Traités, États parties et Commentaires
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Commentaire of 2016 
Article 26 : Personnel of aid societies
Text of the provision*
(1) The staff of National Red Cross Societies and that of other Voluntary Aid Societies, duly recognized and authorized by their Governments, who may be employed on the same duties as the personnel named in Article 24, are placed on the same footing as the personnel named in the said Article, provided that the staff of such societies are subject to military laws and regulations.
(2) Each High Contracting Party shall notify to the other, either in time of peace or at the commencement of or during hostilities, but in any case before actually employing them, the names of the societies which it has authorized, under its responsibility, to render assistance to the regular medical service of its armed forces.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
2045  Article 26 regulates a specific type of humanitarian activity. This activity occurs when the staff of a National Red Cross or Red Crescent Society, or of another voluntary aid society, are entrusted with assisting the medical services of their own country’s armed forces in the context of an international armed conflict.[1] This provision is of key significance for National Red Cross and Red Crescent Societies (hereinafter referred to as ‘National Societies’) since it has anchored in international humanitarian law their distinct status and roles in support of the public authorities’ humanitarian tasks.
2046  Under the conditions set forth in Article 26, the staff of these Societies are placed on the same footing as military medical and religious personnel covered by Article 24 of the First Convention.[2] As a result, such persons, although not members of the armed forces, are brought under the protective regime afforded by the First Convention to military medical and religious personnel.[3]
2047  Since the adoption of the Geneva Conventions in 1949, there have been relatively few occasions on which Article 26 played a role in practice.
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B. Historical background
2048  The genesis of Article 26 can be traced back to the origins of the International Red Cross and Red Crescent Movement (hereinafter referred to as ‘the Movement’).[4] The idea arose of establishing what would come to be called National Red Cross or Red Crescent Societies, i.e. privately founded voluntary aid organizations entrusted with supplementing and assisting, as auxiliaries, the medical services of the armed forces in caring for wounded soldiers.[5] The idea was favourably received by a number of influential people in Geneva. Thanks to their efforts, the Geneva International Conference took place in 1863. Article 1 of the resolution adopted at this Conference states: ‘Each country shall have a Committee whose duty it shall be, in time of war and if the need arises, to assist the Army Medical Services by every means in its power.’[6]
2049  The next year, a diplomatic conference convened by the Swiss Federal Council adopted the first Geneva Convention (1864). However, this Convention contains no language similar to Article 1 of the 1863 resolution. This was deliberate: in 1864, States and their military authorities were not yet ready to confer an official function, by means of a treaty, on these new societies.[7] While these societies were ready to take on and to cover the costs of tasks that would benefit the armed forces, their reliability still had to be tested. Some States were not yet certain that private volunteers would constitute a useful supplement to the official medical services of the armed forces.[8] In the years and decades following 1864, these newly established National Societies proved, through their practice, to be useful assets to the military authorities.[9]
2050  As a result, the distrust which a number of military authorities harboured in 1864 vis-à-vis private voluntary aid societies gave way to a somewhat more open attitude when States convened in 1906 to revise the 1864 Geneva Convention. On that occasion, the decision was made to recognize their role in Article 10, which, importantly, is nearly identical to the current formulation of Article 26.[10] During the 1906 Diplomatic Conference, several conditions nevertheless proved critical for the provision to become acceptable: first, the requirement that the staff of National Societies and of other voluntary aid societies be ‘subject to military laws and regulations’ and, second, the restriction of the provision’s application to those societies which had been ‘duly recognized and authorized by their own governments’. In consideration of these conditions, the military authorities were assured that they would remain firmly in control as to which private persons would see their status and treatment placed on the same footing as the members of the armed forces’ official medical services.[11]
2051  During both the Italo-Turkish War (1911)[12] and the First World War (1914–18), the National Societies of several States involved in those conflicts played an important role as auxiliaries to their armed forces’ medical services. This period saw the greatest use of private aid societies (including National Societies) serving as auxiliaries to the armed forces’ medical services, while operating subject to military laws and regulations – a condition considered critical.[13] With regard to the requirement that the National Society personnel be subject to military laws and regulations, it was already understood, in the formative years of the Movement, that this condition should not entail total subservience to the military authorities.[14] During the First World War, however, a closeness was observed between some National Societies and the military hierarchy of the armed forces’ medical services, leading some historians to criticize certain aspects of the role played by National Societies in that conflict.[15]
2052  At around the same time, the scope of activities undertaken by the National Societies broadened considerably beyond the narrow ambit of Article 10 of the 1906 Geneva Convention. Activities were developed, first, for the benefit of soldiers in captivity, and second, for the benefit of civilians. The National Societies also carried out charitable activities in peacetime. This broadening of activities coincided with the development of the medical services of a number of States’ armed forces, which became better equipped and resourced, rendering the initial role of voluntary aid societies in supplementing such services less prominent, while allowing them to pursue other forms of cooperation with their State’s armed forces.[16]
2053  During the negotiation of the Geneva Convention on the Wounded and Sick in 1929, it was proposed that Article 10 of the 1906 Geneva Convention should be maintained, with only one substantive change.[17] Under the 1929 Geneva Convention, only the activities of recognized aid societies acting as auxiliaries (subject to military laws and regulations) to the armed forces’ medical services are addressed and specifically protected.[18] During the Second World War, further examples can be found of National Societies serving as auxiliaries to the armed forces’ medical services.[19]
2054  During the preparations for the 1949 Diplomatic Conference, only one substantive change was introduced to the 1929 Geneva Convention: whereas the 1906 and 1929 Geneva Conventions spoke generically of ‘volunteer aid societies’ and of ‘Voluntary Aid Societies’, respectively, pursuant to a deliberate choice not to mention any such society by name,[20] Article 26 of the First Convention of 1949 speaks of the ‘staff of National Red Cross Societies and that of other Voluntary Aid Societies’.[21]
2055  At no point during the preparations for the First Convention was it proposed to expand the scope of the activities of voluntary aid societies referred to in Article 26. As a result, notwithstanding some minor modifications, Article 26 of the First Geneva Convention of 1949 still reflects, by and large, the text as it was drafted for the 1906 Geneva Convention. The latter, in turn, reflects the practice of the last few decades of the nineteenth century and the beginning of the twentieth century.
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C. Societies covered
1. ‘National Red Cross Societies’ and ‘other Voluntary Aid Societies’
2056  As is clear from the wording of Article 26(1), National Societies (which are particular examples of voluntary aid societies) have no monopoly on performing the services envisaged by Article 26. This was deliberate: the States negotiating the Geneva Conventions in 1949 wished to preserve their prerogative to choose to work with (or without) their National Society, or with one or more voluntary aid societies other than their National Society.
2057  While Article 26 speaks only of ‘National Red Cross Societies’, this cannot have been meant to exclude other National Societies, such as National Red Crescent Societies from the scope of this provision: in the light of its purpose – allowing each High Contracting Party to supplement its armed forces’ medical services with additional staff – each High Contracting Party’s National Society may qualify for the purposes of Article 26. The importance of the fact that National Societies are explicitly mentioned in Article 26 should not be underestimated. Through this mention, their distinct position and status under international humanitarian law is explicitly recognized by the High Contracting Parties. In 1949, this recognition constituted the crystallization of a development which had begun in 1863.[22] In 1949, it was National Societies which were essentially considered by States as being the ones to act on the basis of Article 26.
2058  As to the ‘other Voluntary Aid Societies’ mentioned, although no names are given, the national associations forming part of the Order of the Knights of Malta and the national associations forming part of the Order of St. John of Jerusalem have historically been the most prominent and active in this regard.[23] While both of these were explicitly referred to during the Diplomatic Conference of 1949, they are by no means the only voluntary aid societies which have acted as auxiliaries to their armed forces’ medical services.[24]
2059  These historical examples need not necessarily constrain how the term ‘voluntary aid society’ is construed today, where it may also apply to non-governmental organizations.[25] Indeed, in the absence of a list of, or criteria for, such organizations in the Geneva Conventions, it remains for each State to decide which societies, if any, it wants to recognize and authorize for this type of work.
