The author, undoubtedly one of the best experts on the International Committee of the Red Cross, explains that this institution is active in the Ukraine war as the guardian of international humanitarian law (IHL), a role which requires complex decisions to be made. Yet while it is doing much good for civilians in difficult circumstances, it is coming up against multiple obstacles in trying to get the belligerents to properly apply IHL for combatants hors de combat and others detained or deported. Never having a persuasive communications strategy, the organisation has not gone down well in many Ukrainian circles of opinion and is a frequent target of criticism from other parties too.
International humanitarian law (IHL) is often addressed by some experts with a focus on formal enforcement through various types of courts. However, there are extra-judicial means of applying the law which may be as important as formal enforcement. One such means consists of the efforts of the International Committee of the Red Cross (ICRC), which sees itself as “the guardian of IHL”. This private organisation, retaining its all‑Swiss governance as it has since 1863, manifests a humanitarian diplomacy and provides services pursuant to the development and application of IHL in armed conflicts.[1]For a standard overview of the ICRC, see David P. Forsythe, The Humanitarians: The International Committee of the Red Cross, Cambridge University Press, 2005.
The International Committee of the Red Cross confronts the Russian-Ukrainian conflict
An initial ICRC statement at the start of the war was brief and mainstream, emphasising the norms of IHL that should be followed.[2]ICRC, “Statement from ICRC President Peter Maurer on the armed conflict in Ukraine”, 24 February 2022, https://www.icrc.org/en/document/statement-icrc-president-peter-maurer-conflict-ukraine The two belligerents quietly accepted that they were involved in an international armed conflict to which IHL applied. Moscow mostly rejected the word “war” to describe its actions, preferring “special military operation”. Russia, however, did not object to the ICRC well-grounded conclusion that the IHL applied.
“It was typical of large international humanitarian agencies to take some weeks to become operational in Ukraine.”
In February 2022 the ICRC did not always have experienced and assertive staff on the ground in Ukraine and was slow to get its field operations underway. Early violence saw most ICRC confined to quarters for safety reasons. The ICRC head of delegation in Ukraine was replaced, along with other staff members. It was typical of large international humanitarian agencies to take some weeks to become operational in Ukraine.[3]Humanitarian Outcomes, Enabling the local response: Emerging humanitarian priorities in Ukraine March – May 2022, June 2022, … Continue reading The ICRC had four heads of delegation during the first year of war. There were also changes in relevant personnel in Geneva.
Top ICRC officials had little recent and direct experience with international armed conflict involving major powers of the type seen in the Ukraine war. Much ICRC activity had recently been focused on “protracted conflicts” with shifting levels of violence in “fragile societies” in non-Western areas. Organisational history, precedents and “doctrine” about major wars were not always evident in Geneva.
Civilian protection
The ICRC and its partners undertook much civilian emergency relief and recovery programmes. A Red Cross publication in August 2022 summarised relief and indicated that 350 healthcare facilities in Ukraine had been attacked.[4]ICRC and IFRC, Six Months of Armed Conflict in Ukraine, 22 August 2022, https://www.ifrc.org/sites/default/files/2022-08/IFRC_Ukraine_Humanitarian_Crisis_EN_20220822_.pdf Special attention was given to the evacuation from war zones of disabled, older and especially needy persons – often in difficult conditions requiring complex negotiations. The total of ICRC and Red Cross Movement efforts to help civilians was quite substantive, summarised early on by a public statement in late June,[5]ICRC, Ukraine: humanitarian situation deteriorates as major cities bear the brunt of heavy fighting, 22 June 2022, … Continue reading then again in late August. From 2014 the ICRC had been one of the few humanitarian organisations active in the Donbas region. It continued deep involvement there.
