How the International Committee of the Red Cross
Influences International Negotiations
- A Study of the ICRC Involvement in the Banning of Anti-Personnel
Landmines and the Creation of the International Criminal Court
Paula Bierbrier
Kerstin Englund
Bachelor Thesis in Political Science
Spring 2007
Tutor: Geoffrey Gooch
Abstract
There is an increasing interaction between non-governmental organizations (NGO’s) and
intergovernmental organizations (IGO’s). This thesis deals with an NGO’s, the International
Committee of Red Cross, possibilities to influence international negotiations. The focus lies
on how it influenced two important negotiations in humanitarian law, the banning of antipersonnel landmines and the creation of the International Criminal Court (ICC). The ICRC
has a unique standing in the international community and therefore has greater possibilities
than other NGO’s to influence international negotiations and increase the efficiency. Evidence
of seven different ways for NGO’s to influence international negotiations are found in the
cases. Two of which are found to be of special importance, agenda setting and provision of
information and expertise.
1.
2.
INTRODUCTION ....................................................................................................................................... 1
1.1.
AIM AND RESEARCH QUESTIONS .......................................................................................................... 1
1.2.
METHODOLOGY & MATERIAL .............................................................................................................. 2
1.3.
DELIMITATIONS .................................................................................................................................... 2
1.4.
DISPOSITION ......................................................................................................................................... 3
THEORY ...................................................................................................................................................... 4
2.1.
LIBERAL INSTITUTIONALISTIC VIEW ON INTERNATIONAL COOPERATION .............................................. 4
2.2.
INTERNATIONAL GOVERNMENTAL ORGANIZATIONS ............................................................................ 5
2.3.
NON-GOVERNMENTAL ORGANIZATIONS .............................................................................................. 6
2.3.1.
The relation between NGO’s and states within the system of IGO’s ............................................... 8
2.3.2.
How NGO’s influence international negotiations ........................................................................... 9
2.4.
3.
THE ORGANIZATIONS ...........................................................ERROR! BOOKMARK NOT DEFINED.
3.1.
3.1.1.
3.2.
4.
5.
THEORETICAL FRAMEWORK ............................................................................................................... 10
THE UNITED NATIONS ........................................................................................................................ 14
The UN organs .............................................................................................................................. 15
THE INTERNATIONAL COMMITTEE OF THE RED CROSS ....................................................................... 17
3.2.1.
ICRC Background ......................................................................................................................... 17
3.2.2.
ICRC Structure .............................................................................................................................. 18
3.2.3.
ICRC Organs ................................................................................................................................. 19
3.2.4.
ICRC Status ................................................................................................................................... 20
ICRC’S INFLUENCE OF NEGOTIATIONS WITHIN THE UN SYSTEM ...................................... 21
4.1.
NGO INFLUENCE WITHIN THE UN SYSTEM ......................................................................................... 21
4.2.
RELATION ICRC & UN....................................................................................................................... 22
4.3.
CASE 1: THE BANNING OF ANTI-PERSONELL LANDMINES .................................................................. 24
4.4.
CASE 2: THE CREATION OF AN INTERNATIONAL CRIMINAL COURT (ICC) ......................................... 29
ANALYSIS ................................................................................................................................................. 33
5.1.
THE UN-ICRC RELATIONSHIP ............................................................................................................ 33
5.2.
THE CASES.......................................................................................................................................... 33
5.3.
EFFICIENCY......................................................................................................................................... 37
5.4.
CONCLUSION ...................................................................................................................................... 37
REFERENCES .................................................................................................................................................... 39
1. Introduction
Non-governmental organizations (NGO’s) have come to play a more prominent role in
international policy making. Earlier working mainly with public awareness they are now
active in the entire policy process, from the preparatory stages to implementation. UN
conferences often serve as a platform for NGO’s where they can make their voices heard. The
interest and possibility of NGO’s to participate in these conferences has increased rapidly. In
1968 only 53 NGO with consultative status, and four others on a special invitation,
participated in Tehran UN International Conference on Human Rights. At the Human Rights
Conference in Vienna 1992 248 NGO’s with consultative status, 593 as participants and an
estimated 1400-1500 NGO’s attended.1 Due to this increasing participation it is of relevance
to examine how NGO’s are able to influence international negotiations and what this
increased involvement leads to. The International Committee of the Red Cross (ICRC) is one
of the most important NGO’s in the international political system, focusing on humanitarian
law. They have a special status in international law, because of the mandate they have under
the Geneva conventions. They also behold observer status in the UN General Assembly and
have unique relationship with the UN. This organization is highly respected in the
international community and almost all states recognize their legal standing. This special role
and strong position that ICRC holds internationally makes it especially interesting to focus
upon this organization and its ability to influence international negotiations.
1.1. Aim and Research Questions
The aim of this thesis is to investigate the relationship between the ICRC and the UN within
international policy making. The ICRC is the leading NGO within their field of interest,
humanitarian law, and the UN the leading IGO, therefore their cooperation is of interest.
Accordingly, our main research questions are:
1

How does the ICRC contribute to the policy making process within the UN system?