2060  The word ‘voluntary’ refers to the fact that persons working on the basis of Article 26 are doing so based on a personal decision freely reached, and not because they have been compelled to do so by any legal obligation, stemming, for example, from national legislation. The word ‘voluntary’ does not, however, preclude such persons from receiving compensation for the work they perform. It is immaterial whether the voluntary aid societies have been created by a private or a public initiative, and equally immaterial whether or not they receive all or part of their funding from the State. Lastly, the words ‘voluntary aid’ do not necessarily restrict the scope of Article 26 to societies which are guided exclusively by not-for-profit motives.
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2. The societies have to be ‘recognized’ and ‘authorized’ (Article 26(1))
2061  There are two cumulative requirements which must be met before the qualifying staff of a society may be placed on the same footing as, and benefit from the same protection, as the personnel of the armed forces’ medical service: namely recognition and authorization by their governments. The requirement of notification, provided for in Article 26(2), is not constitutive of the protection under Article 26 (see below, para. 2072).
2062  First, the society needs to have been ‘duly recognized’ by its own government. The First Convention provides no guidance as to what form this recognition should take, nor as to which formula or words must be used for the decision to qualify as recognition within the meaning of Article 26.[26] In essence, recognition implies the need for the State to decide that a particular society may or will be called upon to serve as an auxiliary to the armed forces’ medical services. The form which this decision should take is left entirely to the national authorities, in accordance with national law and procedures. Domestic law also regulates whether such recognition must be made public. Accordingly, the use of the term ‘government’ means that recognition must be granted by the public authority responsible for such decisions. This need not necessarily be the executive branch of government, but may also be the legislative authorities. In practice, a National Society’s role as auxiliary to the armed forces’ medical services is usually foreseen in the national recognition act which establishes the National Society in the domestic legal order.[27]
2063  It is important in this context to draw a clear distinction between the act of recognition of a National Society by its own public authorities and the process of recognition of a National Society as a component of the Movement by the ICRC in accordance with Article 4 of the Statutes of the Movement.[28] For the purposes of Article 26, only the recognition by a National Society’s own government matters. In other words, a National Society which has not been recognized by the ICRC, but which meets the conditions set out in Article 26 could still be recognized and serve as an auxiliary to the armed forces’ medical services.
2064  While there can be only one National Society in any given State,[29] nothing precludes a State from recognizing and authorizing, for the purposes of Article 26, one or more other voluntary aid societies, in addition to its National Society.[30] The national authorities retain full discretion in this regard.[31] Their decision to recognize a National Society for the purposes of Article 26 does not depend on the separate question of whether that society has been recognized by the ICRC as a component of the Movement.
2065  Second, the society needs to have been ‘duly authorized’ by its own government to serve as an auxiliary to the armed forces’ medical services. This means that the government gives its official permission for the society to perform the public function of providing medical care to wounded and sick members of the armed forces.[32]
2066  Based on a strict reading of Article 26, recognition and authorization are two distinct steps. In practice, the same act may constitute both the decision to recognize and to authorize for the purposes of Article 26. While the decision to authorize a society to serve as an auxiliary to the armed forces’ medical services means that the society has also been recognized for that purpose, the reverse is not necessarily true.[33] In order to avoid any ambiguity, it may be preferable for a government wishing to call upon the services of a society on the basis of Article 26 to state explicitly in its decision that it both recognizes and authorizes a given society to act as an auxiliary to its armed forces’ medical services.[34]
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3. The name of the society has to be notified (Article 26(2))
2067  Article 26(2) requires the High Contracting Parties to notify each other, either in time of peace or at the commencement of or during hostilities, but in any case before employing them, of the names of the societies which have been recognized and authorized on the basis of Article 26 to assist the armed forces’ medical services. The requirement of notification applies both to National Societies and to other voluntary aid societies.[35]
2068  Such notification is to be given by the State, and not by the National Society or voluntary aid society in question.[36] As the term ‘notification’ indicates, the communication is intended purely to inform the other States of the name(s) of the society. Once notification has been received, they have to grant qualifying staff the respect and protection due to them under Article 26, provided that all the conditions of this provision have been met.
2069  While the term ‘notification’ suggests that information should be given in writing,[37] the Convention does not prescribe how notification must be provided, nor what form it should take. In order to avoid any ambiguity, it is recommended that notification be given in writing, for example through a diplomatic note. At all times, notification may be provided directly, or through an intermediary such as the Protecting Power or the ICRC.[38] While not strictly required on the basis of Article 26, if notification has been given long before the outbreak of the armed conflict in which the society will act, it might be advisable to renew it ‘at the commencement’ of hostilities. Whether done in time of peace[39] or at the commencement of or during hostilities, it would be advisable to provide the names of the society or societies not only to the enemy, but also to all other High Contracting Parties, inasmuch as neutral Powers have to apply the First Convention by analogy.[40]
2070  In terms of timing, notification must take place, at the latest, ‘before actually employing’ the staff of the society. In practical terms, this implies that it must be given at a point in time which will reasonably allow the other Parties to the conflict to inform their echelons, including the lower ones, of the treatment to be accorded to the staff of the National Society or other voluntary aid society in question. In the final analysis, when exactly this needs to occur will depend on the technical, including the communication, capabilities of the State receiving the communication. Beyond that teleological interpretation, however, the formula ‘before actually employing them’ is not particularly precise.[41] Article 26 does not clarify how many days in advance such notification needs to be provided.[42] The term ‘employing’ has to be understood in its ordinary meaning, i.e. as ‘making use of’.[43] Thus, notification need not yet occur if the steps taken are merely preparatory, for example when the staff receive their training and instructions and are not yet about to be deployed. Conversely, it must be given prior to their actually being operational in the roles envisaged by Article 26.
2071  The term ‘employ[ment]’ does not imply, nor does it require, that the staff are employed by the State, as the term would be understood within the context of domestic labour law. They may, but need not, be employed or financially remunerated by the voluntary aid society. Whatever the case may be, it is immaterial for the purpose of determining whether they are ‘actually employ[ed]’ within the meaning of Article 26.[44] Similarly, for the purposes of Article 26, the term ‘staff’ must be understood to encompass all persons working on the basis of this provision, including the volunteers placed at the disposal of the armed forces’ medical services.
2072  The First Convention provides no guidance as to a situation in which notification has not been given. On the one hand, no textual support exists for concluding that the staff of the voluntary aid society in such a case would not qualify as persons protected under the First Convention. A lack of notification, in other words, does not deprive the staff of the protection to which they are entitled if all the conditions of Article 26(1) have been fulfilled. Notification under Article 26(2) is, therefore, not constitutive of protection.[45] From a practical standpoint, however, it may be more difficult in that case for the staff of the voluntary aid society concerned to prove their status as persons covered by Article 26.[46]
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D. Persons covered
1. Staff employed on the duties named in Article 24
2073  The assessment as to which (paid and volunteer) staff are protected by Article 26 has to be made on an individual basis. Only those staff ‘who may be employed on the same duties as the personnel named in Article 24’ of the First Convention will be entitled to the protection conferred by Article 26.[47] Not covered by Article 26, therefore, are the societies’ staff members who, even while working for the benefit of the members of the armed forces, are not engaged in any of the activities referred to in Article 24.[48] While not protected on the basis of Article 26, they may be protected under other applicable provisions of international humanitarian law.[49]
2074  As is the case with the conditions for protection under Article 24, persons can only be covered by Article 26 if they are exclusively engaged in, and permanently assigned to, one or more of the activities referred to in Article 24.[50] However, as indicated by the term ‘may’, protection on the basis of Article 26 is status-based, not conduct-based, i.e. a person covered under Article 26 does not need to be actually carrying out the activities referred to in that article in order to remain entitled to the protection it confers.[51] In this respect, Articles 24 and 26 both differ from Article 25.[52]
2075  There is no restriction as to where persons covered by Article 26 can perform the activities referred to in Article 24.[53] Thus, for example, persons involved in welfare visits to the military wounded and sick can be covered under Article 26. As indicated in the commentary on Article 24, whereas the activities of ‘prevention of disease’, and those of chaplains, can be exercised for the benefit of all members of the armed forces, i.e. not only those who are wounded or sick, other activities, such as the ‘search for, or the collection, transport or treatment’ of soldiers, need to be exercised for the benefit of the ‘wounded and sick’.[54] In line with the general approach of the Geneva Conventions on this point, if a person covered by Article 26 also performs the activities referred to in Article 24 for the benefit of wounded and sick civilians, doing so does not lead to a loss of the protection conferred by Article 26.[55]
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2. Staff shall be subject to ‘military laws and regulations’
2076  The requirement that the ‘staff of such societies [be] subject to military laws and regulations’ explains why States were willing to accept, as from the 1906 Geneva Convention, the role of National Societies or of private voluntary aid societies as auxiliaries to the medical services of their State’s armed forces.[56]
2077  It must be emphasized that subordination to ‘military laws and regulations’ applies to the staff, and not to the voluntary aid society as such.
