Loi du 5 septembre 2023 portant approbation de l’ « Agreement on the status and privileges and immunities of the International Committee of the Red Cross between the Grand Duchy of Luxembourg and the International Committee of the Red Cross », fait à Luxembourg, le 1er juin 2022.

Le contenu de la version HTML du Journal officiel luxembourgeois est identique à la version PDF. Loi du 5 septembre 2023 portant approbation de l’ « Agreement on the status and privileges and immunities of the International Committee of the Red Cross between the Grand Duchy of Luxembourg and the International Committee of the Red Cross », fait à Luxembourg, le 1 er juin 2022. Nous Henri, Grand-Duc de Luxembourg, Duc de Nassau, Le Conseil d’État entendu ; Vu l’adoption par la Chambre des Députés ;  Vu la décision de la Chambre des Députés du 13 juillet 2023 et celle du Conseil d’État du 14 juillet 2023 portant qu’il n’y a pas lieu à second vote ; Avons ordonné et ordonnons : ​ Article unique. Est approuvé l’« Agreement on the status and privileges and immunities of the International Committee of the Red Cross between the Grand Duchy of Luxembourg and the International Committee of the Red Cross », fait à Luxembourg, le 1 er juin 2022. Mandons et ordonnons que la présente loi soit insérée au Journal officiel du Grand-Duché de Luxembourg pour être exécutée et observée par tous ceux que la chose concerne. Le Ministre des Affaires étrangères et européennes, Jean Asselborn Le Ministre de la Coopération et de l’Action humanitaire, Franz Fayot Palais de Luxembourg, le 5 septembre 2023. Henri Doc. parl. 8093 ; sess. ord. 2022-2023. ​ AGREEMENT ON THE STATUS AND PRIVILEGES AND IMMUNITIES OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS BETWEEN THE GRAND DUCHY OF LUXEMBOURG AND THE INTERNATIONAL COMMITTEE OF THE RED CROSS THE GRAND DUCHY OF LUXEMBOURG (hereinafter Luxembourg) represented by Mr. Franz Fayot, Minister for Development Cooperation and Humanitarian Affairs; and THE INTERNATIONAL COMMITTEE OF THE RED CROSS (hereinafter the ICRC), represented by Mr. Peter Maurer, President; together referred to as “Parties” and individually as “Party”; CONSIDERING the work done by the ICRC worldwide in providing without discrimination protection and assistance to persons affected by armed conflicts or other situations of violence with a view to relieving human suffering; NOTING the ICRC’s mandate enshrined in the 1949 Geneva Conventions and their 1977 Additional Protocols, to which Luxembourg is a party, the Statutes of the International Red Cross and Red Crescent Movement, and the Resolutions of the International Conferences of the Red Cross and Red Crescent; CONSIDERING that, in fulfilling its humanitarian mandate, the ICRC is increasingly engaged in the provision of digital services to persons affected by armed conflict and other situations of violence globally; BEARING IN MIND the interests of Luxembourg and the wish expressed by the ICRC to establish a delegation to carry out its mandate and humanitarian tasks particularly in the cyber paradigm; HAVING REGARD to the Memorandum of Understanding (MoU) between the Government of Luxembourg and the ICRC, signed on 27 January 2022; RESPONDING to the need for the ICRC to acquire adequate privileges and immunities under international and national law to operate its Delegation for Cyberspace based in Luxembourg in full conformity with its fundamental principles of humanity, neutrality, impartiality and independence and its standard working modalities, in particular confidentiality; INTENDING to specify the means for effective cooperation between the Parties in the establishment and operation of the Delegation for Cyberspace based in Luxembourg; RECALLING that in order to implement its humanitarian mandate, the ICRC carries out its activities in full conformity with its fundamental principles of humanity, neutrality, impartiality and independence and its standard working modalities, in particular confidentiality; RECALLING that the ICRC is the sole entity to enjoy, under international law, a privilege of non-disclosure of information relating to the work of the ICRC for purposes of judicial proceedings; CONSIDERING that in the course of the implementation of its humanitarian mandate, the ICRC processes personal data in a manner consistent with the internationally recognised standards on data protection; AGREE AS FOLLOWS: ARTICLE 1 DEFINITIONS For the purposes of this Agreement: (a) the Data Centre” shall mean the part of a facility located in Luxembourg and provided through a lease agreement