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Tools to do the job: The ICRC's legal status, privileges and immunities

Published online by Cambridge University Press:  20 January 2016

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Abstract

The International Committee of the Red Cross (ICRC) enjoys a specific legal status and specific privileges and immunities under both international and domestic law. They enable the ICRC to effectively carry out its mandate, and to do so in full conformity with its Fundamental Principles and standard working modalities. This article clarifies the ICRC's particular legal status and explains the rationale, scope and legal sources of its privileges and immunities.

Keywords

ICRClegal statusheadquarters agreementsprivilegesimmunitiesobserver statusneutralityindependenceconfidentialitytestimony
Type
Applying the principles
Information
International Review of the Red Cross , Volume 97 , Issue 897-898: Principles guiding humanitarian action , June 2015 , pp. 319 - 344
Copyright
Copyright © icrc 2016 

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References

1 For a definition of privilege and immunity, see note 47 below.

2 See Article 3 of the original ICRC Statutes, adopted on 15 November 1915 (on file with author), and the ICRC's mission statement, available at: www.icrc.org/en/who-we-are (all internet references were accessed in April 2015).

3 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I); Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II); Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Geneva, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (AP I); and Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (AP II), all available at: www.icrc.org/ihl; Statutes of the International Red Cross and Red Crescent Movement, adopted by the 25th International Conference of the Red Cross at Geneva in 1986 and amended in 1995 and 2006 (entered into force 8 November 1986), available at: www.icrc.org/eng/resources/documents/misc/statutes-movement-220506.htm.

4 The following provisions of the 1949 Geneva Conventions make specific reference to the ICRC: GC I, Arts 3, 9, 10, 11, 23; GC II, Arts 3, 9, 10, 11; GC III, Arts 3, 9, 10, 11, 56, 72, 73, 75, 79, 81, 123, 125, 126; GC IV, Arts 3, 10, 11, 12, 14, 30, 59, 61, 76, 96, 102, 104, 108, 109, 111, 140, 142, 143. In accordance with Article 10 of GC I–III and Article 11 of GC IV, the ICRC can – and in practice does – exercise many of the functions entrusted to the Protecting Power by the following provisions: GC I, Arts 8, 16, 23, 48; GC II, Arts 8, 19, 44, 49; GC III, Arts 20, 121, 122, 128; GC IV, Arts 9, 23, 24, 35, 39, 42, 43, 45, 49, 52, 55, 60, 71, 72, 74, 75, 83, 98, 101, 105, 113, 129, 131, 137, 145. The relevant provisions in AP I are Articles 5, 6, 33, 78, 81, 97 and 98. Articles 2, 11, 45, 60, 70 and 84 of AP I deal with the Protecting Power. The status of the ICRC is also recognized in Article 24 of AP II. The role and functions of the ICRC are also helpfully summarized in Article 5 of the Statutes of the International Red Cross and Red Crescent Movement.

5 The ICRC's mandate is a universal one, as is illustrated by the universal ratification of the 1949 Geneva Conventions, the very widespread ratification of the 1977 Additional Protocols thereto (at the time of writing, there were 174 States party to AP I and 168 States party to AP II), and the adoption by consensus of the Movement's Statutes by the International Conference of the Movement, which enjoys universal State participation (all States party to the Geneva Conventions are represented at the International Conference). A full and up-to-date list of States party to the Geneva Conventions and their Additional Protocols is available at: www.icrc.org/ihl.

6 In Switzerland, where the organization was founded, the ICRC has a dual status: while maintaining its legal capacity as a private association for administrative reasons directly related to the presence of its headquarters in Geneva, the ICRC – per its headquarters agreement of 1994 – also has the legal status of an IO in Switzerland. See also note 8.

7 This recognition by States and IOs will be discussed in detail later in the article. See also Pierre-Marie Dupuy and Yann Kerbrat, Droit international public, 10th ed., Dalloz, Paris, 2010, p. 301; Yves Beigbeder, The Role and Status of International Humanitarian Volunteers and Aid Organizations, Martinus Nijhoff, Dordrecht, Boston and London, 1991, p. 327.

