Giving evidence by humanitarian aid workers in international tribunals: a legal discourse on the possibility of testimonial privilege

Abstract

Humanitarian aid workers may witness the commission of war crimes, crimes against humanity and the crime of genocide. In the emergence of international judicial system, their testimonies may be of vital importance for sentencing the perpetrators of the gravest crimes. The participation of humanitarian community in the process of meting out justice is necessary to protect the civilian populationnot only assist it. Moreover, it may be seen as the assumption of moral responsibility towards the beneficiaries of the relief operation. Yet, giving testimony in international tribunals might have serious implications for humanitarian action resulting in the loss of a neutral and impartial profile, forfeiture of access and putting aid workers at risk. The problem of whether or not humanitarian aid workers should be required to testify needs to be regulated legally; therefore, the author analyses two decisions of the ICTY with respect to their relevance to aid workers. The first one, the ICRC decision, gives several affirmative arguments for the privilege for them, while the second one, the Randal decision, advances a general legal framework for testimonial privilege. Further, the author elaborates on the extent of the possible privilege in the light of these decisions and argues against immunity in consideration of the non-legal dilemmas resulting from it.