Does this lead to further efficiency, and if so, in what way?
Clark, Friedman & Hochstetler. (1998) The Sovereign Limits of Global Civil Society: A Comparison of NGO
Participation in UN World Confereces on the Environment, Human Rights and Women. In Wilkinson, Rorden
(editor) The Global Governance Reader. (2005) New York: Routledge. p.297
1
1.2. Methodology & Material
To be able to answer the research questions two cases where the ICRC involved in
international negotiations will be examined. These are the banning of anti-personell
landmines and the creation of the International Criminal Court (ICC).By choosing two
different cases it may be possible to see tendencies applicable to other international
negotiations. A qualitative method has been used for these cases where documents and
statements have been analyzed.
Primary sources, such as official statements from the ICRC and official documents from the
UN and the ICRC, have been used as much as possible. Only when there was no availability
have other sources been used. Especially in the case of the banning of anti-personell
landmines facts have been found in secondary sources. The main source for this case is The
banning of anti-personnel landmines the legal contribution of the International Committee of
the Red Cross written by Louis Maresca and Stuart Maslen. These authors are prominent
lawyers who have been working for the development of humanitarian law in various
humanitarian organizations.
In the theory chapter articles from political sciences and law journals as well as from other
literature in political science have been used as sources. The most frequent authors used in
this chapter are Steve Charnowitz, professor of international law at George Washington
University Law School , Cecilia Albin, professor of peace and conflict studies at Uppsala
University, Leon Gordenker, professor emeritus of international relations at Princeton
University, Thomas Weiss, presidential professor of political science at the CUNY Graduate
Center, and Charlotte Ku, executive vice president and executive director of the American
Society of International Law.
1.3. Delimitations
The NGO that has been chosen in this thesis to be focused upon is the ICRC. The choice of
the ICRC felt natural as it possesses a unique position in the international community. It
works for the development of international humanitarian law and this is an area where
governments tend to be more positive to NGO involvement than for example in the
economical area. The two cases of negotiations were chosen as they have been the result of
2
long time campaigns and negotiation processes where the ICRC has had a great deal of
interest.
This paper looks at how the ICRC contributes to negotiations and this leaves out a big part of
ICRC activity that deals with their practical assistance under UN lead humanitarian
interventions.
1.4. Disposition
As it deals with how ICRC, an NGO, cooperates with the UN, an IGO, this thesis will begin
with a chapter about theories concerning IGO’s and NGO’s. This chapter will be concluded
with a theoretical framework that will later be used in the analysis. As this paper focuses on
the ICRC within the UN system, chapter 2 will give a brief background to these two
organizations. Chapter 3 will further investigate the ICRC’s influence of negotiations within
the UN system. This is done by first describing the position of NGO’s in the UN system,
followed by a more detailed account of the ICRC’s influence in the UN system. The chapter
will be ended with the two cases where the ICRC played a role in international negotiations.
Chapter 5 concludes the thesis with an analysis of how the ICRC contributes to the policy
making process within the UN system and if this leads to further efficiency.
3
2. Theory
2.1. Liberal institutionalistic view on international cooperation
According to neo-liberalist theory states are the main actors in the international arena,
however they are not the only actors of importance. Other actors have increased rapidly and
the cooperation, interaction and dependence between them and the states has become an
important part of the agenda. For neo-liberalists the main goal of states is always to maximize
their interests and they are willing to give up part of their sovereignty by engaging in
cooperation to achieve this. They are willing to do this if it is mutually beneficial and provides
opportunities and secures international interests. States are not interested in relative gains,
they focus on absolute gains. The biggest threat to successful cooperation is that states are
inclined to cheat or disregard international agreements if it lies in their interest. 2
Liberal institutionalists deal with situations where the participating states have incentives both
to cooperate and not to cooperate. In situations where the states have strongly conflicting
interests they will not cooperate and they will seek to gain only relative gains. However, when
the interests are not completely conflicting all participating states can gain from cooperation
and they will cooperate because they are mostly concerned with absolute gains.3
States can chose to cooperate fully, to only partly cooperate, to not cooperate at all or to only
pretend to cooperate. A central idea in liberal institutionalism is the “prisoners dilemma”, and
that is why cheating is perceived as the biggest threat to international cooperation. States who
are about to engage in cooperation always have two strategies to choose between. Either they
cooperate or they cheat. The best outcome for each state is that they cheat and the other does
not, the worst outcome is that they cooperate and the other cheats, the next best outcome is
that they both cooperate, and the next worse outcome is that both of them cheat. Since both
states know of these strategies they will assume that the other will cheat, thus leading to the
second worst outcome.4
2
Lamy, Steven L. (2001). Contemporary mainstream approaches: neo-realism and neo-liberalism. In Baylis,
John & Smith, Steve (red.). The globalization of world politics – An introduction to international relations.
Second edition, New York: Oxford University Press inc. p. 189f
3
Mearsheimer, John J. (2005). The False Promise of International Institutions. In Diehl, Paul F.(editor) The
Politics of Global Governance. Third edition, 2005, Lynne Reinner Publishers inc. p. 65
4
Ibid. p. 66
4
To solve this problem and to make it more desirable for states not to cheat the liberal
institutionalists try to show how institutions can change the strategy of states without them
jeopardizing their gains. Firstly, the institutionalized iteration discourages cheating by
rewarding states which get a reputation for being faithful and punishing those who are
cheating. Secondly, institutional rules can link different issues of cooperation to each others
so that states are afraid to cheat in one issue when the other state can retaliate in another.
Finally, an institution can offer the state more information about the other participants.
Information makes it more likely that cheaters will get caught and it will offer other states
early warning before they get cheated.5 When cheating is no longer as attractive to the states
the cooperation among them will be much more efficient, and therefore more profitable for
the gain seeking states.6
Neo-liberalism mentions four characteristics that define the new interdependent world. They
see an increasing interaction between states and non-governmental actors, an
internationalization of problem resolution such as environmental and human rights problems,
increased possibilities of communication over state borders and the decrease of importance of
armed forces as a tool of statecraft.7
An alternative to the neo-liberalist theory is offered by realists who dismiss the idea that
IGO’s are to be considered as serious political entities. According to them the IGO’s are
institutions of little interest since they only reflect the states’ national interests and the power
distribution between them and the IGO’s have no capacity to constrain the powerful states.8
As seen above this is not an assumption that is held by the liberalists.
In the following sections theory regarding IGO’s and NGO’s, and how they interact in
international negotiations will be elaborated.
2.2. International Governmental Organizations
Powerful states have a disproportional influence over international norm elaboration, but
when this elaboration has taken place within the established rule-making procedure of an
5
Mearsheimer, J. (2005). p. 67
Ibid. p. 68
7
Lamy, Steven L. (2001). p. 189
8
Abbott, Kenneth W & Snidal, Duncan. (2005) Why States Act Through Formal International Organizations. In
Diehl, Paul F.(editor)The Politics of Global Governance.Third edition, 2005, Lynne Reinner Publishers inc. p. 30
6
5
IGO, the weaker states have more influence than they would have in ordinary international
negotiations. The powerful states agree to this to make sure that many of the weaker states
participate so that the norms will be applicable to them as well.9
Charlotte Ku claims that states decided to create IGO’s to be able to supplement the functions
of a state and certify its continuation.10 Abbott and Snidal mention two important
characteristics of IGO’s, their centralization and their independence, that enhance their
efficiency11. Thanks to these characteristics they fulfill eleven important functions, which
make it desirable for states to participate in IGO’s. These functions are:

Support state interactions

Managing substantive operations

Norm elaboration and coordination

Laundering actions, making them more acceptable by doing them through an IGO.

Neutral information provider

Acting as Trustees

Arbitrage

International Community Representatives

Managers of enforcement
2.3. Non-Governmental Organizations
An IGO is cooperation between sovereign states, where the interests of these states rule. On
the other hand NGO’s are operated by individuals who have joined the organization to pursue
a common goal.
In his article Non-governmental Organizations and International Law Charnowitz explains
this by arguing that IGO’s get their authority limited and mandated by the participating states,
while NGO’s get their authority from the voluntary commitment from individuals for the
purpose of the NGO. According to Charnovitz NGO’s authority is based on moral rather than
9
Abbott, K. & Snidal, D.(2005). p. 39
Ku, Charlotte. (1995) The Developing Role of Non-Governmental Organizations in Global Policy and Law
Making. Chinese Yearbook of International Law and Affairs. Volume 13. p. 141
11
Abbott, K. & Snidal, D.(2005) p. 31
10
6
law. And they gain their influence by the attractiveness of their ideas. Not all NGO’s can
expect to be influential just because it is an NGO, they have to “earn it”.12
The strengths of NGO’s according to Charlotte Ku are that they have the capability of
reaching depth in communities, they are able to build up trust in a community in the most
remote areas and can be well informed about certain local conditions that governments don’t
have the resources to. In other words, NGO’s are able to build up great local expertise and this
is of great importance. Governments and IGO’s have motives to engage in cooperation with
NGO’s, and NGO’s also posses incentive for this type of cooperation. The main reasons being
the need for financial funding and the aspiration to influence policies of national governments
and IGO’s.13
Charnowitz explains NGO’s influence over international policymaking with the fact that they
are independent and therefore able to be more creative than governmental officials that have
to take in consideration the national interest of the state they represent, but also their ability to
construct and encourage new norms for an interdependent world. It is these norms that the
NGO’s try to “sell” to the decision makers of international law, and to the public. NGO’s
have also, according to Charnowitz, gained advantages through innovation and adaptation,
(they are for example prone to use new technologies) and by being very mobile compared to
state-actors. By being autonomous and nimble they can reach places quickly where IGO’s and
states can not as easily go.14 According to Gordenker and Weiss this special characteristic of
NGO’s allows them to take action as opposed to IGO’s that require a greater deal of
contemplation and reflection.15 Even though NGO’s are more independent than IGO’s, they
need the acceptance of the state to be able to obtain their goals and work effectively. 16
Charlotte Ku mentions two main functions of NGO’s- to push a policy agenda and to
supplement a state’s functions. Several means of achieving these functions are mentioned, the
most important being acting as watchdogs, providing analysis, information and expertise,
serving as early warning systems, monitoring and implementing agreements, and giving voice
12
Charnowitz, Steve.(2006) Nongovernmental Organizations and International Law. The American Journal of
International Law. Volume 100, Number 2. p. 348
13
Ku, Charlotte. (1995). p. 147
14
Charnowitz, S. (2006). p. 361
15
Gordenker, Leon & Weiss, Thomas G. (1995) NGO Participation in the International Policy Process. Third
World Quarterly. Volume 16 Issue 3. p 551
16
Ibid. p 544
7
to issues and people that have been neglected by governments. She goes on to mention three
ways in which NGO’s are able to act effectively. These are; by exerting influence on
government and IGO decisions, by organizing and mobilizing significant numbers of people
and by supplementing and complementing the work of public institution- governments and
IGO’s17
2.3.1. The relation between NGO’s and states within the system of IGO’s
Institutions, such as IGO’s, are seen by the neo-liberal istitutionalists as the mediators and the
means to achieve co-operation between states.18 Charnowitz presents a model for analysis
where the IGO is not an actor with delegated authority, but an arena, where governmental and
non governmental actors compete and cooperate. 19A big part of NGO activity deals with
informing, creating awareness and convincing governmental officials within the state or in
IGO systems, to follow their recommendations. 20
Charnowitz explains the IGO’s willingness to include the NGOs in their work by listing the
three reasons, the presence of NGO’s provides expertise, it enhances public support for the
IGO, and it assists in the domestic internationalization of norms developed in the IGO.21
According to Ku, money channelled from governments and IGO’s through NGO’s are trying
to strengthen state efficiency through the partnership with NGO’s. This type of cooperation is
most noticeable in zones of development. 22
Even though others have claimed differently, Charnowitz does not believe that the growing
importance of NGO’s is diminishing the importance of the state, but that the involvement of
NGO’s has led to new international legislation that in turn has strengthen the state by
widening its agenda to include more areas of regulation.23
17
Ku, Charlotte. (1995). p. 151
Lamy, Steven L. (2001). p. 189
19
Charnowitz, S. (2006), p. 363
20
Gordenker, Leon & Weiss, Thomas G. (1995) p. 550
21
Charnowitz, S. (2006), p. 363
22
Ku, Charlotte. (1995). p. 146
23
Charnowitz, S. (2006), p. 362
18
8
2.3.2. How NGO’s influence international negotiations
In recent years NGO’s have become increasingly more important actors in the process of
international negotiations. Gordenker and Weiss claim that they have become crucial and
necessary for the international community to respond to problems in the new globalized
world. 24 NGOs have helped to mould international law to be more responsive to the need of
the international community. Since they are not focusing on the sovereignty of states, but the
needs and rights of the individual they have had a great impact on the humanization of
international law.25
In the article “Can NGO’s Enhance the Effectiveness of International Negotiations?” Albin
mentions several different factors that determine if an NGO can influence international
negotiation or not, and to what extent. First of all different institutions have different rules and
procedures, where some facilitates or even encourage the participation of NGO’s, while
others make it almost impossible. Another factor is the nature of the question that is being
negotiated. If some of the participating governments have the same agenda as an NGO, it is
likely that these governments will make it easier for the NGO to participate. As a result
NGO’s are more likely to be invited to participate in negotiations that concern humanitarian
or global questions rather than questions where particular governments’ interests are in
jeopardy. NGO’s are also invited to participate in negotiations where the governments lack
the expertise needed, or the ability to present this expertise in an objective manner.26
Albin distinguishes seven different ways for an NGO to influence an international
negotiation:

