Status update: The ICRC’s legal standing explained
Due to its unique mandate, the ICRC enjoys specific privileges and immunities under international and domestic law. But why exactly does the ICRC need them? Knut Dörmann, the ICRC's chief legal officer, explains.
To begin with, can you explain what the ICRC's specific legal status is?
The ICRC has a mandate, as set out in particular in the Geneva Conventions and its Additional Protocols, to protect and help people affected by armed conflict and violence. This role is unique and is entrusted upon us by the international community.
It means we carry out certain essential tasks, for example visiting prisoners of war, re-establishing family links, ensuring the faithful application of international humanitarian law, and acting as a neutral intermediary between warring parties.
This mandate also gives the ICRC an international legal status, distinct from that of NGOs and akin to that of international intergovernmental organizations such as the UN.
To help us fulfil our mandate, the ICRC negotiates what we call a 'status agreement' (also known as a 'headquarters agreement') with the authorities in the countries where we operate.
This legal agreement gives us some protections so we're able to carry out our work effectively and in accordance with our fundamental principles.
How does a status agreement help the ICRC to carry out its activities?
In short, a status agreement enables us to work without jeopardising our fundamental principles or our confidential approach of working.
As a neutral humanitarian actor, we do not take sides and avoid being perceived as taking sides. Under the principle of impartiality, we seek to protect and help people guided solely by their needs. And our independence means we have the autonomy to accomplish our humanitarian goals.
Our standard way of working is based on confidentiality and this derives directly from these fundamental principles. This doesn't, however, mean that we're secretive.
These principles, and our confidentiality, are widely recognized as essential in enabling us to carry out our work effectively. By adhering to them, the ICRC is able to obtain and maintain the trust of all those affected by conflict or violence.
That trust is vital in securing access to areas and populations in need of our help. It also helps us ensure the safety of our staff working in the field.
Can you give some examples of how a status agreement helps the ICRC?
First, it's worth emphasising that the ICRC works in volatile and dangerous contexts. Anything that jeopardises our fundamental principles or confidentiality could have severe repercussions, not just for us, but also the people we're trying to help.
Status agreements grant us certain legal protections. For example, immunity from legal process and the protection of our premises, documents and data from being accessed.
An important aspect of protection is testimonial immunity which means the ICRC and its staff are exempt from testifying or providing evidence in legal proceedings. If we had to testify in favour of one side or the other in court, we would almost certainly be perceived as being neither neutral nor independent in that conflict.
Across the world, the ICRC carries out a range of activities, including visits to places of detention, to ensure the humane treatment of detainees. The subsequent reports and dialogue have to remain confidential to safeguard our continued access, and enable frank discussions with authorities in order to bring about the necessary improvements.
To give another legal example, in some countries contact with non-state armed groups is illegal. Often, ICRC staff have to talk to non-state armed groups, whether to facilitate humanitarian access or to ensure international humanitarian law is respected.
Having a status agreement, and thereby immunity from jurisdiction, means ICRC staff can continue their work, under the ultimate aim of helping all those affected by conflict and violence, without fear of criminal prosecution.
Does this mean ICRC staff are above the law?
No, far from it. The purpose of privileges and immunities is to enable our staff to carry out their functions in the line of ICRC work. ICRC staff are otherwise subject to domestic law the same as anyone else.
What other legal privileges does the ICRC enjoy?
There are usually specific privileges contained within a status agreement that help us to carry out our operations effectively.
For example, an agreement would typically include an exemption from customs duties, import and export duties and charges when sending humanitarian goods from one country to another. This is crucial for responding quickly to urgent humanitarian needs in the field.
Another privilege relates to air traffic rights and the exemption from overflight and landing fees. The ICRC often operates its own aeroplanes, rather than using commercial or government aeroplanes or those of other international organisations.
This means we can carry out our activities when other aeroplanes are unavailable and also ensures that the ICRC is perceived as a truly neutral and independent humanitarian actor. Hence the need to be granted appropriate air traffic rights and to be exempt from any landing or overflight fees.
Where does the ICRC have a status agreement in place?
Currently, we have privileges and immunities in 106 states. In the vast majority of cases, these are granted through status agreements. For example, the ICRC has privileges and immunities in Belgium, France, Switzerland and soon in Ireland. Similarly for Australia, Russia, South Korea, South Africa and the US.
Do you need a legal status in countries not affected by conflict?
Yes, wherever the ICRC is or plans to be present, we seek to gain a status agreement. The presence of the ICRC is not necessarily linked to the existence of an armed conflict or violence. We may, for example, visit detainees, work on dissemination of international humanitarian law or help authorities strengthen their ability to help people in other contexts.