by Luxembourg or directly rented from a local service provider, and used to host Data and Information Systems, as well as the Equipment and Licences; (b) “the Data and Information Systems” shall mean assets that are stored and processed on the Equipment and associated components, such as telecommunications and storage systems. It includes software and solutions installed on the Equipment as well as the data processed and stored therein; (c) “the Equipment and Licences” shall mean the assets used for the storing and processing of Data and Information Systems and associated components, such as telecommunications and storage systems. This includes assets such as computers and servers and racks, virtual machines, network devices like routers and switches, cabling and patching and power distribution unit, and Virtual Private Networks. When the Data Centre provided by Luxembourg, those assets will be agreed upon by the “Centre des technologies de l’information de l’Etat (CTIE)” for Luxembourg and the ICRC; (d) “the ICRC Cyber Infrastructure” shall mean the Data Centre used by the ICRC, as well as all Data and Information Systems, and all Equipment and Licenses in the Data Centre as well as of the delegation; (e) “Authorised Representative” shall mean any natural person who has received a written mandate from one of the Parties to this Agreement to act on their behalf in relation to the access to the Data Centre; (f) “Members” shall mean all persons appointed or engaged to work for the ICRC in their delegation in Luxembourg, excluding Experts; (g) “Expert” shall mean any individual providing services to the ICRC under contractual arrangements between the individual and the ICRC or between an entity and the ICRC; (h) “Family” shall mean, with respect to any person, the spouse or registered partner (of whatever sex) and dependent children of such person forming part of the latter’s household. ARTICLE 2 STATUS AND LEGAL PERSONALITY 1. The status of the ICRC shall be that of an international intergovernmental organisation with international legal personality. Its treatment shall in any case be not less favourable than that received by an international intergovernmental organisation. 2. Luxembourg recognises the legal personality of the ICRC, including but not limited to, its capacity to contract obligations, institute legal proceedings and acquire rights, and acquire and dispose of movable and immovable property. ARTICLE 3 IMMUNITY OF THE ICRC, ITS PROPERTY AND ASSETS The ICRC, its property and assets, wherever located and by whomsoever held, shall enjoy immunity from any form of judicial, administrative or other legal process, except to the extent that the ICRC has expressly waived its immunity in writing in a particular case. ARTICLE 4 INVIOLABILITY OF ICRC PREMISES, PROPERTY AND ASSETS 1. The premises of the ICRC by whomsoever they may be owned, shall be inviolable. 2. The property and assets of the ICRC, wherever located and by whomsoever held, shall be equally inviolable and immune from search, requisition, confiscation, expropriation or any other form of interference, whether by executive, judicial, administrative or legislative action. In particular, Luxembourg shall refrain from interfering with the ICRC’s premises, property and assets by cyber means. ARTICLE 5 PROVISION OF THE DATA CENTRE 1. Where the Data Centre used by the ICRC is provided by Luxembourg, it shall be provided in full working condition for the purpose of hosting Data and Information Systems from the ICRC. 2. Where the Data Centre used by the ICRC is provided by Luxembourg, the latter shall make available the Data Centre to the ICRC for the lease cost as set out in the conditions agreed upon by the competent authorities of the Parties. 3. Where the Data Centre used by the ICRC is provided by Luxembourg, the latter shall provide access to the Data Centre to the Authorised Representative of the ICRC. 4. The ICRC shall notify Luxembourg of its Authorised Representative for the implementation of this Agreement. ARTICLE 5 bis INVIOLABILITY OF THE DATA CENTRE 1. The Data Centre used by the ICRC shall be inviolable and thus exempt from search, requisition, attachment or execution. 