International Committee of the Red Cross (ICRC)
- Responsibility of non-state actors — Armed conflict — Geneva Conventions 1949 — Protected persons and property — Insurgents and insurrection — Occupation — Prisoners of war — Customary international law
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The International Committee of the Red Cross defines its mission as follows:
The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and other situations of violence and to provide them with assistance. The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement. It directs and co-ordinates the international activities conducted by the Movement in armed conflicts and other situations of violence (ICRC Mission Statement).
2 The ICRC’s motto is inter arma caritas; also used is per humanitatem ad pacem.
B. Historical Development
3 The ICRC was established in Geneva in 1863 in response to a proposal made by a Swiss citizen of Geneva, Henry Dunant. In 1859, Dunant happened to witness the aftermath of the Battle of Solferino in Northern Italy, one of the bloodiest battles of the 19th century and a decisive event that led to the creation of modern Italy. Dunant was deeply shocked by the absence of any organized care, medical or otherwise, for the wounded and dying soldiers on both sides. In his book, A Memory of Solferino, published in 1862 in Geneva, Dunant proposed two measures to alleviate the suffering of the stricken on the battlefield: 1) the creation of a private organization in each country to assist wounded, sick, and dying soldiers; and 2) the adoption of an international agreement that would protect soldiers hors de combat (whether wounded, sick, or captured) and guarantee the neutrality of medical personnel on the battlefield.
4 The first proposal resulted in the establishment of the International Committee for Relief to the Wounded (or ‘Geneva Committee’), composed of Geneva citizens, including Henry Dunant—later re-named the ‘International Committee of the Red Cross’. That Committee organized an international conference in Geneva in 1863 and promoted the establishment of humanitarian societies in each country: the origin of the International Red Cross and Red Crescent Movement.
5 The second proposal led to a diplomatic conference convened by the Swiss government and to the adoption on 22 August 1864 of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, the original Geneva Convention for the protection of war victims (see Geneva Conventions I–IV ; Humanitarian Law, International).
6 It is important to bear in mind that neither Henry Dunant nor the Geneva Committee claimed to have ‘invented’ the moral obligation and urgent need to respect humanitarian considerations even in armed conflict or the imperative of organizing assistance for its victims. Throughout history, but especially in the 19th century, institutions, including those established by religious communities of all faiths, and individuals, such as Florence Nightingale, Clara Barton, and Doctor Pirogov, personally came to the aid of victims of war, organized support, and/or advocated for their cause in the European society. These persons acted in and on behalf of specific war situations. Dunant’s special merit was to act for the future and to propose the adoption of binding international guidelines for providing assistance to the wounded on the battlefield—the original Geneva Convention—and, simultaneously, the establishment of permanent international and national institutions to achieve that aim.
7 Thus rules, procedures, and an organizational structure were brought into being to make the provision of protection and assistance for victims of war not a matter of occasional altruism or policy, but a permanent and binding obligation for all members of the international community. After the adoption of the 1864 Geneva Convention and the formation of Red Cross Societies in the main European countries and in the Americas, the Geneva Committee/ICRC believed its mission to be accomplished. Yet the Franco—Prussian War of 1870–71 underlined the necessity for its continued existence. And so did the following wars, up to the present day.
8 Since 1863 the ICRC has ‘offered its services’ and undertaken humanitarian activities in all major armed conflicts. In the first few decades of its existence, it had to confront wars in Europe and conflicts exclusively of an international character. During World War I, the ICRC’s first engagement in a major, multilateral armed conflict, its delegates were mainly concerned with the fate of prisoners of war (‘POWs’). The delegates visited POW camps, traced missing persons, and helped in their repatriation. At the beginning of the war, the ICRC set up in Geneva the International Prisoners-of-War Agency which collected information on POWs of all sides. That agency later became the Central Tracing Agency operating in all armed conflicts up to the present day. The ICRC’s first operation outside Europe took place during the Abyssinian conflict of 1935–36. The ICRC was for the first time authorized to act in an internal conflict, or a civil war, during the Spanish Civil War (1936–39).
9 In World War II, the ICRC undertook humanitarian activities in various theatres of war on an unprecedented scale, in the beginning with rather modest means. It achieved a measure of success in assisting Western Allied POWs held by the Germans and German POWs in Allied hands by visiting POW camps, distributing relief parcels, and informing families through its Tracing Agency. Germany and the Allied States were bound by the 1929 Geneva Convention on POWs, but the Soviet Union and Japan were not. The ICRC was not allowed to deploy its activities in favour of victims of the war between the Soviet Union and Germany, in particular to visit POW camps on either side: the Soviet Union had failed to ratify the 1929 POW Geneva Convention, and this circumstance led Germany to declare that it was not bound to respect its commitments under that treaty toward a non-party to that Convention, invoking the general participation clause (clausula si omnes). Japan also did not accept the ICRC’s proposal to visit POWs held by that country. In the absence of any international treaty protecting the civilian population from the effects of war (Civilian Population in Armed Conflict), the ICRC had no legal basis to gain access to detained civilians or to provide assistance to the population of occupied territories, with the relief operation for the benefit of occupied Greece being a notable exception.
