II. Legal & Policy Base 
National Societies have sound legal and statutory instruments and develop policies that provide a basis from which to carry out their humanitarian mandate and roles in sensitive and insecure contexts in conformity with Movement policies, international humanitarian law (IHL) and domestic legislation.
The geopolitical environment in which National Societies work continues to evolve substantially from what it was when National Societies were first created. The result has been a move away from their traditional function as auxiliary to the medical services of the armed forces to a far broader collection of roles.
This transformation calls for increased clarity in a National Society’s mandate and responsibilities, as they are defined in the instruments setting out the National Society’s legal, statutory and policy base. That mandate and those responsibilities then need to be widely communicated and understood.
The challenge posed by the auxiliary role of a National Society to its public authorities in the humanitarian field should not be underestimated when operating in an internal armed conflict or internal disturbances or tensions, which may well involve the State itself and its armed and security forces. In these situations, particular care is needed in order to define and strike the proper balance between the auxiliary status of the National Society and its requirement and commitment to act at all times in accordance with the Fundamental Principles and in order to preserve its autonomy of action and decision-making.
The importance for a National Society to abide by the Fundamental Principles, as well as by other specific Movement policies and rules, is particularly relevant in sensitive and insecure contexts. In such situations, concrete and visible application of the Fundamental Principles will help maintain and build your acceptance, security and access.
While the different components of the Movement enjoy distinct but complementary mandates and roles, ensuring these are clearly defined and understood is essential to facilitating coordination and maximizing the ability of the Movement as a whole to reach more people more effectively.
1Action checklist
- Promote the development and adoption of a strong legislative framework clarifying your National Society’s mandate and role(s) in international and internal armed conflicts and internal disturbances and tensions.
- Promote the enactment of domestic legislation governing the use of the emblem(s) and your logo and ensure it is known, respected and enforced.
- Ensure your National Society’s internal statutory base and guidelines clearly reflect the legislative framework supporting its mandate, role(s) and use of the emblem.
- Understand the statutory (policy) requirement to act in accordance with the Fundamental Principles at all times, clarifying your National Society’s role as auxiliary to the public authorities in the humanitarian field, balanced with the need to act independently and impartially at all times.
- Incorporate Movement policies into your own National Society’s policies, guidelines and practice governing response activities in sensitive and insecure contexts and ensure they are known, respected and enforced.
- Establish a strong Movement coordination framework that enhances the unique but complementary mandates and roles of all of the Movement components, according to Movement policies and established tools.
2Table of Contents
2.0 Introduction
A National Red Cross or Red Crescent Society’s ability to work effectively in sensitive and insecure contexts, including armed conflict and internal disturbances and tensions, will often depend on it having sound and comprehensive statutory and legal base instruments that define its distinct status, roles and privileges.
Why is this important in sensitive and insecure contexts?
A variety of actors – both State and non-State – will often influence or control access to people and communities in need. In such situations, having a solid legal foundation that spells out the National Society’s prerogative to act and its role in providing humanitarian assistance and protection is an invaluable asset.
Did you know ?
The National Society’s statutory and legal base represents a unique feature which most other civil society or voluntary aid organizations do not enjoy.
This legal foundation will provide a solid operational base from which the National Society can carry out its humanitarian activities in conformity with the Fundamental Principles and the Movement’s statutory and regulatory framework. It is particularly useful in contexts where access to people affected by violence is restricted.
The relevant legal frameworks established and known
Statutory and legal base instruments should clearly define the National Society’s mandate and responsibilities, including its role in times of armed conflict as provided for in the Geneva Conventions of 1949 and their Additional Protocols of 1977 (including, in particular, its role as auxiliary to the armed forces’ medical services, pursuant to Article 26 of the First Geneva Convention).
Then, of course, the National Society’s mandate, roles and working methods must be known, understood and supported by its entire membership, staff and volunteers. This should contribute to better coordination between the National Society and its Movement partners, ensuring complementarity and an optimal use of resources in addressing the needs of as many people as possible.
Today’s contemporary challenges and practice
Contemporary practice shows that some National Societies have become increasingly hesitant to carry out their humanitarian tasks in contexts prone to spontaneous eruptions of violence, such as internal disturbances or tensions, or where politically or criminally motivated violence is prevalent.
The challenges for a National Society often arise because of a lack of clarity regarding its mandate and role to act in such situations, combined with concerns about its personnel’s safety, sometimes resulting in inaction and unmet humanitarian needs.
At times, even State authorities or their armed and security forces have questioned the National Society’s prerogative to act and to deliver its humanitarian services. To avoid such misperceptions, it is extremely important for a National Society to invest time and effort in ensuring that all external stakeholders are aware of and support its legal, statutory and policy base.
In practical terms, when trying to negotiate passage through a checkpoint or otherwise gain access to people and communities in need, every staff member and volunteer must be versed in and able to explain convincingly the unique status, purpose and working methods of the National Society and, thereby, its entitlement to act without interference or impediment.
Balancing the auxiliary role with the need to act in a neutral, impartial and independent manner
Particular mention must be made of one of the most challenging and often confusing issues for a National Society. This relates to its “auxiliary role to the public authorities in the humanitarian field”, particularly in circumstances when the State is itself involved in the violence. This will notably be the case in a non-international armed conflict or in a law enforcement operation in which the ability of the National Society to fulfil its humanitarian mandate and to provide independent, neutral and impartial assistance and protection to those affected by the violence may be compromised.