Problem definition, agenda setting, and goal setting

Enforcement of principles and norms (ex. humanitarian values, conscience of human
kind)

Provision of information and expertise

Public advocacy and mobilization

Direct participation in the formulation of international agreements
24
Gordenker, Leon & Weiss, Thomas G. (1995) p. 551
Charnowitz, S. (2006), p. 360f
26
Albin, Cecilia. (1999) Can NGO’s Enhance the Effectiveness of International Negotiation? International
Negotiation. Volume 4. p. 377
25
9

Monitoring and other assistance with compliance.

Lobbying27
2.4. Theoretical Framework
We accept the fundamental principles of liberal instititionalists meaning that we see states as
willing to give up part of their sovereignty to cooperate within IGO’s however we believe that
national interests are still the most important. We also choose to see IGO’s as a forum for
international negotiations rather than an independent entity with their own agenda.
Our theoretical focus will be based on Albin’s seven different ways in which an NGO can
influence international negotiations. These will structure our analysis and therefore the
meaning of them will be further elaborated in the following section.
Agenda setting, problem definition and goal setting
According to Charnowitz NGO’s are most productive with initiating new areas of
international law, for example by putting question such as human and women rights on the
agenda during the first half of the 20th century.28 Gordenker and Weiss argue that NGO’s play
a big part in setting the international agenda.29 Dery defines agenda setting as making policy
makers aware of a certain issue, and to make them incorporate it in their work. But the notion
that he finds the most important is the one of problem definition. He argues that the problem
is not an objective entity, but that it all depends on how it is defined. The power lies in
defining the problem, because the definition is what shapes the solution. It shapes what
decisions are made, what the goal is and how this goal is to be reached.30
Enforcement of principal and norms
Since NGOs are not limited by national interest and the sovereignty of states, but focus on the
needs and rights of the individual they have played an important role in enforcing these rights
in international law, especially in international humanitarian law. Because of their
independence they are able to construct and encourage new norms for an interdependent
27 Albin, C. (1999) p. 378
28 Charnowitz, S. (2006), p. 352
29 Gordenker, Leon & Weiss, Thomas G. (1997) Devolving Responsibilities: a Framework for analysing NGOs
and Services. Third World Quarterly. Volume 18. Issue 2. p. 445
30
Dery, David. (2000) Agenda Setting and Problem Definition. Policy Studies. Volume 21 Issue 1. p. 3 f
10
world.31 NGO’s often have certain norms or ethical principals that they are promoting and that
they want to be taken in to consideration during international negotiations.32
Provision of information and expertise
Since NGO’s by their nature interact and exchange information with both other NGO’s and
governments and IGO’s, they have access to a more broad and less managed information and
expertise within their specialized area of interest.33 Most NGO’s have staff that are at least as
capable and have at least as big expertise in policy making as international civil servants.34
According to Cooper and Hocking the states has fallen behind in terms of skills and
information, while the NGO’s have become increasingly skilful in breeding new ideas and
legal , scientific, technical and policy analysis.35 The nature of their interaction leads NGO’s
to develop great local expertise. Ku mentions some key strengths that NGO’s have, such as
their capability to reach depth in communities and their ability to build up trust in a
community and can therefore be well informed about certain local conditions that
governments don’t have the resources to.36
Public advocacy and mobilization
Mobilization is a key strategy in NGO campaigning. It is crucial to get the public aware of the
issues, and with public support it will get easier to reach the governments attentions and to put
the issue in question on the governmental agenda.37 Many NGO’s work by encouraging
people to take decisions themselves, to become agents rather than treating them as target
groups or recipients of benefits.38 This ability to organize and mobilize large numbers of
people is one of the most important aspects of NGO’s work and it is one of the reasons why
they can be so. It is this ability that makes them so effective. 39
31
Charnowitz, S. (2006), p. 360f
Albin, C. (1999) p. 378
33
Gordenker, L & Weiss, T.(1997). p. 446
34
Ibid. p. 448
35
Cooper, Andrew F. & Hocking, Brian. (2000) Governments, Non-governmental Organizations and the
Recalibration of Diplomacy. Global Society: Journal of Interdisciplinary International Relations. Volume 14
Issue 3. p. 368
36
Ku, Charlotte. (1995). p. 147
37
Chapman, Jennifer and Fisher, Thomas (2000). The effectiveness of NGO campaigning: lessons from practic.
(Electronic) Development in Practice. Volume 10, Number 2. p. 159
38
Streeten, Paul (1997) Nongovernmental Organizations and Development. (Electronic)
Annals of the American Academy of Political and Social Science, Vol. 554. p. 198
39
Ku, Charlotte. (1995). p. 151
32
11
Monitoring and other assistance with compliance
NGO’s have expanded their field of work and shown that they can work with a broad range of
global activities. Monitoring compliance and acting somewhat as a sort of police force is one
example. The new tasks taken on by NGO’s can be seen as a result of the nature of the issues
that states are faced with. These are issues of great international character, not responsive to
centralized decision making, are long term problems and are often diffuse.40 Monitoring and
other assistance with compliance can therefore play a fairly big role in the work of NGO’s
and the main type of work required that they deal with is implementing agreements,
monitoring them and providing information and aid for ratification. Environmental NGO’s
have proven after the Earth Summit to have the expertise necessary for monitoring
agreements and human rights NGO’s have been working with follow up and monitoring for a
long period of time.41
Direct participation in the formulation of international agreements
Not only have NGO’s increased rapidly in number but also the goals, responsibilities and
modes of involvement have become of greater importance. They are now active at every stage
of a conference, from the initial planning to the actual formulation of agreements at the end of
a conference. The actual wording of final documents at conferences are ultimately the focus
of intense debate among states but also between NGO’s and states. NGO’s do therefore play a
role in the formulation of international agreements however they do not behold the same
possibilities to influence as states. NGO influence has however increased greatly and runs
from the preparatory stages until the actual formulation of documents.42
Lobbying
Many NGO’s are fairly small when it comes to manpower and therefore the influence and
change that they can bring about on their own is limited. Most problems that NGO’s deal with
are global problems at an international level and therefore NGO’s frequently use lobbying in
trying to achieve their goals. By using lobbying they try to influence large bodies that have
great influence to change at regional, national and global level. For example they try to
persuade governments to implement certain policies and the UN to intervene in some
40
Ibid. (1995). p. 142f
Ibid. (1995). p. 151
42
Clark, Friedman & Hochstetler. (1998) p.296f
41
12
situations.43 Strategies of lobbying that NGO’s use during conferences are participation in
preparatory processes at national and regional level, coordinating lobbying on a daily basis,
spreading information through conference based newspapers between official meetings and
increase contact with official delegates and media representatives.44
43
44
Management Accounting for Non Governmental Organizations (www.mango.co.uk)
Clark, Friedman & Hochstetler. (1998) p.299
13
3. The Organizations
3.1. The United Nations
The United Nations was founded at the San Francisco conference 1945 as a result of a series
of declarations and conferences during the Second World War.45 The charter of the United
Nations was adopted as a multilateral treaty at this conference on June 26th 1945, and came
into force on October 24th the same year.46 The purpose with this new IGO was to maintain
international peace and security, to develop friendly relations between nations, and to achieve
international cooperation to solve economical, social, cultural or humanitarian international
problems and to encourage respect for human rights.47 It can also be argued that this IGO was
founded by the Allies to serve their own purposes at a time when they had absolute
dominance after their victory in the Second World War48. This is especially noticeable in the
system of the permanent members in the Security Council, which we will return to later in this
chapter.
The UN charter outlines the rights and obligations of the member states, but it also describes
the function and limitations of the organization itself. One limitation is provided by article
2(7):
Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
state or shall require the Members to submit such matters to settlement under the
present Charter […]49
According to Malcom N. Shaw, professor of international law, this recognition of the member
states’ sovereignty and independence is the most important limitation of the UN
competence.50
45
Shaw, Malcom N. (2003) International Law. Fifth edition, Cambridge: Cambridge University Press p. 1166
Charter of the United Nations – Introductory Note
47
Ibid, article 1
48
Abbot, K & Snidal, D. (2005) p. 48
49
Charter of the United Nations, article 2(7)
50
Shaw, M. (2003). p. 1083
46
14
The organization is open to all “peace loving” states as long as they are wiling to accept the
obligations that are imposed on them by the UN Charter51. Today there are 192 member states
in the UN.52
3.1.1. The UN organs
There are six principal organs in the UN; the General Assembly, the Security Council, the