10 The most serious gap, however, was the highly unsatisfactory state of international law protecting the civilian population against the effects of hostilities and, in particular, protecting civilian persons detained by the enemy: there was no international treaty specifically protecting civilians or the civilian population in time of war. In the 1930s the ICRC took several initiatives and even submitted a draft for a convention protecting the civilian population in times of armed conflict (Draft International Convention on the Condition and Protection of Civilians of Enemy Nationality who are on Territory Belonging to or Occupied by a Belligerent, the so-called ‘Tokyo Draft’ of 1934). Yet the initiative failed to win the international community’s interest before the outbreak of World War II—with tragic consequences. Civilian human beings had to pay the price, in particular the inmates of German concentration camps and the civilian population of the bombarded towns.
11 During World War II, despite repeated requests the ICRC was never given access to German concentration camps, but only allowed to deliver relief parcels for distribution to their inmates. ICRC delegates met German officials at the gate but were never authorized to go inside the camps, personally meet the detainees, or inspect the rooms in which they lived, with the exception of one visit to the Theresienstadt Camp, a showpiece for German propaganda purposes. Whether the ICRC could and should have done more when it became aware—at the same time as the Allies—of the reality has been the subject of much reflection since the end of the war and has sometimes been a source of controversy until the present day. At the time, the ICRC took the view that to publicly denounce the horrendous crimes committed in the concentration camps might be perceived as a violation of its commitment to neutrality and impartiality, and that any public protest would not, in any case, alter the course of events. The ICRC was also concerned about endangering its ongoing humanitarian activities in Germany, in particular the visits to Allied POWs. At the ICRC’s request, the distinguished Swiss historian Jean-Claude Favez examined the institution’s activities—or lack thereof—in favour of the inmates of German concentration camps, with free access to its archives. In 1988 Favez published his conclusions, together with a wealth of previously confidential material, under the telling title Une mission impossible? (English version: The Red Cross and the Holocaust). Thereupon, the ICRC declared in a public statement that it should have acted more vigorously, even under those difficult circumstances, and it expressed its regrets over possible past errors and omissions.
12 Only a few days after the atomic bombing of Hiroshima on 6 August 1945, the ICRC’s delegate in Japan, Dr Marcel Junod, became the first foreign witness to reach the stricken town and to organize an international relief action in favour of the survivors of the catastrophe. Shortly afterwards, Max Huber, then president of the ICRC, drew the attention of the international community to the horror of nuclear warfare and called for action on the international level: this was the first public reaction to the use of an atomic bomb in war (Nuclear Weapons and Warfare).
13 After the end of World War II, the ICRC had to overcome the hostility of the Soviet Union which, after having refused to accept the organization’s activities on behalf of war victims during the war, also opposed its role in the further development of humanitarian law. The USSR, which at that time also rejected any cooperation with the ICRC in other conflicts, did finally change its position and play an active part in the 1949 Diplomatic Conference. During the Cold War (1947–91), the wars in Korea and Vietnam and conflicts associated with the process of decolonization were the main challenges faced by the ICRC. During the Cuban Missile Crisis (1962) the ICRC was ready, on the request of the UN and with the consent of the US and the Soviet Union, to inspect Soviet ships heading toward Cuba and thereby to make a contribution to a peaceful settlement of the conflict. Yet, the active participation of its delegates was no longer needed when the USSR started to withdraw the nuclear weapons from Cuba. The Nigeria—Biafra war of 1967–70 (Biafra Conflict) was a turning point for the ICRC: it led to an increased professionalism in the organization’s working methods and to an expansion in personnel and in financial needs. The ICRC has also carried out activities in situations of internal strife, situations characterized by hostilities and violence that are not covered by the Geneva Conventions of 1949. Of particular significance in this regard are the visits made by its delegates to political prisoners in Greece, Chile, Argentina, South Africa, and Poland.
14 Since 1948, the ICRC has had an uninterrupted presence in the Middle East, especially in the territories occupied by Israel during the Six Days War of 1967. The humanitarian problems caused by the long-term occupation of the West Bank, Gaza, and the Golan Heights, together with the occupying power’s refusal to recognize the applicability of Geneva Convention IV to the Palestinian territories under its control, forced the ICRC to undertake activities on an unprecedented scale.
15 In recent years the ICRC’s main theatres of operation have been the Middle East, the wars in Iraq and Afghanistan, Pakistan, and the civil wars in the Darfur region of Sudan, in Eastern Congo, the Central African Republic, and in the Southern Sahara. The ICRC was heavily engaged in events caused by the so-called ‘Arab Spring’, particularly in Libya and Syria. At the time of writing (2015), the ICRC’s major operations are taking place in Syria and surrounding countries of the Middle East, South Sudan, Afghanistan, Yemen, Israel/Palestine, Mali, the Central African Republic, Colombia, and Ukraine.
