Dangers of Discretion

Over a century ago, Gustave Moynier, a stocky middle-aged Genevan lawyer, author and philanthropist, proposed an international court to enforce respect for the Geneva Convention. Moynier was the second president of the Red Cross, a man whose dedication turned the flamboyant Henri Dunant’s vision into an institutional reality. Dunant, a journalist and entrepreneur, documented the agonies of the wounded soldiers left to die in the fields and vineyards of Solferino after the battle of 24 June 1859, and went on to propose both a corps of volunteers to treat the casualties and a set of ‘international principles, conventional and sacred’, to enjoin armies to respect these volunteers. The ambitions of the two men were too large to fit within the confines of a single institution. Disgraced by bankruptcy, Dunant resigned from the Red Cross to live in seclusion, until he was awarded the first Nobel Peace Prize in 1901. This infuriated the self-righteous Moynier, who in the latter part of his 46-year stint as president, tried hard to expunge any mention of Dunant from the organisation’s records. Such contradictions are the stuff of the Red Cross, whose ‘International Committee’ was, until recently, drawn from a very small circle within the Protestant haute bourgeoisie of Geneva. Much of Caroline Moorehead’s immense chronicle is about the individuals – some extraordinarily courageous and eccentric, a few disastrously timid – who established ‘a movement which has no equal in size or commitment outside of organised religion’.

The Red Cross declared its commitment to neutrality and its readiness to appeal to the belligerents’ sense of humanity, whoever they were, during the negotiation of the first Geneva Convention in 1864. It was concerned neither with pacificism (though the morality of making war more tolerable has been a recurring theme in the organisation’s debates) nor with legislating for human rights. At that time, Moynier opposed the idea of an international tribunal to judge those who failed to comply with the Geneva Convention, arguing that the pressure of public opinion would be sufficient. But the intoxicating nationalisms of the Franco-Prussian War showed the limits of any ‘purely moral force’ such as the Geneva Conventions or the Red Cross. On both sides, public opinion supported – and arguably encouraged – atrocities. By January 1872, Moynier had changed his mind, and presented his plan for a court.

It was not until last June that a diplomatic conference met in Rome to negotiate the setting up of an International Criminal Court to try war crimes and crimes against humanity. The Court, to be based in The Hague, will have an independent prosecutor empowered to bring charges of genocide, crimes against humanity and war crimes. It is the most significant advance in international humanitarian law for half a century (were the Law Lords to uphold their earlier decision to extradite General Pinochet, this would be a further sign of progress). But the US Government has refused to countenance the possibility of its soldiers or their civilian masters facing indictment by a non-American court. The Libyans and Iraqis, among others, will take note of this precedent, which is not the only problem that the Hague Court will face.

Consider the case of Belgium, which in June 1993 delighted humanitarian lawyers across the world by adopting the most far-reaching statute on war crimes of any country, giving its courts worldwide jurisdiction to try any individuals – whether Belgian citizens or not – for ‘grave breaches’ of international humanitarian law, committed either in inter-state or civil wars. At that very moment, Belgian troops serving with the United Nations in Somalia were committing routine brutalities against the local civilian population. Just three weeks earlier, paratroopers had shot and killed an unarmed Red Cross carpenter as he was leaving a mosque. When evidence of torture and killing first emerged, the Belgian Army and Government vigorously denied any wrongdoing and mounted an internal investigation that was little more than a whitewash. Four years later, despite the publication of photographs showing paratroopers holding a Somali boy over a brazier, and persistent lobbying by Belgian anti-racist groups, barely a handful of cases have come to court. The judges have been obliged to dismiss many of the charges because the victims’ bodies have not been identified. When two soldiers who admitted holding the boy over the fire claimed that it was only a game, their testimony was reluctantly accepted by the Court because the boy could not come forward to testify. Belgium’s war crimes legislation merely broadens the jurisdiction of its courts: it does not alter rules of evidence to make convictions in such cases any easier.

