaires Current issues and comments Can humanitarian organizations be forced to testify before international tribunals? International tribunals (and mixed tribunals, such as the Special Court in Sierra Leone) all have the formal power to compel witnesses to attend proceedings and give evidence. This is seen as necessary to enable the courts to function, and so is known as an "inherent power", but it is also specifically provided for in the statutes and rules of evidence and procedure of the courts. 1 However, one obvious feature of an international tribunal is that it is not part of the usual apparatus of a State, and therefore has no police force to enforce any orders for attendance it may issue. Different courts deal with this problem in different ways. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda The ICTY and ICTR were established by the UN Security Council under Chapter VII of the UN Charter, which authorizes the Security Council to decide measures to be taken by member States to maintain or restore international peace and security. In practical terms, this means that all States are under an obligation to cooperate with these International Tribunals, and to assist them in all stages of the proceedings. This is reflected in the Tribunals' Statutes, which provide that States "shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber". 2 Therefore, if either the ICTR or ICTY issues a subpoena or order for attendance, they can call upon the State in whose territory the person concerned is present to execute the order. Should the State fail to comply, such failure can be referred to the Security Council for further action. 3 In the 132 Affaires courantes et commentaires Current issues and comments 134 Affaires courantes et commentaires Current issues and comments 8 8 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, Article 17: "Cooperation with the Special Court: 1. The Government shall cooperate with all organs of the Special Court at all stages of the proceedings. It shall, in particular, facilitate access to the Prosecutor to sites, persons and relevant documents required for the investigation. 2. The Government shall comply without undue delay with any request for assistance by the Special Court or an order issued by the Chambers, including, but not limited to: (a) Identification and location of persons; (b) Service of documents; (c) Arrest or detention of persons; (d) Transfer of an indictee to the Court."