2078  In order to be ‘subject to military laws and regulations’, it is not sufficient for the staff of an aid society to agree at the operational level to abide by security regulations, such as temporary restrictions on movement, issued by the military authorities. Instead, at minimum, for the purposes of Article 26, the staff functioning under the auspices of the armed forces’ medical services need to obey the lawful orders given by the authorities to whom they are subject.[57]
2079  The requirement of being ‘subject to military laws and regulations’ may, but does not need to, imply that the staff in question are subject to the armed forces’ military justice system as it applies to the members of the army medical service.[58] The same goes for the option to submit them to the military discipline system as it applies, for example, to civilian employees of the armed forces. Depending on the system that exists at the national level, this may go as far as their being subject to the armed forces’ courts-martial jurisdiction,[59] or to any other disciplinary mechanism specifically applicable to members of the armed forces at the national level.[60]
2080  The fact that the staff of voluntary aid societies are subject to military laws and regulations and placed on the same footing as members of the armed forces’ medical services does not mean, however, that they actually acquire the status of members of the armed forces.[61] At all times, they remain civilians, with the unique feature that they are entitled to the respect and protection enjoyed by the members of the armed forces’ medical services. Further, all other aspects of their treatment – such as whether they are paid, who decides on a request for leave, and whether they enjoy the same benefits as members of the armed forces – are left to the national authorities, in consultation with the voluntary aid society. The requirement that they be subject to military laws and regulations does not necessarily mean, for example, that they must wear a military uniform.[62]
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3. Staff work under the responsibility of the State
2081  Article 26(2) mentions, in the context of the requirement to provide notification of the names of the societies recognized and authorized to assist the armed forces’ medical services, that these societies are ‘under [the] responsibility’ of the High Contracting Party which employs or intends to employ them.[63]
2082  While reported State practice does not seem to have clarified what this means, the ordinary meaning of the text warrants the following interpretation: for the purposes of international law dealing with State responsibility, the behaviour of the staff covered by Article 26 can trigger the international responsibility of the High Contracting Party for whom they serve as auxiliaries to the armed forces’ medical services. The staff of this society have, after all, been recognized and authorized by their governments to perform the public function of providing medical care to wounded and sick members of the armed forces.[64] As a result, the society acts under the international legal responsibility of that State.[65]
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E. Identical protection and treatment as for persons covered by Article 24
2083  Persons covered by Article 26 ‘are placed on the same footing as the personnel named’ in Article 24.[66] This means that their status is assimilated to, and therefore identical to, that of the members of the armed forces’ medical services.[67]
2084  The results of their being placed on the same footing as persons covered by Article 24 are threefold. First, they are protected persons within the meaning of the First Convention,[68] i.e. persons entitled to be respected and protected in all circumstances.[69] Second, when they fall into the hands of the adverse Party, they shall not be deemed prisoners of war, but shall be returned to the Party to the conflict to whom they belong, unless lawful grounds exist for their retention.[70] Lastly, they shall be entitled to wear the distinctive emblem as a protective device.[71]
2085  Article 26 does not explicitly discuss the status of the facilities and equipment which may be used by the staff of the voluntary aid societies in furtherance of their role.[72] In any event, the silence of Article 26 with regard to the provision, by a voluntary aid society, of ‘units’ or other forms of equipment does not preclude these from being provided. Indeed, a National Society may offer medical personnel without medical units, or vice-versa. Lastly, when it comes to the law applicable to the conduct of hostilities, Articles 19, 21 and 22 of the First Convention arguably apply by analogy, on the basis of logic: since the staff of societies covered by Article 26 are protected and treated in the same way as military medical personnel, these societies’ facilities and equipment are also to be treated on the same footing as the fixed establishments and mobile medical units of the medical services.[73] Otherwise, protection would be severely weakened.[74]
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F. Developments since 1949
1. National Red Cross and Red Crescent Societies
2086  Already in 1952, in reply to a survey circulated by the ICRC to National Societies, only six out of 31 National Societies answering the survey indicated that they still expected, or were still expected, to act on the basis of Article 26.[75] At the time of writing, it seems that only four National Societies have active programmes to serve their armed forces’ medical services on the basis of Article 26, or have engaged in a dialogue with their national armed forces and the latter’s medical services to this end.[76] Clearly, the improvement in the capabilities of many armed forces’ medical services can be considered as the main factor explaining this trend.[77]
2087  The scant practice with regard to Article 26 is without prejudice to this provision’s continued validity as a matter of treaty law: this provision has not fallen into desuetude.[78] The Model Law on the Recognition of National Societies, for example, attests to the continued validity of Article 26, and that it continues to be one of the National Societies’ defining features.[79] The absence of widespread and effective practice, in short, does not limit the possibility for societies to act in the future on the basis of Article 26. Furthermore, acting on the basis of Article 26 needs to be kept separate from another distinct role and function of National Societies, i.e. their role as auxiliaries to the public authorities in the humanitarian field, a role overall much broader and the nature of which has evolved over time.[80]
2088  One important factor to include in the assessment of the role of Article 26 since 1949 pertains to the articulation between a National Society’s role as auxiliary to the armed forces’ medical services, and the commitment of a National Society to abide at all times with the seven Fundamental Principles of the Movement: humanity, impartiality, neutrality, independence, voluntary service, unity and universality.[81] Their normative weight needs to be properly understood: the Principles are rules of behaviour which are internal to the Movement and which must be complied with by the Movement’s components in all their actions, including when acting on the basis of Article 26.[82] They have been developed and tested over time as tools critical to ensuring the acceptability of the Movement’s humanitarian activities. While the High Contracting Parties to the Geneva Conventions are not themselves components of the Movement, they are nevertheless required, under the Statutes of the Movement, to ‘at all times respect the adherence by all the components of the Movement to the Fundamental Principles’.[83] In addition, under the Statutes States have committed themselves to making sure that the National Society has ‘an autonomous status which allows it to operate in conformity with the Fundamental Principles of the Movement’.[84]
2089  When a National Society places any of its staff at the disposal of the medical services of its State’s armed forces on the basis of Article 26, it may be considered that no challenges would automatically arise in terms of compliance by the National Society with the Fundamental Principles of humanity,[85] impartiality,[86] neutrality,[87] voluntary service, independence, unity and universality.[88]
2090  However, acting on the basis of Article 26 requires that the staff be ‘subject to military laws and regulations’. Both conceptually and practically, this may be seen to raise challenges in terms of compliance with the Fundamental Principle of independence. This principle states that ‘[t]he National Societies, while auxiliaries in the humanitarian services of their governments and subject to the laws of their respective countries, must always maintain their autonomy so that they may be able at all times to act in accordance with the principles of the Movement’. In reality, however, the principle of independence is not automatically violated by the mere fact that the staff of a National Society work on the basis of Article 26. Indeed, the requirement of being ‘subject to military laws and regulations’ applies only to the staff acting on the basis of Article 26, and not to the society as such.
2091  Having said this, in practice, since these staff members remain the representatives of the National Society for which they work, the perception may be different in the eyes of Parties on the ground. Everything will depend on the practical arrangements made at the national level as to whether the National Society maintains its autonomy – as foreseen by the Fundamental Principle of independence – and whether the staff working on the basis of Article 26 remain able at all times to act in accordance with the Fundamental Principles of the Movement, in particular those of impartiality, neutrality and independence. Should the arrangements not allow for this, the National Society must carefully consider the issue and may have to refrain altogether from serving as an auxiliary to the armed forces’ medical services within the framework of Article 26. The way that one component of the Movement is perceived may have repercussions for how other components are perceived.