At exactly the same time, the US Army was fighting a very bloody war in Mogadishu against the militia of General Mohamed Farah Aidid. Publicly, the US Government claims that its objection to the universal jurisdiction of the International Criminal Court has to do with its fear that American peacekeepers would be vulnerable to malicious prosecutions by discontented Somalis, Serbs and others. In fact, American fears go rather deeper, and explain why the US Government did its best to sabotage the prospect of a truly effective court. The abuses against Somalis committed by the Belgian paratroopers – along with Canadians, Italians, Malaysians and others – were largely the result of individual soldiers getting out of control, and the readiness of their senior officers to turn a blind eye or even to cover up for them. Violations by the US forces were a different matter. The US military doctrines of overwhelming force and minimal – preferably zero – American casualties dictated that the US fought the Mogadishu war from the air and from heavily defended ground positions, using massively destructive weaponry. In the course of a single battle on 3 October 1993, in which 18 American soldiers died and one was captured, US helicopters fired off no fewer than 50,000 Alpha 165 and 63 rockets. City blocks were flattened and crowds cut down by gunfire. In an earlier incident (one of several), on 12 June, US helicopters fired a dozen anti-tank missiles into a house and killed at least fifty clan elders and other politicians. It was not a mistake. ‘We knew what we were hitting. It was well-planned,’ said Admiral Jonathan Howe, the American officer in charge of the UN operation. One of Howe’s legal advisers immediately questioned whether the attack had breached the Geneva Conventions. Almost certainly, it had.

Unlike the Belgians and Canadians, the US has held no public inquiry into the actions of its troops in Somalia. The reason is simple: orders for helicopter attacks came from higher authorities than the force commander in Mogadishu – they came from Centcom HQ in Florida and the White House itself. The charge sheet for any inquiry into Mogadishu war crimes might contain the names of some very high-ranking American individuals.

The International Committee of the Red Cross (ICRC) is roundly in favour of an International Criminal Court. But the Court would pose challenges to the organisation. The ICRC’s philosophy of neutrality and discretion is based on the belief that if it were to publicise any of the evidence it had scrupulously and quietly collected, it would no longer be trusted by the belligerent forces and would lose whatever access it had gained to prisoners – and other victims – of war. It is likely that in some cases it will have crucial evidence about war crimes: should it present this to the Court?

The challenge is not new. In April 1936 the League of Nations set up an investigation into reports that Fascist Italy had violated the 1925 Geneva Protocol and used poison gas against Ethiopia. Only Red Cross delegates – notably the energetic Sidney Brown – had proof of this. The League of Nations asked the ICRC to testify, but the President, Max Huber, invoked neutrality and discretion, and declined. Under the organisation’s mandate, this was entirely justifiable. The Italians were happy, and went on to co-operate with the Red Cross in World War Two. But the ICRC’s timidity went deeper: it failed to make any public condemnation of the use of gas, and – according to Moorehead’s study of the archives – there is no evidence that the issue was even brought up in private discussions with the Italians. Huber argued that the Red Cross was a relief organisation whose aim was to bring solace to the victims of war and that this might be jeopardised by making moral judgments. His predecessor, Gustave Ador, had been ready to issue a public condemnation of the use of gas in 1918, even before it was outlawed; but Huber was more cautious, and the tide of European Fascism was beginning to intimidate the Swiss.

This was an ominous foretaste of the ICRC’s most famous silence, which provides the opening, and the pivot, of Moore-head’s book: the failure to condemn the Nazis’ annihilation of European Jewry. As the first independent researcher to have access to the Red Cross archives up to 1945, Moorehead is uniquely placed to assess this episode. She shows conclusively that by the autumn of 1942 the ICRC had extensive evidence about the death camps. In fact, there was ‘no other gathering of civilians in the world who knew more about what was going on in every theatre of the war’. As early as 1934, delegates had visited concentration camps – though their impressions make extraordinary reading. A 1938 report states: ‘The camp at Dachau is a model of its kind from the point of view of installations and administration. The regime inflicted on the prisoners, undoubtedly severe, cannot be described as inhuman. The sick, in particular, are treated with kindness, understanding and conscientiousness’ Were they duped? Did they connive?

