The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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■ THE RED CROSS AND THE RED CRESCENT

The International Red Cross and the Red Crescent Movement consists of three types of independent institutions: the International Committee of the Red Cross (ICRC)(I), the National Red Cross and Red Crescent Societies (II), and the International Federation of Red Cross and Red Crescent Societies (IFRC)(III).

The three components of the Movement meet every four years, together with representatives of all the States Parties to the Geneva Conventions, at the International Conference of the Red Cross and Red Crescent (IV). The aim is to discuss and find agreement on issues related to the implementation, challenges and advancement of IHL and humanitarian action. However, it is interesting to note that during the 2019 meeting of the International conference, States opposed the creation of a new international mechanism to enhance compliance with IHL.

The International Red Cross and Red Crescent Movement is organized according to its Statute, adopted by the Twenty-fifth International Conference of the Red Cross and Red Crescent in Geneva in 1986. Within the Movement, each institution is autonomous, with independent administrative bodies and separate statutes and mandate. The Statutes of the ICRC are annexed to the Geneva Conventions, making the ICRC the only full force mandated body under international law, in situation of armed conflict.

Articulating the neutral role of the ICRC in situation of armed conflict with the State auxiliary role of national societies and the IFRC is a constant challenge for the international Movement. Specific rules delineate their differing mandate and scope of activities as well as to the use of the distinctive or protective international emblem of the red cross or the red crescent or of the red crystal.

The Red Cross Movement’s humanitarian action rests on seven fundamentals principles: humanity, impartiality, neutrality, independence, voluntary service, unity and universality. They are codified and incorporated into the Movement’s Statute since 1965 and further clarified in 1986. The four principles of humanity, impartiality, neutrality and independence are international norms endorsed by the United Nations. They define and frame all humanitarian action beyond the ones of the Movement. The principle of neutrality of humanitarian action in situation of mass crime have been criticized leading to new interpretation.

Humanitarian principles , Distinctive (or Protective) Emblems, Signs or Signals

I. THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC)

After witnessing a battle in Solferino, Italy, in 1859, Henry Dunant wrote A Memory of Solferino , published in 1863. That year, Dunant created the International Committee for Relief to the Wounded, with four other members. In 1876, it was renamed the International Committee of the Red Cross.

The ICRC still operates on the basis of the original structure. The Movement succeeded in linking private initiatives, in terms of relief and humanity, with the necessary support of states.

Legally, the ICRC is a Swiss organization. Its mandate was conferred on it by the states parties to the Geneva Conventions for the implementation of IHL. Its Statute is annexed to those Conventions. The supreme policy-making body of the ICRC is the Assembly, which consists of fifteen to twenty-five members, co-opted from among Swiss citizens. The Assembly sets the principles and general policy of the ICRC and supervises all ICRC activities.

Approximately 82 percent of the regular budget is covered by voluntary donations from governments. The extraordinary budget (for emergencies) is financed by states, National Societies, and private donations resulting from calls for funds for specific programs. It is thus a hybrid institution and unique in that it affirms its independence by establishing firm links with states. Furthermore, it benefits from means of operation that no other private organization enjoys, such as its seat as Observer at the UN, since 1990, and an international radio station frequency allotted by the International Telecommunication Union.

The ICRC has received the Nobel Peace Prize four times: through Henry Dunant, in 1901, and in 1917, 1944, and 1963. Dr. Peter Maurer has been the president of the ICRC since 1 July 2012; he succeeded to Jakob Kellenberger.

☞ Within the Red Cross Movement, the ICRC remains independent, as guaranteed by its separate statute. Although it is a private organization, its mission is explicitly defined by the Geneva Conventions. It is therefore recognized and accepted by the states parties to these conventions (Statute of 21 June 1973, most recently revised on 21 December 2017).

•Of its own initiative, or basing itself on the Geneva Conventions and their Additional Protocols, the ICRC strives to provide protection and assistance to victims of international and non-international armed conflicts or internal disturbances and tensions.

•It is also the guardian of the Geneva Conventions. This means that it promotes the understanding and dissemination of IHL and prepares eventual developments thereof.

•It enjoys the status of Observer at the UN, in the sessions and work of the General Assembly. It maintains a permanent office at UN headquarters.

The ICRC intervenes in all situations of armed conflict to ensure the relief and protection to war victims (Art. 4(1)(d) of ICRC Statute). The ICRC was the driving factor in the drafting of IHL. It has retained a privileged relationship with governments since adopting the Statute of the Committee and the Conventions regulating the rules of war. States formally recognized it as a neutral and impartial actor and put it in charge of striving to ensure the rights of military and civilian victims in conflicts. The ICRC hence may intervene in all situations of armed conflict to ensure the protection of, and assistance to, victims of war. In all its interventions, it guarantees to States and individuals the respect of the confidentiality of what it witnesses. It also has a protected international emblem.

☞ The Geneva Conventions and their Additional Protocols establish a number of rights and obligations to ensure the relief for, and protection of, victims of war. Some of these rights are reserved for ICRC activities (exclusive mandate), while others are foreseen for the ICRC and all other impartial humanitarian organizations (general humanitarian mandate).