Conditions were difficult for humanitarians active in Ukraine during early 2022. Some aid personnel were killed from Caritas and the Hare Krishna movement. The scorched earth campaign adopted by Moscow, plus lack of reliable communication among invading units, made it highly difficult to carry out any humanitarian activities amidst the dangerous uncertainty. This situation accounted for some of the early criticisms of the ICRC from the Ukrainian side.[6]Lily Hyde, “Evacuation challenges and bad optics: Why Ukrainians are losing faith in the ICRC”, The New Humanitarian, 3 May 2022, … Continue reading
Ukrainian nationalism, strengthening as the country faced brutal attacks, did not easily accommodate neutral organisations like the ICRC. In 2023, a United Nations (UN) official referred to a UN report that found violations of IHL on both sides.[7]Radio Free Europe, UN rights official concerned over summary executions of POWs by both Russia, Ukraine, 25 March 2023, https://www.rferl.org/a/ukraine-russia-un-execution-prisoners/32333852.html The Ukrainian Foreign Minister responded: “we consider it unacceptable to place responsibility on the victim of aggression. According to the UN Charter, Ukraine has the right to self-defence.”[8]Jamie Dettmer, “There is still a place for neutrality in Ukraine”, Politico Europe, 29 March 2023, https://www.politico.eu/article/there-is-still-a-place-for-neutrality-in-ukraine This deflected the point that Kyiv was bound by IHL in its defensive actions against Russian aggression.
Much ICRC help to civilians could be seen as offsetting some of the effects of Russian attacks through its de facto impact. If Russian strategy included undermining Ukrainian civilian will to resist by creating great hardship, legitimate Red Cross relief to the civilian population could be seen as mitigating this Russian objective. Some on the Ukrainian side seemed to discount early ICRC assistance to civilians, disappointed by ICRC diplomacy and failure to obtain broad access to Ukrainian detainees and deportees held by Russia. However, by May 2023 the presidential staff in Kyiv praised the ICRC for helping Ukrainian civilians.[9]Ukrinform, Deputy head of president’s office meets with new head of ICRC delegation in Ukraine, 6 May 2023, … Continue reading
The ICRC activated the Central Tracing Agency in Geneva and was active interviewing refugees in neighbouring countries like Poland. Despite difficulties, the ICRC – with UN diplomats – helped arrange humanitarian corridors for the safe evacuation of hundreds of civilians from some conflict areas.[10]ICRC, Ukraine: As humanitarian crisis deepens, parties urgently need to agree on concrete measures; misinformation risks lives, 29 March 2022, … Continue reading It was complex to arrange over several days the safe movement of sizeable numbers of traumatised civilians through dangerous military checkpoints during active hostilities.[11]ICRC, Ukraine: More than 170 civilians evacuated from Azovstal and Mariupol area in third safe passage operation, 8 May 2022, … Continue reading The UNHCR, the UN refugee office, indicated it had no experience in such matters.
Another difficult problem was the fate of children taken from Ukrainian areas that legally fell under the Fourth Geneva Convention (GC) from 1949 pertaining to occupied territory. This problem existed from 2014 and again from February 2022. According to numerous reliable reports, many children had been taken from Ukraine and given new lives, and passports, as Russians. This issue had not been addressed by any specific ICRC public statement at the time of writing. Only in spring 2023 did Geneva confirm publicly that it was involved in discussions with Russia on the subject. The ICRC, faced with criticism from the Ukrainian side, had earlier stated that it would never be a party to forced relocation.[12]ICRC, Ukraine : As humanitarian crisis deepens…, op. cit. Ukrainian officials stressed this subject in at least two public statements in fall 2022, criticising the ICRC for its alleged lack of dynamism on the subject.[13]Reuters, Ukraine seeks G20 focus on Russian deportations of children, 9 November 2022, https://newsinfo.inquirer.net/1691111/ukraine-seeks-g20-focus-on-russian-deportations-of- children; Ukrinform, … Continue reading
President Zelensky said of the ICRC at the G20 meeting in autumn 2022: “I want to point out that we did not find support from the International Committee of the Red Cross. We do not see that they are fully fighting to gain access to the camps, where Ukrainian prisoners of war and political prisoners are held. Neither they are helping to find deported Ukrainians. This self-withdrawal is the self-destruction of the Red Cross as an organisation that was once respected.”[14]Ibid.
“Most IHL issues, not just the matter of deported children, became controversial or politicised.”
Most IHL issues, not just the matter of deported children, became controversial or politicised. When Amnesty International (AI) issued a report about Ukraine using military assets near civilian structures,[15]Amnesty International, Ukraine: Ukrainian fighting tactics endanger civilians, 4 August 2022, https://www.amnesty.org/en/latest/news/2022/08/ukraine-ukrainian-fighting-tactics-endanger-civilians Western media criticism of AI in London showed: a) much Western opinion did not want to hear about Ukrainian controversial policies, and b) the advocacy organisation had not been careful in framing its report. Whether this Western backlash against AI in London had any effect on the ICRC headquarters in Geneva when considering public statements about IHL is a good question.