The archives of the International Committee itself, Moorehead writes, and the memories of the people active in the Red Cross during the war suggest that a great deal about the Holocaust was known at every stage of the war: ‘How the Committee responded to the information, and why, is rather more complicated.’ From the archives, she has established that eight months after the Wannsee Conference of January 1942, which launched the ‘Final Solution’, 22 of the 26 members of the Committee were in favour of making a public statement of some sort. But in a meeting on 14 October, caution – indeed timidity – prevailed. Not only did the Committee do nothing, for the same reason it had done nothing about the use of poison gas in Ethiopia, but the question was never raised again while the war lasted. Nor was the Red Cross, except in a few isolated cases, able to provide practical assistance or protection to the Jews. Huber never apologised and repeatedly defended the ICRC’s position, echoing the statements he had made at the time of the Ethiopian war. In 1947 he wrote: ‘All protests are equal to judgments and impartial judgments cannot be reached in wartime ... because they are open to misuse and propaganda ... and because they are ultimately futile.’

The Red Cross has always been a reflection of its times. The German Red Cross – all national societies are constitutionally independent of the ICRC, but supposedly have the same aims and principles – was taken over by the Nazi Party in 1933. The national society then informed the International Committee that dealing with non-Aryan detainees was outside its mandate. Moorehead writes of Dr Ernst Grawitz, acting president of the German Red Cross during the war, that he ‘recommended to Himmler the use of gas chambers as the best way to go about mass killings. He regarded Zyklon B – which was later to be transported around Germany in Red Cross vehicles – as a superb technological achievement because it allowed “humane killing”. Humanity to him seems to have meant mass murder with technical efficiency.’ Grawitz also supervised medical experiments on camp inmates. He committed suicide shortly before the end of the war and thus escaped prosecution at Nuremberg. The inherent susceptibility of national societies to government influence and militarism created dilemmas in Germany, Italy and Japan that the Red Cross movement has never resolved. (In recent years, the Sudanese Red Crescent has been co-opted into the National Islamic Government’s jihad, after its director was replaced by a more pliable alternative.)

Moorehead produces evidence that Alusuisse, a company of which Max Huber was chairman, used 1200 slave labourers at its factory at Singer in Germany to produce aluminium and arms for the war effort. Huber donated his salary from Alusuisse to the ICRC and there is nothing to prove that he knew about the slave workers, but the questions raised by this episode are disturbing, and disturbingly consistent with the emerging evidence of Swiss collaboration with the Nazis, which included large-scale industrial and financial assistance to the German war economy. The Swiss Federation’s constitutional commitment to neutrality had made the creation of the Red Cross possible – and there is a clear link between its clandestine compromising of that principle during World War Two and the ICRC’s silence.

Remarkably, the ICRC still had a moral voice in 1942 and was able to perform many of its mandated functions. The organisation distributed and forwarded 470,000 tonnes of relief, handled 24 million food parcels and 120 million messages between PoWs and their families, and made thousands of visits to PoW camps. No other institution could have done this. After the war it traced tens of thousands of missing people: this huge, painstaking and often distressing task is detailed in some of the most moving passages of Dunant’s Dream.

A few courageous delegates managed to protect Jews, notably in Hungary, where Jean de Bavier and Friedrich Born set up safe houses and provided travel documents to thousands of threatened people – with little support and some outright opposition from Geneva. Moorehead describes delegates running alongside trains bound for the camps, pushing bread and biscuits between the slats of the cattle trucks. In the finest Red Cross tradition, Born later returned to Geneva and to obscurity, and apparently never even told his children of his heroism in Budapest. But, like the Vatican, the ICRC had a unique opportunity to speak out against the greatest crime of the century, and failed to take it By 1942, Moorehead asserts, it ‘had spun a definite aura of moral leadership. In matters of war, its voice counted.’ The organisation’s rules are valuable, but there comes a moment when an exception must be made, and the Holocaust was that moment.