16 The dramatic events of 9/11 (2001) and the subsequent US-led ‘war on terror’, along with the question of the proper response to their humanitarian consequences, were additional major challenges for the organization—and for international humanitarian law and its underlying philosophy in general. Yet none of these events questions the relevance of existing international humanitarian law or of the ICRC’s humanitarian mandate.
C. International Mandate
17 The ICRC, the International Federation of Red Cross and Red Crescent Societies, and the individual National Red Cross and Red Crescent Societies established on the national level together make up the International Red Cross and Red Crescent Movement. The current Statutes of the Movement were adopted in 1986 by the International Conference of the Red Cross and Red Crescent and amended in 1995 and 2006.
18 The International Conference of the Red Cross and Red Crescent is the supreme deliberative body of the Movement. It is composed of representatives from its components: the ICRC, the International Federation, and the National Societies, as well as of the delegates from the States Parties to the Geneva Conventions. The Conference thus brings together governments and representatives of civil society. Art. 8 Statutes of the Movement stipulates that the International Conference will examine and decide upon ‘humanitarian matters of common interest and any other related matter’. Thus the Conference is a deliberative body with the task of discussing issues related to international humanitarian law and to matters related to the activities of the Movement in general. The Conference cannot take decisions that would be binding on its members, among them sovereign States, except for statutory or procedural questions.
19 Under the title ‘Proclamation of the Fundamental Principles of the Red Cross’, the International Conference adopted in 1965 seven principles that guide the Movement’s activities: humanity, impartiality, neutrality, independence, voluntary service, unity, and universality (Handbook of the International Red Cross and Red Crescent Movement 725). The Fundamental Principles are also part of the preamble of the Statutes of the Movement.
20 The Statutes of the Movement give the ICRC the legal basis for working as a non-governmental humanitarian organization on the international scene and—at the same time—the legitimacy to do so. Art. 5 (1) Statutes of the Movement states: ‘The International Committee, founded in Geneva in 1863 and formally recognized in the Geneva Conventions and by International Conferences of the Red Cross, is an independent humanitarian organization having a status of its own. It co-opts its members from among Swiss citizens.’ Art. 5 continues with defining the ICRC’s role by enumerating its tasks. The article includes the qualifying phrase ‘in accordance with its [ie the ICRC’s own] Statutes’, thereby confirming the ICRC’s autonomy even within the Movement. Art. 5 (2) (c) and (d) Statutes of the Movement are of particular importance: they declare that the ICRC has ‘to work for the faithful application of international humanitarian law applicable in armed conflicts’ and ‘to endeavour at all times—as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife—to ensure the protection of and assistance to military and civilian victims of such events and of their direct results’. Art. 5 (3) adds: ‘The International Committee may take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution’: the ICRC’s right of initiative. Finally, Art. 5 (6) Statutes of the Movement states that the ICRC shall ‘maintain relations with governmental authorities and any national or international institution whose assistance it considers useful’. It is worthwhile recalling at this point that these Statutes were adopted by the International Conference in which representatives of the States Parties to the four Geneva Conventions participated.
21 The ICRC’s existence and mandate are based on international treaty law as well: the 1949 Geneva Conventions I–IV for the protection of war victims and the 1977 Additional Protocols (see common Art. 3 and Arts 9/9/9/10 of Geneva Conventions I–IV; Art. 81 Additional Protocol I). Additional Protocol I explicitly confirms ‘the humanitarian functions assigned to [the ICRC] by the  Conventions and this Protocol’ during international armed conflict. It also stresses the commitment of States Parties to humanitarian treaties, particularly those engaged in an armed conflict, to grant the ICRC ‘all facilities within their power’ to enable it to carry out its specific tasks. These tasks are spelled out by numerous treaty provisions. They include visiting civilian places of detention (prisons) and POW camps, organizing relief operations, and protecting the rights of persons living in occupied territories.
22 The ICRC also has the right to take any humanitarian initiative that it deems necessary (common Arts 9 and 10 of the Geneva Conventions). While States are not obliged to accede to such initiatives, it is generally accepted that they are under an obligation to examine in good faith any proposals that are made. The Geneva Conventions also mention the ICRC as a possible substitute for a Protecting Power (common Arts 10 and 11 of the Geneva Conventions). Common Art. 3 of the Geneva Conventions authorizes the ICRC to ‘offer its services’ to the parties to a non-international armed conflict, ie to both the government and the insurgent movement or movements. Such an offer is limited to humanitarian matters. It may not be understood as interference in the internal affairs of the State concerned, nor does it imply recognition in any form of the insurgents’ legal status. It is generally agreed that both the government and the insurgent movement or movements must at least take the offer into consideration. Additional Protocol II of 1977 does not refer to the ICRC’s role in a non-international armed conflict, common Art. 3 of the Geneva Conventions being a sufficient legal basis for its activities in such conflicts.