In these situations, a National Society will often need to conduct a careful assessment of the possible adverse implications of its auxiliary status and role and others’ perceptions of it, as this will ultimately affect its ability to reach people and communities in need without jeopardizing the safety of its personnel.
Did you know ?
There is considerable value for the public authorities in allowing a neutral, impartial and independent organization such as the National Society to act in sensitive and insecure contexts. This is particularly relevant where the public authorities no longer themselves have access to certain people and communities affected by the violence and insecurity.
Abiding by the Fundamental Principles
Of further relevance is the importance for a National Society to be aware of and to abide by the Fundamental Principles, as well as other agreed Movement policies, as defined in key resolutions developed and adopted to facilitate safe access of Movement personnel in sensitive and insecure contexts.
It is clear that, in the context of Lebanon, the Fundamental Principles are more than an abstract code or ideological commitment. They serve as a framework for action and an operational tool to guide decision-making in very difficult circumstances. They are of particular relevance to a National Society which needs to balance its role as a formal auxiliary to the public authorities with the ability to provide, and to be trusted to provide, neutral and independent humanitarian assistance for all those who need it most. One of the most important lessons from Lebanon is that this does not come about by accident or without considerable and consistent effort.
Safer Access in Action Case Study: Lebanon
National Societies need to have mechanisms and processes in place to ensure that the Fundamental Principles and Movement rules are incorporated into their own policies, programmes, training and practice. This should, in particular, help to ensure that the Fundamental Principles, as adopted in 1965 and incorporated into the Preamble of the Statutes of the International Red Cross and Red Crescent Movement, remain at all times a tool to guide a National Society’s communication, decision-making and practice.
The operational importance of an emblem law
A domestic law of particular importance pertains to the emblem and the National Society’s logo, which must be developed, promoted and enforced in order to reinforce the identity of the National Society and anchor it in law. As mentioned in the Identification section, it is crucial in sensitive and insecure contexts for a National Society to maintain a distinct identity that is known and understood by all stakeholders, including the authorities and members of beneficiary communities. Misuse of the emblem must be prevented and monitored, as it undermines respect for and the image of the emblem and the organizations it represents. It may also create confusion and suspicion, putting the National Society, its staff and volunteers at risk.
1Guiding questions
- What systems do you have to ensure the relevant provisions of international humanitarian law and domestic legislation are known by your personnel and incorporated into your policies, guidelines, training and practice?
- What process is in place within your National Society to strengthen your legal framework, including the domestic legislation describing your mandate and roles in sensitive and insecure contexts, and to align it with your statutes, policies, agreements and plans?
- How do you go about achieving a common understanding among internal and external stakeholders of the National Society’s mandate, status within the Movement, auxiliary role and commitment to act in accordance with the Fundamental Principles?
- What are the legal bases and mandates of other Movement components operating in your context?
Does the Movement coordination framework established in your context comprise clear roles and responsibilities that respect, complement and reinforce each others’ mandates, maximizing the reach to people in need? - What system is in place to ensure that domestic legislation regulating the use of the emblem and the National Society’s logo and name exists, is known, respected and enforced?
- What are the most essential and relevant Movement policies you have identified and incorporated into your own policies and practice that reinforce your National Societies’ security and access in sensitive and insecure contexts?
2.1 Relevant legal frameworks rooting mandate and roles
The relevant legal frameworks in which a National Society’s mandate and roles are rooted and which stem from international humanitarian law (IHL), domestic legislation and the Movement’s regulatory framework are known by and disseminated to the National Society’s membership, staff and volunteers and guide its action.
2.2 Domestic legislation and statutory base
Domestic legislation on the National Society, statutory or constitutional base instruments, policies, agreements and plans which clearly reflect the National Society’s mandate to respond in sensitive and insecure contexts, including international and non-international armed conflict and internal disturbances and tensions, are developed and strengthened. (See also VI. and VII. Internal and external communication and coordination)
2.3 Humanitarian mandate, adherence to the Fundamental Principles and auxiliary status and role as a Movement component
The National Society’s humanitarian mandate, its commitment to act at all times in accordance with the Fundamental Principles, its status as a component of the Movement and its auxiliary role to the public authorities in the humanitarian field are known, commonly understood and supported by key stakeholders.
2.4 Strong Movement coordination framework established to ensure complementarity of mandates and roles
The legal base and mandates of other Movement components are known and respected and a strong Movement coordination framework has been established to ensure complementarity.
2.5 Emblem domestic legislation developed, respected and enforced
Domestic legislation governing the use of the emblem and the National Society logo and name exists, is known to the National Society’s membership, staff and volunteers and to key stakeholders, including the public authorities and the community, and is both respected and enforced. (See also V. Identification and VII. External communication and coordination)
2.6 Movement policies governing action in sensitive and insecure contexts
Movement policies governing response activities in sensitive and insecure contexts, including armed conflict and internal disturbances and tensions, are known and have been incorporated into National Society policies, strategies, programmes, operations and security risk management systems, tools, training and practice.