2. No official or person exercising any public authority, whether administrative, judicial, military or police of Luxembourg shall enter the premises of the Data Centre used by the ICRC without the prior approval of the authorised representative of the ICRC. Such approval shall be presumed in case of fire or other emergencies that require immediate protective measures and could constitute a danger for safety. ARTICLE 5 ter PROTECTION OF THE DATA CENTRE Where the Data Centre used by the ICRC is provided by Luxembourg, the latter shall take all appropriate measures to protect the Data Centre used by the ICRC against any intrusion or damage within the territory of Luxembourg. The measures are considered appropriate if they meet the same level of protection as the protection that Luxembourg affords its own data centres. ARTICLE 5 quater IMMUNITY OF THE EQUIPMENT AND LICENCES The Equipment and Licenses required to operate the Data Centre used by the ICRC and put in place on the premises of the Data Centre shall be regarded as assets of the ICRC and shall enjoy immunity from every form of legal process. ARTICLE 6 INVIOLABILITY OF ARCHIVES 1. The ICRC's archives, including all documents and data (including electronic documents), as well as all Data and Information Systems, and all Equipment and Licenses, which belong to, are used or held by the ICRC, shall be inviolable wherever located. This includes data held in or otherwise processed through servers, server rooms, and any other device containing data hosted by the ICRC. 2. The archives shall be exempt from search, requisition, attachment or execution. Luxembourg shall refrain from interfering with the ICRC’s archives by executive, administrative, judicial or legislative or any other action, including by cyber means. ARTICLE 7 COMMUNICATIONS 1. The ICRC shall be free to use, for official purposes and without any interference, the means of communication it deems most appropriate, including messages in code, cipher or otherwise encrypted, particularly when communicating with ICRC headquarters in Geneva and its offices around the world, with other international agencies and organisations, with government departments, and with bodies corporate or private individuals. This includes all communications and data flows to or from the ICRC Cyber Infrastructure, as well as all communications and data flows processed on behalf of the ICRC through third parties in the territory of Luxembourg. 2. The ICRC shall have the right to purchase and install on its premises all types of telecommunication equipment and to use mobile equipment, including satellite and tracking devices, within the national territory. However, the purchase and installation of satellite and tracking devices within the national territory require prior notification by the ICRC to Luxembourg. 3. To the extent necessary to provide services to the ICRC, the ICRC shall use the frequencies assigned to it for this purpose by the competent national authority, in accordance with relevant international instruments, including Resolution No. 10 (Rev.WRC-2000) of the International Telecommunication Union. 4. In all matters relating to official communications, the ICRC shall enjoy treatment not less favourable than that accorded to intergovernmental organisations or diplomatic missions. 5. ICRC communications, including in the form of data in transit, shall be inviolable and thereby free from interference, including interception. 6. The ICRC shall have the right to dispatch and receive correspondence or any other documents, data or items by courier or in sealed bags, which shall have the same immunities and privileges as diplomatic courier and bags, provided these couriers and bags bear visible external marks of their character and contain only documents, data or items intended for official use. ARTICLE 8 CONFIDENTIALITY OF DOCUMENTS, DATA AND COMMUNICATIONS Given the ICRC’s privilege of non-disclosure under international law, Luxembourg undertakes to respect the confidentiality of ICRC documents, data and communications, as well as the content and records of its communications with the ICRC. Such respect includes neither divulging their content to any person or entity other than the concerned authorities, nor permitting their disclosure or use in judicial, administrative or any other legal proceedings, without prior written consent of the ICRC. ARTICLE 9 PROTECTION OF PERSONAL DATA 1. The processing of personal data by the ICRC shall be covered by the privileges and immunities foreseen in the present Agreement. In particular, the ICRC processes personal data in accordance with the ICRC Rules on Personal Data Protection; the ICRC’s data processing is supervised by the ICRC Data Protection Office; and an effective remedy is ensured through the ICRC Independent Data Protection Control Commission. 