23 The ICRC summarizes its main tasks under the Geneva Conventions with the notions of protection and assistance (see Art. 4 ICRC Statutes).
24 The ICRC works to ensure that parties to an armed conflict—of an international or non-international character—respect their commitments under international humanitarian law, particularly with regard to the rights and interests of persons belonging to an adverse party who do not, or no longer, actively participate in hostilities, are under their direct control, or are otherwise affected by military operations: POWs, civilians in detention, inhabitants of occupied territories, displaced persons, and the civilian population in general. For the ICRC to be able to perform this task, its delegates must be permitted by the parties to the conflict to visit all places where protected persons may be, particularly ‘places of internment, imprisonment and labour’ where captured military personnel are being held (Art. 126 (1) and (4) Geneva Convention III). The ICRC’s delegates also have the right to visit ‘places of internment, detention and work’ where civilians are being held. This covers in particular occupied territories (Art. 143 (1) and (5) Geneva Convention IV). Delegates are entitled to have direct contact with all protected persons and to speak with them in private, without witnesses. It is the ICRC’s view that in conflict situations access to persons and places is a prerequisite for achieving positive results, ie to respond to humanitarian needs, and that confidentiality is the key to securing such access. The ICRC also plays a privileged role in the search for missing persons and in reuniting families separated as a consequence of the hostilities. It is one of the important tasks of its delegates in the field to do everything necessary to re-establish family links and to favour direct contact between detainees and their families. The Central Tracing Agency, a unit at ICRC’s headquarters, organizes this activity and centralizes the information (see Art. 123 Geneva Convention III and Art. 140 Geneva Convention IV).
25 The ICRC relies on several methods to convince the authorities or persons in charge to respect their obligations under international humanitarian law. They range from on-the-spot attempts by its delegates in the field to convince their interlocutors to change their behaviour, eg through discussions with a prison director or a camp commander, to formal diplomatic approaches at the highest political level of the concerned party to the conflict, be it a State or an insurgent movement. The ICRC also routinely reminds parties to an armed conflict of the applicability of the Geneva Conventions and their Additional Protocols to a given conflict situation and the obligation to respect their commitment. The confidential character of its interventions is an essential condition for maintaining its dialogue with the authorities (see ‘The International Committee of the Red Cross’s Confidential Approach’ [December 2012]).
26 The civilian population affected by military operations in the course of an armed conflict must be allowed to continue to live as normally as possible. This holds particularly true for occupied territories. Parties to an armed conflict are therefore under an obligation not only to repair destroyed civilian infrastructure but also to provide assistance—in the form of food, water, medical care, and so on—to people in need, particularly detained persons, the civilian population in conflict areas, and inhabitants of occupied territories. If the authorities concerned (whether military or civilian) are unwilling or unable to meet their obligations, the ICRC may step in: it distributes relief and organizes medical care, especially in detention centres, conflict areas, and occupied territories, and it must be permitted to do so under all circumstances. The ICRC carried out important relief operations in several recent armed conflicts, both international and non-international in character. Its activities included establishing medical centres, delivering food in emergencies, and repairing drinking-water installations. Such relief actions were also undertaken in response to natural catastrophes, such as the tsunami and earthquake in South East Asia (2004), the earthquake in Haiti (2010), the floods in Pakistan (2010), and the earthquake in Nepal (2015), for the mere fact that the ICRC was already present in those countries. The ICRC coordinates its activities and cooperates actively with relevant international organizations, particularly the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the European Commission’s Humanitarian Aid and Civil Protection department, and with non-governmental relief organizations willing to participate in a particular relief operation. On the domestic level it regularly joins forces with the local Red Cross or Red Crescent Society.
3. ICRC as Neutral Intermediary and its Right of Initiative
27 The main task of the ICRC is to act as a neutral intermediary between parties to an armed conflict, with a view to working out a solution to issues of a humanitarian character. The ICRC also has ‘to take cognizance of any complaints based on alleged breaches of [international humanitarian] law’ and to transmit such complaints to the party concerned (Art. 5 (2) (c) Statutes of the Movement). The latter task has lost some of its importance today, as there are many other ways for States to communicate with each other even in the course of an armed conflict, including through the United Nations or regional organizations. Finally, the ICRC is considered as having a general right of initiative in humanitarian matters, ie a ‘right’ to take up with a party to an armed conflict any issue with humanitarian implications. This ‘right’—or privilege—today seems to be uncontroversial and even welcome.