Economic and Social Council, the International Court of Justice, the Secretariat and the
Trusteeship Council.53 Four of these organs are of importance when discussing the ICRC-UN
relationship, thus their composition and functions will be further examined.
The General Assembly is the parliamentary organ of the UN. All the member states are
represented there,54 and the Assembly may discuss all questions that fall under the scope of
the UN competence and it has the authority to make recommendations to a member state or to
the Security Council.55 Even though the resolutions adopted by the General Assembly are not
by them selves binding for the member states (except for those regarding internal matters,
such as the budget), they still are of a great importance. They can be binding if they are
reflecting a rule of customary international law, and, even if they do not yet reflect a custom,
a resolution adopted with a large majority of the states is evidence of state practice, which
may lead to the creation of a new customary international law.56 The Assembly can have a
great impact on international policy making since its resolution express common values about
issues like Human Rights and environmental problems.57
The Security Council is the executive organ of the UN, and it has the primary responsibility
for the maintenance of international peace and security.58 It consists of 15 members of the
UN, five of which are permanent members of the Council and the other ten are elected by the
General Assembly for a two year term.59 These five have the right of veto in all questions
51
Charter of the United Nations, article 4(1)
United Nations Member States – List of Member States (www.un.org)
53
Charter of the United Nations, article 7(1)
54
Ibid, article 9(1)
55
Ibid, article 10
56
Shaw, M. (2003). p. 1090
57
Abbot, K & Snidal, D. (2005) p. 48
58
Charter of the United Nations, article 24(1)
59
Ibid, article 23
52
15
except those of procedural matter. 60 These decisions are then binding for all members of the
UN.61
The veto right of the permanent members has been problematic; during the Cold War the U.S.
and especially the USSR were blocking many decisions in the Security Council, and in recent
years the U.S. usage of the veto has increased even more than during the Cold War. Even
though the other permanent members have used it as well, it has never been to any great
extent.62
According to Malcolm N. Shaw the Security Council has not fulfilled the expectations held of
it. The veto system has made it unable to act as it should in situations that were threatening
the international peace and security, even though Shaw admits that when it does act its actions
have high regard since it means that there is a consensus among the members supporting this
action. Failures during the Cold War and concerning the American invasion of Iraq without
Security Council authorization have shown the Councils problems with carrying out its
primary responsibility, the international peace and security.63
The Secretariat is the administrative organ, and consists of the Secretary-General and his
staff. The Secretary-General is elected by the General Assembly by a majority of two thirds
after recommendation by the Security Council.64 The Secretariat represents the UN and shall
be completely independent from any state. It is forbidden by the UN charter for any member
state to try to influence the Secretary-General or his staff, and they are in their turn forbidden
to let themselves be influenced by any state or other external authority. The Secretary-General
and his staff shall be of a completely international character.65
The Secretary-General has the authority to attract the attention of the Security Council on any
question regarding international peace and security, 66 but this authority is rarely used.67 The
60
The Charter of the United Nations, article 27
Ibid, article 25
62
Shaw, M. (2003). p. 1084
63
Ibid. p. 1086f
64
The Charter of the United Nations, article 97
65
Ibid, article 100
66
Ibid, article 99
67
Shaw, M. (2003). p. 1094
61
16
Secretary-General often plays the role of good offices or mediator in international crises, and
has a big influence over the development of the UN.68
The Economic and Social Council (the ECOSOC) has the capacity to initiate studies and
reports concerning Human Rights, international economic, social, cultural, educational or
health problems or other related questions.69 It may give recommendations, but these are not
binding for the state members.70 The ECOSOC consist of 54 members of the UN and are
elected by the General Assembly for a three year term.71
3.2. The International Committee of the Red Cross
The Red Cross is the world’s largest organization dealing with humanitarian law. It aims to be
an organization of strict neutrality working to ease human suffering. There are three major
parts of the organization- the self-governing National Red Cross Societies, the league of Red
Cross Societies and the International Committee of the Red Cross (ICRC.)72
The ICRC is the main guardian over the Geneva Conventions and of Red Cross principles,73
and it has a special mandate to promote and protect humanitarian law throughout the world.74
Their work also consists of recognizing new Red Cross societies, sends delegates to visit
prisoner-of-war camps and supplies material relief to areas in need. 75
3.2.1. ICRC Background
The origins of the International Committee of the Red Cross (ICRC) go back to the 1800’s
and to the visions and ideas of the Swiss citizen Henri Dunant. He was present at the battle in
Solferino, Italy in 1859 and this experience came to shape his ideas and change his life. He
was surprised by the ruthless killing that took place and took on the role to help the wounded
and try to bring some humanity into the hostile situation. Three years later, his experiences
were noted down in the book “Memories from Solferino.” There his ideas of alleviating pain
68
Shaw, M. (2003). p. 1093f
The Charter of the United Nations, article 62
70
Shaw, M. (2003). p. 1092
71
The Charter of the United Nations, article 61
72
International Committee of the Red cross- History of the Organization
(http://nobelprize.org/nobel_prizes/peace/laureates/1963/red-cross-history.html)
73
Ibid.
74
Maresca, Louis & Lavoyer, Jean-Philippe. (1999) The Role of the ICRC in the Development of International
Humanitarian Law. International Negotiation Vol.:4 no:3. p. 504
75
International Committee of the Red cross- History of the Organization
(http://nobelprize.org/nobel_prizes/peace/laureates/1963/red-cross-history.html)
69
17
and humanity during wartime were discussed. In 1863, together with three other men, Dunant
founded the committee that led to the Red Cross. The first Geneva Convention included
representatives from 17 different nations. After the second conference the first Geneva
Convention was signed that held the basis for rules of warfare.76
3.2.2. ICRC Structure
The ICRC is a private organization that has taken on a special role in the field of humanitarian
law. According to itself, this is due to its neutrality. 192 states have accepted and recognized
the Geneva Conventions and all have recognized the ICRC as an organization with a special
mandate to carry out work with humanitarian relief during armed conflicts. In international
law, the Geneva Conventions are binding tools that are legitimate across the world.77
The ICRC main headquarters are located in Geneva, Switzerland and is represented in about
80 nations worldwide. The ICRC is the main body to decide upon a response in times of
conflict and coordinate it with national Red Cross Societies and their International
Federation.78
At the time of the founding of the organization there were five appointed members of the
committee. During times of conflict or in other times when extra manpower and force was
needed, there was an increase in the number of members. Today the ICRC Statutes allows for
between 15 to 25 members and they are elected by what is called cooptation, meaning
election by the sitting members. The tradition of cooptation has come under a lot of criticism
however, according to Hans Haug, it has shown to be an effective way to stay independent
and free from any type of state representation or any other type of influence.79 Article 7,
paragraph 1 of the ICRC Statutes reads:
The ICRC shall co-opt its members from among Swiss citizens. It shall comprise
fifteen to twenty-five members80
76
Detta är Röda Korset-Henry Dunant
(www.redcross.se/Rksf/sfdesign.nsf/main?openagent&Layout=Detta_RK&docid=22C3B64B0E70869DC1256D
E90045E255)
77
Röda Korsets roll inom den humanitära rätten
(www.redcross.se/rksf/sfdesign.nsf/main?openagent&Layout=folkratt&docid=100F433B5E9B151CC125715D0
052C80A)
78
ICRC-Human Resources (http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/jobs?OpenDocument)
79
Haug, Hans. (1993) Humanity for all – The International Red Cross and Red Crescent Movement. Vienna:
Paul Haupt Berne Publishers.. p. 85f
80
Bugnion. Francois. The composition of the International Committee of the Red Cross. (Electronic)
International Review of the Red Cross no 307.
18
This has been seen by many as odd and unrepresentative as the activity and work carried out
is vastly international. On the other hand, some argue that the system allows for continuity,
security and assurance of neutrality. Proposals have come forth in modifying the system of
recruitment not only to include Swiss nationals. However, at closer look, and after major
events such as World War II many felt that the neutrality of the ICRC’s members enabled it to
act fast and gain credibility and faith in the international community. The guarantee that
members are not recruited and/or following instructions from States can be seen as an
assurance of independence and this has been claimed to be an invaluable asset of the system.81
3.2.3. ICRC Organs
The supreme governing organ of the ICRC is the Assembly. It is the leading organ that
decides on the general policy of the institution.82 Its main functions include supervising all the
activities of the ICRC, defining the goals and accepting the budget. The structure is made up
of a president and two vice-presidents. Certain assignments of the Assembly are delegated to
