IHL - Australian Red Cross and ICRC's Role in Advocacy
4 November 2006
The Emergence of Customary International Humanitarian Law Conference
School of Law, Law and Commerce Building, Flinders University
by Robert Tickner
CEO, Australian Red Cross
Thank you for the opportunity to speak to you tonight.
I have some sentimental attachment to IHL events of this kind in South Australia as, on the very first day of my appointment as CEO of Australian Red Cross I was thrust into the deep end with a speech to a similar gathering on 14 February last year.
The first question I want to pose to you tonight is: 'When do you have a duty to help someone in need or to prevent something bad from happening?'
And if there is a duty, what responsibilities does it entail?
These are age-old and ever present issues which apply, in different ways, to the conduct of individuals, of governments and of voluntary associations.
The major global faiths such as Islam, Judaism, Christianity and Buddhism, and secular humanist teaching, encourage followers to display kindness to strangers and act charitably.
The story of the Good Samaritan is perhaps one of the most widely known events recorded in the New Testament.
The essence of the story is spontaneous generosity, so perhaps it's ironic that the term Good Samaritan law is used to describe laws in some countries that compel bystanders to provide assistance, like calling emergency services when they see an accident.
Without using that label, a number of Australian jurisdictions have legislated to require designated professionals such as school teachers to report when they think a child in their care may be the victim of serious abuse by a parent or other person.
What of the responsibilities of governments?
One of the pre-eminent duties of modern governments is to put in place programs and policies to protect their citizens from diverse harms.}
These include harm perpetrated by other citizens, which criminal and civil laws deal with -- and harm arising from natural causes, which are the focus of health and welfare systems.
At least in democratic societies, governments which perform unsatisfactorily are held accountable by their citizens through the ballot box.
The idea that governments should also have concern for the welfare of the citizens of OTHER states is more recent and has developed somewhat fitfully, and with major gaps between rhetoric and reality.
In the mid seventeenth century, the treaty of Westphalia which ended decades of war in Europe established the principle that states must not interfere in the internal affairs of other states, a norm which continues to be central in international relations.
The horrors of the Second World War and subsequent situations of large-scale and grave human rights violations, such as apartheid and the Rwandan genocide, have spurred challenges to the right of governments to mistreat their citizens without external sanction.
The Genocide Convention of 1948 provides that genocide, whether committed in time of peace or in time of war, is a crime under international law which parties to the treaty undertake to prevent and to punish.
Each of the four Geneva Conventions requires States 'to respect and to ensure respect for them' but there is no agreement as to 'how' the obligation to ensure respect may be fulfilled -- does it permit the use of force or only means such as diplomatic measures?
According to the Customary IHL Study, state practice would suggest that this probably does not involve an obligation to prosecute war crimes committed in another state by a non-national, although they can do so if they want to.
Similarly, recent years have seen the emergence of the doctrine initially referred to as humanitarian intervention, to the dismay of humanitarian aid organisations, and now referred to as duty to protect.
This suggests an obligation on the international community to stop -- by force if need be -- massive human rights violations where a government is committing awful violations against its own citizens or is unable or unwilling to intervene.
Inevitably there has been, and will continue to be, intense debate on the lawfulness and appropriateness or otherwise of the doctrine and its application in particular circumstances.
I should emphasise that this is a matter of jus ad bellum (right to go to war) and not jus in bello (laws in war), which is what the ICRC mandate is concerned with. Red Cross would not enter into the debate about the lawfulness or appropriateness of such interventions.
There are other manifestations of the trend for governments to accept a wider responsibility for the welfare of people outside their national boundaries.
For instance -- the development of legal norms that are binding on all states whether in the field of human rights protection or, indeed, the Geneva Conventions themselves.
In recent years we have been witnessing the establishment and strengthening of enforcement measures to hold individuals accountable for violations of these international standards.
I think two other instances of states having regard for the welfare of people who are not their citizens are: the systems for the protection of refugees -- with the obligation not to return people to danger -- and extensive overseas aid programs.
Like individuals and governments, humanitarian associations such as ours -- the Red Cross and Red Crescent Movement at large and Australian Red Cross -- have also to address the challenge of determining what interventions we feel we can and should undertake.