8 The 2006 Loi fédérale sur les privilèges, les immunités et les facilités, ainsi que sur les aides financières accordés par la Suisse en tant qu'Etat hôte (available at: www.admin.ch/ch/f/rs/c192_12.html) distinguishes between three types of international organizations to which Switzerland grants privileges and immunities: (1) intergovernmental organizations (such as the UN, its specialized agencies or the World Trade Organization), (2) other international organizations or so-called “international institutions” (such as the ICRC, the International Federation of Red Cross and Red Crescent Societies, or the Organization for Security and Cooperation in Europe), and (3) quasi-governmental international organizations (such as the International Air Transport Association or the World Anti-Doping Agency). For further details on the rationale for broadening the international beneficiaries of privileges and immunities and the definition and characteristics of the three types of IOs referred to above, see the official commentary on the law: Message relatif à la loi fédérale sur les privilèges, les immunités et les facilités, ainsi que sur les aides financières accordés par la Suisse en tant qu'Etat hôte, 13 September 2006, pp. 7609–7619, 7643–7646, available at: www.admin.ch/opc/fr/federal-gazette/2006/7603.pdf.

9 In some States this is even officially enshrined in domestic legislation regulating the privileges and immunities of IOs. See, for example, Australia's International Organisations (Privileges and Immunities) Act of 1963, which describes an IO to which the Act applies as “an organisation: (a) of which Australia and a country or countries other than Australia are members; or (b) that is constituted by a person or persons representing Australia and a person or persons representing a country or countries other than Australia”. Section 5, available at: www.comlaw.gov.au/Details/C2013C00673; Malaysia's International Organizations (Privileges and Immunities) Act of 1992, which contains a definition identical to that of the Australian Act quoted above. Section 3.1, available at: www.agc.gov.my; or the US International Organizations Immunities Act of 1945, which describes an IO to which the Act applies as “a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this [Act]”. Section 288, available at: www.law.cornell.edu/uscode/text/22/288.

10 Charter of the United Nations (UN Charter), 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (UN Charter), available at: www.un.org/en/documents/charter/.

11 See above notes 3 and 4. The Statutes of the International Red Cross and Red Crescent Movement do not necessarily qualify as “treaties”, but the fact that they were adopted, by consensus, by a body of which all States party to the universally ratified 1949 Geneva Conventions are members, demonstrates their relevance as an international legal instrument for the purpose of defining the mandate entrusted to the ICRC by States.

12 The ICRC's governing body, the Assembly (also referred to as the Committee), co-opts its fifteen to twenty-five members, who serve in a private capacity, from among Swiss nationals. Statutes of the ICRC, above note 2, Articles 7 and 9; see also ICRC, “Who we are: Governance”, available at: https://www.icrc.org/en/who-we-are/the-governance.

13 The term “NGO” is used here in the sense of a not-for-profit organization of a non-governmental nature – i.e., one set up and governed by private individuals, rather than States, and defining its own mission and functions, rather than being given a treaty-based mandate by States.

14 The Code of Conduct for Assembly Members (on file with author) prevents Assembly members from exercising any activity that could reflect negatively on the ICRC's neutrality or could otherwise be prejudicial to the ICRC. This includes holding high public office in Switzerland, working for an intergovernmental organization or working for an organization that supports or favours one or more parties to an armed conflict (Articles 2 and 6). The independence of Assembly members from their country of nationality, Switzerland, is further endorsed and guaranteed by the ICRC's headquarters agreement with Switzerland, which provides that the Swiss government “guarantees the ICRC's independence and freedom of action” and, conversely, that “Switzerland shall not incur, by reason of the activity of the ICRC on its territory, any international responsibility for acts or omissions of the ICRC or its staff” (Articles 2 and 20). These provisions mirror those in the headquarters agreements of other IOs – such as the International Labour Organization, the World Health Organization and the World Meteorological Organization – with Switzerland.

15 Private associations and national and international NGOs do not enjoy international legal personality and as such have no legal capacity to act in the international legal order and generally do not enjoy any privileges and immunities but remain fully subject to the domestic law of their country of origin and of the countries in which they operate.