the Assembly Council. The Assembly Council works in aiding the assembly with powers that
have been delegated to them. It works in the preparatory phases of preparing the Assembly’s
activities. Its competence lies mainly in the field of funding policy, personnel and
communication. The Assembly Council has five members who are elected by the Assembly
and is chaired by the ICRC president. The Assembly Council works as a channel between the
Assembly and the Directorate.83
The Directorate is the executive body of the ICRC. It works in making sure the activities of
the ICRC work efficiently and applies and ensures application of the general goals that have
been set up.84The members of the Directorate are the ICRC president, the full-time vice
president, two committee members, the director general, the director of operations and the
director for principles, law and relations with the movement. They are elected by the
Assembly on a four-year basis.85
81
Bugnion. Francois. The composition of the International Committee of the Red Cross. (Electronic)
International Review of the Red Cross no 307.
82
Haug, H.(1993). p. 88
83
ICRC Decision-making structures (www.cicr.org/Web/Eng/siteeng0.nsf/html/icrc-decision-making-structures030706#a3)
84
ICRC Directorate (http://www.icrc.org/web/eng/siteeng0.nsf/html/icrc-directorate-030706)
85
Haug, H.(1993). p. 88
19
3.2.4. ICRC Status
The ICRC was not created as a result of international cooperation between states. It was based
on private Swiss initiative and has from the beginning until the present day had a status of
private association. By having this status, the ICRC is granted a great deal of independence
and freedom to decide its structure and organization. This status can seem unusual as the
organizations work field is clearly international and deals with humanitarian work for peoples
and states. 86 The ICRC has a legal mandate from the international community that comes
from two different sources, the Geneva Conventions and internally in the Red Cross statutes.
The main functions and duties of importance for the ICRC that are mentioned there are the
handling a central information agency for prisoners-of-war and protected civilians, visits to
prisoners-of-war, extensive work in humanitarian aid for wounded, sick and civilians in areas
of conflict or occupation and the capacity of taking humanitarian initiatives.87
The ICRC holds legal personality under Swiss law and also holds characteristics for legal
personality under international law although this has been a matter of debate. In order to be
seen as an organization of international legal personality certain capacities and qualifications
must be obtained. The ICRC holds these qualifications in two main areas. The first being
conclusion of treaties with states and IGO's, a task that the ICRC has concluded with several
different parties, for example the UN and the EU. Secondly the ICRC holds diplomatic
relations with states and IGO's both permanently through the help of delegations and
temporary representation through special missions.88
86
Haug, H.(1993). p. 94
Maresca, L & Lavoyer, J-P.(1999). p. 503f
88
Haug, H. (1993). p. 95ff
87
20
4. ICRC’s influence of negotiations within the UN
system
4.1. NGO influence within the UN system
UN world conferences where thousands of NGO’s are present, are obliged to use NGO
consultative status to the UN Economic and Social Council (ECOSOC) as a basis for NGO
activity. 89 This is regulated in the UN charter, where it is stated that:
The Economic and Social Council may make suitable arrangements for consultation
with non-governmental organizations which are concerned with matters within its
competence. Such arrangements may be made with international organizations and,
where appropriate, with national organizations after consultation with the Member
of the United Nations concerned.90
Based on this article the ECOSOC have given consultative status to NGO’s. The
list of NGO’s with this status has grown rapidly, and in 1998 it contained 1 350
NGO’s.91
As the NGO involvement increased over the years, so have the demands for a
reform in the formal procedures of the relationship between NGO’s and the UN.
The UN world conferences have played an important role in the increase of NGO
participation.92 In each separate conference there are new rules being negotiated
for the exact rules of conduct for NGO participation. NGO’s claims to be included
at UN conferences are supported on the basis of democracy and civic
participation, ideas that previously have been considered weak forces at
international level.93
UN world conferences have the ultimate goal of creating a final document that state
participants approve of. The actual wording of such documents is the focal point of intense
89
Clark, Friedman & Hochstetler. (1998) p. 294f
UN Charter, article 71
91
Alger, Chadwick.(2002) The emerging roles of NGOs in the UN system: from Article 71 to a People's
Millennium Assembly. (Electronic) Global governance. Vol: 8 No: 1. p. 95
92
Ibid p. 95
93
Clark, Friedman & Hochstetler.(1998) p. 294f
90
21
discussion among states and between states and NGO’s however NGO’s do not have the same
power and influence in these discussions as states carry. Even though they don’t possess the
same ability to influence they are still active forces and attend both preparatory and final
conferences. Since the UN conference on the environment that was held in Stockholm 1972,
there is typically a parallel NGO conference, an NGO forum with a separate agenda present
during UN world conferences. NGO’s use this as a mode to influence the outcome, use
coverage of the event and at the same time continue with their work and trying to raise
awareness and support for their specific goals. 94 From the 1960s to the 1990s the quantity and
roles of NGO’s changed dramatically. Less than 300 NGO’s attended the Stockholm
Conference in 1972 while 1400 NGO’s were present at the Rio Conference in 1992.95 With
the increase in number, there was also an increase in the activities carried out. Previously
NGO’s had very restricted roles that were often limited to only observing conferences
however it has developed to involve activity at every stage of the conference. In early
conferences governments emphasized the importance of NGO’s for their ability to spread
information and create awareness and not for contributions to the conference itself.96
According to Clark, Friedman and Hochstetler, NGO’s play an important role on the
international arena and at UN conferences. They have been taking on broader roles and more
responsibilities throughout the years and governments and the UN facilitate their participation
and depend on their assistance with the implementation of agreements.97
4.2. Relation ICRC & UN
According to Haug, the Red Cross is an organization that since the start has shown an interest
and openness towards the outside world and has desired cooperation and relations with other
organizations that share the same objectives.98 The Red Cross activities are not conducted
completely alone and isolated from the help and assistance of others. Cooperation among
humanitarian organizations helps strengthen its effect, protection and assistance of the cause.
Article 7 in the Red Cross statutes states three requirements for cooperation. The first being
that the Red Cross must maintain its independence and identity, the second that it must only
cooperate with other organizations that have corresponding goals and thirdly the other
94
Clark, Friedman & Hochstetler. (1998) p. 296ff
Alger, C. (2002) p. 95
96
Clark, Friedman & Hochstetler. (1998). p. 296ff
97
Ibid. p. 312
98
Haug, H.(1993). p. 593
95
22
organizations must respect the ICRC, the federation and national Red Cross societies and the
crucial, fundamental principles that make up the backbone of the organization.99
The UN and the ICRC are involved in a great deal of cooperation. When searching in the UN
official document system (ODS) 100 for documents referring to ICRC as many as 227
published documents were found only from the year of 2006. There are also permanent and
temporary working relations between the ICRC and different bodies of the UN. Some
examples of operational cooperation for humanitarian causes was during the civil war in East
Pakistan 1972, the peoples uprising in Hungary 1956/57 and the disorder that occurred after
gained independence in Congo 1960.101 The ICRC deals with cooperation with many different
parties and other NGO’s and IGO’s however the collaboration with the UN is of special
importance. Since 1946 the ICRC has had consultative status category II with the Economic
and Social Council,102 which means that it has a “special consultative status”. NGO’s with
this type of consultative status have special competence in a few of the ECOSOC’s fields of
work, but not all.103 Since 1970 the ICRC has had a permanent delegation at the UN
headquarters in New York. Throughout the years there has been personal communication
between the president of the ICRC and the Secretary General of the UN which greatly eases
the cooperation. The close contact between the two organizations was clearly shown on
October 16th 1990 when the General Assembly adopted a resolution that gave the ICRC
observer status with the General Assembly.104
The resolution stated the following:
The General Assembly,
Recalling the mandates conferred upon the International Committee of the Red
Cross by the Geneva Conventions of 12 August 1949,
Considering the special role carried on accordingly by the International Committee
of the Red Cross in international humanitarian relations,
Desirous of promoting co-operation between the United Nations and the
International Committee of the Red Cross,
1. Decides to invite the International Committee of the Red Cross to participate in
the sessions and the work of the General Assembly in the capacity of observer,
99
Statutes of the International Red Cross and Red Crescent Movement
http://documents.un.org
101
Haug, H.(1993). p. 594f
102
Ibid. p. 600f
103
Alger, C. (2002) p. 95
104
Haug, H.(1993). p. 600f
100
23
2. Requests the Secretary-General to take the necessary action to implement the
present resolution.105
This was followed by an explanatory memorandum where it was clarified that the ICRC not