2092  In order for the military (medical) authorities to see to it that the National Societies are able to comply at all times with the Fundamental Principles, it is important that these authorities have a thorough understanding of these principles.[89] This should notably preclude situations in which they would instruct the National Society and its medical staff to undertake the activities referred to in Article 24 in a way that may lead, or may be perceived as leading, to an infringement of one or more of the Fundamental Principles.[90]
2093  Lastly, when a National Society acts on the basis of Article 26, neither the 1997 Seville Agreement nor its 2005 Supplementary Measures apply to that activity.[91] The scope of the Seville Agreement is limited to ‘those international activities which the components are called upon to carry out in cooperation, on a bilateral or multilateral basis, to the exclusion of the activities which the Statutes of the Movement and the Geneva Conventions entrust to the components individually’.[92] Similarly, the requirement for a National Society operating abroad to obtain the consent of the ‘host’ National Society (i.e. the Society of the State on whose territory the activities take place) would, in principle, not apply when a National Society acts on the basis of Article 26.[93] However, as a matter of good practice, it is advisable to notify the ‘host’ National Society prior to any activities on the basis of Article 26.
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2. Other voluntary aid societies
2094  Conceptually, the National Societies are the most prominent subdivision of the broader category of voluntary aid societies which may act on the basis of Article 26. Among voluntary aid societies other than the National Societies, the national organizations of the Order of the Knights of Malta and of the Order of St. John of Jerusalem are among the most prominent. In recent decades, despite its numerous humanitarian activities worldwide, the Order of the Knights of Malta has not been active on the basis of Article 26. Historically, the Order of St. John of Jerusalem has maintained close links with the British Red Cross Society: the two lie at the origin of today’s St. John and Red Cross Defence Medical Welfare Service. Under the legislation of the United Kingdom, that organization can be and is deployed on the basis of Article 26.
2095  Since voluntary aid societies other than National Societies do not qualify as components of the Movement, they are not bound to comply with the Movement’s Fundamental Principles, nor with any other aspect of its policy or regulatory framework. However, since the activities referred to in Article 24 of the First Convention are of a humanitarian nature,[94] these societies will, as a matter of fact, most likely wish to comply with the principles of humanitarian action as they apply to such activities in time of armed conflict, and as equally reflected in certain rules of international law (for example, in Article 12 of the First Convention).[95]
2096  For several decades, the number of organizations involved in humanitarian activities, for example non-governmental organizations, has greatly increased. Many of them, if (some of) their staff are engaged in the activities referred to in Article 24, would qualify as ‘Voluntary Aid Societies’ within the meaning of Article 26. It can only be observed that States do not use them as societies in that sense, whether because the armed forces’ medical services do not need to be supplemented, or because these organizations themselves feel uncomfortable about acting on the basis of the conditions set out in Article 26.
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3. Critical assessment
2097  The origins of Article 26 go back to 1863, when the founders of what was eventually to become the Movement successfully called for the establishment of voluntary aid societies at the national level. These societies were intended to compensate for the inadequacies, as they existed at the time, of the armed forces’ official medical services. Between 1863 and the Second World War, National Societies came to be the most prominent among these voluntary aid societies, working as auxiliaries to the armed forces’ medical services. Provided that they are subject to military laws and regulations, those of their staff members who are engaged in the activities referred to in Article 24 will have their status and treatment placed on the same footing as the members of these medical services. Thus, persons who are not members of the armed forces become covered by the First Convention.
2098  Since the end of the Second World War, Article 26 has played a limited role. Over time, in some countries at least, the armed forces’ medical services have improved their capabilities, thus rendering less compelling the initial vision of the Movement’s founders. This development has allowed these voluntary aid societies, including the National Societies, to focus their activities in time of armed conflict on other categories of victims. In parallel, the National Societies have developed numerous peacetime activities, which have led to their having been recognized as auxiliaries to the public authorities in the humanitarian field.
2099  Within the Movement, the development of the Fundamental Principles has raised questions about whether a National Society remains in compliance with these principles while acting on the basis of Article 26. In particular, the requirement for the staff of the National Societies to be subject to military laws and regulations has a potentially uneasy relationship to the principle of independence. Nevertheless, this disjunction in theory need not lead to paralysis in practice: as long as the military authorities ensure that the National Societies are continuously able to comply scrupulously, and to be perceived as complying scrupulously, with all of the Fundamental Principles, it remains possible for them to work on the basis of Article 26, including in States where this is not, or is no longer, the case. The same holds true for other voluntary aid societies, yet the fact remains that, at least for now, this possibility is rarely used.
2100  Even so, in today’s environment, the significance and continued relevance of Article 26 for the National Societies should not be underestimated. It still forms the historical basis of their relationship with their State’s authorities, including the military authorities and their medical services. Article 26 lies at the origin of the contemporary, much broader role of the National Societies as auxiliaries to the public authorities in the humanitarian field. This role is no longer exclusively linked to the Geneva Conventions, and exists both in time of peace and in time of armed conflict.[96]
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Select bibliography
Backus, Johannes, ‘Die Weiterentwicklung der zivil-militärischen Zusammenarbeit zwischen dem Zentralen Sanitätsdienst der Bundeswehr und dem Deutschen Roten Kreuz’, Journal of International Law of Peace and Armed Conflict, Vol. 25, No. 1, 2012, pp. 7–11.
Best, Geoffrey, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts, Weidenfeld and Nicolson, London, 1980.
Bogaievsky, P.M., ‘Les secours aux militaires malades et blessés avant le XIXe siècle’, Revue générale de droit international public, Vol. X, 1903, pp. 202–221.
Bohny, Gustav Adolf, Über die rechtliche Stelling der Rotkeuzorganisationen, Helbing & Lichtenhahn, Basel, 1922.
Boissier, Pierre, History of the International Committee of the Red Cross: From Solferino to Tsushima, ICRC/Henry Dunant Institute, Geneva, 1985.
Borel, Paul, ‘L’organisation internationale de la Croix-Rouge’, Recueil des cours de l’Académie de droit international de La Haye, Vol. 1, 1923, pp. 569–608.
Camporini, Yoland, National Societies Auxiliaries of the Public Authorities: Their Activities in Time of Armed Conflict, Henry Dunant Institute Working Papers, Vol. 7, No. 87, Geneva, 1987.
de Fischer, Béat, ‘L’Ordre Souverain de Malte aujourd’hui’, Revue internationale de la Croix-Rouge, Vol. 57, No. 673, January 1975, pp. 5–8.
Des Gouttes, Paul, La Croix-Rouge internationale avant, pendant et depuis la guerre mondiale, La Vie des Peuples, Paris, 1923.
− ‘La nouvelle Convention de Genève du 27 juillet 1929 et les Sociétés de la Croix-Rouge’, Revue internationale de la Croix-Rouge, Vol. 12, No. 138, June 1930, pp. 415–423.
– (ed.) Recueil de textes relatifs à l’application de la Convention de Genève et à l’action des Sociétés nationales dans les Etats parties à cette Convention, ICRC, Geneva, 1934.
− ‘Les grandes étapes de la Croix-Rouge et de la Convention de Genève’, Revue internationale de la Croix-Rouge, Vol. 19, No. 218, February 1937, pp. 121–153.
Dunant, Henry, A Memory of Solferino (Un souvenir de Solferino), translation from the French of the 1st edition, published in 1862, American National Red Cross, Washington, D.C., 1939.
Durand, André, History of the International Committee of the Red Cross, Volume II: From Sarajevo to Hiroshima, Henry Dunant Institute, Geneva, 1984.
Ferrière, Suzanne, ‘L’activité de guerre et l’activité de paix des Sociétés nationales de la Croix-Rouge’, Revue internationale de la Croix-Rouge et Bulletin international des Sociétés de la Croix-Rouge, Vol. 8, No. 86, February 1926, pp. 65–93.
François, Alexis, Le Berceau de la Croix-Rouge, Librairie A. Jullien, Geneva, 1918.
Haug, Hans and Gasser, Hans-Peter, Humanité pour tous: Le Mouvement International de la Croix-Rouge et du Croissant-Rouge, Institut Henry Dunant/Éditions Paul Haupt, Bern, 1993.
