War Correspondents and Other Human Rights Workers in Armed Conflict: Are the International Criminal Tribunals Protecting the Requirements of Confidentiality?

2007 Annual Student Human Rights Conference
24th February 2007
University of Nottingham Human Rights Law Centre
“International Criminal Accountability”
Panel Theme: The International Tribunals
Paper Title: “ICRC staff, war correspondents and other human rights
workers in armed conflict: are the international criminal tribunals
protecting the requirements of confidentiality?”
Author: Kate Portus
The issues
When working ‘in the field’, staff of the International Committee of the Red Cross (ICRC), other human
rights workers and war correspondents are regularly exposed to important information about crimes
committed during armed conflict. Often this information is gathered when talking with victims, witnesses
or even perpetrators of these crimes with the understating that these communications are confidential.
The issue then arises, should these groups be afforded judicial protection in the form of testamentary
privileges and immunities when asked to testify about this information before international criminal
tribunals? What protection, if any, should be afforded to these groups when their eye-witness accounts
or observations may be useful, if not vital to judicial proceedings against alleged offenders? All of these
groups have sought, a form of judicial protection to exempt them from having to testify about
confidential information or disclosing confidential sources in international criminal proceedings. What is
interesting in this debate are the arguments of these groups and how the international criminal tribunals
have dealt with the issues.
Employees of the ICRC, the Office of the High Commissioner for Human rights (OHCHR) and equally,
war correspondents, face the challenge of carrying out their work during and after armed conflict.
However, what makes this work even more challenging is that it must be carried out in accordance with
the mandates of their respective employers, in respect of the confidentiality that their human sources
may require and in co-operation with international criminal proceedings - all of which can be viewed as
humanitarian obligations. While working in war zones, relationships of trust and confidence with local
populations and governments must be formed and nurtured so access to victims and witnesses and
their information can be obtained. It is during this process that information about crimes of war may be
learned. Should that information and the identity of sources be subject to testimony in judicial
proceedings, potentially risking the breakdown of the relationships of trust, or should it remain
confidential, thereby ensuring a channel of access and dialogue remains open in future armed conflict?
This is particularly relevant to the staff of the ICRC who rely on their reputation and good relationships
with governments, military leadership and civilians to gain access to areas of prisoner of war detention.
Testamentary privileges and immunities
Testamentary privileges and immunities become particularly relevant here. These doctrines of evidence
law are protective in nature and considered to be in the public’s interest - they are used to protect
relationships of trust and confidence, and the information that flows from such relationships, that our
society deems sacred. For example, they can be used in the context of confidential information
imparted from a client to a lawyer. Amnesty International (AI) has states that ‘the public interest
information privilege is rooted both in human rights guarantees and public policy grounds. The primary
source…is to be found in the right to seek, receive and impart information recognised more than half a
century ago as an essential component of the right to freedom of opinion and expression in Article 19 of
the 1948 Universal Declaration of Human Rights.’
The tribunals must strike a difficult balance. The competing interests include the need to ensure a fair
trial, to support humanitarian organisations and the confidentiality required for them to properly carry
out their work, and, to compel these employees to testify about confidential information that may be of
assistance in dispensing criminal justice. However, the tribunals are to be guided by certain principles.
For example, all courts have an inherent power to compel witnesses to testify before them and this
Kate Portus
University Centre of International Humanitarian Law, Geneva
LLM in International Humanitarian Law
power has been provided for in the various constitutive documents of the international tribunals. Yet,
when certain exceptions are satisfied, a testamentary privilege or immunity will be afforded to a witness,
thereby protecting them from presenting certain evidence or disclosing confidential sources in judicial
proceedings. As a result, we are seeing these privileges and immunities being expanded by the
international tribunals.
The findings
The findings with respect to these groups are illustrated through the case law of the tribunals and the
following is a short summary. In the case of ICRC staff, the International Criminal Tribunal for the
Former Yugoslavia (ICTY) has found that they are to be afforded an absolute immunity from testimony.
This finding is based on the unique mandate of the ICRC - the guardian of International Humanitarian
Law as stipulated by the Geneva Conventions - which requires it to act as a neutral intermediary
between warring parties and to provide humanitarian assistance to those adversely affected by armed
conflict. If the organisation cannot guarantee confidentiality in its dealings, the mandate cannot be
properly executed. The ICTY also found that the ICRC has an international legal personality, which
means it is free carry out its work, immune from criminal proceedings. This is often the case with
international organisations. With respect to human rights officers employed by the OHCHR, the Special
Court for Sierra Leone found that they are to be afforded a testamentary privilege in some situations. In
other words, where a confidential source is at risk of being identified in proceedings that witness will not
have to answer questions that will disclose the identity of the source. This finding was based on the fact
that as these people are employees of the UN, they are to be encouraged to testify about human rights
abuses where there is no risk of exposing a source. Further, it was found that there is significant public
interest in the work of these officers and that confidentiality is required so that they may continue to
foster trusting relationships with their human sources and in turn prevent human rights abuses in the
future. In relation to war correspondents, the ICTY has found that a testamentary privilege is to apply
where there is a confidential source or where confidential information is held, except where a two part
test is satisfied: 1. the evidence sought is of direct and important value in determining a core issue in
the case and 2. the evidence sought cannot reasonably be obtained elsewhere. Again, the reasoning
for such a finding was based on the significant public interest in the work of these people, the real
concerns for the human sources in this situation – those who risk their safety to speak out about crimes
of war - and that the correspondents’ safety would also be jeopardised should they be viewed as
beholden to the tribunals.
What is also relevant here is the right of the accused to a fair trial. What the tribunals have emphasised
is that it is important that these measures of judicial protection do not threaten such a right. It seems
that this has been appropriately considered in the case law and what must be remembered is that
armed conflict is an extenuating circumstance, allowing these tribunals to reach their decisions using a
more flexible approach to the application of evidence law than that of their domestic counterparts. To be
clear, this is not an opportunity for human rights to be jettisoned, but a situation where many factors
must be taken into consideration. Such factors may include ensuring future access for the ICRC which
can in turn prevent future human rights abuses in armed conflict, or additionally, ensuring that victims
and witnesses of armed conflict can feel secure in coming forward to tell their story to war
correspondents to human rights workers which assists in post conflict healing.
Thus it is argued that the international criminal tribunals are properly protecting the requirements of
confidentiality for these different groups in the context of armed conflict. The judicial protection afforded
is based on sound legal reasoning and appropriate consideration of the more pragmatic elements of the
Kate Portus
University Centre of International Humanitarian Law, Geneva
LLM in International Humanitarian Law