After the war, the ICRC and its apologists did their best to defend their silence. Certainly, the ICRC’s fears about speaking out had been genuine, if, with hindsight, exaggerated. Huber, who spent sleepless nights agonising over the moral dilemmas the Red Cross faced, worried that its access to prisoners of war and other detainees would be terminated, and its assistance programmes ended, for the sake of a single public statement. In reality, Germany was concerned to maintain ICRC access to her own soldiers held prisoner by the Allies and would have been unlikely to take such a step. The Swiss Government’s fear of a German invasion was also probably inflated, not least because of the extent to which the Germans were able to exploit Swiss ‘neutrality’.

‘Would it have made any difference to events in the Nazi-occupied territories if the International Committee had spoken out?’ Moorehead asks. ‘Most commentators argue that it would,’ she continues, limiting her speculation to the minimum: ‘that Huber’s prestige and integrity had lent the Committee enormous moral weight, and that speaking out was the Committee’s last and most effective weapon. Even a halfway measure – a diplomatic intervention, a visit by Huber and Burckhardt to Berlin, a personal letter to Hitler – might have achieved something.’ What that ‘difference’ would have amounted to we can only guess. The Red Cross itself would have been strengthened. As Dunant’s Dream amply demonstrates, the guiding idea of discretion was not, at that stage, deeply entrenched in the ethos of the organisation. Several of Huber’s predecessors had been far more outspoken and it was only after the war that discretion became a cardinal principle. The entire Red Cross movement was damaged by Huber’s nightmares.

In the absence of an international court – an idea revived, but not acted on, during the Nuremberg trials – the postwar history of the ICRC has proved both the value of a clear mandate, cautiously interpreted, and the occasional imperative of innovation. Because the archives for this period remain closed, Moorehead’s account is less lively and compelling than for the earlier years. It is interesting even so, and the continuities with previous wars and disasters are striking.

Over and above providing relief and running an enormous tracing programme – and publicly protesting to the French Government at the treatment of German PoWs – the ICRC’s greatest achievement in the immediate postwar era was the 1949 Geneva Conventions, which, for the first time, extended ‘protection’ to civilians. But in international humanitarian law, unlike human rights law, ‘protection’ is a legal term of art. One of the fundamental concepts of the Conventions is that of ‘proportionality’, the necessarily subjective idea that a commander should not inflict a level of damage disproportionate to the military objective at issue. It is legitimate, in other words, to kill civilians and destroy civilian property, but not to overdo it. Rather than enforceability, the law appeals to what Michael Ignatieff aptly calls ‘the warrior’s honour’.

The British Government’s accession to the Additional Protocols to the Geneva Conventions illustrates the negotiated pragmatism of the laws of war. The Protocols were finalised in 1977, but it was only in January this year that Britain ratified them. (The US has made no moves to sign up.) Among Britain’s 16 clarifications is a wording designed to ensure that the IRA cannot be classed as a belligerent party fighting against racism or colonialism, thereby denying its members, when detained, entitlement to prisoner-of-war status. Another permits the British Army to attack civilians or civilian objects if its adversary is doing so, in order to compel the adversary to cease its violation. This demonstrates the seriousness with which these instruments are taken: they are a complex, evolving body of law.

By contrast, the 1948 Genocide Convention is the simplest of all international treaties: it requires all states to prevent and punish the crime of genocide. It does not define how that is to be done, it simply imposes an overriding moral obligation to do so, implicitly by whatever means can be improvised. Judging when to move from the calculating proportionality of the laws of war to the moral absolute of the Genocide Convention is a formidable challenge. Since World War Two, for the most part, the ICRC’s enduring caution and adherence to its mandate have served it well.

In June 1969, the Nigerian Federal Government ordered the ICRC to suspend its relief airlift into the secessionist enclave of Biafra. It cited Article 23 of the Fourth Geneva Convention, which empowers one party to the conflict to insist on guarantees that relief aid to the other side is not being abused. The Biafrans refused to allow the inspection of cargo or a separation of relief and military flights. The ICRC agonised but complied with the Federal order, and stopped flying. At the time, there was an international outcry: newspapers and church agencies insisted that the Biafrans faced genocide and should be fed no matter what. But in retrospect, it is clear that the ICRC was right: food aid was being diverted by the Biafran Army, and the Federal forces had no policy of massacre. Bernard Kouchner, a Red Cross doctor in Biafra, left the organisation in disgust at its refusal to speak out against the alleged Nigerian ‘genocide’ and went on to found Médecins Sans Frontières. Moorehead’s account concurs with other analyses of the Biafran war in showing that Kouchner got it wrong.