Huber, Max, Principles, Tasks and Problems of the Red Cross in International Law, ICRC, Geneva, 1946.
Hutchinson, John F., Champions of Charity: War and the Rise of the Red Cross, Westview Press, Boulder, Colorado, 1996.
ICRC, Report of the International Committee of the Red Cross on the Training, Duties, Status and Terms of Enrolment of the Medical Personnel Assigned to the Care of the Wounded and Sick in the Armed Forces, reporting on a questionnaire to both National Societies and medical services of the armed forces, 18th International Conference of the Red Cross, Toronto, 20 July–8 August 1952, item III(c) of the agenda of the Health, Medical Personnel and Social Aid Commission, Doc. 20.
– ‘La Croix-Rouge et son rôle d’auxiliaire des services de santé militaires’, note technique [technical memorandum], Revue internationale de la Croix-Rouge, Vol. 65, No. 741, June 1983, pp. 143–145.
National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field: Study on situations of armed conflict, prepared in consultation with a number of National Societies, Council of Delegates, Seoul, 16–18 November 2005.
ICRC and International Federation of Red Cross and Red Crescent Societies, Handbook of the International Red Cross and Red Crescent Movement, 14th edition, Geneva, 2008.
International Federation of Red Cross and Red Crescent Societies, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field, Geneva, 2003.
Karski, Karol, ‘The International Legal Status of the Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta’, International Community Law Review, Vol. 14, 2012, pp. 19–32.
Lanord, Christophe, Le statut juridique des Sociétés nationales de la Croix-Rouge et du Croissant-Rouge, Éditions de la Chapelle, Geneva, 1999.
– ‘The legal status of National Red Cross and Red Crescent Societies’, International Review of the Red Cross, Vol. 82, No. 840, December 2000, pp. 1053–1077.
Lueder, C., La Convention de Genève au point de vue historique, critique et dogmatique, E. Besold, Erlangen, 1876.
Moynier, Gustave, Étude sur la Convention de Genève pour l’amélioration du sort des militaires blessés dans les armées en campagne (1864 et 1868), Librairie de Joël Cherbuliez, Paris, 1870.
La révision de la Convention de Genève : étude historique et critique, suivie d’un projet de Convention révisée, ICRC, Geneva, 1898.
Noailly, Frédérique, La Croix-Rouge au point de vue national et international : son histoire, son organisation, Librairie générale de droit et de jurisprudence, Paris, 1935.
Perruchoud, Richard, International Responsibilities of National Red Cross and Red Crescent Societies, ICRC/Henry Dunant Institute, Geneva, 1982.
Pictet, Jean S., ‘La Croix-Rouge et les Conventions de Genève’, Recueil des cours de l’Académie de droit international de La Haye, Vol. 76, 1950, pp. 5–119.
Reid, Daphne A. and Gilbo, Patrick F., Beyond Conflict: The International Federation of Red Cross and Red Crescent Societies, 1919–1994, International Federation of Red Cross and Red Crescent Societies, Geneva, 1997.
Reid, Ian, ‘The Evolution of the Red Cross’, Joint Committee for the Re-appraisal of the Role of the Red Cross, Background Paper Vol. 2, No. 2, ICRC/Henry Dunant Institute, Geneva, 1975.
Rosas, Allan, ‘Notes on the Legal Status of National Red Cross Societies’, in Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Martinus Nijhoff Publishers, The Hague, 1984, pp. 959–973.
Ruegger, Paul, ‘The Juridical Aspects of the Organization of the Red Cross’, Collected Courses of the Hague Academy of International Law, Vol. 82, 1953, pp. 481–586.
Spieker, Heike, ‘Die zivil-militärische Zusammenarbeit zwischen Bundeswehr und Deutschem Roten Kreuz’, Journal of International Law of Peace and Armed Conflict, Vol. 25, No. 1, 2012, pp. 4–6.
Werner, Auguste-Raynald, La Croix-Rouge et les Conventions de Genève : Analyse et synthèse juridiques, Georg & Cie, Geneva, 1943.

1 - The situation regulated by Article 26 must be distinguished from the one regulated by Article 27, in which a recognized society of a neutral country provides its medical personnel and units to a Party to the conflict. When the Second Convention applies, Article 24 of that Convention provides for a similar regime as far as hospital ships utilized by, inter alia, National Societies are concerned. Article 26 does not preclude voluntary aid societies from carrying out the role foreseen by this provision in a non-international armed conflict. However, a National Society carrying out such a role in such a context would need to be particularly attentive to the implications this might carry for the National Society’s image and reputation as an independent, neutral and impartial humanitarian actor and for the perception of the International Red Cross and Red Crescent Movement as a whole. These are concerns which were noted in the context of the ICRC’s Safer Access Project, see Safer access: A Guide for all National Societies. Practical Resource Pack, ICRC, October 2013.
2 - The material of voluntary aid societies acting on the basis of Article 26 (such as a mobile medical unit) will equally be entitled to respect and protection under the First Convention; see below, para. 2085.
3 - The results of their being placed on the same footing as persons covered by Article 24 are discussed below, see section E.
4 - See Dunant, especially pp. 85–86. For detailed historical accounts of the first decades of the International Red Cross and Red Cross Movement, see Boissier, Hutchinson, and Reid/Gilbo. See also the three articles grouped together under ‘Turning points in the history of the ICRC and the Movement’, International Review of the Red Cross, Vol. 94, No. 888, December 2012, pp. 1273–1347.
5 - Initially, the idea was that the National Societies would be not only privately founded, but also privately funded. While privately founded in terms of their origin, National Societies are generally recognized at the domestic level through a legislative or similar act. In terms of funding, many National Societies nowadays receive some measure of public funding for their activities.
6 - Reproduced in ICRC/International Federation of Red Cross and Red Crescent Societies, Handbook of the International Red Cross and Red Crescent Movement, 2008, p. 515.
7 - See Proceedings of the Geneva Diplomatic Conference of 1906, pp. 113 and 254. Paradoxically, while States in 1864 were not yet ready to confer an official status on these newly formed national societies, the first sentence of Article 5 of the Geneva Convention of 1864 states that ‘[i]nhabitants of the country who bring help to the wounded shall be respected and shall remain free’. On this point, see Werner, p. 210. See also the commentary on Article 18, section B.
8 - See Boissier, pp. 75 and 116; Hutchinson, p. 48; Lueder, p. 297; and Noailly, p. 182.
9 - It is interesting to note that, in the naval context, the step of officially recognizing the role of private aid societies was taken much more quickly: see Additional Articles relating to the Condition of the Wounded in War (1868), Article 13. For a discussion, see the commentary on Article 24 of the Second Convention. Although it is the result of a private initiative, see also Oxford Manual (1880), Article 13.
10 - See Proceedings of the Geneva Diplomatic Conference of 1906, especially, on p. 16, the Swiss Federal Council’s questionnaire, the third question of which reads: ‘Y a-t-il lieu de mentionner le personnel des Sociétés de secours volontaires et de déterminer les conditions auxquelles ce personnel sera neutralisé?’ (Is it necessary to mention the staff of the voluntary aid societies and to determine the conditions on which these staff shall be accorded neutral status?) For a substantive discussion, see ibid. p. 113. See also Best, p. 151. Semantics aside, there are two substantive differences between Article 10 of the 1906 Convention and Article 26 of the 1949 Convention, which are discussed below (see paras 2053–2054 and fn. 53). A decision was taken not to include the status of private aid societies in a separate chapter of the 1906 Geneva Convention, but to deal with it in the chapter on ‘personnel’, i.e. alongside the status of the official personnel of the armed forces’ medical services; see Proceedings of the Geneva Diplomatic Conference of 1906, p. 246.
11 - Ibid. p. 254. See also Hutchinson, p. 350; Lanord, 1999, pp. 43–44; Lueder, pp. 296–298; and Werner, p. 32. As early as the resolution of the Geneva International Conference of 1863, one finds the following idea: ‘On the request or with the consent of the military authorities, Committees may send voluntary medical personnel to the battlefield where they shall be placed under military command.’ See ‘Resolutions and Recommendations of the Geneva International Conference of 1863’, Article 6, reproduced in ICRC/International Federation of Red Cross and Red Crescent Societies, Handbook of the International Red Cross and Red Crescent Movement, 2008, p. 516.