Early in spring of 2022, ICRC President Peter Maurer had gone to Kyiv. Maurer was not received by President Zelensky or other top Ukrainian officials, whereas on a later trip to Moscow he was given the red carpet treatment. In his Moscow visit, Maurer was filmed and photographed in friendly relations with the Russian Foreign Minister Sergei Lavrov. These images were acknowledged to this author as a faux pas by certain officials in the ICRC.
In quiet bilateral contacts between the ICRC and especially Russian officials, we do not know how dynamic it was in defense of IHL. Was low-key diplomacy perhaps appropriate given views held by key Russian officials?
Prisoners of war protection
In early October, Ukraine’s President Zelensky launched his first broadside of criticism against the ICRC for failing to protect Ukrainian Prisoners of war (POW).[16]Reuters, Ukraine’s Zelensky says Red Cross inactive on prisoners of war, 13 October 2022, https://www.reuters.com/world/ukraines-zelenskiy-says-red-cross-inactive-prisoners-war-2022-10-13 ; … Continue reading He repeated a slightly broader attack on the ICRC at the G20 meeting that autumn, already noted. At this time the ICRC did not have full access to Russian POWs held by the Ukrainian side. A UN report, based on interviews with POWs or former POWs from both sides, concluded that the Ukrainians too were violating their obligations under IHL regarding POWs.[17]UNHCHR, “Ukraine/Russia: Prisoners of War”, 15 November 2022, https://www.ohchr.org/fr/press-briefing-notes/2022/11/ukraine-russia-prisoners-war A later UN report confirmed that both sides were failing to adequately protect the POWs they held, with the Russian violations being more extensive.[18]Human Rights Council, Report of the Independent International Commission of Inquiry on Ukraine, 15 March 2023, … Continue reading
Already some criticism in Ukrainian news sources blamed the ICRC for, inter alia, not being dynamic in pressing Russian authorities to grant the organisation full access to POWs as required by IHL.[19]Olha Hlushchenko, “List of dead in Olenivka partially confirmed – former Azov Regiment Commander”, Ukrainska Pravda, 3 August 2022, https://www.pravda.com.ua/eng/news/2022/08/3/7361609 From August 2022, Kyiv blocked the few ICRC visits then occurring to its POW facilities, in retaliation against Russian obstructions on that same issue. However, in the winter of 2022‑2023, the Ukrainian Ministry of Justice commended the ICRC for its humanitarian efforts, including on POW affairs. In May, the office of the President did the same.
This record suggests either that early on there was a disconnect between statements by President Zelensky, critical of the ICRC, and other parts of the Ukrainian administrative state, much more appreciative of the ICRC. Or it suggests that the Office of the President was playing a double game, fully understanding the role of the ICRC but using public criticism of Geneva to try to increase pressure on Russia for better protection for Ukrainian detainees.
The ICRC responded to the first Zelensky public blast by issuing a measured press release asking for access to all those detained under IHL on both sides.[20]ICRC, Russia–Ukraine international armed conflict: ICRC asks for immediate and unimpeded access to all prisoners of war, 14 October 2022, … Continue reading Then it said it was ready to visit all POWs but needed approval from the belligerents who had the primary duty to respect IHL. It had said something similar once before when it was criticised for not having regular access to the Olenivka prison in eastern Ukraine under Russian control where about fifty Ukrainian POWs had been killed in a suspicious explosion.[21]ICRC, Olevnika penal facility: Prisoners of war and ICRC’s role, 3 August 2022, https://www.icrc.org/en/document/olenivka-penal-facility-prisoners-war-and-icrcs-role The pattern was that the ICRC only said something detailed to the press about POWs in public when it was criticised for not being dynamic enough. However, it posted clear and correct statements about IHL and POWs on its website.