More widely, the ICRC’s reluctance to issue public condemnations gives those they do issue added weight. In 1960, for example, a leaked ICRC report on French torture in Algeria proved very influential – Moorehead credits it with helping to reduce the practice. Publicising each and every violation – the stock-in-trade of an ever-increasing number of human rights and humanitarian organisations – runs the risk of devaluing die currency. When Moorehead remarks that ‘accounts of torture, in the early Sixties, still had the power to shock’ – she implies that they have since become blunted by overuse. The ICRC’s public criticism of the United Nations for neglecting Somalia in 1991 was as effective as it was novel.

The ICRC’s own relief operation in Somalia demonstrates how useful a narrowly defined mandate can be. One of the ICRC’s strengths has been its readiness to trust individual delegates to act, within the mandate, without requiring extensive bureaucratic approval (the scourge of the tortoise-like UN agencies). A recurring theme of Dunant’s Dream is that the calibre of individual delegates is more important than the articles of the Geneva Conventions. Thus Peter Stocker, chief delegate to Somalia in 1991-92, acting in die tradition of Sidney Brown and Friedrich Born, was able to develop an enormous and innovative relief effort, the only one in the country at the time, after the UN and most of the private relief agencies had pulled out. This huge but under-documented operation was something of a model for the Nineties, a decade characterised by ambitious humanitarian programmes in civil wars or collapsing states. The ICRC’s successes in Somalia are largely attributable to its willingness to delegate authority to field officers, who in turn entrusted many decisions to their Somali staff and the Somali Red Crescent Society. This exacted a huge cost, however. Not only were 13 Somalis and two expatriates killed in 1991-93, but the operation stretched the ICRC almost to breaking point. Substantial amounts of relief were stolen by the Somali militias, and for the first time in its history, the ICRC hired armed guards. Many food deliveries went unmonitored; in fact some of the names on distribution lists were ‘ghost villages’ invented by unscrupulous truck-owners. Journalists and aid workers began to ask whether the relief was not fuelling the conflict by providing resources that enabled the militias to feed their forces and fuel their ‘technical’ battlewagons – and evade any responsibility for caring for the civilian population under their authority. These are questions that will not go away. One of the drawbacks of the ICRC’s discretion is its refusal to collaborate in any public inquiry into the impact of such a huge operation on the host society. Nonetheless, virtually alone among international humanitarian agencies, the ICRC stayed in the field and refused to join the chorus calling for military intervention in Somalia – a reticence which turned out to be justified.

When an individual delegate fails, it can be a disaster. During the 1994 genocide in Rwanda, at least one delegate and one senior local employee actively assisted the ‘génocidaires’, offering an illusion of protection to Tutsis and then handing them over to their killers. While its field hospital in Kigali saved dozens of lives, the ICRC, along with the UN, and humanitarian agencies in general, failed to respond to the first indisputable genocide since the Holocaust. For the ‘humanitarian international’, including the Red Cross, this was another occasion for exceptional, rule-breaking measures. Instead, it was ‘business as usual’ – the standard formula of food relief, refugee camps and calls for UN troops. Implicitly, the Genocide Convention calls for every possible measure to be taken, overriding the niceties of other international laws. At this point, neutrality becomes not only irrelevant but an obstacle to action.

In the last half-century, most of the ICRC’s work has been outside Europe, and in the last ten years it has had to operate alongside many irregular militias and fragmented armies. It is trying in innovative ways to encourage knowledge of and respect for the Geneva Conventions, researching local traditions of ‘warrior’s honour’ and adapting its message to different cultures – with a degree of success. Simplified versions of the laws of war, sometimes reduced to cartoon-strips, are widely distributed.