12 - See Durand, pp. 16–17.
13 - Noailly, pp. 49–50.
14 - See Reid, p. 10.
15 - See e.g. Best, pp. 141–142, and Hutchinson, pp. 275–276.
16 - An example of such cooperation is the organization by the National Societies of training courses for members of the armed forces in fields such as first aid and international humanitarian law. Some National Societies cooperate with the armed forces’ medical services, but do so without being subject to military laws and regulations. Other National Societies’ relationship to the armed forces is regulated through a broad-ranging memorandum of understanding, pursuant to which they undertake activities such as the dispatch of Red Cross messages, the furnishing of support to soldiers’ families at home, and the provision of technical advice on matters of international humanitarian law to the medical services of the armed forces, as requested, in connection with the development of relevant doctrine. Lastly, cooperation can also consist, for example, in the Societies’ playing a supporting role in the repatriation and subsequent hospital treatment of wounded and sick soldiers. Article 26 does not apply to any of these forms of cooperation.
17 - Geneva Convention on the Wounded and Sick (1929), Article 10. The substantive change between the 1906 and 1929 versions of the text can be found in the first paragraph: while the 1906 text spoke of those ‘who are employed in the sanitary formations and establishments of armies’, the 1929 text refers to those ‘who may be employed on the same duties as’ the personnel of the armed forces’ official medical services. The latter formulation is much broader, in that the work in question need not be confined to work physically situated ‘in the sanitary formations and establishments of armies’. Thus, while the removal and transportation of wounded and sick soldiers was not covered under the 1906 text, it was covered under the 1929 text. See Proceedings of the Geneva Diplomatic Conference of 1929, p. 191, and George B. Davis, ‘The Geneva Convention of 1906’, American Journal of International Law, Vol. 1, No. 2, 1907, pp. 409–417, at 414.
18 - For an overview of the national legislation of that period, see Des Gouttes, 1934.
19 - In April 1940, the Canadian authorities requested the US Government to notify the German Government that, ‘pursuant to Article 10 [of the 1929 Convention], … the Canadian Government have recognized the Canadian Red Cross Society as a Voluntary Aid Society and that the Society is authorized to render assistance to the regular medical service of the Canadian armed forces’. Examples of other National Societies which served during the Second World War on the basis of Article 10 of the 1929 Geneva Convention are the American Red Cross Society, the Australian Red Cross Society, the British Red Cross Society and the Japanese Red Cross Society.
20 - Proceedings of the Geneva Diplomatic Conference of 1906, pp. 106 and 124, and Proceedings of the Geneva Diplomatic Conference of 1929, pp. 133–135, 191–192 and 606. During the latter conference, an amendment aimed at explicitly mentioning the staff of National Red Cross (Red Crescent, Red Lion and Sun) Societies or of similar societies was rejected by a large majority. See also Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 65–66, and Lanord, 1999, pp. 34–35.
21 - The proposal for an explicit mention of the role of National Societies was made at the 1946 Preliminary Conference of National Societies. In fact, the Conference wished to restrict the scope of applicability of the provision exclusively to ‘National Red Cross (Red Crescent, Red Lion and Sun) Societies’. Should other organizations wish to offer their services, the Conference was of the view that they could do so only with the consent of the above-mentioned Societies. The 1947 Conference of Government Experts not only rejected the latter idea, but actually wished to maintain the approach of the 1929 Geneva Convention, i.e. to speak generically of ‘voluntary aid societies’. See Report of the Preliminary Conference of National Societies of 1946, pp. 29–30; Minutes of the Preliminary Conference of National Societies of 1946, Vol. I, pp. 69–82; Report of the Conference of Government Experts of 1947, pp. 34–35; and Minutes of the Conference of Government Experts of 1947, Committee I, Vol. II, Tome 1, pp. 152–164. The 1949 Diplomatic Conference accepted this idea, and did so in order to ‘pay a special tribute to the Red Cross Societies, thus recognizing the great services they had rendered on all the battle-fields of the world’, while maintaining the option that ‘other national relief organizations’ might also qualify; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 194. There were some initial objections to the proposal to explicitly mention the National Red Cross Societies; see ibid. p. 78, as well as Minutes of the Diplomatic Conference of Geneva of 1949, Commission I, pp. 21–28. Under the 1949 Geneva Convention, nothing in practice precludes a government wishing to do so from adopting the idea put forward at the 1946 Preliminary Conference, i.e. requesting that other voluntary aid societies work under the supervision of, or through, the National Society. It should be noted that Article 27 of the First Convention speaks generically of ‘a recognized Society of a neutral country’. For a discussion of this point, see the commentary on Article 27, paras 2119–2121.
22 - As basic units of the International Red Cross and Red Crescent Movement, whose role is explicitly mentioned in several other provisions of the Geneva Conventions and their Additional Protocols, the National Societies’ task remains to ‘organize, in liaison with the public authorities, emergency relief operations and other services to assist the victims of armed conflicts as provided in the Geneva Conventions’; see Statutes of the International Red Cross and Red Crescent Movement (1986), Article 3(2).
23 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 78. See also Proceedings of the Geneva Diplomatic Conference of 1929, pp. 371–379, and Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, pp. 65–66. Further see Claudie Barrat, Status of NGOs in International Humanitarian Law, Brill Nijhoff, Leiden, 2014, p. 95. More generally, see Béat de Fischer, ‘L’Ordre souverain de Malte’, Recueil des cours de l’Académie de droit international de La Haye, Vol. 163, 1979, pp. 1–47.
24 - See ICRC, Rapport général du CICR sur son activité d’août 1934 à mars 1938, submitted to the 16th International Conference of the Red Cross, London, 1938. In this report, on pp. 20–21, the ICRC lists, for a number of countries, the voluntary aid societies which, in 1938, could offer their assistance to the armed forces’ official medical services. For most countries, this is only the National Red Cross or Red Crescent Society. For France, the United Kingdom, the Netherlands and Romania, a number of other societies are listed. For France, for example, these include the Union des Femmes de France and the Association des Dames françaises.
25 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1370, which defines a ‘society’ as ‘an organization … formed for a particular purpose or activity’. Article 24 of the Second Convention foresees the possibility that a ‘private person’ may offer a hospital ship to the armed forces of his or her own country. By restricting its scope of application to ‘societies’, a strict reading of Article 26 of the First Convention leads to the conclusion that private persons offering, for example, their private staff to assist the armed forces’ medical services cannot be covered by this provision. For further analysis of the term ‘voluntary aid society’, see Claudie Barrat, Status of NGOs in International Humanitarian Law, Brill Nijhoff, Leiden, 2014, pp. 87–89.
26 - Noailly, pp. 154–156.
27 - One of the 10 conditions for recognition of a National Society by the ICRC is that it must ‘[b]e duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field’ (Statutes of the International Red Cross and Red Crescent Movement (1986), Article 4(3)).
28 - See ibid. Article 5(2)(b).
29 - The principle of unity is one of the seven Fundamental Principles of the Red Cross and Red Crescent Movement. See also Article 4(2) of the 1986 Statutes of the International Red Cross and Red Crescent Movement: in order to be recognized as a National Society of a State, one of the conditions which needs to be met is to ‘[b]e the only National Red Cross or Red Crescent Society of the said State and be directed by a central body which shall alone be competent to represent it in its dealings with other components of the Movement’.
30 - Similarly, a State may decide to limit recognition to a single society, e.g. the National Red Cross or Red Crescent Society. This is the case, for example, in the United States; see Regulations for the American National Red Cross, in Code of Federal Regulations, 1 July 2013, Title 32: National Defense, Chapter VI: Department of the Navy, Subchapter A: United States Navy Regulations and Official Records, Part 700.816: United States Navy Regulations and Official Records: ‘The American National Red Cross is the only volunteer society authorized by the Government to render medical and dental aid to the armed forces of the United States. Other organizations desiring to render medical and dental aid may do so only through the Red Cross.’
31 - The interpretation that a State may recognize and authorize more than one society is further corroborated by the reference in Article 26(2) to ‘the names of the societies’ in the plural.
32 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 88: to ‘authorize’ means to ‘give official permission for or approval to’.
