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Choices More Ethical Than Legal: The International Committee of the Red Cross and Human Rights1

Published online by Cambridge University Press:  28 September 2012


It may come as a surprise to many that the ICRC was the first agency established representing the International Red Cross and Red Crescent network to protect and assist victims of war and victims of politics. This article explores the ineffective consequences of international laws overseeing such victims and argues that proper implementation of these laws requires policy, without which laws can never be executed. ICRC has often coordinated relief for victims in such places as Somalia and Bosnia, in fact more than all the UN agencies combined, when the rest of the world was still ignoring them. When law is silent, and often during war time it is, human rights policies must be built on ethical choice.

Copyright © Carnegie Council for Ethics in International Affairs 1993

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2 For books on the ICRC by its personnel see Boissier, Pierre, De Solferino a Tshoushima: Histoire du Comite de la Crois-Rouge (Paris: Plon, 1963Google Scholar); Durand, Andre, The International Committee of the Red Cross (Geneva: ICRC, 1981Google Scholar); Durand, Andre, From Sarajevo to Hiroshima (Geneva: Henry Dunant Institute, 1984Google Scholar); Freymond, Jacques, Guerres, Revolutions, Crois-Rouge (Geneva: Graduate Institute of International Studies, 1976Google Scholar); Junod, Marcel, Warrior Without Weapons (1951; Geneva: ICRC, 1982Google Scholar); Moreillon, Jacques, Le comité internationale de la croix-rouge et la protection de detenus politiques (Lausanne: L'age d'homme, 1973Google Scholar); Willemin, Georges, et al. , The International Committee of the Red Cross (The Hague: Martinus Nijhoff, 1984).Google Scholar

3 See further Donnelly, Jack, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press, 1989Google Scholar); and Forsythe, David P., The Internationalization of Human Rights (New York: Macmillan [The Free Press, Lexington Books], 1991)Google Scholar. See also Forsythe, David, “Human Rights in a Post-Cold War World,” The Fletcher Forum (Summer 1991), 5569.Google Scholar and Donnelly, Jack, “Human Rights in a New World Order,” in Forsythe, David, ed., Human Rights in the New Europe (Lincoln, NE: University of Nebraska Press, forthcoming).Google Scholar

4 All members of the ICRC's Assembly, the general policy-making body, are co-opted from Swiss society, and the president has always been Swiss. The overwhelming portion of the professional staff has always been Swiss, although it has become fairly common for the medical division to employ a number of non-Swiss in order to provide expertise on medical issues not well covered in Swiss society—eg., tropical diseases. In nutritional and medical work in the field, one may find non-Swiss seconded from national Red Cross/Red Crescent Societies. Prison visits and related tasks, on the other hand, are always handled exclusively by Swiss, with the exception of the occasional interpreter. The ICRC remains an independent unit of the Red Cross/Red Crescent network. See further Forsythe, David P., “The Red Cross as Transnational Movement,” International Organization 30 (Fall 1976), 607–30CrossRefGoogle Scholar.

5 Moreillon, Jacques, “The Fundamental Principles of the Red Cross, Peace, and Human Rights,” International Review of the Red Cross 217 (1980), 171–83CrossRefGoogle Scholar.

6 See, among others, Durand, Andre, “Human Rights as Perceived by the Founders of the Red Cross,” International Review of the Red Cross, 266 (1988), 435–51CrossRefGoogle Scholar; and Schindler, Dietrich, “The International Committee of the Red Cross and Human Rights,” International Review of the Red Cross 208 (1979), 314CrossRefGoogle Scholar.

7 The ICRC has resisted becoming a formal-legal substitute for Protecting Powers. But since belligerent states rarely appoint neutral states to this position any more, frequently the ICRC is the impartial party with the most authoritative voice—in an ethical sense—in comments on humanitarian behavior in international armed conflicts and similar situations. See further Forsythe, David P., “Who Guards the Guardians: Third Parties and the Law of Armed Conflict,” American Journal of International Law 70 (January 1976), 4161CrossRefGoogle Scholar.

8 Comelio Sommaruga, for the ICRC, Respect for international humanitarian law,” International Review of the Red Cross 286 (1992), 77Google Scholar.

9 The specious charge that Protocol I endorses terrorism is effectively refuted by ICRC legal adviser Gasser, Hans-Peter in “The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims,” American Journal of International Law 81 (October 1987), 910–25Google Scholar. For a clear indication of why key Pentagon officials object to Protocol I on grounds of interference with military necessity, see Parks, Hays, “Air War and the Law of War,” The Air Force Law Review 32 (1990), 1226Google Scholar. United States policy toward Protocol I is complicated by the fact that Israel strongly opposes the Protocol, fearing it would confer status on the Palestine Liberation Organization and its fighters.

10 Taylor, Telford, Nuremberg and Vietnam: An American Tragedy (Chicago: Quadrangle Books for Random House, 1970Google Scholar).

11 Green, Leslie C., Essays on the Modem Law of War (Dobbs Ferry, NY: Transnational, 1985), 96Google Scholar.

12 International Legal Materials 25 (1986), 1023CrossRefGoogle Scholar. This case, in its substantive aspects, deals primarily with the recourse to force or jus ad helium. But to a lesser degree it deals with the process of force, or jus in bello, with attention to such aspects of human rights in armed conflict as attacks on civilians and civilian state officials, and on objects essential to the welfare of the civilian population.

