Genocide, Justice and the Forensic Sensibilities of the International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is a privateorganization formed, in 1865, under the laws of Switzerland,with the aim of making wars more humane. In order to achievethis aim, the ICRC dedicated itself to the mission of givingsuccour to the victims of war, and of initiating the adoptionof humanitarian rules of conduct of armed conflicts. In theensuing years, the international community endorsed the workof the ICRC and recognized its roles accordingly. In the meantime,there was no international criminal justice system in placeto punish those who violated the international law of war. Morethan a century and a quarter after the birth of the ICRC, theUnited Nations initiated the creation of an international criminaljustice system, with the establishment of the InternationalCriminal Tribunals for the former Yugoslavia and for Rwanda,under the powers of the Security Council to maintain internationalpeace and security. The objective was to end impunity for thosewho would violate international law by committing genocide,crimes against humanity and war crimes. In a quite notable development,the ICRC registered in absolute terms its position to the effectthat neither it nor those who worked under its auspices maybe subjected to testimony before these International Tribunals.The bases offered for this assertion of absolute testimonialimmunity are the practical requirements of the work of the ICRC,as well as customary international law which is said to haverecognized such a rule. This paper disputes the ICRC's assertionof absolute testimonial immunity as correctly founded in lawor principle, although recognizing that the important work ofthe ICRC does fairly warrant a judicial reluctance to summonICRC into the witness box. Nevertheless, such reluctance mustbe invoked on a case-by-case basis, and is not a matter of substantiverule of law.