16 International legal personality generally can be derived from three criteria, all of which the ICRC fulfils: (1) capacity to conclude treaties (e.g. at the time of writing, the ICRC had concluded status agreements, which are by nature international treaties, with ninety-five States, and was negotiating thirteen more); (2) capacity to enter into diplomatic relations (in order to carry out its mandate, the ICRC has always engaged and continues to engage intensively in bilateral relations with States, bilateral relations that take place in accordance with formal diplomatic practice; moreover, observer status at the UN and almost thirty other international and regional intergovernmental organizations allows the ICRC to fully participate in multilateral diplomacy); (3) capacity to operate and entertain claims in its own right in the international legal order (contrary to an NGO, the ICRC acts in the international legal order in its own capacity and as such does not require intervention by any State to carry out its mandate or enforce its rights. For example, the ICRC directly intervenes with States to ensure they respect their obligations under the Geneva Conventions and their Additional Protocols, ICRC status agreements provide for direct and bilateral dispute settlement mechanisms – usually negotiation and arbitration – in case of disputes between the host State and the ICRC, and the ICRC intervened directly before the International Criminal Tribunal for the Former Yugoslavia (ICTY) to claim its right under international law to non-disclosure of confidential information: see ICTY, Prosecutor v. Simić et al., Case No. IT-95-9, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999). For a slightly outdated but still relevant analysis, see Christian Dominicé, “La personnalité juridique internationale du CICR”, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC and Martinus Nijhoff, Geneva and The Hague, 1984. See also Malcolm N. Shaw, International Law, 6th ed., Cambridge University Press, Cambridge, 2008, p. 262 (“[International legal p]ersonality may be acquired by a combination of treaty provisions and recognition or acquiescence by other international persons. For instance, the [ICRC], a private non-governmental organisation subject to Swiss law, was granted specific functions under the 1949 Geneva Red Cross Conventions and has been accepted as being able to enter into international agreements under international law with international persons”). See also Christian Walter, “Subjects of International Law”, in Max Planck Encyclopedia of Public International Law, Oxford University Press, Heidelberg and Oxford, 2012, para. 7, available at www.mpepil.com (referring to “atypical subjects of international law” such as the Holy See, the Sovereign Order of Malta and the ICRC, whose “role in the promotion and implementation of the laws of war has led it to being endowed with specific functions under the 1949 Geneva Conventions. It has also entered into international treaties with a number of States and international organizations such as the UN”); James Crawford (ed.), Brownlie's Principles of Public International Law, 8th ed., Oxford University Press, Oxford, 2012, p. 116 (“[I]t is states and organizations which represent the normal types of legal person on the international plane. However, the realities of international relations are not reducible to a simple formula. The ‘normal types’ have congeners which create problems, and various entities which are of neither type can have a certain personality – for example, the [ICRC]”).

17 For example, at the time of writing, the ICRC enjoyed privileges and immunities – through bilateral status agreements or on the basis of domestic legislation – in 103 countries, and was negotiating status agreements granting privileges and immunities in a further thirteen countries (numbers are up to date until 1 April 2015). In at least four countries, the ICRC and its staff, in the absence of formal privileges and immunities, are de facto treated as (officials of) an IO. In the international legal order, the ICRC enjoys status and treatment as or equivalent to that of a classic IO with almost thirty international and regional intergovernmental organizations (usually through observer status as an IO). It also enjoys privileges and immunities before all international criminal tribunals. For more detail on the specific privileges and immunities of the ICRC, see the section “Privileges, Facilities and Immunities Necessary for the ICRC to Carry Out Its Mandate”, below.

18 ECOSOC is one of the six main organs of the UN, responsible for coordination, policy review, policy dialogue and recommendations on economic, social and environmental issues (UN Charter, above note 10, Art. 62). NGOs working in these areas can register for consultative status with ECOSOC; currently, over 4,000 NGOs enjoy this status. See ECOSOC Office for Support and Coordination, NGO Branch, available at: http://csonet.org/).