2. The processing of data necessary to enable the ICRC to perform its humanitarian mandate established in the Geneva Conventions of 1949 and its Additional Protocols of 1977, to which Luxembourg is a Party, and the Statutes of the International Red Cross and Red Crescent Movement adopted by the Resolution of the International Conference of the Red Cross and Red Crescent, shall be deemed to be carried out for important grounds of public interest. 3. The ICRC shall exclusively ensure the respect of and be able to demonstrate compliance with ICRC Rules on Personal Data Protection for its processing activities, including by its processors and sub-processors as far as the ICRC is the controller. ARTICLE 10 AGREEMENTS OF LUXEMBOURG WITH THIRD STATES FOR THE PROVISION AND EXCHANGE OF DATA Should Luxembourg negotiate and enter into agreements with other States for the exchange or provision of data in the framework of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, Luxembourg will commit to clearly indicating that ICRC data covered by this Agreement as being outside the scope of such agreements. ARTICLE 11 COOPERATION WITH THE ICRC IN CASE OF ADVERSE CYBER OPERATIONS 1. If Luxembourg becomes aware of new trends concerning threats, including new types of malware and nefarious cyber operations that may affect adversely directly or indirectly the ICRC Cyber Infrastructure, Luxembourg, to the extent it has requisite knowledge, shall notify the ICRC of such threats without undue delay. 2. If Luxembourg becomes aware that the ICRC Cyber Infrastructure is about to or is being adversely affected, directly or indirectly, by a cyber operation, Luxembourg shall notify the ICRC of the operation without undue delay. 3. If the ICRC Cyber Infrastructure has become subject to a cyber operation adversely affecting the ICRC directly, Luxembourg shall provide the ICRC with the information about this cyber operation available to it. 4. The scope of the cooperation is limited to the ICRC Cyber Infrastructure hosted on the territory of Luxembourg. 5. A procedure for the exchange of information shall be established and implemented in a subsequent agreement in respect of the potentially sensitive nature of the information shared, of national and international agreements, and in compliance with national and European Union legislation. Any exchange of information on the part of ICRC is subject to its standard working modality of confidentiality. ARTICLE 12 FINANCIAL RESOURCES 1. The ICRC shall have the right to hold national or foreign currency and other financial assets, and to operate accounts in any currency, without being subject to any financial controls or moratoria of any kind, without prejudice to the banking regulations of the Host Country, including rules related to anti-corruption, anti-money laundering and countering the financing of terrorism and any other related legal framework, including international humanitarian law. 2. The ICRC shall have the right freely to transfer funds in national or foreign currency to, from and within Luxembourg, and to convert its assets freely into other currencies at the most favourable exchange rate at the time of the conversion without prejudice to the Host Country banking regulations. ARTICLE 13 EXEMPTION FROM TAXES 1. The ICRC and its assets, income and property shall be exempt from all direct taxes, except for dues that constitute charges for public utility services. 2. Revenues allocated to the ICRC shall be exempt from any Luxembourgish withholding tax. 3. The ICRC shall be exempt from all indirect taxes, in particular, those in connection with the procurement or provision of goods and services intended for ICRC official use, including for assistance programmes within the country or in another country. Luxembourg shall make appropriate arrangements for the exemption, including remission or reimbursement of such taxes. ARTICLE 14 EXEMPTION FROM CUSTOMS DUTIES The ICRC shall be exempt from customs duties, import duties and charges having equivalent effect and from all taxes and restrictions on the import, export or transit through Luxembourg of all goods and materials (including ICRC publications and audio-visual materials) intended for official use and/or for ICRC assistance programmes within Luxembourg or in another country. It is understood, however, that goods and materials imported under such exemptions will not be sold in Luxembourg except under conditions agreed with Luxembourg. ARTICLE 15 VEHICLE REGISTRATION The Government shall authorise and facilitate the registration of the vehicles of the ICRC Delegation in Luxembourg as official vehicles. ARTICLE 16 STATUS OF MEMBERS OF THE DELEGATION 1. Members of the ICRC delegation and their respective Family shall have the same status as that accorded to the members of international organisations in Luxembourg. 