only held the role of a neutral and impartial humanitarian agent under the Geneva
Conventions and Red Cross Statutes but also an authorized right of initiative in situations
other than those included in international humanitarian law.106
The ICRC is not the first actor to receive this kind of status however it is the only non
governmental organization, previously a number of States and governmental organizations
have received observer status. In practice this new role of the ICRC means that it has a greater
arena to view its opinions and ultimately a chance in getting its voice heard. The new status
also means access to General Assembly and its committees meetings. The ICRC therefore has
a greater field in getting its opinions heard by people and actors that play a major role
internationally dealing with the issues of importance for the ICRC.107
4.3. Case 1:
The Banning of Anti-Personell Landmines
The Ottawa Convention 1996 was a convention banning anti-personnel landmines. According
to the Canadian government, it was the result of intense cooperation between governments
and civil society. It was initially initiated by NGO’s that were actually on the field and saw
the destruction that anti-personnel mines caused. The cooperation between different actors
lead to an agreement and the process of negotiations, signing and ratification of the
convention took just over 23 months.108 The campaign to ban landmines started in 1992 when
the International Campaign to Ban Landmines was founded. Negotiations took place over the
years and in 1996 Canada put pressure and set a deadline for December 1997 to sign a
convention banning anti-personnel landmines. In February 1997, 111 states take part in a
conference discussing the issue in Vienna, Austria. Later that year in Oslo, the formality of
creating the actual text was being negotiated. In December 1997, 122 countries sign the
105
Resolution A/RES/45/6
Haug, H.(1993). p. 96
107
The ICRC is granted observer status at the United Nations
(http://www.icrc.org/Web/Eng/siteeng0.nsf/html/57JNWH)
108
Canada’s Guide to the Global Ban on Landmines (www.mines.gc.ca/II/menu-en.asp)
106
24
Convention in Ottawa, Canada and on March 1st 1999 the Convention entered into force.109
Throughout the process of preparation and negotiations, civil society has played a major role
and the ICRC being a leader in its field has been an important actor.
Because of its work on the field the ICRC had a great interest in this issue. The ICRC is most
known for its humanitarian efforts during armed conflict however it also plays a key role in
the development of international humanitarian law.110 The ICRC worked extensively on the
field to help mine victims. During a ten year period, the ICRC alone helped more than 30,000
mine victims and ran 33 different prosthetics programs. The ICRC also started working in the
development of international humanitarian law. With their field experience as a base they
began in 1992 with consulting military commanders, diplomats, legal and medical experts.
This was the preparational work to get an overview of what could be done on this problematic
issue the legal way.111
The ICRC raised awareness in the early 1990’s concerning the humanitarian crisis that the use
of anti-personnel landmines was creating led to a series of meetings being set up between
states and civil society. The Montreux symposium on April 21-23 1993 was the first meeting
to address the problem of anti-personnel mines that was organized by the ICRC. It was a
response to the destruction that was seen by Red Cross delegates on the field and workers of
other NGO’s. A panel of experts including military strategists, mines specialists,
manufacturers, surgeons, legal experts etc. created an overview of the problem and discussed
the magnitude as well as measures available to limit the victims and suffering due to antipersonnel landmines. According to Maresca and Maslen, the Montreux Symposium became
an important source of reference of future negotiations and copies of the report were sent to
all involved governments.112
In February 1994 there was to be a meeting in Geneva, Switzerland and prior to this the ICRC
president Cornelio Sommaruga called for a total ban of anti-personnel landmines and meant
that it was the only effective solution to the increasing problem. State parties invited the ICRC
to be active in the meetings as an expert observer in meetings of groups as well as in the
Canada’s Guide to the Global Ban on Landmines (www.mines.gc.ca/II/menu-en.asp).
Maresca, Louis & Maslen, Stuart. (2000) The banning of anti-personnel landmines the legal contribution of
the International Committee of the Red Cross. Cambridge: Cambridge University Press. p.1
111
Ibid. p.474
112
Ibid. p.129
109
110
25
Review Conference itself. They were also asked to prepare documentation and proposals for
the meetings that were based on the observations on the field as well as the expertise on
international humanitarian law. The ICRC submitted reports and took on an active role in the
negotiation process, they commented proposals informally and formally and were also
allowed to submit its own proposals.113 An important standpoint that the ICRC stuck to
throughout negotiations was that the only really effective way to deal with the problem was a
total ban on anti-personnel landmines. They also supported and promoted the idea of strict
controls on the use and design of anti-vehicle mines.114
There was great difficulty in reaching consensus and they were not able to agree on a text to
be forwarded to the Review Conference. Four different meetings of experts were held and
final preparations were being discussed in Vienna in September and October of 1995.
However two days before the end of the conference the president of the conference
announced that they had run out of time and that no consensus would be able to be reached at
that time. There were two further sessions in Geneva the following year and the parties agreed
on Protocol II governing mines, booby-traps and other similar devices. By the end of that
conference more than 30 states had been convinced that the only effective way to really solve
the problem was a complete ban on anti-personnel landmines.115
In November 1995, the ICRC took a historic step in that it for the first time turned to media to
get its message out to the public. The aim of the media campaign was to internationally
stigmatize the use of anti-personnel landmines. The message was clear “Landmines must be
stopped!”116 The media awareness campaign that was launched by the ICRC was shown to be
effective. A survey conducted in 21 countries, both north and south showed that the support
for a total ban was between 60 to 92 percent.117
In March 1996 the ICRC commissioned a study titled “Anti-Personnel Landmines: Friend or
Foe? A Study of the Military Use and Effectiveness of Anti-Personnel Mines.” This study
became one of the main tools for the ICRC’s campaign and aim of a total prohibition of anti-
113
Maresca, L & Maslen, S.(2000). p.127
Ibid. p.332f
115
Ibid. p.128
116
ICRC Launches Media Campaign Against Anti-Personnel Mines.
(http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmsz?opendocument)
117
Maresca, L & Maslen, S.(2000). p.475
114
26
personnel landmines. It included conclusions from international military commanders and
their conclusion was that the limited military use of anti-personnel landmines is by far
outweighed by the horrendous consequences of their use.118
The Canadian run conference known as the Ottawa Convention was held in October 1996
with the active support of 50 governments, the ICRC, the International Campaign to Ban
Landmines and the United Nations. The conference adopted the Ottawa declaration which
meant that they were committed to ensure that a ban was concluded as soon as possible. The
Canadian government invited all the participants to Ottawa again the following year to sign a
treaty. What was known as “the Ottawa process” had officially taken its start. In early 1997
drafts were being discussed as to which would be the text of the convention that was planned
to be signed later that same year in Ottawa. The ICRC called for a comprehensive ban treaty
including an unambiguous definition of an anti-personnel mine. The Ottawa Convention was
signed on the 3 and 4th of December 1997 by 121 states and the treaty entered into force on
March 1st 1999.119 The Ottawa conference was the first time in which major international
actors, states, IGO’s and NGO’s came together to try to once and for all create a total ban on
anti-personnel mines. 120
The ICRC worked intensively in different areas that they thought were of importance in being
able to ban anti-personnel mines. The first field was awareness and stigmatization. The ICRC
encouraged news coverage all over the world to make it a well known problem and create
awareness internationally. The ICRC created a global database on landmine victims and
information that was posted on their website. There was information concerning incidents
sorted by countries, age, sex, status etc.121 The ICRC was also determined in encouraging
states and media to ensure that crucial information is being spread. The second point of
importance for the ICRC was that regional, national and global initiatives to banning
landmines are of importance. It was important according to the ICRC that regional efforts
don’t discontinue due to the belief that the problem can only be solved on a global level. The
ICRC meant that regional or national efforts could make a great difference and were crucial in
118
ICRC Study: Anti-Personnel Landmines.
(www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/p0654/$File/ICRC_002_0654.PDF!Open)
119
Canada’s Guide to the Global Ban on Landmines (www.mines.gc.ca/II/menu-en.asp)
120
Maresca, L & Maslen, S.(2000). p.471ff
121
ICRC-Focus-Landmines. (www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/mines?OpenDocument)
27
the process of a global ban. Regional efforts had the capacity to be able to influence local and
national governments and this could lead to a great deal of influence.122
In Vienna when the text of the future treaty was being discussed, the ICRC presented some
key feature that they believed had to be included in the treaty.