19 The following three IOs of a non-governmental nature have also been granted observer status as IOs to the UN General Assembly: the International Federation of Red Cross and Red Crescent Societies (UN Doc. A/RES/49/2, 19 October 1994), the Inter-Parliamentary Union (UN Doc. A/RES/57/32, 19 November 2002) and the International Olympic Committee (UN Doc. A/RES/64/3, 20 October 2009). UN Permanent Observers, available at: http://www.un.org/en/members/intergovorg.shtml.

20 UNGA Res. 45/6, “Observer Status for the International Committee of the Red Cross, in Consideration of the Special Role and Mandates Conferred Upon It by the Geneva Conventions of 12 August 1949”, 16 October 1990. The ICRC subsequently renounced its consultative status with ECOSOC.

21 UN General Assembly, Verbatim Record of the 31st Meeting, UN Doc. A/45/PV.31, New York, 16 October 1990, pp. 76–77.

22 Ibid., p. 77.

23 Ibid., pp. 81–82. For some historical background and the practical effects of the change in status at the UN, see Koenig, Christian, “Observer Status for the ICRC at the United Nations: A Legal Viewpoint”, International Review of the Red Cross, No. 280, 1991CrossRefGoogle Scholar, available at: www.icrc.org/eng/resources/documents/misc/57jnwj.htm.

24 Unofficial translation. Original French text: “Le Comité international de la Croix-Rouge est une association privée de droit Suisse ayant son siège social à Genève …. Considérant cependant le statut particulier accordé au Comité international de la Croix-Rouge par le droit humanitaire international, son statut d'observateur permanent auprès des Nations Unies et sa spécificité reconnue tant par le Tribunal Pénal pour l'ex-Yougoslavie que par la Cour Pénale Internationale [et] [c]onsidérant que pour assurer les tâches que lui confie la communauté internationale, le Comité international de la Croix-Rouge doit pouvoir disposer de la protection de la loi; qu'il convient en conséquence, que la République d'Haïti lui accorde un statut dérogatoire; … Le Comité international de la Croix-Rouge … [bénéficie] de privilèges et immunités identiques à ceux accordés à l'Organisation des Nations Unies.” Préambule et article 1 du Décret relatif au Comité International de la Croix-Rouge, Journal officiel de la République d'Haïti, Vol. 160, No. 28, 11 April 2005, pp. 1–4Google Scholar.

25 Unofficial translation. Original French text: “L'initiative parlementaire permet d’éviter tout précédent. Les privilèges accordés [au CICR] en France resteront une exception, qui ne pourra être reprise par une autre organisation non gouvernementale, le statut sui generis du CICR expliquant un traitement particulier.” Rapport fait au nom de la Commission des Affaires étrangères, de la défense et des forces armées sur la proposition de loi, adoptée par l'Assemblée Nationale, relative aux privilèges et immunités de la délégation du Comité international de la Croix-Rouge en France, Annexe au procès-verbal de la séance du Sénat du 12 mai 2003 (on file with author), p. 16 (the report describes in detail the mandate and functions of the ICRC under international law and the recognition of its unique legal status, similar to that of an international organization, by a significant number of States, international organizations and international tribunals).

26 International Organizations Immunities Act, 9 December 1945 (approved 29 December 1945), Section 288f-3, available at: www.law.cornell.edu/uscode/text/22/288f-3. This section was included by presidential Executive Order No. 12643 signed on 23 June 1988 pursuant to Section 743 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (PL 100–204), in order to overcome the Act's restrictive definition of IOs as intergovernmental organizations and allow for its applicability to the ICRC.

27 See above note 9.

28 Australia, Ministry of Foreign Affairs, International Organisations (Privileges and Immunities) Amendment Bill, 12 June 2013, Explanatory Memorandum, available at: http://parlinfo.aph.gov.au.

29 For a full overview of the jurisprudence and the rules of procedure and evidence of the international criminal tribunals, see Memorandum, “The ICRC's Privilege of Non-Disclosure of Confidential Information”, in this issue of the Review.

30 See above note 16.

31 ICTY, Simić, above note 16, paras 72–74.

32 As bilateral treaties, these status agreements require, in many States, an act of ratification to fully enter into force.