33 - Lanord, 1999, p. 30.
34 - For a discussion of State practice, see Lanord, 1999, pp. 31–32. For examples of legislation prior to the Second World War, see Des Gouttes, 1934.
35 - Previous writers took a different approach when it came to the National Red Cross and Red Crescent Societies, arguing that notification would not be necessary in regard to them. See Des Gouttes, p. 67; Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 229; and Werner, p. 122. Several decades later, the realities have changed. Since it has become rather exceptional for National Red Cross and Red Crescent Societies to act on the basis of Article 26, the notification requirement also applies with regard to them.
36 - Since notification is to be provided by one State to another, on the assumption that the National Society will follow its armed forces abroad, it does not directly involve, nor is it addressed to, the ‘host’ National Society, i.e. the National Society of the State on whose territory the activities will take place. On this issue, see para. 2093.
37 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 978: to ‘notify’ means to ‘inform (someone) of something in a formal or official manner’.
38 - François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC/Macmillan, Oxford, 2003, pp. 477 and 878. See also ICRC, Rapport présenté par le Comité international sur les mesures à prendre pour communiquer officiellement aux belligérants l’envoi des missions sanitaires de la Croix-Rouge sur les champs de bataille, submitted to the 9th International Conference of the Red Cross, Washington, 1912, p. 3.
39 - No practice has been found in which a High Contracting Party provided such notification in time of peace. See also Lanord, 1999, p. 39.
40 - Article 4.
41 - Lanord, 1999, p. 38.
42 - For a different approach, see Article 22 of the Second Convention, which provides, as one of the conditions to be met before military hospital ships are entitled to be respected and protected, that ‘their names and descriptions [shall] have been notified to the Parties to the conflict ten days before those ships are employed’.
43 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 468.
44 - The term ‘staff’ does not require the persons concerned to have a contract that would give them the status which the term ‘staff’ may confer under domestic legislation. While a person who is considered ‘staff’ under the domestic legal framework will also be considered staff on the basis of Article 26, other arrangements (such as consultancy, volunteer work, secondment, etc.) are equally possible.
45 - This is corroborated by comparing Article 26 of the First Convention with Article 22 of the Second Convention, where the entitlement of military hospital ships to be respected and protected is made subject to the ‘condition’ that ‘their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed’.
46 - See Lanord, 1999, p. 40. Proving their status need not be insurmountable, however, especially if they display the means of identification referred to in Article 40(2), which requires the special identity card to mention, among other things, ‘in what capacity [the bearer] is entitled to the protection of the present Convention’. In any event, a failure to provide notification of the names of the voluntary aid societies before actually employing them (e.g. at the commencement of an armed conflict) can always be rectified.
47 - In practice, it is conceivable that some staff members of a particular society will qualify as persons protected by Article 26, while other staff members of the same society will not.
48 - Proceedings of the Geneva Diplomatic Conference of 1929, pp. 136 and 606. One example would be a staff member of a National Society engaged in dispatching Red Cross messages, i.e. communications which, via the National Society, are sent by or to family members in the home country, for example in order to swiftly inform a member of the armed forces, or his family, of an emergency or another important event. Another example would be a staff member of a National Society involved in providing training to the armed forces’ medical services.
49 - Where the relevant conditions are met, they could, for example, qualify as civilian medical personnel (Article 20 of the Fourth Convention and Article 15 of Additional Protocol I), or as protected persons within the meaning of Article 4 of the Fourth Convention. The possibility envisaged by Article 4(A)(4) of the Third Convention also needs to be kept in mind, i.e. ‘persons who may accompany the armed forces without actually being members thereof, such as … services responsible for the welfare of the armed forces’. Such persons are, subject to certain conditions, covered by the status of prisoner of war when they fall into enemy hands (and they do not come under the retention regime to which persons covered by Article 26 are entitled).
50 - For details about the requirements of exclusivity and permanency, which apply here in a similar way as to persons covered by Article 24, see the commentary on Article 24, section D.2.
51 - This situation is similar to that of persons covered under Article 24; see ibid. para. 1979.
52 - See also the commentary on Article 25, para. 2014.
53 - This clarification is important in that Article 10(1) of the 1906 Geneva Convention protected only those ‘who are employed in the sanitary formations and establishments’. As a result of this restriction, under the regime established by the 1906 Geneva Convention, staff of voluntary aid societies were not protected by that provision in a battlefield role, for example when searching for, collecting or transporting wounded and sick soldiers on the battlefield. This restriction has to be seen against the historical background (see above, section B), which was one of initial distrust. The stricture was deleted in the 1929 Geneva Convention. For a discussion, see Lanord, 1999, p. 42.
54 - See the commentary on Article 24, paras 1957–1958. In the First Convention, the ‘wounded and sick’ can only be those belonging to the categories referred to in Article 13. On the basis of Article 8(a) of Additional Protocol I, the ‘wounded and sick’ can be ‘military or civilian’.
55 - See the commentary on Article 24, paras 1957 and 1997. See also Article 22(5).
56 - For a detailed discussion, see section D.2.
57 - Many authors, when discussing Article 26, use the term ‘incorporation’. See Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 61; Haug/Gasser, p. 171; and Werner, p. 123.
58 - See e.g. United States, Law of War Manual, 2015, para. 4.11.1: ‘American National Red Cross personnel who support the U.S. armed forces in military operations [on the basis of Article 26] are subject to the Uniform Code of Military Justice.’ However, the mere fact that the staff of a voluntary aid society work in a military hospital does not suffice to make them subject to military laws and regulations; see Proceedings of the Geneva Diplomatic Conference of 1929, p. 132.
59 - See Rain Liivoja, ‘Service Jurisdiction under International Law’, Melbourne Journal of International Law, Vol. 11, 2010, pp. 309–337, especially at 334.
60 - See ICRC, Report on the Interpretation, Revision and Extension of the Geneva Convention of July 27, 1929, Report prepared for the 16th International Conference of the Red Cross, London, 1938, pp. 15–16, referring to the revision of Article 10 of the 1929 Geneva Convention: The International Committee had proposed to substitute, at the end of the paragraph, for the words ‘subject to military law and regulations’ the wording ‘subject to military law and discipline’. The Commission of Experts upheld the present wording, since on the one hand there are far more military regulations than laws, and on the other hand, the notion of ‘regulations’ is very different from that of military discipline, to which, moreover, Voluntary Aid Societies may not be entirely subject. On this point, see also Draft revision of the 1929 Geneva Convention submitted by the ICRC to National Societies in 1937, p. 6.
61 - See United Kingdom, Military Manual, 1958, p. 112.
62 - The question of whether or not persons covered by Article 26 are required to wear the armed forces uniform is left to the national military authorities, in consultation with the voluntary aid society; see Des Gouttes, Commentaire de la Convention de Genève de 1929 sur les blessés et malades, ICRC, 1930, p. 61. They may also wear the uniform of their own society, where such uniform exists. In any event, whether or not they wear the distinctive emblem is a matter which is regulated by Article 40 of the First Convention.
63 - These words already appeared in Article 10(2) of the 1906 Convention and in Article 10(2) of the 1929 Geneva Convention.
64 - See Article 26(1).
65 - In view of this potential for State responsibility, the State which will be assisted by the services of a voluntary aid society may wish to ensure that the staff of this society are aware (e.g. through training) of their legal rights and obligations, in particular as regards international humanitarian law. For the same reason, the State may wish to vet the staff of the voluntary aid society, for example by having relevant military or civilian services conduct a background check of each proposed staff member’s criminal and/or professional (e.g. medical) record. Whether and how such checks are to be conducted is a matter which remains outside the scope of international humanitarian law; it is left entirely in the hands of the domestic authorities, in consultation with the voluntary aid society.
66 - Under Additional Protocol I, they qualify as ‘medical personnel’; see Article 8(c)(ii) of that Protocol.
67 - Where relevant, religious personnel are placed on the same footing as the chaplains attached to the armed forces, as provided by Article 24.