2. They shall enjoy immunity from legal proceedings in respect of acts performed by them in their official capacity, including their words spoken or written. They shall continue to enjoy this immunity even after they have left the service of the delegation, from any form of judicial or administrative process, including personal arrest or detention, seizure of their personal baggage, and from being called as a witness or being required to give evidence. This immunity shall not apply to the above persons in the case of motor traffic offences committed by them or in the case of damage caused by a motor vehicle belonging to or driven by them. 3. Their data, manuscripts and documents shall be inviolable. 4. Together with their respective Family, they shall not be subject to immigration restrictions or to formalities for the registration of aliens. To the extent possible, they should be exempt from all immigration fees and restrictions and alien registration and national service obligations. All applications for travel documents, visas or other necessary certificates made by Members and their respective Family, shall be dealt with by Luxembourg as speedily as possible. 5. They shall enjoy the right to import free of duty their furniture and effects at the time of first taking up their post in Luxembourg, and the right to sell and re-export free of duty their furniture and effects on termination of their duties in Luxembourg, subject in either case to the conditions considered to be necessary by Luxembourg. They shall have the right to import free of duty a motor car for their personal use, acquired either in the state of their last residence or in the state of which they are nationals on the terms ruling in the home market in that state, or to re-export it free of duty, subject in either case to the conditions considered to be necessary by Luxembourg. 6. In the event of armed conflict or other emergencies, they shall be granted the necessary facilities to leave the country, if they wish to do so, by the means they consider to be safest and quickest. 7. They shall benefit from the same privileges in respect of exchange facilities as are accorded to the members of international organisations. 8. Members of the ICRC delegation shall be exempt from all taxes on salaries, allowances and other emoluments paid by the ICRC. 9. The members of the respective Family who accompany Members of the ICRC delegation shall be allowed to work in Luxembourg. 10. The ICRC shall inform the Ministry of Foreign and European Affairs of Luxembourg of the names, titles and functions of staff working in Luxembourg. 11. At the request of the ICRC, Luxembourg shall issue to all ICRC staff working and residing in Luxembourg, as well as to their respective Family, following the notification of their appointment, a card denominated “carte de légitimation”. 12. The Members of the delegation undertake to respect the laws and regulations in force in Luxembourg from the moment they arrive in the country and shall benefit from their protection. 13. They shall enjoy freedom of movement and travel to, from and throughout the territory of Luxembourg. ARTICLE 16 bis STATUS OF EXPERTS 1. Experts of the ICRC delegation shall enjoy immunity from personal arrest or detention and immunity from legal proceedings, including immunity from being called as a witness or being required to give evidence, in respect of acts performed by them in the performance of their official functions on behalf of the ICRC, including their words spoken or written (this immunity from legal process shall not apply to the above persons in the case of motor traffic offences committed by them or in case of damage caused by a motor vehicle belonging to or driven by them).This immunity shall continue notwithstanding that the persons concerned are no longer under contractual arrangement with the ICRC. 2. The ICRC shall inform the Ministry of Foreign and European Affairs of Luxembourg of the names, titles and functions of the Experts contracted by the ICRC. ARTICLE 17 TEMPORARY MISSIONS Members of the ICRC Assembly and staff, as well as Experts contracted by the ICRC, who are on temporary mission in Luxembourg, shall benefit from the privileges and immunities set forth in Article 16, paragraphs 2, 3, 4, 7, 8, 12, and 13. ARTICLE 18 IDENTITY DOCUMENT AND COMMISSION Members of the delegation and ICRC representatives or staff on temporary mission shall hold a document called "Identity document and commission", attesting to the bearer's identity and to his/her status as an ICRC representative or staff member. ARTICLE 19 CO-OPERATION WITH THE HOST COUNTRY 1. The ICRC shall co-operate with the authorities at all times with a view to preventing any form of abuse of the privileges, immunities and facilities provided for in this Agreement. 