33 Status agreements are negotiated and concluded in the framework of a bilateral and confidential dialogue between the ICRC and the host State. As such, it is not for the ICRC to disclose the existence or content of such agreements.

34 Vienna Convention on Diplomatic Relations (VCDR), 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964); and Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15 and 90 UNTS 327 (entered into force 17 September 1946), both available at: https://treaties.un.org. The provisions of the UN Convention are also mirrored in treaties establishing the privileges and immunities of other IOs, such as those of the UN Specialized Agencies, the International Labour Organization, Food and Agriculture Organization, United Nations Educational, Scientific and Cultural Organization, International Monetary Fund, World Health Organization and World Trade Organization, all available at: https://treaties.un.org. For examples on where ICRC status agreements typically differ from the provisions of the VCDR and the UN Convention, see note 35 below.

35 Publicly available examples include Australia's International Organisations (Privileges and Immunities) Act, as amended in 2013, Malaysia's International Organisations (Privileges and Immunities) Act, as amended in 2011, and the US International Organizations Immunities Act, as amended in 1988 (all referred to in above note 9 and France's Loi n° 2003–475 du 4 juin 2003 relative aux privilèges et immunités de la délégation du Comité international de la Croix-Rouge en France, available at: www.legifrance.gouv.fr/affichTexte.do;jsessionid=353EAE4AC94611A1953F62A7D7618531.tpdila08v_1?cidTexte=JORFTEXT000000604191&dateTexte=20150615), as well as Hong Kong's Ordinance to Grant Privileges and Immunities in Hong Kong to the International Committee of the Red Cross and its Delegates, and for Connected Purposes, 1989, available at: www.legislation.gov.hk/blis_ind.nsf/CurEngOrd/F6705D2C1B4FC530C82564830033925F?OpenDocument.

36 Examples include the undertaking by the host country not to permit the disclosure of confidential ICRC information in legal proceedings, the explicit mention of testimonial immunity of ICRC staff, the explicit granting of air traffic rights and exemptions from overflight and landing fees, the issuance of radio frequencies assigned specifically to the ICRC, and the explicit inviolability of person of staff (for more detail, see the discussion of specific privileges and immunities below).

37 For background and a good description of the principle of functionality, see Miller, Anthony J., “The Privileges and Immunities of the United Nations”, International Organizations Law Review, Vol. 6, 2009, pp. 9–23CrossRefGoogle Scholar and 62.

38 C. Wilfred Jenks, International Immunities, Stevens & Sons and Oceana Publications, London and New York, 1961, p. 18.

39 Documents of the United Nations Conference on International Organizations, San Francisco, 1945, Vol. 13, Doc. 933, 12 June 1945, p. 705 (emphasis in original).

40 A. J. Miller, above note 36, p. 15; also see above note 24.

41 Convention on the Privileges and Immunities of the United Nations, above note 33.

42 Records of the First Part of the First Session of the General Assembly, Plenary Meetings of the General Assembly, GAOR, 10 January–14 February 1946, Verbatim Record of 13 February 1946, p. 452.

43 While they essentially mean the same, from a legal perspective the principle of independence as a principle of international law regulating the privileges and immunities of IOs is to be distinguished from the principle of independence that is part of the Fundamental Principles of the International Red Cross and the Red Crescent Movement, referred to below in note 45 and accompanying text.

44 C. W. Jenks, above note 37, p. 17.

45 See also above notes 23–27.

46 On the ICRC's Fundamental Principles, see further detail below. For the ICRC's standard working modalities, see ICRC, “Action by the International Committee of the Red Cross in the Event of Violations of International Humanitarian Law or of Other Fundamental Rules Protecting Persons in Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005, pp. 393–400CrossRefGoogle Scholar; and ICRC, The ICRC, Its Mission and Work, Geneva, March 2009, available at: www.icrc.org/eng/assets/files/other/icrc_002_0963.pdf.