13 New York Times, July 31, 1990, p. 1; and Washington Post, National Weekly Edition, July 30-August 5, 1990, p. 31.Google Scholar

14 Macalister-Smith, Peter, “Humanitarian Action and International Law,” in Loescher, Gil and Nichols, Bruce, eds., The Moral Nation: Humanitarianism and US. Foreign Policy Today (Notre Dame, IL: Notre Dame University Press, 1989), 93–4Google Scholar.

15 As derived from ICRC, Annual Report (Geneva: ICRC, 1991Google ScholarPubMed).

16 Part of the reason for the overemphasis on traditional or technical law also rests with the ICRC, whose publication The International Review of the Red Cross has traditionally contained many such studies—perhaps because they are less controversial than independent analyses of its activity. The ICRC, unlike sponsors of other journals, has never invited controversial—and interesting—contributions with the disclaimer that the sponsor is not responsible for statements of fact and opinion. Rather, the ICRC sees the Review primarily as an official outlet of the agency whose contents either reflect official policy or are “safe.” Traditional legal studies are safe.Google Scholar

17 First the government suspended visits in reaction to a vote of criticism in the 1986 International Red Cross Conference. (The ICRC abstained on that vote.) Then the ICRC itself suspended visits later.Google Scholar

18 For one version see Guest, Iain, Behind The Disappearances: Argentina's Dirty War Against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990).Google Scholar Despite the title, there is much information on the ICRC and Uruguay.

19 Roberts, Adam, “Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967,” American Journal of International Law 84 (January 1990), 44103CrossRefGoogle Scholar. And Cohen, Esther, Human Rights in the Israeli-Occupied Territories (Manchester, U.K.: Manchester University Press, 1985Google Scholar).

20 This note does not attempt to give full documentation of human rights in territories militarily occupied by Israel, but rather to give an idea of the range of contemporary reports indicating torture and mistreatment, in addition to the sources referred to in ibid. Concerning torture and mistreatment see, e.g., New York Times, April 3, 1992, A-5; Washington Post, February 13–19, 1989, p. 18; Department of State, Country Human Rights Practices (Washington: U.S. Government Printing Office, annual [esp. 1989, 1990, and 1991])Google ScholarPubMed; O'Brien, William V., Law and Morality in Israel's War with the PLO (New Yorkand London: Routledge, 1991), esp. 260Google Scholar: Of course there is torture.” Concerning fatalities see e.g., ICRC, International Review of the Red Cross 274 (1990), 55Google Scholar. For extensive further documentation see Philippa Strum, “Palestinians in the New World Order,” paper presented to the IPSA Prague Conference on Human Rights, June 1992, photocopy. Also, see below, note 23.

21 ICRC, “Reference Report, ICRC 1990,” International Review of the Red Cross (1991), 80.Google Scholar

22 New York Times, May 11, 1989, A-7.Google Scholar

23 ICRC, “Israel: ICRC Position on Treatment of Palestinian Detainees under Interrogation,” Press Release 1717 (May 21, 1992)Google Scholar.

24 In addition to speaking with persons in Geneva, I had conversations with several U.S. officials. Their version was that when the ICRC raised the possibility of a suspension of activities in El Salvador, the reaction by persons in the U.S. Mission to the United Nations was forcefully opposed, whereupon supposedly the ICRC backed away from its threat. In larger perspective, both the ICRC and Washington wanted an improvement in the human rights record in El Salvador. Whether an ICRC threat of withdrawal was the best means for achieving that remains controversial.Google Scholar

25 Sarah H. Lamar, “The treatment of prisoners of war: the role of the International Committee of the Red Cross in the war between Iran and Iraq, Emory International Law Review (Spring 1991), 243–83.Google Scholar

26 Sommaruga, Cornelio, “The ICRC's humanitarian mandate as reflected in its work in Greece and throughout the world,” International Review of the Red Cross 285 (1991), 596607CrossRefGoogle Scholar, esp. 599.

27 Peace, Kelly-Kate S. and Forsythe, David P., “Human Rights, Humanitarian Intervention, and World Politics,” Human Rights Quarterly, forthcoming.Google ScholarMinear, Compare Larry, “Humanitarian Intervention in aNew World Order,” Policy Focus (Washington: Overseas Development Council, 1992)Google Scholar; and Chopra, Jarat and Weiss, Thomas G., “Sovereignty Is No Longer Sacrosanct: Codifying Humanitarian Intervention,” Ethics & International Affairs 6 (1992), 95118CrossRefGoogle Scholar.

28 Pictet, Jean, Commentary: The Geneva Conventions of 1949 (Geneva: ICRC, 1958Google Scholar).

29 ICRC, “Protection of the Civilian Population Against Famine in Situations of Armed Conflict,” C.I/4.2/2, prepared for the 1991 Budapest Conference of the Movement; “Protection of the Civilian Population and Persons Hors de Combat,” C.I/4.2/1, ibid..Google Scholar

30 Hentsch, Thierry, Face au blocus: la croix-rouge Internationale dans le nigeria en guerre (1967–1970) (Geneva: Graduate Institute of International Studies, 1973Google Scholar).

31 New York Times, August 13,1991, A-4.Google Scholar

33 ICRC, 1989 Annual Report (ICRC: Geneva, 1990), 23Google ScholarPubMed.

34 ICRC, International Review of the Red Cross 278 (1990), 441Google Scholar.

35 New York Times, April 14, 1992, A-3.Google Scholar

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