4. Developing International Humanitarian Law
28 The ICRC has always considered the strengthening of international humanitarian law to be a vitally important task, be it treaty law or customary law. It has, since its founding, been a catalyst in the development of new international treaties to protect war victims and, in general, to set limits to the conduct of hostilities. The Geneva Committee, as it was known then, established the first draft of the 1864 Geneva Convention, ie the original Geneva Convention, and its five members played a decisive role at all stages of the codification process. The treaty was adopted by a diplomatic conference convened by the Swiss government, which subsequently became the depositary of the Geneva Conventions. The same holds true for the subsequent revision procedures to develop and update the treaties of international humanitarian law. The ICRC also actively promotes the formal acceptance by States of newly adopted treaties. Moreover, its recent study on customary international humanitarian law, the result of a decade of research, is a major contribution to the identification and the consolidation of customary rules as part of international humanitarian law (ICRC Database ‘Customary International Humanitarian Law’). The ICRC also takes on the important task of ensuring that knowledge of the law is disseminated among those who are required to know it, particularly members of the armed forces. The ICRC’s contributions to academic scholarship include among other things the publication of comprehensive commentaries on the various Geneva law treaties (Geneva Conventions and Additional Protocols, in the process of being updated at the time of writing), the publication of the International Review of the Red Cross as an instrument to promote discussion on humanitarian law issues on the academic level, and the organization of discussions at universities and training seminars for military personnel.
5. Humanitarian Activities in Situations Not Covered by the Geneva Conventions
29 The ICRC routinely acts in situations other than armed conflict, ie in situations characterized by serious violence within the territory of a State that do not amount to a non-international armed conflict as defined by international humanitarian law, and which thus are not covered by the Geneva Conventions. The legal basis for such activities is Art. 5 (2) (d) Statutes of the Movement. In these circumstances, the ICRC delegates propose to visit persons detained in connection with the political situation: they are usually called political detainees. The authorities of the State in question are under no obligation to accede to the ICRC’s initiative. In practice, however, they often do so, because visits to places of detention are thought to be a valuable contribution to the easing of tensions in a conflict-torn country. The first humanitarian operation undertaken by the ICRC that lay beyond the scope of the Geneva Conventions was in Hungary after the end of World War I. Recent history provides numerous examples, particularly in Latin America and postcolonial Africa, of the ICRC being authorized to visit places of detention. The ICRC thus plays an important role in protecting human rights in situations of internal violence without, however, explicitly acknowledging that its activities are formally being guided by human rights standards (ICRC ‘The International Committee of the Red Cross’s Role in Situations of Violence below the Threshold of Armed Conflict’ [February 2014]).
6. The ICRC’s Role within the Movement
30 Under Art. 5 (2) (a) Statutes of the Movement, it is the ICRC’s task to ‘maintain and disseminate the Fundamental Principles of the Movement, namely humanity, impartiality, neutrality, independence, voluntary service, unity and universality’. This task conveys to the ICRC a certain leadership role within the Red Cross and Red Crescent Movement.
31 Art. 5 (2) (b) Statutes of the Movement entrusts the ICRC with the task of recognizing newly established National Societies. The ICRC is also ready to assist them in preparing for possible humanitarian action in conflict situations. During armed conflict, the ICRC coordinates their activities, particularly in relief operations. The Agreement on the Organization of the International Activities of the Components of the International Red Cross and Red Crescent Movement (1997) sets the rules and establishes the procedures for cooperation within the Movement with regard to international relief operations; it also clarifies the respective responsibilities of the International Federation and the ICRC. To conclude at this stage: during armed conflict, the ICRC combines its mandate in the international governmental sphere based on Geneva law with the tasks imposed on it by a non-governmental organization, the Red Cross and Red Crescent Movement.
E. Response to Violations of International Humanitarian Law
32 The ICRC’s chief task is to work for the faithful respect of international humanitarian law in the course of an armed conflict. This means, among other things, that the ICRC has to react to serious breaches of international humanitarian law in the course of a conflict. It may learn of such violations from its own delegates or from other sources, eg third parties, the news media, etc. The ICRC takes all the proper steps to have ongoing breaches stopped and compliance with humanitarian standards by the parties to an armed conflict restored. It does so first of all by raising awareness of the importance of respecting humanitarian commitments in war. Its delegates seek a direct dialogue in confidence with the relevant authorities. They try, especially, to convince those on the spot, eg the officials in charge of a detention centre, to correct the situation. If necessary, the ICRC will contact decision-makers on the government level, either through its local delegation or through high-level intervention undertaken by its headquarters in Geneva.
33 These procedures are the result of long experience and are inter alia justified by the fact that direct and confidential dialogue with the relevant authorities is usually the most valuable way to obtain positive results in the delicate circumstances of armed conflict. It must be pointed out that governments in general seem to appreciate the ICRC’s emphasis on confidentiality (The International Committee of the Red Cross’s confidential approach, Policy document, December 2012, 94 IRRC 2012, 1135–44).