Of course we don't have -- or want -- military forces and other types of sanctions and assets that governments can deploy.
But we do have resources -- people, money, reputation -- which in certain situations can be used very influentially.
Determining when and how to use them can be very challenging and on occasion highly contentious, both internally and externally.
That is so with respect to the allocation of scarce resources to provide services to people in need.
It is even more so with respect to the allocation of resources to advocate on behalf of vulnerable individuals and groups to the people who have the power, directly or indirectly, to prevent or alleviate suffering, which are our driving objectives.
This evening I want to focus my comments on advocacy focusing in particular on the approaches of ICRC and Australian Red Cross.
A definition of advocacy is in order, and this is the official Red Cross and Red Crescent Movement one: advocacy means 'pleading in support of, supporting or speaking in favour of someone, a cause or a policy.'
It is important to note that the definition does not confine advocacy to PUBLIC forms of action, though that is how the term is commonly understood and is certainly the most sensitive and fraught form of intervention.
In January 2005, on the 60th anniversary of the liberation of Auschwitz, the ICRC issued a statement describing the death camp as -- quote -- 'the greatest failure in the history of the ICRC, aggravated by its lack of decisiveness in taking steps to aid the victims of Nazi persecution.'
The ICRC's failure to reveal and publicly denounce what it knew about the mass killing program of the Nazis has been the subject of painful reflection and debate within the organisation as well as intense external criticism.
In the half century since 1945, and to the present day, the ICRC has been and is involved in many other situations where its unique access to -- for example -- prisons, has made it aware of awful facts unknown to others.
The dilemma of what to do was encapsulated by ICRC President Kellenberger in 2004 thus:
'The question of whether -- and if so, to what extent, a humanitarian organisation should publicise or denounce the violations of international humanitarian law and other wrongs, and name those responsible for them, is as acute as ever.'
To deal with this challenge the ICRC has developed guidelines to determine when the option of public denunciation of violations of IHL may be taken.
These lay out four considerations:
- the violations are major and repeated or likely to be repeated
- delegates have witnessed the violations with their own eyes, or the existence and extent of those violations have been established on the basis of reliable and verifiable sources
- bilateral confidential representations and, when attempted, humanitarian mobilisation efforts have failed to put an end to the violations
- publicity is in the interests of the persons or populations affected or threatened.
A recent instance of the ICRC speaking publicly involves the detention facility at Guantanamo Bay.
Following repeated requests to the authorities, the ICRC felt it necessary to make a public statement indicating concerns about the mental health implications for those detained without charge.
So, perhaps contrary to the perceptions of many both inside and outside the organization, there is no absolute prohibition on public comment on even the most highly charged issues of the day.
The perception that the Red Cross and Red Crescent Movement does not speak out on contentious subjects is understandable, given its strong insistence on operating on the basis of neutrality.
Some of you will be aware that neutrality is specified as one of the seven fundamental principles of the Red Cross and Red Crescent Movement, and provides that -- to paraphrase -- 'in order to enjoy the confidence of all' the Movement cannot engage in controversies of a political racial, religious or ideological nature.
The principle sets out the eminently reasonable, pragmatic reason for caution, for using public denunciation only as a last resort: we do not want to jeopardise our capacity to provide essential services to highly vulnerable people unless it is clear a greater good might be served.
Important as the debate about public denunciation of violations of IHL is, it can obscure an understanding of just how important other forms of advocacy are.
As the ICRC's guidelines indicate, CONFIDENTIAL advocacy on behalf of individuals is the first and most common course of action on behalf of detainees.
But working directly for detainees is only one part of the range of IHL related advocacy activities.
The Red Cross and Red Crescent Movement, with its fundamental concern to prevent and alleviate human suffering on the battlefield, has always understood the importance of advocacy and education in times of peace as well during conflict.
It is worth remembering that the formation of modern IHL and the Red Cross Red Crescent Movement stems from the advocacy of our founder, Henri Dunant, who, in recounting his memories of the Battle of Solferino in 1859, called for the creation not only of voluntary relief societies but of rules of war which would allow the societies to function effectively.
The drafters of the Geneva Conventions recognised the value of proactively disseminating IHL, creating a requirement in each of the Geneva Conventions that States educate not only the military but other key actors and the wider public.