Reports were published in Western media about bad conditions and treatment for prisoners held especially by Russia and its allies, some based on eyewitness accounts.[22]Luke Harding, “‘Absolute evil’: inside the Russian prison camp where dozens of Ukrainians burned to death”, The Guardian, 6 August 2022, … Continue reading Sometimes the fighting parties agreed to prisoner exchanges, and the prisoners formerly held by the Russian side would speak to the media about the ill-treatment they had received.[23]Dan Lamothe, “Americans captured by Russia detail months of beatings, interrogation”, The Washington Post, 1 October 2022, … Continue reading There were multiple media reports about conditions under Russian control when those areas were taken over by Ukrainian forces. Moreover, there was that UN report in the autumn based on interviews with current or former detainees from both sides, without governmental supervision.[24]UNHCHR, “Ukraine/Russia: Prisoners of War…”, op. cit. This UN report, and a later one already cited, indicated much mistreatment of POWs by both sides.
Early on, when holdout Ukrainian fighters surrendered in Mariupol, ICRC representatives were present on the vehicles that transported the disarmed fighters to Russian detention. But the ICRC was denied regular access to most POWs held in detention on both sides.
Communication policy
An opinion column in a Swiss newspaper, written by a former head of ICRC communications, was well-informed.[25]Alain Modoux, « Sous-informés, les États ne peuvent pas faire respecter le droit international humanitaire », Le Temps, 13 septembre 2022, … Continue reading In international war, Geneva had often provided a report on IHL, indicating what the organisation had been allowed to do. All parties to the four 1949 GCs were legally obligated to “respect and ensure respect for” that treaty law. It was difficult for third-party states to do that without authoritative statements. Also, belligerents escaped criticism. A similar argument by a former official of the Swiss Red Cross, who was also a former official of the International Federation of Red Cross and Red Crescent Societies, appeared slightly later in the Swiss press.[26]Pierre de Senarclens, « Ukraine : le silence du CICR », Le Temps, 24 novembre 2022, https://www.letemps.ch/opinions/ukraine-silence-cicr Public critical comments are allowed by ICRC doctrine, if judged to be in the interest of victims.
When a suspicious explosion killed Ukrainian POWs at Olenivka in late July, already mentioned, the Geneva headquarters issued several statements. In one, it indicated what the ICRC knew and when. The statement made clear that Russia was in violation of its obligations under IHL.[27]ICRC, “Olenivka penal facility…”, op. cit. Slightly later the ICRC Director-General, still under public pressure for failing to obtain systematic access to Olenivka, began to give a more general accounting of what the ICRC had and had not been able to achieve on detention matters.[28]Boris Mabillard, « Le directeur général du CICR : “Nous ne pouvons faire que ce que les parties au conflit acceptent que l’on fasse” », Le Temps, 6 septembre 2022, … Continue reading
When the International Criminal Court issued an arrest warrant for President Putin and his top aide on children’s affairs because of the deportation of children to Russia from Ukraine,[29]ICC, “Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova”, press release, 17 March 2023, … Continue reading the ICRC mostly remained silent on this issue – only later confirming it was in talks with Russia on the subject.
This author was impressed by a very strong and clear ICRC statement in December 2022 challenging the Taliban’s new restrictions on women in Afghanistan.[30]ICRC, Afghanistan: ICRC deeply concerned for millions of women and girls, 25 December 2022, https://www.icrc.org/en/document/afghanistan-icrc-deeply-concerned-millions-women-and-girls There was no similar strong statement about particularly POW affairs in the Ukraine war, or about civilian prisoners and those transferred out of occupied territory.
Through autumn 2022, there had indeed been some limited humanitarian progress involving the ICRC: some extraction of civilians from danger, considerable civilian assistance, some visits to detainees, some return of mortal remains of deceased, some success in locating persons through the Central Tracing Agency, and ongoing dialogues at high level with both belligerents.
Through the first year of the war, clearly the ICRC decided that mostly discretion on specific POW affairs (not to mention specifics on targeting civilians, detained civilians and transferred children) was the best way to advance IHL, and no outsider has the information necessary to fully evaluate that decision.
Some in Geneva thought that an early public overview of IHL issues would not be win-win but lose-lose. Rather than alerting others and putting public pressure on the belligerents, such an accounting would arguably provoke a backlash and endanger ICRC continuing efforts. This produced much criticism of the ICRC, deserved or not.