34 If the steps it has taken in confidence fail to halt violations of international humanitarian law, the ICRC may also make its concern known to third parties: to States on close terms with the offending party to the conflict, to international organizations and, through the media, to the international community at large. The ICRC terms this ‘humanitarian mobilization’. As a last resort, the ICRC may publicly denounce specific violations and, in a formal statement, ask for humanitarian commitments to be respected by the party in question, be it a State or an insurgent movement. The ICRC has listed the conditions under which it may do so in published guidelines:
1. the violations are serious and repeated or likely to be repeated;
2. delegates have witnessed the violations first hand, or the existence and extent of those violations have been established on the basis of reliable and verifiable sources;
3. direct and confidential representations and, when attempted, humanitarian mobilization efforts have failed to put an end to the violations;
4. such publicity is in the interest of the persons or populations affected or threatened.
35 These guidelines give unambiguous expression to the ICRC’s chief concern: to halt breaches of the law in order to stop human suffering while avoiding a breakdown in relations with the authorities concerned, which would endanger its humanitarian activities on behalf of victims of war. The ICRC’s mission is humanitarian. It seeks to protect and assist victims of armed conflicts and other situations of violence and to prevent or stop their suffering, in particular that of the civilian population, inhabitants of occupied territories, and all categories of detainees. That is why the ICRC resorts to public denunciations of serious breaches only in exceptional circumstances, and also why it does not regard its mission as including the condemnation of war as such or even the denunciation of evil as such. Yet following up on what it learned during and after World War II, the ICRC has in recent times more than once publicly denounced serious violations of international humanitarian law.
F. Organizational Structure
36 Established in 1863, the ICRC is a private, non-profit association incorporated under (domestic) Swiss law with its own statutes. Its headquarters are in Geneva. It has a legal personality under Swiss domestic law and is governed by the relevant provisions of the Swiss Civil Code. Its employees are not international civil servants, and the terms of their employment are governed by Swiss law. Yet as a consequence of its international functions, the ICRC is recognized as a privileged non-State actor on the international scene (Non-State Actors), with a unique status and a limited, specifically characterized personality under international law (see para. 43 below). Because it is an institution beyond the reach of governments, the ICRC can successfully perform its tasks on the territories of States only if it fully respects the principles of neutrality, impartiality, and independence. Moreover, it has to follow operational guidelines that are transparent and open to all those who wish to know of them. In this way, the ICRC may take a principled but pragmatic approach to humanitarian problems that are often a product of unsettled conflicts and linked to highly political issues.
37 The governing bodies of the ICRC are its Assembly, the Assembly Council, and the Presidency (see ICRC decision-making structures—<www.icrc.org/en/document/icrc-decision-making-structures-0>). The members of the Committee, which have to be Swiss citizens, are chosen by co-option, ie the Committee itself chooses its members and thus decides on its composition. This procedure is generally regarded as essential for ensuring the organization’s independence from any international or domestic, ie Swiss, authority. The Assembly, the ICRC’s supreme governing body, meets six to eight times a year in plenary. The Assembly defines general objectives for the ICRC’s actions, formulates policies and institutional strategies, and approves the budget and accounts. It also elects the president of the ICRC and its two vice-presidents and appoints the directors. The Assembly delegates some of its powers to the Assembly Council, whose function is to prepare its agenda, to take necessary decisions between plenary meetings and to serve as a link between the Assembly and the Directorate, the executive body of the ICRC. The president and one of the vice-presidents work on a full-time, remunerative basis.
38 The professional staff of the ICRC can be subdivided into four categories: the members of the Directorate; headquarters staff, including legal, finance, human resources, etc; field delegates; and personnel hired locally, ie in places where the ICRC has a presence, permanent or temporary. The delegates undertake activities in the places where the organization is operational—in particular visiting POW camps and civilian prisons, carrying out activities in occupied territories, searching for missing persons and reuniting families, and organizing relief operations. They also maintain permanent contact with the authorities of States involved in an international armed conflict or with the parties to a non-international armed conflict. In the past, ICRC’s leadership and staff, and delegates in particular, were exclusively of Swiss nationality. That was traditionally understood and accepted as an additional guarantee of the institution’s neutrality.
39 That argument was no doubt of some importance up to the end of the Cold War. Swiss nationality stopped being a formal requirement in 1992—at the end of the Cold War—and at present the majority of ICRC delegates are of non-Swiss origin. Locally hired staff members play an increasingly important role in the ICRC’s activities, whether in conflict areas or in permanent offices, also because of their knowledge of local conditions and their acceptability for the local population and authorities. Moreover, in conflict areas they may be able to work in certain situations that are judged to be too risky for non-nationals, ie foreign, delegates. The ICRC staff, their buildings, and their vehicles are readily identifiable by their emblem: a red cross on a white background, surrounded by the words COMITE INTERNATIONAL GENEVE (Emblems, Internationally Protected).
