Very interesting food for thought here. Still chewing on it.
In the world where most prominent nongovernmental organizations see their role in the international legal process as public advocacy, often through naming and shaming, one very prominent NGO stands apart — the International Committee of the Red Cross, the 152-year old Swiss institution founded by Henri Dunant to aid the victims of armed conflict worldwide. With its staff of over 12,000 in 80 countries, the ICRC has a reach greater than that of the best funded NGOs. It self-proclaimed mission is to serve as the ‘promoter and guardian of international humanitarian law.’ Much of its work consists of hundreds of confidential visits and authorship of numerous secret reports to monitor compliance by armies, security forces, and non-state armed groups with IHL. In doing so, it is deliberately opaque: it rarely identifies violators publicly; it leaves its legal position on many key issues ambiguous, sometimes even from the target of its discussions; and at times it avoids legal discourse entirely when persuading parties to follow legal rules.
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 – the authoritative interpreter of and voice for — international humanitarian law.
…But perhaps the better question is not how much secrecy the ICRC needs for its work in promoting IHL compliance, but how much secrecy the ICRC needs for itself. For in this regard, the institutional culture seems engrained from the highest levels to the newest delegates. The mantra can be heard from the Avenue de la Paix to the farthest flung of the delegations: We are the ICRC. Our only purpose is to help the victims. We do not name and shame. We maintain confidentiality. Secrecy is part of the personality and identity of the ICRC, as much as its neutrality, impartiality, and professionalism. To surrender that attribute would simply make it too much like any other NGO. This sort of catechism led to disaster for the ICRC – and, more important, for the people whose deathly fate it chose never to reveal – once in its history, and while it has occasionally revealed or denounced grave violations, those remain the exception. This question cannot be answered through doctrine, but through an acculturation that requires delegates and senior officials to ask themselves more often whether confidentiality is achieving the humanitarian purpose or undermining it.