Behind the Flag of Dunant: Secrecy and the Compliance Mission of the International Committee of the Red Cross

Abstract

In the world where most NGOs see their role in the international legal process as public advocacy, often through naming and shaming, the International Committee of the Red Cross stands apart. Much of its work consists of confidential visits and secret communications to warring parties. It rarely identifies violators publicly; it leaves its legal position on many issues ambiguous; and at times it avoids legal discourse entirely. This aversion to transparency is not only at odds with the assumptions of the naming and shaming strategy regarding the most effective means to induce compliance. It also makes it almost impossible for outsiders to know the ICRC’s legal characterization of specific cases. As a result, its approach to protection of victims, even if successful in individual cases, seems to undermine its self-professed role as the "guardian" of IHL.

This tension between the roles of the ICRC, and the ICRC’s approach to it, should interest scholars and concerned with the proper role for transparency in encouraging compliance with law. It also calls into question the assumption of many international lawyers that transparency is always beneficial for the promotion of international law. This paper describes three different dimensions of the ICRC's secrecy; offers an explanation for the ICRC's choices in this regard; inquires as to possibility of gauging the effectiveness of secret strategies; suggests the implications of secret strategies for our understandings of compliance; and analyzes the ethical challenges of working in secret.

Keywords: international law, compliance, transparency, confidentiality, International Committee of the Red Cross