At the international level, the International Committee of Red Cross participates in a variety of conferences and UN fora that focus on the development of both Hague and Geneva law. Recent instances include participation in weapons review conferences, in debates on the development of new initiatives such as the Arms Trade Treaty; and the recent conference on the Third Protocol Additional to the Geneva Conventions.
Promoting awareness and implementation of IHL is a task which national societies as well the ICRC undertake.
This conference is an example of where, through public engagement, the Australian Red Cross seeks to promote a greater understanding of, and respect for IHL by key decision makers and the wider community.
Other educational activities, such as professional development seminars targeting key professions such as lawyers, medics and the media also represent a form of advocacy and persuasion by targeting those professions that are likely to have an involvement in conflict.
The Red Cross and Red Crescent Movement engages in policy development through a variety of mechanisms. In many countries, the national society participates in a national IHL committee. In Australia, we are members of a liaison committee with government that considers current and emerging issues in IHL and humanitarian action.
Red Cross also engages in private advocacy with key decision makers on specific issues. In this regard it may surprise some members of the audience to know that ARC recently met with the relevant Minister to discuss, amongst other things, the Military Commission process for people detained at Guantanamo Bay and the fair trial guarantees implicit in the Geneva Conventions and applicable human rights instruments. I think it important to note that a whole series of the fair trial guarantees have been enunciated in the customary law study as now being customary rules.
We are here for an IHL conference, so my remarks to this point have been about Red Cross advocacy in relation to IHL.
But I will take the liberty of having the floor to speak about Red Cross Red Crescent advocacy in relation to non-IHL issues as well, because there are some very interesting parallels in policy and practice.
First and foremost let me say that globally and nationally we acknowledge the importance of advocacy in addition to or in support of services rendered to the community.
To quote the Strategic Plan of the International Federation of Red Cross and Red Crescent Societies of which we and 184 other national societies are members:
As much can be achieved through mobilising people and influencing decision-makers -- whether through face-to-face advocacy or public campaigns -- as through delivering services.
If it is not apparent that we take this seriously, that is in part because of the preference for doing things discreetly: in order to maintain the confidence of those whose cooperation is essential for us to function, as the principle of Neutrality dictates, we tend to raise concerns face to face and through confidential communications rather publicly chiding governments and officials.
But there has been a growing view in the organization that perhaps we have paid inadequate attention to the possibility of influencing decision makers to do or stop doing things that might have removed or lessened needs we were meeting by providing services.
There is also a growing acceptance that we need not be as tightly constrained in our advocacy within Australia as we are not in a conflict environment with the risks of such immediate and dire consequences as applies to ICRC operations.
So, the ICRC's advocacy mandate need not be our only guide to determining the circumstances of how and when we will advocate.
There has been considerable reflection on whether we could and should have done more to address the plight of Australia's so-called unauthorised asylum seekers, both in detention and in the community.
In fact much confidential advocacy has been undertaken on their behalf.
Nonetheless, the question has reasonably been posed and it is important that we feel assured that in all our actions on behalf of vulnerable people Australian Red Cross will make well-informed strategic choices about the full range of interventions which may be appropriate and effective for Australian Red Cross to undertake.
Accordingly, Australian Red Cross' current strategic plan gives explicit recognition to the fact that at times advocacy may be required if we are to fulfil our obligations to prevent or reduce vulnerability. The purposes of such advocacy may include:
- alerting authorities (or the public) to breaches of humanitarian principles
- preventing breaches of humanitarian principles
- redressing wrongs suffered as a result of such breaches.
Don't anticipate revolutionary change in our public behaviour -- the strategy specifies that advocacy should still preferably be undertaken through dialogue and private diplomacy.
However, it acknowledges that if circumstances demand it, ARC should speak out and adopt other means to support necessary change.
Like the ICRC, we are developing guidelines for appropriate and effective advocacy.
They will draw in part on the ICRC's guidelines on public denunciation of IHL violations, which I cited earlier, to ensure that we never forget our primary responsibility to the well-being of the vulnerable we aim to protect and promote.
We are proceeding carefully and in close consultation both within Australian Red Cross and other parts of the Red Cross and Red Crescent Movement including the ICRC.
I am very pleased at how positive the response from all sectors has been.