Why confidentiality matters

On November 6, Military Commission Judge James Pohl, who is presiding over the trial of five Guantanamo detainees, ordered the US government to turn over to him all correspondence between the US and the ICRC pertaining to our "inspections of, and work at, the detention facilities at the US naval station" in Cuba. The ICRC is disappointed by the ruling, which failed to recognize that under international law, ICRC materials are absolutely protected against disclosure in judicial proceedings unless the ICRC gives its consent in writing to such disclosure or otherwise waives its privilege in all or in part. Our legal advisor in Washington DC, Daniel Cahen, explains why the ICRC disagrees with the ruling.

Intercross: First, why is the ICRC so adamant about asserting its absolute privilege of non-disclosure?

Daniel: It boils down to one of the most basic and fundamental working modalities that we use worldwide: confidentiality.

The ICRC visits places of detention housing more than half a million detainees in around 75 countries annually, including the US naval base at Guantanamo Bay. The aim of these visits is to monitor the conditions of detention and ensure that their treatment meets international standards.

Our delegates have conducted 98 visits to the Guantanamo facility since 2002. In fact, we just wrapped up our most recent visit a couple of weeks ago.

When visiting detainees, we establish a confidential dialogue with the detaining authorities. Our confidential approach also enables detainees to speak freely – and in private – about their circumstances with the ICRC. By addressing our concerns bilaterally and confidentially with the detaining authorities, we're able to build trust. It also ensures we have access to the detainees, and, importantly, it brings results.

Therefore, if a court does not uphold the right to non-disclosure of our confidential information, or calls ICRC staff to serve as witnesses, this can have a negative impact on our capacity to negotiate humanitarian access and carry out our mandate under international humanitarian law.

Intercross: Is this privilege of non-disclosure recognized internationally?

Daniel: Yes it is. Under international law, as recognized by international courts and tribunals, the ICRC's confidential communication with governments cannot be disclosed by the authorities in judicial proceedings, or in any other manner, unless it is already in the public domain, or unless the ICRC gives its consent or otherwise waives the privilege.

The customary nature of the ICRC's privilege of non-disclosure, and the related testimonial immunity for present and former ICRC staff, have been consistently confirmed by international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda.

In addition, the Rules of Procedure and Evidence for the International Criminal Court (ICC) recognize and uphold our privilege of non-disclosure. This is equally the case for the Rules of Procedure and Evidence of the Special Tribunal for Lebanon and the Rules of Procedure and Evidence of the Mechanism for International Criminal Tribunals (MICT) adopted on 8 June 2012.

No other organizations have been granted this privilege of non-disclosure and the ICRC feels that this underscores the importance of confidentiality as the cornerstone of our work. A number of States have recognized our status, privileges and immunities, including our right to non-disclosure, through bilateral status agreements with the ICRC.

Intercross: So what's your reaction to the Military Commission's decision for the ICRC's materials to be handed over directly to the judge, without the prosecution or the defense being able to review any of it for the time being?

Daniel: Judge Pohl has undertaken to review the material in camera, under seal, which means only he and his legal staff can read it. The judge intends to determine what, if any, relevance the information might have for the detainees' defense attorneys, who have been seeking disclosure.

We view his decision to review the materials himself as an indication that the Military Commission recognizes and takes seriously the importance and need to protect the ICRC’s confidential information.

That said, we are dismayed and concerned about the Commission's decision to reject our argument that ICRC materials are completely privileged under customary international law.

Intercross: Why is the ICRC dismayed by this?

Daniel: The Commission's ruling cites a landmark decision by the ICTY in The Prosecutor v. Simic, which explicitly recognized that the ICRC has an absolute right to non-disclosure. However, Judge Pohl appears to have based his decision on the separate, concurring opinion of Judge David Hunt – a member of the ICTY chamber – who disagreed with the majority view that the character of our privilege is absolute. Judge Hunt asserted that the importance of non-disclosure should be balanced against other competing public interests, while at the same time noting that it would be rare for such interests to outweigh the need to protect the ICRC's confidentiality.

Intercross: Why does the ICRC disagree with the Military Commission's view?

Daniel: Well, it's disconcerting that the concurring opinion of a single judge be given more weight than the decision of the ICTY’s chamber, which rejected the "balancing exercise" test. Second, the Military Commission decision refers to article 73 of the Rules of Procedure and Evidence of the International Criminal Court, concluding that this rule “seems to permit a balancing of interests similar to Judge Hunt’s analysis in Simic”.

In reality, Article 73 regards the ICRC's confidential information as privileged and consequently not subject to disclosure. What's more, it makes clear that even in cases where there are other public interests involved, we must be consulted and have the final say as to whether we would waive our non-disclosure privilege or not.

At the end of the day, confidentiality isn't just a "nice to have". It's necessary in order for us to carry out our mandate under the Geneva Conventions.

That's why States must protect the ICRC’s privilege of non-disclosure and ensure that our confidential information is not disclosed.

Intercross: What will the ICRC's next step be?

Daniel: We're taking the time to thoroughly review the ruling and we haven't taken any decisions just yet.

It's our understanding and expectation, however, that the materials will not be disclosed publicly. In general, we will continue to work to improve the legal protection of our confidential information in the US, in line with our right to non-disclosure under international law.

Achieving enhanced protection of our confidentiality in the US would send a positive signal globally and ultimately benefit all those who might require our services in the future.

As told to Anna Nelson, Intercross Editor

More on this: Check out Just Security's guest post by Steven Ratner, who serves on the State Department's Advisory Committee on International Law and served with the ICRC's legal division in Geneva from 2008 to 2009.