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Confidentiality: key to the ICRC's work but not unconditional

20-09-2010 Interview

Confidentiality is an essential tool, enabling the ICRC to help people affected by insecurity, violence and armed conflict. It allows the ICRC to build trust, communicate and influence change. But what happens if confidentiality is broken? An interview with ICRC deputy director of operations Dominik Stillhart.

The ICRC is known – and sometimes criticized – for its confidential approach to dealing with sensitive issues, such as its work in places of detention and its efforts to ensure that the lives and dignity of civilians and other non-combatants are respected. Critics argue that the organization is too secretive and should share its findings publicly, especially when it comes to conditions of detention and treatment of prisoners. Proponents maintain that discreet dialogue is key to protecting and assisting those affected by conflict.

The ICRC firmly believes that confidentiality is an essential tool, which enables it to reach out and maintain access to people affected by insecurity, violence and armed conflict. Confidentiality is what allows the ICRC to build trust, open channels of communication and influence change. But, as the ICRC's deputy director of operations, Dominik Stillhart, explains, confidentiality must be respected in order to be effective.

Why does the ICRC refuse to share its findings with the public?

Our main focus is on improving conditions for people affected by conflict and hostilities, regardless of who they are. We do speak out on some issues and we also offer assessments of the humanitarian situation in conflict-affected countries around the world, but when it comes to addressing possible violations of international humanitarian law, it's very important that we are able to do this primarily in a confidential manner.

For example, we might write a news release about the overall rights of detainees or the humanitarian impact of insecurity and displacement, but we will not speak publicly about individual allegations of abuse or specific violations of international humanitarian law.

In this type of situation – when our delegates observe cases of abuse, need or neglect – they take up their concerns directly with the authorities or other parties to the conflict on the ground. This can mean a range of people – from prison guards and military commanders to rebel leaders and armed opposition fighters. Our aim is to have a confidential dialogue with those who have the power to improve the situation.

The ICRC also works in a lot of places and contexts where outside scrutiny and criticism are often unwelcome. Confidentiality is the key that enables the ICRC to open doors that would otherwise remain shut, giving us access to people in need and places that many other organizations cannot reach.

The ICRC apparently sometimes shares information with third parties. Why?

In some instances, we may indeed share general or specific concerns with selected third parties – usually with States. Such exchanges, which are intended to explain the status of our activities, take place in the framework of our efforts to mobilize support for important humanitarian initiatives. Sometimes, the aim may be to indirectly influence the parties concerned so that a given situation can be improved. These exchanges take place on an exclusively bilateral and strictly confidential basis.

Wouldn't it be more effective to expose abuses publicly?

Confidentiality does not equal complacency. The fact that we don't speak out publicly on some issues doesn't mean that we are silent. The ICRC is quite tenacious when it comes to following up on allegations of abuse, and we're ready to take our concerns all the way to the top if necessary, including heads of State or government, in order to put a stop to it.

The ICRC regularly reminds those involved in conflicts of their obligations under international humanitarian law. From insisting on the need to spare civilians during military operations to facilitating the release of hostages by armed opposition groups, we work very hard to keep up a dialogue with all sides to any given conflict.

This is far from easy, and improvements don't always come about as quickly or smoothly as we, or the victims of abuse, would like them to, but it's a tried and tested approach that enables us to help those affected by armed conflicts.

The ICRC does not share confidential information with the media or other third parties, nor does it consent to the publication of such information, because there is always a risk that our observations could be exploited for political gain or instrumentalized by one side or another.

By discussing serious issues, such as abuse or ill-treatment, away from the glare of public attention, governments and non-state actors are often more likely to acknowledge problems and commit to taking action.

The ICRC opts for a behind-the-scenes approach because this has helped us achieve results on many occasions. However, we know that this is not the only effective method of tackling abuses of international humanitarian law.

What happens if your reports are made public or leaked?

It's the people we are trying to help who may suffer most when our confidential findings wind up in the public domain.

If this happens, the authorities could stop us from visiting certain people or places, making it impossible for us to help them. It can take a very long time to build back trust and regain access.

In the meantime, it's the people who look to the ICRC for protection and assistance, including detainees, displaced groups and families torn apart by war, who bear the brunt of our absence.

