The ICRC's status: in a class of its own
17-02-2004 by Gabor Rona
The ICRC is sometimes referred to as a "non-governmental organization", or NGO. In fact, it's not – but neither is it an international or intergovernmental organization. So, what is its status?
What exactly are NGOs and intergovernmental organizations ?
NGOs are private organizations such as associations, federations, unions, institutes, and other groups; they are not established by a government or by intergovernmental agreement. NGOs can play a role in international affairs by virtue of their activities, but they do not necessarily possess any official status, nor do they have a mandate for their existence or activities.
Where an organization's membership or activity is limited to a specific country, it's considered a national NGO; if its activities cross borders, it becomes an international NGO. Some of the best-known international NGOs include Médécins Sans Frontières, Amnesty International, Human Rights Watch, Oxfam, and so on.
The term " international organization " or " intergovernmental organization " denotes an association, established by governments through a treaty, which pursues common aims and has its own special organs to fulfill particular functions. In addition to rules setting out the organization's structure, there will be provisions on the purpose of the association and the rights and duties of its members.
An international organization can be universal in scope (such as the United Nat ions, the International Organization for Migration) or regional (the Organization of American States, Organization of African Unity, Organization for Security and Cooperation in Europe. Unlike NGOs, intergovernmental organizations by definition have a mandate from governments for their existence and activities and enjoy certain working facilities known in diplomatic parlance as " privileges and immunities " .
How about the ICRC?
The ICRC has a hybrid nature. As a private association formed under the Swiss Civil Code, its existence is not in itself mandated by governments. And yet its functions and activities - to provide protection and assistance to victims of conflict – are mandated by the international community of States and are founded on international law, specifically the Geneva Conventions, which are among the most widely ratified treaties in the world.
Because of this the ICRC, like any intergovernmental organization, is recognized as having an " international legal personality " or status of its own. It enjoys working facilities (privileges and immunities) comparable to those of the United Nations, its agencies, and other intergovernmental organizations. Examples of these facilities include exemption from taxes and customs duties, inviolability of premises and documents, and immunity from judicial process.
Why does it matter?
The ICRC can only do its job of providing protection and assistance to conflict victims if its working principles of impartiality, independence and neutrality are respected. It i s through recognition of the ICRC's privileges and immunities that States and international organizations acknowledge their respect for those principles. Thus, in line with its international legal mandate, the ICRC's privileges and immunities are widely recognized by governments, by the United Nations and by other organizations. This means that the ICRC is not treated as a private entity or an NGO, but as an intergovernmental organization for the work it does under its international mandate.
The legal basis for the ICRC's essential privileges and immunities are recognized in various ways, including:
Headquarters Agreements between the ICRC and governments, or state legislation. In the nearly 80 countries in which the ICRC carries out significant operations, its international legal personality, judicial immunity and testimonial privilege (right not to be called as a witness) is recognized either by treaty or by legislation
Judicial decisions. Several domestic and international tribunals have ruled on the ICRC's judicial immunity and testimonial privileges. Recently, the International Criminal Tribunal for the former Yugoslavia (ICTY) distinguished the ICRC from NGOs by citing its international legal mandate and status, including its right to decline to testify. The rules of procedure and evidence of the newly established International Criminal Court also reflect the position of the more than one hundred states that drafted the document, that the ICRC enjoys testimonial immunity.
The United Nations and other international organizations. The ICRC has been granted observer status at the UN General Assembly and enjoys similar status with other international, intergovernmental organizations.
Gabor Rona, ICRC Legal Division