A clear unambiguous definition of an anti-personnel mine

A comprehensive prohibition on all anti-personnel mines, not the step-by-step
approach favoured by certain governments

A verification mechanism, but not at the expense of a clear norm prohibiting antipersonnel mines

The importance of the ultimate-rather than the immediate-universality of the norm123
In March 1997, the ICRC together with the Council of Europe Parliamentary Assembly
Migration and Refugees and Demography Committee organized a seminar on Anti-Personnel
Landmines and Their Humanitarian Implication. The results of the seminar were clear: a
recommendation for a total ban on anti-personnel mines.124
The Ottawa Conference in 1996 brought together 50 states in favour of a ban as well as
representatives of the United Nations, the ICRC and a number of other NGO’s. The joint
efforts that were called upon were to:

prohibit and eliminate anti-personnel mines

significantly increase resources for mine clearance and victim assistance

progressively reduce or end their own use of anti-personnel mines

support a General Assembly resolution calling for a total ban

promote regional initiatives in favour of a ban125
The ICRC president Cornelio Sommaruga announced on the day of the signing of the final
treaty banning anti-personnel mines in Ottawa, Canada that: “We celebrate today a victory for
humanity; for the cause of humanitarian values in the face of cruelty and indifference.”126
122
Maresca, L & Maslen, S.(2000). p.496f
Herby, Peter & Maslen, Stuart. (1998) An international ban on anti-personnel mines: History and
negotiation of the "Ottawa treaty." The International Review of The Red Cross no 325.
124
Maresca, L & Maslen, S.(2000). p.512
125
Herby, Peter.(1997) 1997: the year of a treaty banning anti-personnel mines?
The International Review of the Red Cross. no 317, (1997)
123
28
After the treaty was signed in Ottawa, the ICRC called for national Red Cross and Red
Crescent Societies to actively work for national ratifications of the Convention and that
national governments are truly serious in its implementation.127 Even after the signing it is
clear that the work of the ICRC was not over. A series of conferences were organized by the
ICRC to increase the knowledge of the implication of the Ottawa Convention both to
countries who signed and countries who didn’t. The ICRC was for example the actor that
organized a regional conference on landmines in Budapest in March 1998.128
The ICRC also prepared kits providing information about the ratification process and model
instruments of ratification that states can use and had a legal division available to states for
guidance of national legislation that could provide examples adopted by for example other
states. The information was also provided on the ICRC’s website. The ICRC continued to
work with the implementation and making sure that the Ottawa treaty was being respected.
They cooperated with national Red Cross and Red Crescent societies that in their turn
cooperate with national governments.129 Since the signing of the Ottawa Treaty the ICRC has
taken on the role of encouraging universalization and implementation as well as working on
the field in continuing to help mine victims. The ICRC has promoted the Ottawa Treaty by
hosting and also giving support for regional conferences such as the ones held in Budapest,
Moscow, Dhaka, Mexico City and Beirut.130
4.4. Case 2:
The Creation of an International Criminal Court (ICC)
The first proposal for a permanent international criminal court was made by Gustave
Moynier, one of the founders, and once president, of the ICRC. In 1872 he published an
article on the subject where he proposed the creation of an international judiciary institution
for violations of the Geneva conventions. His reason for wanting to establish such a court was
that he did not think that the States parties to the Geneva Convention fulfilled their obligations
by the convention to prosecute violations of international humanitarian law. His proposal got
126
Maresca, L & Maslen, S.(2000). p.587
Ibid. p.592
128
Ibid. p.596
129
Ibid. p.601ff
130
Maresca, L & Maslen, S.(2000). p.631
127
29
a varied reception by the international law community, with both supporters and opponents. In
the end the proposal was more or less forgotten and is not even mentioned in later discussions
of the establishment of an international criminal court.131
In 1948 the General Assembly adopted the United Nations Convention on the Prevention and
Punishment of the Crime of Genocide. In this resolution the assembly invited the International
Law Commission (ILC) to examine the desirability and possibility of establishing an
“international judicial organ for the trial of persons charged with genocide”.132 During the
years between 1949 and 1954 the ILC prepared several draft statutes, but the states could not
agree on any further development of an international criminal court. In 1989 the General
Assembly requested the ILC to resume the work, and in 1994 they submitted a draft statute
for an International Criminal Court to the Assembly who established an Ad Hoc Committee
on the Establishment of an International Criminal Court to deal with the major issues that
arose from the draft.133 This Ad Hoc Committee produced a report on the draft and when the
General Assembly had considered this report they created the Preparatory Committee on the
Establishment of an International Criminal Court (PrepCom) in 1995 to prepare a draft text
that would be acceptable for most states and that would be submitted to a diplomatic
conference. This text was completed in April 1998. In July the same year the final Statute of
the ICC was adopted at the UN Conference of plenipotentiaries in Rome.134 The statute
entered into force on 1 July 2002.135
The ICRC contributed to the work of the PrepCom by submitting a working paper listing war
crimes which the ICRC wished to fall under the jurisdiction of the ICC.136 They motivated
this list over others with their mandate under the Geneva conferences and long experience of
armed conflicts. They emphasized the importance of giving the court jurisdiction over non-
131
Hall, Keith.(1998). The First Proposal for a International Criminal Court. International Review of the Red
Cross no 322.
132
Lee, Roy S. (1999) The Rome Conference and Its Contributions to International Law. Lee, Roy S.(editor) In
The International Criminal Court – the Making o the Rome Statute. First edition, the Hauge, Kluwer Law
International. p 2
133
Chronology of the International Criminal Court (www.icc-cpi.int/abaut/ataglance/chronology.html)
134
Statute of the International Criminal Court
135
Chronology of the International Criminal Court (www.icc-cpi.int/abaut/ataglance/chronology.html)
136
Working Paper by the ICRC for the United Nations Preparatory Committee for the establishment of an
International Criminal Court.
30
international armed conflicts as well as those of international conflict, and of defining the
crime of rape as a grave breach of humanitarian law.137
In February 1998 the ICRC made an official statement of their position on the establishment
of an international criminal court. In short this position was that they welcomed the court and
that it, to be effective, should at least have jurisdiction over both international and noninternational armed conflicts, have jurisdiction over war crimes whether they are committed
as single acts or on a large-scale, have an inherent jurisdiction over the core crimes of
genocide, crimes against humanity and war crimes and have an independent prosecutor.138 In
the final Statute of the ICC rape was defined as a crime against the humanity as well as a war
crime139, and there is no limitation of its jurisdiction to only apply on international conflicts.
After the signing of the ICC statute the PrepCom had to adopt two important documents; one
called “Elements of Crimes” (EOC) and one “Rules of Procedures and Evidence” 140.
Especially the EOC was of great interest for the ICRC, who had its own PrepCom delegation
and prepared a study relating to all war crimes. This study presented an extensive research
and analysis of international humanitarian law, national war crimes trials, human rights law
instruments and the case law of the UN Human Rights Committee, the European Court of
Human Rights and the Inter-American Court of Human Rights. Seven states demanded that
this study was to be tabled by the EOC Working Group, and so it was.141
The ICRC continued to contribute to the work of the ICC after the international negotiations
was done. The ICRC Advisory Service on International Humanitarian Law gave support and
technical advice to state parties on how to ratify and implement the statute by facilitating
expert meetings, producing technical materials, give information on laws in other countries,
assist in drafting new laws, evaluate old laws, and assists in training prosecutors and
judges.142 There has also been a workshop at the 28th International Conference of the Red
137
Official Statement 1997-02-14 of ICRC
Official Statement 1998-02-01 of ICRC
139
Rome Statute of the International Criminal Court, article 7 §2 (g), article 8 §2(b)(xxii) and article 8 §2(e)(vi).
140
Dörmann, Knut. (2000). Preparatory Commission for the International Criminal Court: the Elements of War
Crimes. International Review of the Red Cross. No. 839
141
Ibid.
142
Official Statement by Jacques Forster 4-02-2004
138
31
Cross and Red Crescent in Geneva, 2 to 6 December 2003 on domestic implementation of the
Statute of the International Criminal Court.143
143
List of workshops held at the 28th International Conference of the Red Cross and Red Crescent
(http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5SYLB5)
32
5. Analysis
5.1. The UN-ICRC relationship
The UN is an organization where national interests play a major role; this is evident in the
history of the Security Council. This leads to states sometimes being reluctant or simply
uninterested to develop some areas of international law. Due to this NGO’s often take on an
important role when it comes to encouraging states to take action and to facilitate
international negotiations.
The ICRC has taken on a big responsibility in the development of international humanitarian
law. Even though some have doubted the composition of the ICRC, it has proven that it is an
NGO that the states can trust. Firstly, its long history dates back to the late 19th century. It has
been active during major events, such as the two world wars, and has proven, by being
efficient and neutral, that the states can rely on it. Secondly, the ICRC is not just working to