The resurgence of war in Europe was a shock. Ignatieff argues that

the ICRC’s experience in Yugoslavia shook the organisation to its core. Its delegates had shown extraordinary devotion and courage, but many of them were oppressed with a sense of failure and futility. The ICRC arrived in Vukovar hours too late, and hundreds were killed; it was despatched to Sarajevo only to be attacked; it discovered concentration camps and then became an inadvertent accomplice to ethnic cleansing; and it joined in the international clamour for safe havens only to watch helplessly as the havens became a trap, and then a tomb, for seven thousand men. It was one thing to see the Geneva Conventions ignored in a non-European city, but to see how little their principles meant a few hours from Geneva was genuinely shocking. Many wondered if the ICRC had lost its way, or else asked if the world had changed so much that the organisation no longer had a place in it.

Any reader of Moorehead’s book will recognise this as both overstated and ahistorical (not to mention ethnocentric – Europeans have always been the principal violators of die Geneva Conventions). Moorehead’s perspective is a salutary rejoinder to those, like Ignatieff, who argue that contemporary warfare is fundamentally different from anything that has happened before. (Sceptics are encouraged to read Colonel Charles Callwell’s 1896 handbook Small Wars: Their Principles and Practice, recently reissued,* in which the author warns that colonial policing operations ‘assume an aspect which may shock the humanitarian’.)

Yet there is a reality behind Ignatieff’s cri de coeur. Today, expectations are higher. Previous generations of ICRC delegates were content if they could make a modest contribution to mitigating the inhumanity of war. Modern delegates agonise over the fact that they cannot prevent this inhumanity and fear that they may even be fuelling war. The ICRC also has competitors. These include humanitarian agencies (notably Médecins Sans Frontières) that have loose mandates or none at all, and are ready to take the moral high ground by using whatever means come to hand. In the case of Rwanda, some private agencies even justified their call for UN troops on the grounds that they had to ‘do something’ to give publicity to the situation. Meanwhile, human rights organisations, whose task is to demand perfection, have begun to pass judgment on the very different matter of the laws of war. In an inversion of Huber’s excessive timidity, many modern ICRC delegates now judge their organisation’s performance against these (probably unrealistic) standards of perfection. Ignatieff, too, fails to avoid this trap: his moral outrage is not always matched by sober analysis.

In both humanitarian practice and law there is a danger of what the historian Geoffrey Best has called ‘overinflation’. If the humanitarians demand too much, they will simply be ignored and the whole enterprise will be brought into disrepute. There were early signs of this in the refusal of the US to sign the 1977 Additional Protocols. One of the Pentagon’s objections was that the new Protocols were over-generous in conferring civilian status – munitions workers and off-duty guerrillas are entitled to the same protection as nursing mothers and their young children. More recently, the UN High Commissioner for Refugees protected war criminals and armed militia in Zairean ‘refugee camps’ alongside bona fide civilians from Rwanda, in an almost certainly unlawful extension of the agency’s mandate. The UNHCR’s public agonising over its dilemma cut little ice with the Rwandan Government, which was repeatedly attacked by guerrillas from the sanctuary of these ‘refugee camps’. Unsurprisingly, the Rwandan Army finally struck back at the militarised camps. This action elicited howls of protest from the UN and relief agencies, who appeared to believe that their own presence rendered the camps immune from attack. In a further misuse of international humanitarian law, they promptly demanded international troops to protect their operations. Oxfam issued an absurd press release that called on the international community to come and enforce the ‘Geneva Convention’ [sic]. No wonder the Rwandan Army and Zairean rebels were suspicious of UN calls for unrestricted ‘humanitarian access’ to civilian victims of the war: thousands of Rwandan civilians paid the price of humanitarian hubris.

The demands of the humanitarian marketplace pose a profound challenge to the Red Cross’s integrity. Maintaining a balance between humanity and warfare is difficult enough at the best of times: it may become impossible if the organisation also has to keep its eye on the demands of the media and donor governments. The greater challenge remains the war crime that crosses the line into genocide, exceeding the limits of the ICRC’s mandate as rules fail and every case becomes an exception requiring a particular moral judgment. By opening its archives and allowing Caroline Moorehead to write this book, the ICRC is nearing the point where it will have to admit its failure over the Holocaust – a failure that stemmed from the very principles which made the remarkable achievements of the Red Cross possible.