As readers may recall, on November 6, Military Commission Judge James Pohl ordered the prosecution to hand over to him all ICRC confidential reports on its visits to Guantanamo that are in the possession of the Department of Defense.  Last week, we featured an insightful guest post from Steven Ratner outlining the legal and moral dilemmas associated with the defense counsel’s request, commenting on the judge’s order, and suggesting a way forward.

Now this morning, on its blog Intercross, the ICRC has issued a public reply to the order in the form of a Q&A blog post with Daniel Cahen, the ICRC legal advisor in Washington, D.C.

The Intercross post states:

“The ICRC is disappointed by the ruling, which failed to recognize that under international law, ICRC materials are absolutely protected against disclosure in judicial proceedings unless the ICRC gives its consent in writing to such disclosure or otherwise waives its privilege in all or in part.”

Regarding the Military Commission’s decision to reject arguments that ICRC reports were completely privileged under customary international law, Cahen notes:

“[t]he Commission’s ruling cites a landmark decision by the ICTY in The Prosecutor v. Simic, which explicitly recognized that the ICRC has an absolute right to non-disclosure. However, Judge Pohl appears to have based his decision on the separate, concurring opinion of Judge David Hunt – a member of the ICTY chamber – who disagreed with the majority view that the character of our privilege is absolute. Judge Hunt asserted that the importance of non-disclosure should be balanced against other competing public interests, while at the same time noting that it would be rare for such interests to outweigh the need to protect the ICRC’s confidentiality . . . [I]t’s disconcerting that the concurring opinion of a single judge be given more weight than the decision of the ICTY’s chamber, which rejected the ‘balancing exercise’ test.”

And it appears that the ICRC is still determining what its next legal steps may be.  Cahen notes in closing “[w]e’re taking the time to thoroughly review the ruling and we haven’t taken any decisions just yet.”