40 As of 2015, the ICRC was present in some 80 countries, with its main operations in the Middle East (Syria, Lebanon, Iraq, Yemen, and Afghanistan), in Africa (Nigeria, the Central African Republic, and South Sudan), and in Europe (Ukraine). ICRC delegates have been working in Israel and the Occupied Territories since 1967, without interruption. The ICRC is also present in many countries experiencing purely internal violence. The ICRC has offices in some major capitals, including New York, Brussels, and Addis Ababa, to maintain regular contact with the United Nations, the European Union, and the African Union, as well as in some regional centres. As of 2015 the ICRC had around 13,500 professional staff, 900 of whom are based at its headquarters in Geneva. The ICRC’s budget for 2015 amounted to 1.6 billion Swiss francs. Its expenditures are covered by voluntary financial contributions, about 90% of which are from States and the European Union. The United States is the largest donor; it is followed by the United Kingdom, Switzerland, and the European Commission. As States are not members of the ICRC—which is not a governmental organization—they have no obligation to finance its activities. During the period of general demobilization after the end of World War II, the ICRC’s financial situation was difficult, even critical, yet in more recent times the organization has never needed to scale down or cancel a humanitarian operation due to a lack of funds. Yet in 2015, the year of the Syrian conflict causing an unprecedented migration flow to Europe and armed confrontation in the Ukraine, the ICRC is facing a serious financial situation.
41 The ICRC’s Annual Reports give a comprehensive overview of its activities. The ICRC also publishes the International Review of the Red Cross (IRRC), a periodical which also enables the organization to circulate official statements and to disseminate information on international humanitarian law and humanitarian action in general. The Review also serves as an academic publication on international humanitarian law.
42 The ICRC has won the Nobel Peace Prize three times: in 1917 and 1944, at the height of the two World Wars, and in 1963, shared with the International Federation of Red Cross and Red Crescent Societies. In 1901, Henry Dunant shared the first ever Nobel Peace Prize with Frédéric Passy, another (in present-day terminology) peace activist.
G. Status and Legal Character
43 The ICRC is not an intergovernmental international organization. Nor is it an ordinary non-governmental organization, as its activities are mandated by States and based on international law. Though the ICRC is a private association governed by Swiss law, it is now widely accepted that the organization has personality in international law. However, this legal status is restricted: it goes no further than that which is required for the ICRC to carry out the mandate conferred on it by the international community through the Geneva Conventions and the Statutes of the International Red Cross and Red Crescent Movement.
44 The following considerations explain and justify the ICRC’s legal personality in international law:
1. the ICRC’s and its staff’s privileges and immunities are, in practice, widely recognized by governments, the United Nations and other international governmental organizations;
2. the ICRC deals directly and in its own right with States, particularly States involved in an international armed conflict, with insurgent movements involved in an internal conflict and with international governmental organizations, notably the UN and its various specialized agencies;
3. the ICRC concludes agreements with States, particularly headquarters agreements, that clarify the position of the ICRC’s delegation, of individual delegates, and of the ICRC’s premises in a given country and grant them quasi-diplomatic status;
4. the ICRC’s relationship with its host country Switzerland is governed by the Agreement between the International Committee of the Red Cross and the Swiss Federal Council to Determine the Legal Status of the Committee in Switzerland (19 March 1993). Under this agreement, the Swiss Confederation guarantees the ICRC’s independence and freedom of action, assures the inviolability of its premises, and grants immunity from legal process and execution, not only to the institution, but also to its staff in the exercise of their official functions;
5. the UN General Assembly has granted the ICRC observer status (International Organizations or Institutions, Observer Status). Yet its status at the UN is different from that of ordinary non-governmental organizations, as evidenced by the UN General Assembly’s passage of a special resolution entitled ‘Observer Status for the International Committee of the Red Cross, in Consideration of the Special Role and Mandate Conferred upon it by the Geneva Conventions of 12 August 1949’ (UNGA Res 45/6 [16 October 1990]). The ICRC also has observer status with various UN agencies and with the major regional governmental organizations.
45 The Rome Statute of the International Criminal Court ([adopted 17 July 1998, entered into force 1 July 2002] 2187 UNTS 90) has explicitly recognized the ICRC’s special status and specific mandate in international law. Art. 73 Rules of Procedure and Evidence for the application of the Rome Statute ([3–10 September 2002] Official Records ICC-ASP/1/3) states that information or documents ‘which [the ICRC] came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement’ are to be considered privileged communications and information, and therefore not subject to disclosure. Thus the ICRC’s delegates cannot be forced to testify about what they may have seen or heard during their activities in conflict areas. However, as the ICRC also has an interest in justice being served, the institution may consent to a delegate testifying in a specific proceeding. The ICC rule goes back to a decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY), which rejected a request by the defence to call a former employee of the ICRC to testify in court (Prosecutor v Simić [Decision on the Prosecution Motion under Rule 73 for a Ruling concerning the Testimony of a Witness] IT-95-9-PT [27 July 1999]).