1. Exclusive Mandate

The Geneva Conventions and the ICRC Statute give the organization an exclusive mandate for certain interventions.

a. Visiting Places of Internment and Detention

ICRC delegates have “permission to go to all places where protected persons are, particularly to places of internment, detention and work. They shall have access to all premises occupied by protected persons and shall be able to interview them without witnesses” (GCIV Art. 143). The same applies to prisoners of war (GCIII Art. 126).

DetentionPrisoners of war

b. Monitoring the Implementation of Conventions

The ICRC has the mandate to receive any complaints based on alleged breaches of IHL applicable in armed conflicts (Art. 4(1)(c) of ICRC Statute).

Furthermore, it promotes the development and dissemination of IHL. It publishes commentaries on the Conventions and their Protocols and other reference texts concerning IHL, to contribute to a better understanding of the issues by states, which act as legislators in such matters. The ICRC also defines the general principles of such law. In cases in which the texts are not clear, its role is not necessarily to defend an interpretation that favours the victims. However, it does strive for an improvement of the texts and regularly presents resolutions to be voted on by the International Diplomatic Conference (Art. 4(1)(g) of ICRC Statute).

c. Restoring Family Links: Searching for Missing Persons, Exchanging Correspondence

Families have a right to know the fate of their relatives. The Geneva Conventions therefore provide for a system through which information is received and transmitted to dispersed families. The ICRC arranges for this exchange of correspondence and traces individuals who have disappeared. This is carried out under a strict guarantee of confidentiality of information (e.g., other than that the detention visits are carried out with the knowledge of the detaining power), since it is crucial to prevent those who are threatening the protected persons from carrying out reprisals or other exaction against them (GCIV Arts. 136–141). Such activities are carried out by a separate entity: the Central Tracing Agency (CTA).

Central Tracing Agency

2. De Facto Exclusive “Humanitarian” MandateDe Facto Exclusive “Humanitarian” MandateDe Facto Exclusive “Humanitarian” Mandate De Facto Exclusive “Humanitarian” Mandate

The Geneva Conventions state that any impartial humanitarian organization may act as a substitute protecting power. In practice, however, only the ICRC has the diplomatic and effective potential to take on this role. Thus, it frequently participates in negotiations—for instance, concerning the freeing of prisoners of war.

Protecting powers

3. General Humanitarian Mandate

IHL clearly recognizes the right of the ICRC and any other impartial humanitarian body to undertake relief and protection operations, in conformity with the applicable conventions. This right is established in the articles concerning the right of humanitarian initiative (GCI–III Art. 9, GCIV Art. 10, API Art. 8(1), and Art. 4(2) of ICRC Statute). It is reinforced by certain specific provisions, for instance concerning the sick and wounded (GCI–IV Common Art. 3(2)), protected persons (GCIV Art. 30), and relief for populations (GCIV Art. 59).

☞ Rights granted to the ICRC have become norms of customary law. Rule 124 of the 2005 ICRC customary IHL study prescribes that:

  1. In international armed conflicts, the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.
  2. In non-international armed conflicts, the ICRC may offer its services to the parties to the conflict with a view to visiting all persons deprived of their liberty for reasons related to the conflict in order to verify the conditions of their detention and to restore contacts between those persons and their families.

II. THE NATIONAL RED CROSS AND RED CRESCENT SOCIETIES

These Societies are mentioned several times in the Geneva Conventions. They are responsible for promoting and disseminating the principles of IHL and the ideals of the Movement, and for organizing relief operations, even in times of peace. Except for Israel national society (called Magen David Adom in Israel), which use its own symbol -the red shield of David- all other national societies use either the red cross or the red crescent as distinctive emblem.

They are established in the territory of states parties to the Geneva Conventions and serve as medical auxiliaries to the authorities. There can be only one national society per State. In times of peace, the National Societies make up a civilian health network (particularly in times of natural disasters, but also while carrying out activities such as first aid or humanitarian law training, blood banks, etc.). In situations of armed conflict, they serve as auxiliaries to the military medical services. Hence, their personnel is subject to military laws and regulations (Art. 2 of a standard statute of a National Society; GCI Art. 26). However, it should be noted that in situation of non-international armed conflict, a non-state party to the conflict cannot get similar recognition for organs they have established.

In situation of armed conflict, IHL makes a distinction between the role of the ICRC and other impartial humanitarian organizations and that of National Relief Societies, which belong to one of the parties to the armed conflict. In such situation, IHL consider National Societies of the Red Cross and Red Crescent as State auxiliary and not as neutral and independent humanitarian actors. It thus limits their authorized use of the Red Cross and other relevant protective emblems in times of war (GCI Art. 44).

Although the National Societies have the function of medical auxiliaries to government authorities in general, their aim is to retain sufficient independence of action from their own government to ensure that they always respect the seven fundamental principles of the Movement, listed below. As of October 2021, 192 National Societies are recognized by the ICRC in accordance with GCI article 26(2) and 5(2)(b) of the Statute of the Movement since they were found to meet the criteria for recognition stated at article 4 of the Statute. Moreover, it should be stressed that a state recognizing a National Society must be party to the 1949 GCI and that regarding the question of statehood, the ICRC largely relies on the decision of the Swiss Federal Council, the depository of the Geneva Conventions. In that regard, the North Cyprus Red Crescent Society, the Kurdish Red Crescent, the Sahrawi Red Crescent Society and the Red Cross Society of the Republic of China (also referred to as the Taiwan Red Cross) have been unable to be recognized as Nations Societies due to political reality.