In an interview given to a Swiss newspaper in September 2022,[31]Aline Jaccottet, « Peter Maurer : “Pour obtenir du soutien, le CICR doit le mériter” », Le Temps, 13 septembre 2022, https://www.letemps.ch/monde/peter-maurer-obtenir-soutien-cicr-meriter President Maurer indicated limited access to POWs on both sides. He basically repeated what Director-General Mardini had already said: the belligerents accepted IHL in principle but neither had agreed on all details of ICRC systematic visits.
A statement from a Russian diplomat in Geneva, whose value can be debated, indicated appreciation for the role of the ICRC and did not mention anything about lack of neutrality or other problems with that organisation.[32]AP, “Russian official says ‘practical’ issues delay visit to POWs”, 20 October 2022, https://mynorthwest.com/3679193/russian-official-says-practical-issues-delay-visit-to-pows It is highly suspicious that Moscow kept blocking ICRC full access to the Olenivka POW prison after the deadly explosion there.
“Early there was an evident dislike of the ICRC on the Ukrainian side.”
Early there was an evident dislike of the ICRC on the Ukrainian side. ICRC slowness to act, the nature of its original team in the country, the images of the ICRC president in friendly interactions with Russian foreign minister Lavrov, its public silence on any number of highly questionable Russian policies, its inability to gain proper access to the Olenivka prison, all made for a negative ICRC image in Ukraine. We already noted a strong dislike of neutrals by many Ukrainians.
In this context, the ICRC probably feared that a public accounting of IHL would have antagonised both sides. The potential discomfort may have been greater on the Ukrainian side, but not because the Russians had the better humanitarian record. It was the Ukrainians who had been publicly castigating the ICRC, whereas a public accounting might show much proper effort by the ICRC for IHL and insufficient responses by Kyiv – despite their public criticisms of Geneva.
Prospects for the future
New ICRC president Mirjana Spoljaric took over from Maurer in October 2022. She and other ICRC leaders might come to the same conclusion that was dominant in the Maurer era: the time was not right for a public “white paper” on the fate of IHL in the Ukraine war.
Spoljaric made some erroneous references to discretion as a fundamental Red Cross principle, whereas it is not a fundamental principle but a flexible tactic to be employed or not with attention to perceived neutral status. She showed unfamiliarity with ICRC Doctrine No. 15, a policy guideline indicating the possibility of public criticism if in the interest of victims.
The organisation was certainly trying to play its traditional roles regarding IHL in that conflict. It would be crucial for the evaluation of the organisation to eventually know the nature of its discreet diplomacy. Its prolonged silence on many specifics and its lack of an evident strategic communications policy created the image of unwillingness to energetically challenge some belligerent policies that violated IHL. By comparison, it looked bold in challenging the Taliban in Afghanistan regarding the status of women, but less bold in the Ukraine war in defending IHL. But cautious discretion might have been a wise orientation to avoid collapse of the limited humanitarian activities. The ICRC again found itself in a war in which charity toward enemies and cooperation with neutral humanitarians was sometimes close to the vanishing point.
In late 2022, Ukraine allowed a resumption of some ICRC visits to Russian POWs. This occurred despite continuing complaints from Kyiv that the ICRC had been “inactive” on Ukrainian POWs held by Russia.[33]Alona Mazurenko, “President’s Office creates human rights headquarters amid International Red Cross inaction”, Ukrainska Pravda, 9 November 2022, … Continue reading Russia also allowed some new, if incomplete, POW visits.
“The ICRC now had more partners or competitors, depending on point of view.”
Unlike in some other armed conflicts, in the Ukraine war UN organs and agencies were often highly active, both on assistance and protection, issuing public reports on matters that in the past had been rather the exclusive domain of the ICRC. Notable was UN public reporting on POW affairs based on credible interviews with prisoners or former prisoners. On that topic the ICRC now had more partners or competitors, depending on point of view.
In the future there would also be fuller accounts of the ICRC record in relation to IHL in Ukraine. This short essay presents an early baby step in that direction.
This article draws heavily on material from the forthcoming book: David P. Forsythe, The Contemporary International Committee of the Red Cross: Challenges, Changes, Controversies, Cambridge University Press, late 2023, reproduced with permission.