promote a specific issue, but rather shown it self capable of working a large number of issues
within the field of humanitarian law. Thirdly, the strength of their system lies in the
continuity, security and assurance of neutrality. The guarantee that the members of the
organization is not following instructions from states has been important in the organizations
strive to be neutral.
The ICRC has a unique cooperation with the UN, and is the only NGO that holds observer
status at the General Assembly. The opinion of the ICRC weighs heavily at the UN. One
indicator of this is the fact that the UN Secretary General has held personal communications
with the president of the ICRC, and another is that the ICRC is so often mentioned in official
UN documents. The extent of the ICRC-UN interaction clearly evident by the fact that the
ICRC has a permanent delegation at the UN headquarters.
5.2. The Cases
Throughout the two cases the seven points on how NGO’s influence international negotiations
from the theoretical framework have been noticeable in the work of the ICRC. The following
sections will discuss to what extent the ICRC has used these ways to influence the
negotiations in both these cases.
33
Agenda setting, problem definition and goal setting
Based on the theoretical framework of this theses it can be expected that the ICRC would be
active in trying to set the agenda, define the problem and set the goals of the two negotiations,
as Charnowitz suggests that this is the area where NGO’s are most productive.In the case of
the banning of anti-personnel landmines (case 1) the ICRC was involved with raising
awareness of the problem, and put the issue on the international agenda. Delegates of the Red
Cross witnessed the consequences of the landmines, and decided to take action by setting up
meetings between civil society and states where the problem was discussed. The meeting
organized by the ICRC at Montreux was especially important because it became a reference
point for later negotiations. In the case of the creation of the ICC (case 2) the ICRC was the
first to acknowledge the need of an international criminal court. It tried to put the issue on the
agenda as early as in the late 19th century however it was not successful and it didn’t reach the
agenda until much later by other actors.
Enforcement of principals and norms
The ICRC is the guardian of the Geneva conventions and has as main purpose to promote
humanitarian values. In both cases they constantly refer to this, while arguing for the banning
of anti-personnel landmines/ creation of ICC. The reason for the involvement of the ICRC in
these negotiation lies in their aim to promote humanitarian principles and norms. Therefore
the ICRC have fulfilled a purpose of promoting these principles while states are mainly
concerned with national interests. This is one of the characteristics of NGO’s mentioned in the
theoretical framework as being important in influencing international law. Because of this
negotiations may be able to go further than it would have if only states were involved.
Provision of information and expertise
From reading the theoretical framework, one can see that provision of information and
expertise is an area where the NGO’s may have the upper hand over states. Gordenker and
Weiss mean that this can be achieved by their interactions with other NGO’s, IGO’s and
governments. In the two cases the ICRC have worked a lot with this. In case 1 the ICRC
began its campaign by consulting military commanders, diplomats, legal and medical experts
on how to solve the problem of anti-personnel landmines the legal way. The organization was
later invited by states to meetings in Geneva, where it played the role of an expert observer.
The ICRC prepared documentations and proposals, submitted reports. It also published an
important study on the military use and effectiveness of the anti-personnel landmines that
34
became one of the main tools in the campaign. In case 2 the ICRC prepared a study relating to
all war crimes. It was an extensive research and analysis of international and national
humanitarian law as well as case law of human rights court.
Public advocacy and mobilization
The theoretical framework leads one to expect that the ICRC would be greatly involved in
public advocacy and mobilization since Chapman and Fisher mention that it is a key strategy
for NGO’s to influence international negotiation. Surprisingly this was only true in case 1
where the ICRC put a great effort in to creating public awareness of the problem. For the first
time a media awareness campaign was launched, and it was shown to be very effective in the
stigmatization of anti-personnel landmines. It also created a database on its website over
landmine victims and information regarding this problem. In case 2 however, no evidence was
found of this type of campaign.
Monitoring and other assistance with compliance
After the signing of the Ottawa treaty the work of the ICRC continued. It organized a number
of conferences where it promoted and gave information on the Ottawa treaty. It played an
important role in making sure that the treaty was being respected. In case 2 the ICRC held
expert meetings and workshops on the domestic implementation of the ICC statute. It also
helped train prosecutors and judges. In both cases the ICRC provided information kits on the
ratification process to the states. That the ICRC is involved with monitoring and assistance
with compliance is not surprising, since the theoretical framework makes it clear that it is a
big part of NGO’s work. According to Ku the main type of work within this area is
implementing agreements, monitoring them and providing information and aid for
ratification. These tasks are all fulfilled by the ICRC in the two cases.
Direct participation in the formulation of international agreements
It is seen in the theoretical framework that NGO’s tries to influence the exact wording of the
final documents in international negotiations. Clark, Friedman and Hochstetler argue that
even though their ability to influence as states, NGO’s are able to influence the formulation of
international agreements. This is evident in both cases. In case 1 the ICRC had an active role
in the negotiations where it commented on proposals as well as submitted its own. As the
treaty was being discussed the ICRC proposed a number of points that it felt was important to
be included. This proposal had a big impact on the final treaty. In case 2 the ICRC submitted
35
a list of war crimes that it felt should lie under the ICC jurisdiction. It was successful in
defining rape as a war crime and to make the jurisdiction apply to internal as well as
international conflicts. It had its own delegation to the Preparatory Committee where it
especially influences the document called “Elements of Crimes”.
Lobbying
The theoretical framework defines lobbying as trying to influence large bodies that have great
influence to change at regional, national and global level, and this is something that NGO’s
frequently use in trying to achieve their goals. In both cases lobbying has certainly been used,
but it is difficult to find evidence of it as it can take on many different shapes. In case 2 the
ICRC managed to convince seven states to demand the preparatory committee to table its
study, and in both cases the ICRC has been successful in convincing states to listen to its
arguments and to be involved in many parts of the negotiation process. This must have been
easier for the ICRC than for many of the other NGO’s, because of its reputation. This may be
why other NGO’s have not played as big a role.
36
5.3. Efficiency
In contrast to states NGO’s specializes in a specific field of interest. Therefore they develop a
greater competence within this field, and can perform tasks that states are unable to. The
greater expertise the organizations possess, the more efficiency it can contribute in
negotiations. The ICRC has played an important role in promoting new areas of international
humanitarian law, as well as developing existing ones. In case 1 it initiated an entire new field
of prohibition, while in case 2 it worked to enhance the prosecution and penalties on war
crimes.
Especially in case 1 the ICRC was involved in every stage of the negotiation process. It
organized meetings to get the negotiation process started. It is clear that the ICRC played an
important role during the preparatory stages, and it can be discussed whether this process
would even have started without the involvement of the ICRC. It was an important source of
information in both cases, especially in case 1. There is little doubt that information leads to
further efficiency in any decision making, thus the ICRC must have contributed to the
efficiency of these negotiations.
5.4. Conclusion
The ICRC worked in different ways in the two cases. In case 2 it mainly focused on providing
information and to some extent directly participating in the formulation of the ICC statute. In
case 1 it had a more varied strategy. For the first time it launched an extensive media
campaign, and it was one of the leading organization that worked with putting the issue on the
agenda. Providing information and participating in the formulation of the treaty was also in
this case a big part of their work. In both cases it continued working with the treaties after
their adoptions, helping with ratification, implementation and monitoring.
These two cases give support to Albin’s seven points of ways NGO’s influence international
negotiations. Stronger connection can be seen in case 1. In case 2 the ICRC did not work as
much with public advocacy and mobilization. This may be because of the nature of the
problem. The creation of an international criminal court was a legal technicality, while the
banning of anti-personnel landmines had a more emotional impact, where first hand accounts
of what ICRC delegates had experienced on the field was easy to use to get the media
attention.
37
These cases have shown that the ICRC has had a big impact on the efficiency of these
international negotiations. Agenda setting may be the most important way of influencing
international negotiations As Dery said, by defining the problem, you are shaping the solution
by what decisions are made, what the goal is and how it could be reached.144 The ICRC due to
its status and history is able to set issues on the agenda however it is questionable that smaller
NGO’s behold this capacity. They must focus on providing information which also is an
important factor in influencing, and in enhancing the efficiency of, international negotiations.
144
Dery, D. (2000) p. 3 f
38
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