H. Assessment and Current Issues
46 Established in 1863, the ICRC has been active and operational for more than 150 years as an impartial, independent, and neutral organization with a humanitarian mission in times of armed conflict and other situations characterized by violence. In response to new challenges the ICRC has regularly reviewed its strategy and, when necessary, adapted its policy, its practical approach to newly emerging problems, and/or its organizational structure. The ICRC may be said to have found its way by trial and error—not always without pain—and it has done so without abandoning its guiding principles. It has had to find new responses to such decisive developments and/or events as the emergence of total warfare in World War II, the Cold War, decolonization (with the resulting rise in the number of States), the establishment of the UN system, the end of the bipolar world, the growing importance of human rights considerations on the international scene, the increasing role of non-governmental organizations, the importance of (sometimes allegedly) new forms of warfare—such as asymmetric warfare, cyber warfare, and remote-controlled weapons—, the ‘war on terror’ (Terrorism), the emergence of new major powers, and the forceful assertion by the UN of its role as peacemaker. In recent years, the ICRC has had, increasingly, to accept a diversified international system and to adapt its policies. It has lost its quasi-monopolistic position in the humanitarian domain, in particular with respect to protection and humanitarian assistance to victims of armed conflicts or other situations characterized by extreme violence. While the ICRC is part of a universal framework meant to foster respect for human rights, its specific functions have not changed: ‘to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance’ (ICRC Mission Statement). Yet the ICRC must continue, if necessary, to redefine its place in a world characterized by complex governmental and non-governmental networks of organizations engaged in protecting and assisting victims of violence.
47 Moreover, the nature and intensity of armed conflict and other forms of serious violence continue to change. The ICRC has to find new ways of tackling developments that are incompatible with human rights and human dignity, such as the following:
1. civilians as the main targets of violence in armed conflict: civilians suffer most in traditional hostilities, during internal strife, and, in particular, as a consequence of terrorist and counter-terrorist violence;
2. security versus humanitarian concerns: the rights and the dignity of human beings—fundamental values of civilization—are gradually being displaced in importance by security concerns;
3. privatization of warfare: private military and security companies are assuming activities previously reserved for the armed forces; and more and more civilians participate directly in hostilities (Private Military Companies; Civilian Participation in Armed Conflict);
4. lack of control over particularly cruel weapons and ammunition, such as anti-personnel land mines, cluster munitions, drones (Unmanned Aerial Vehicles), unexploded remnants of war (which maim and kill large numbers of civilians, even after hostilities have ended), and cyber warfare;
5. protracted armed conflicts: some present-day conflicts seem to be without end, such as the conflict in the Middle East with the occupation of Palestinian territories by Israel for almost 50 years now (Arab-Israeli Conflict), or various regional conflicts in Africa, Asia, and Latin America, thereby creating additional new humanitarian challenges;
6. transition from war to peace: the fact that humanitarian problems caused by conflict persist even when ‘the guns fall silent’ calls for increased attention by humanitarian organizations to these problems during the transition period (early recovery);
7. armed conflict, climate change, and natural disasters: the combined effects of these events are increasing the risk of humanitarian catastrophes;
8. personal safety of ICRC staff, in particular delegates in the field: how far can the ICRC go to achieve its humanitarian mission without its staff having to take unacceptable risks?
48 The ICRC’s hybrid international status and its now less stringently ‘Swiss-only’ composition—a governing body co-opted exclusively from among Swiss citizens with an internationalized staff—do not seem to be controversial. Nor do the links between the organization and its host State, Switzerland. Its humanitarian operations worldwide are continuing. The ICRC may, however, have to find new ways of making itself accountable, not only to donors but also to the international community: to accept a certain way of scrutiny without losing independence. While the ICRC has lost its predominant position in carrying out relief operations in war, its protection activities are generally considered to be an essential contribution to the defence of human dignity in wars and other situations of armed violence. The ICRC’s confidential approach to dealing with violations of international humanitarian law, which in serious cases does not exclude public denunciation, seems to be generally accepted, not only by States and international organizations but by non-governmental conflict participants as well; and it is perceived as a legitimate method of strengthening international legality. In conclusion, the ICRC’s status as an independent humanitarian organization, its principled and transparent, impartial, neutral, and independent approach to highly sensitive issues, and the practical results achieved by its mode of action—its role as a ‘humanitarian protagonist’, to quote David Forsythe—seem to have earned it the general appreciation of the international community. And it seems to be generally accepted that the ICRC’s effort to protect the rights of victims of warfare also contributes to preventing violations of international humanitarian law and, on an individual level, helps to limit suffering in times of violence: another step on the way to peace.
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