68 - Since persons covered by Article 26 qualify as protected persons within the meaning of the First Convention, reprisals against them are prohibited (Article 46). Similarly, the acts described in Article 50 qualify as grave breaches if committed against persons covered by Article 26. Since these persons are required to wear the distinctive emblem, it needs to be kept in mind that, under the 1998 ICC Statute, in both international and non-international armed conflicts, it is a war crime to ‘[i]ntentionally direc[t] attacks against … personnel using the distinctive emblems of the Geneva Conventions in conformity with international law’; see ICC Statute (1998), Articles 8(2)(b)(xxiv) and (e)(ii).
69 - This entitlement to be ‘respected and protected in all circumstances’ exists irrespective of whether they are active, at a particular point in time, in the role to which they have been assigned. This results from the very wording of Article 26 (‘who may be employed’; see para. 2074). Such entitlement can be lost if they commit an act harmful to the enemy. Hence, the protection is status-based, while the loss of protection is conduct-based (for details, see the commentary on Article 24, para. 1979). The fact of being placed on the same footing as personnel of the armed forces’ medical services also extends to the possibility of being armed with individual light weapons for the purposes of individual self-defence, or for the defence of the wounded and sick in one’s charge. For details, see the commentaries on Article 22(1), section C, and Article 24, paras 2005–2006.
70 - This means that they ‘shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require’. For details, see Articles 28, 30 and 31 of the First Convention and on Article 33 of the Third Convention.
71 - Both the personnel and the units are entitled to display the distinctive emblem as a protective device; see Articles 40, 42 and the last sentence of Article 44(1) of the First Convention. See also Emblem Regulations (1991), Articles 9–10 and 14.
72 - In this respect, Article 27(1) of the First Convention is different in that it explicitly refers to the possibility, for a recognized Society of a neutral country, to ‘lend the assistance of its medical personnel and units’.
73 - The guarantee of identical protection and treatment holds true only as far as the law applicable to the conduct of hostilities is concerned, as demonstrated by the differences in treatment provided for in Article 33 (applicable to the material of mobile medical units of the armed forces) and in Article 34 (applicable to the real and personal property of aid societies). These articles regulate the status of such property when it falls into enemy hands.
74 - Lanord, 1999, pp. 50–51.
75 - See ICRC, Report of the International Committee of the Red Cross on the Training, Duties, Status and Terms of Enrolment of the Medical Personnel Assigned to the Care of the Wounded and Sick in the Armed Forces, 1952, p. 5.
76 - These are the American Red Cross, the Italian Red Cross, Magen David Adom in Israel, and the Swiss Red Cross. For the American Red Cross, for example, the legal basis in domestic law is the Code for American Red Cross Cooperation and Assistance, 2011; see also United States, Law of War Manual, 2015, para. 4.11.1. For the Swiss Red Cross, the legal basis in domestic law is the Ordinance on Employees of the Red Cross, 2006.
77 - While this is not in itself a reason why there is very limited practice with regard to Article 26, it should be kept in mind that the personnel covered by Article 26, when they fall into enemy hands, can be retained on the basis of Article 28 of the First Convention. Certain National Societies may be uncomfortable with the idea that their staff, who are and remain civilians, can be so retained.
78 - For a discussion of the requirements which must be met before a given treaty provision can be considered to have fallen into desuetude, see Introduction, section C.8.
79 - See the Model Law on the Recognition of the (Name of the Red Cross or Red Crescent Society), referred to in the Plan of Action, Final goal 3.3, para. (14)(b), adopted by the 27th International Conference of the Red Cross and Red Crescent, Geneva, 1999, Annex 2 of Res. 1, Article 1(2): ‘The Society is a voluntary aid society, auxiliary to the public authorities in the humanitarian field, recognised and authorised on the basis of the Geneva Conventions (and their Additional Protocols) to render assistance to the medical services of the armed forces in times of armed conflict.’
80 - See the last sentence of Article 3(1) of the 1986 Statutes of the Red Cross and Red Crescent Movement. For a number of years, the topic of National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field has figured prominently on the agenda of both the International Conference of the Red Cross and Red Crescent and of the Council of Delegates. See 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 3; 31st International Conference of the Red Cross and Red Crescent, Geneva, 2011, Res. 4; Council of Delegates, Geneva, 2003, Res. 6; Council of Delegates, Seoul, 2005, Res. 9; and Council of Delegates, Geneva, 2007, Res. 3. For further background information, see ‘The specific nature of the Red Cross and Red Crescent Movement in action and partnerships and the role of National Societies as auxiliaries to the public authorities in the humanitarian field’, Background document prepared for the 30th International Conference of the Red Cross and Red Crescent by the International Federation of Red Cross and Red Crescent Societies in consultation with the ICRC, Geneva, October 2007.
81 - For a historical overview, see Jean-Luc Blondel, ‘Genèse et évolution des Principes fondamentaux de la Croix-Rouge et du Croissant-Rouge’, Revue internationale de la Croix-Rouge, Vol. 73, No. 790, August 1991, pp. 369–377. Among the most prominent works in this connection is Jean S. Pictet, Red Cross Principles, ICRC, Geneva, 1956, in which the author lists seven ‘Fundamental Principles’ and 10 ‘Organic Principles’. For the current version of the Fundamental Principles, see the preamble to the 1986 Statutes of the International Red Cross and Red Crescent Movement.
82 - See 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 2, para. 6. See also Statutes of the International Red Cross and Red Crescent Movement (1986), Preamble and Article 3(1).
83 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 2(4). For Parties to Additional Protocol I, see Article 81(2) and (3) of that Protocol. See also International Federation of Red Cross and Red Crescent Societies, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field, 2003, p. 25, and ICRC, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field: Study on situations of armed conflict, 2005, p. 26. See also UN General Assembly, Res. 55(I), National Red Cross and Red Crescent Societies, 19 November 1946, para. (b).
84 - Statutes of the International Red Cross and Red Crescent Movement (1986), Article 4(4).
85 - ICRC, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field: Study on situations of armed conflict, 2005, p. 25.
86 - The fact that a National Society serves as an auxiliary to the medical services of its own State’s armed forces does not necessarily entail a violation of the principle of impartiality, provided that enemy wounded and sick are also being treated in accordance with that principle.
87 - If a National Red Cross or Red Crescent Society operates on the basis of Article 26, this does not, as such, violate the principle of neutrality. In order to comply with the principle, the National Society will need to refrain from expressing any views about its State’s arguments concerning the reasons for the armed conflict. See International Federation of Red Cross and Red Crescent Societies, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field, p. 25.
88 - Council of Delegates, Seoul, 16–18 November 2005, Summary of the study on situations of armed conflict, Section 5.
89 - Conversely, the arrangements made at the national level between the military authorities and the National Society may require the Society’s staff, prior to their deployment on the basis of Article 26, to attend a number of courses organized by the armed forces (e.g. on discipline).
90 - Such a violation would occur, for example, if the military authorities were to prohibit persons covered by Article 26 from providing medical care to enemy wounded and sick. On this point more generally, see 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 2, Specific nature of the International Red Cross and Red Crescent Movement in action and partnerships and the role of National Societies as auxiliaries to the public authorities in the humanitarian field, para. 4(b).
91 - See Seville Agreement (1997) and Supplementary Measures to the Seville Agreement (2005).
92 - Seville Agreement (1997), Article 1.1; see also Articles 1.3 and 1.4 of the Agreement.
93 - See also the Statutes of the International Red Cross and Red Crescent Movement (1986), Article 3(3), first subparagraph, and ICRC, National Red Cross and Red Crescent Societies as auxiliaries to the public authorities in the humanitarian field: Study on situations of armed conflict, pp. 16–17. For the primary source of this principle, see 10th International Conference of the Red Cross, Geneva, 1921, Res. XI, Relations between National Societies, para. 1, as well as Huber, pp. 35–36.
94 - For a discussion of the concept of ‘humanitarian activities’, see the commentary on Article 9, section C.2.a.
95 - For a discussion of these principles, see the commentary on Article 9, paras 1124, 1137–1138 and 1160.
96 - For a contemporary understanding of this notion, see 30th International Conference of the Red Cross and Red Crescent, Geneva, 2007, Res. 3. See also Statutes of the International Red Cross and Red Crescent Movement (1986), Article 3(1), which contains the following sentence: ‘The National Societies support the public authorities in their humanitarian tasks, according to the needs of the people of their respective countries.’