2. The ICRC may waive any immunity, in any case where, in its sole opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the ICRC. Such waiver shall only be valid when given in writing by the President of the ICRC or any person or organ to whom he or she has delegated that authority. ARTICLE 20 INTERPRETATION 1. This Agreement shall be interpreted in the light of its primary objectives, which are to enable the ICRC to assume its responsibilities, to carry out its activities and to implement its programmes, in full conformity with its internationally recognised mandate and its fundamental principles of humanity, neutrality, impartiality and independence. 2. Any interpretation of international law provisions affecting the ICRC, including in cyber operations, shall be driven by the respect of the ICRC’s impartiality, neutrality, and independence. ARTICLE 21 SETTLEMENT OF DISPUTES BY NEGOTIATION 1. Any dispute between the Parties to this Agreement arising out of the interpretation or application of this Agreement shall be submitted to negotiation between the Parties. 2. The Parties shall bear in mind the national interests of Luxembourg and the interests of the ICRC related to its activities, mandate and mission. They will do everything possible to see that disputes are settled in good faith and equitably, and with the discretion essential to continued good relations between the Parties. ARTICLE 22 ARBITRATION 1. Should the above-mentioned negotiations fail, the dispute shall be submitted for final decision to an arbitral tribunal made up of three arbitrators, one to be named by the President of the ICRC, another by Luxembourg and the third by the Parties or, failing agreement by them, by the President of the International Court of Justice. That third arbitrator shall be the President of the tribunal. 2. Unless the Parties otherwise agree, the arbitral tribunal shall determine its own procedure and the expenses shall be shared equally between the Parties, unless the tribunal decided otherwise. 3. The arbitral tribunal, which shall decide by a majority of votes, shall reach a decision on the dispute on the basis of the provisions of the present Agreement and the applicable rules of international law. The decision of the tribunal so constituted shall be final and binding on the parties to the dispute. ARTICLE 23 AMENDMENTS TO THE PRESENT AGREEMENT The provisions of the present Agreement may be amended at any time by mutual written agreement of the Parties thereto. ARTICLE 24 COMPLEMENTARY AGREEMENTS Luxembourg and the ICRC may agree to conclude complementary agreements. ARTICLE 25 ENTRY INTO FORCE The present agreement, which constitutes an international treaty, and any amendments made thereto, shall enter into force on the date on which Luxembourg notified the ICRC of the completion of the procedure provided for in its constitution for the ratification or amendment of international treaties. ARTICLE 26 TERMINATION 1. Luxembourg and the ICRC may terminate the present agreement by notifying in writing the other Party with a minimum of six months' notice; after this period, the present agreement shall cease to have effect. 2. After the termination of the agreement, the archives, the Equipment, and the Licenses of the ICRC shall only be handed over to the Authorised Representative of the ICRC. If the Authorised Representative of the ICRC is not possible to identify, Luxembourg shall treat the archives, the Equipment, and the Licenses of the ICRC with the same level of protection as its own archives and shall only hand them on to a legal representative of the ICRC. ARTICLE 27 ORIGINALS AND DEPOSITORY The present agreement shall consist of duplicate originals in English, one of which shall be deposited with Luxembourg and one of which shall be deposited with the ICRC. In witness whereof, the Parties hereto have signed this Agreement: Done this 1 st day of June 2022 in Luxembourg. For the Grand Duchy of Luxembourg For the International Committee of the Red Cross Mr. Franz Fayot Minister for Development Cooperation and Humanitarian Affairs Mr. Peter Maurer President