The International Committee of the Red Cross concluded last year that CIA interrogation methods for al-Qaida detainees were “categorically” torture, according to a new book by New Yorker staff writer Jane Mayer. After the New York Times reported that revelation on Friday, an ICRC spokesman said the organization “regrets that any information has been attributed to us,” citing the organization’s belief that its reports should remain confidential. If these detainee reports aren’t for the public, then whom are they for?
The people who run the prisons. The ICRC was set up in 1863 to help the victims of war, and one of its primary functions is to protect the rights of POWs. To accomplish this, it must persuade national governments to let its monitors inspect their prisons. In order to get access, the ICRC promises that its findings will remain confidential. So after the committee’s inspectors make their visits, they submit their findings directly to the officials who run the detention centers. Depending on the scope of the violations—and, later, whether those concerns are addressed—the ICRC will also send its report to the appropriate government ministers or even the head of state.
Although the ICRC may release public statements about its meetings with officials, the releases—like this one concerning detainees at Guantanamo—rarely go further than discussing very general complaints. However, the committee may become more outspoken under certain conditions. According to ICRC protocol (PDF), the committee can publicly denounce specific human rights breaches if four conditions are met: The violations are major and either repeated or likely to be repeated, the delegates have been able to verify the violations with their own eyes or with “reliable and credible sources,” confidential discussions with the offending government have had no effect, and the publicity is in the interest of the people threatened by the violations. Last year, for example, the committee decided to publicly denounce Burma for “major and repeated violations of international humanitarian law”—citing findings from thousands of civilian and detainee interviews—after the military junta continued to ignore its entreaties. But even when the ICRC gets more specific in its criticism, it doesn’t typically release the full reports from detention facilities.
Otherwise, the confidentiality is expected to go both ways. The ICRC insists that governments don’t publicize quotes from its reports in a way that might suggest a seal of approval. (See, for example, this angry ICRC statement after the Sri Lankan government said the ICRC “confirmed a distinct downward trend in disappearances and unexplained killings” in the country last year.) If a government issues part of a report, the ICRC reserves the right to release the rest.
When the ICRC first began its detainee visits in the early 20th century, the organization actually sold its reports to the public. This practice ended after World War I, when the committee decided it would gain better access to military prisons if it kept its findings secret. In the years since, the ICRC’s insistence on confidentiality has earned criticism from some human rights advocates who say it allows violations to continue. In 1942, the Red Cross declined to issue a public statement concerning Nazi genocide and maintained long after the war (PDF) that such a statement would have jeopardized Allied POWs without changing Germany’s policies. (The ICRC apologized for its timidity in 2006.)
Legally, the ICRC’s nondisclosure policies have earned it a unique status in many courts. Although at least 80 percent of the organization’s budget comes from voluntary contributions made by national governments, the ICRC—whose governing assembly remains entirely Swiss—is technically a private agency. Yet the International Criminal Court has agreed that the Red Cross has the final say in whether it divulges confidential information in testimony; more than 60 countries—though not the United States—have also signed treaties protecting the ICRC against requirements to give evidence in court.
Bonus Explainer: Is the American Red Cross part of the International Committee of the Red Cross? No. Both the American Red Cross and the ICRC are part of the International Red Cross movement, and the organizations might collaborate in certain situations—for example, if Americans are donating supplies to help relief efforts in a war-torn country. But the American Red Cross does not take part in investigations of detainees, and the ICRC says it does not share its findings with any of the national Red Cross or Red Crescent organizations.
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Explainer thanks Christy Feig of the American Red Cross, Scott Horton of Hofstra Law School, Anna Nelson of the International Committee of the Red Cross, and Thomas Weiss of the City University of New York.