47 These include the ICRC's representatives (i.e., the Committee members) and staff members, as they constitute the very large majority of individuals through whom the ICRC carries out its mandate and activities. However, privileges and immunities of ICRC representatives and staff also extend to persons who directly contribute to the exercise of the ICRC's mandate and activities, albeit on a temporary or even occasional basis. These may include, for example, certain consultants but also staff or volunteers of National Societies who have been seconded to the ICRC for a specific period of time or take part in specific ICRC operations as an integral part of an ICRC team. See also International Criminal Tribunal for Rwanda, Prosecutor v. Muvunyi, Reasons for the Chamber's Decision on the Accused's Motion to Exclude Witness TQ, Case No. ICTR-2000-55A-T, 15 July 2005, paras 17–18.

48 “The distinction between an immunity and a privilege is not easy to define precisely, and the terms have often been used interchangeably, but in general a privilege denotes some substantive exemption from laws and regulations …, whereas an immunity does not imply any exemption from substantive law but confers a procedural protection from the enforcement process in the receiving State.” Sir Ivor Roberts (ed.), Satow's Diplomatic Practice, 6th ed., Oxford University Press, Oxford, 2009, p. 121. While most international treaties dealing with this subject matter only refer to “privileges” and “immunities” in their titles, a number of provisions do not really fit either of the definitions above, but are rather “facilities” granted by States to IOs to enable them to carry out their functions. Examples include facilities in respect of communications and currency or exchange restrictions, or repatriation facilities for staff and their relatives.

49 See also above note 35.

50 Walter correctly points out that “a distinction must be made between domestic and international legal personality. International legal personality does not automatically imply national legal personality and vice versa. For many international organizations it is not sufficient that they possess international legal personality; for their proper functioning they also need to possess legal personality in the national legal orders of … States.” C. Walter, above note 16, para. 27.

51 International Telecommunication Union, Resolution No. 10, “Use of Two-Way Wireless Telecommunications by the International Red Cross and Red Crescent Movement”, Rev. WRC-2000, adopted by the World Radiocommunication Conference, Istanbul, 2000, available at: www.itu.int/dms_pub/itu-s/oth/02/01/S020100002E4001PDFE.PDF.

52 The ICRC is funded primarily by voluntary contributions from States party to the Geneva Conventions, which account for about 80% of its budget. Other donors include National Red Cross and Red Crescent Societies, supranational organizations (such as the European Commission), and public and private sources. The ICRC accounts for its work and expenditure in its Annual Report. For further details, see: www.icrc.org/en/who-we-are/finances.

53 In order to allow quick and easy identification, ICRC vehicles, boats and aircraft generally carry the ICRC's logo (a red cross against a white background in a circle, with the words “Comité International Genève”) on all sides, and depending on the circumstances, also on the rooftop.

54 The ICRC adheres to, and as a component of the Movement is bound by, all seven of the Fundamental Principles set out in the preamble of the Statutes of the International Red Cross and Red Crescent Movement, above note 3. The three principles mentioned here are, however, those that are immediately relevant to, and part of the legal basis and justification for, the ICRC's privileges and immunities.

55 For more detail, see Memorandum, above note 28.

56 Privileges and immunities are granted to individuals through whom the ICRC carries out its mandate – i.e., all persons who are assigned by the ICRC to perform functions for the ICRC, or represent the ICRC as members of its governing body.

57 VCDR, above note 33.

58 Depending on the domestic legislation of the host country, such consequences may be as far-reaching as the imposition of a prison sentence, a fine or an obligation to pay damages, or a suspension or withdrawal of a license to exercise one's profession.

59 The duty of discretion also prevents staff from notifying local authorities of possible violations of domestic law about which they may become aware in the exercise of their functions, in spite of obligations under domestic law to report violent injuries (such as victims of gunshot or other “war” wounds), rape or other forms of sexual violence, child abuse or terrorist sympathies or activities. The duty of discretion is an absolute obligation; only the ICRC can relieve its present or former staff and representatives of that obligation.

60 For the rationale for the ICRC's confidentiality and the sources of its legal protection, as well as the scope of application of the ICRC's evidentiary privilege, see Memorandum, above note 28.

61 To be valid, waivers of ICRC privileges or immunities must be explicit, in writing (usually through a verbal note to the Ministry of Foreign Affairs) and issued by the competent authority within the ICRC (i.e., its president or the person to whom the president has delegated this power).