There are also data protection issues at stake. We are very careful to ask each person we talk to if they are willing to allow us to use their name or personal details in helping them and addressing the issues they describe to us. This is as true for detainees and displaced people as it is for rape victims and child soldiers. We work very hard to safeguard their information by treating it confidentially. If this data is leaked, it could put them or their loved ones at risk.

What about lawyers and judges – can they read your reports?

If the ICRC marks a report as confidential, it means that it is intended only for the authorities or parties to the conflict to whom it is addressed. We object to any sharing or publication of this information without our consent.

The ICRC knows that it is a privilege and a responsibility to bear witness to what happens during times of war and conflict, and we understand why courts might want to use our findings as evidence or ask us to testify. But, once again, this could endanger those people who have placed their trust in us by telling us about their often very painful experiences. If that information becomes public, they – and perhaps even their families – could face punishment or retribution.

If our documents become part of a court's record, it could jeopardize our ability to continue working in a particular country or context, and compromise the safety of our colleagues.

This is why the ICRC has developed a long-standing practice of confidentiality. As a result, states cannot ask the ICRC to testify or serve as a witness before their domestic courts. This testimonial immunity has been confirmed by a number of domestic and international tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.

More than 80 countries have also specifically recognised this immunity by treaties or legislation. In addition, the Rules of Procedure and Evidence for the International Criminal Court (ICC) stipulate that the "ICRC retains the final say on the release of its information". No other organizations were granted this privilege and the ICRC feels that its testimonial immunity underscores the importance of confidentiality as the cornerstone of our work.

Would you ever consider waiving your confidentiality rules?

Discretion can have its limits, and the ICRC reserves the right to speak out, publish our findings or stop our work in exceptional cases. For example, if a detaining authority issues excerpts from one of our confidential reports – without our consent – we reserve the right to publish the entire report in order to prevent any inaccurate or incomplete interpretations of our observations and recommendations.

Similarly, if, after repeated requests, prisoners continue to be mistreated or if we are prevented from working according to our recognised operating procedures, we may suspend detainee visits or our operations and publicly explain the reasons.

If it's clear that our confidential approach isn't working – for example, because a government or rebel group simply refuses to take our concerns seriously, and that we've exhausted all other avenues of discourse, we can and will take action by expressing our concerns publicly. The decision to speak out is never taken lightly but it's important to remember that confidentiality is not unconditional.

What do you mean by "operating procedures"?

To ensure that our analysis is as complete and unbiased as possible, the ICRC follows a set of rules when visiting detainees, regardless of the circumstances.

ICRC delegates must be able to speak in total privacy with every detainee held. This is important because our confidentiality isn't limited to the authorities. If a detainee gives us permission to talk about his or her concerns with the authorities we will do so… but never without the detainee's consent.

As part of the rules, our delegates must also be able to inspect all cells and other facilities. Visits must be allowed to take place as often as the ICRC requests and for as long as people are held in detention. In addition, all detainees must have the opportunity to write to their families using the Red Cross message system and to receive Red Cross messages from their loved ones.

Another important element of our criteria is that ICRC delegates are allowed to conduct confidential discussions with the camp authorities before and after each visit to raise concerns and make recommendations where appropriate.

The ICRC also individually registers the identities of detainees, which makes it easier to monitor what happens to them and prevent disappearances.

Each year, we visit more than half a million detainees in around 75 countries. These standard criteria apply in all of the places where we visit prisoners. If restrictions are put on this way of working, we sometimes have no choice but to suspend our work until these rules are once again respected.

Are you personally convinced that you can make a difference by working this way?

I know we can because I've seen it happen many times. Sometimes we manage to influence one situation more than an other, and it can be a slow process. Our delegates know that even if progress doesn't happen right away, sometimes it's simply enough to "be there".

You can see it in the eyes of a prisoner sitting in his cell. You can see it on the face of a mother trying to feed her children in the midst of war. When there is very little hope to cling to, just knowing someone cares can make a difference.

What I know for sure is that trust isn't built overnight. It requires time, dedication and persistence to establish a constructive dialogue with people who don't often like to hear what we have to say. But more often than not, they do listen and I see this as reason to believe that confidentiality will continue to stand the test of time.