Introduction
The International Committee of the Red Cross (ICRC) has published legal commentaries on core international humanitarian law (IHL) treaties since the 1864 Geneva Convention.Footnote 1 Over time, the ICRC Commentaries on the 1949 Geneva Conventions and on their 1977 Additional Protocols, published shortly after those instruments were concluded, have become widely respected by international legal scholars and practitioners.Footnote 2
In 2011, the ICRC embarked on an ambitious project to update the Commentaries on the Geneva Conventions and their Additional Protocols to reflect developments in how the law is applied and interpreted in practice, recognizing that over seventy-five years have passed since the Geneva Conventions were adopted; for example, some articles refer to outdated technologies or understandings of science and medicine. The interpretation of these and other articles has evolved over time as States continue to use them in rapidly evolving real-world situations. In addition, related bodies of international and domestic law have grown exponentially, and international and domestic tribunals have issued opinions clarifying the terms of the Conventions. After many decades of experience in the interpretation and implementation of the Geneva Conventions, the ICRC is firmly convinced that the provisions contained therein remain as relevant and important for civilians today as they were when first drafted.
Previous milestones of this project include the publication of the updated Commentaries on Geneva Conventions I, II and III in 2016, 2017 and 2020 respectively.Footnote 3 In 2025, the project reached another milestone with the completion of the updated Commentary on Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (GC IV).Footnote 4 This new Commentary also marks the completion of the update of the Commentaries on the four Geneva Conventions, which are a unique series of treaties that have been ratified by all States as a joint set of rules protecting victims of armed conflict.
In this article, we first discuss the methodology behind the updated Commentaries, before exploring the historical background of codifying civilian protection in the framework of the Geneva Conventions. We then explain how the structure of GC IV impacts its application, explain its scope of application, and provide a brief overview of the topics covered in the Convention, giving readers an idea of what they will find in its updated Commentary. We conclude by observing that understanding the protections which GC IV provides is an important first step in ensuring that the terms of the treaty are applied in good faith and that civilians can fully benefit from those protections. In a future article, we plan to explore key takeaways from the updated Commentary on GC IV.
Interpretive methodology relied on in the updated Commentary
The updated Commentary is, at its core, an exercise in treaty interpretation. Accordingly, it is guided by the rules governing treaty interpretation codified in the 1969 Vienna Convention on the Law of Treaties (VCLT),Footnote 5 which reflect customary international law.Footnote 6 This framework consists of three provisions: Article 31 sets out the general rule of interpretation, according to which a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose, while taking into account subsequent developments in law and practice; Article 32 provides for supplementary means of interpretation, such as the preparatory work of the treaty and the circumstances of its conclusion, which may be referred to after employing the means of the general rule; and Article 33 governs the interpretation of treaties authenticated in two or more languages, as is the case for GC IV, which was adopted in the equally authentic English and French versions.Footnote 7 All of these elements must be considered together; the VCLT framework is thus best understood as “a set menu of which no course may be skipped”.Footnote 8
The Commentary demonstrates that in different cases, different elements of this interpretive framework may play a more or less determinative role.Footnote 9 In practice, the text of the Convention normally enjoys prominence;Footnote 10 however, it is possible for the literal meaning of the text to be qualified or adjusted in light of other interpretive elements.Footnote 11 A central feature of this process is the obligation to interpret treaty terms in good faith. This requirement flows from the general principle that treaty obligations must be respected in good faith, as encapsulated in the Latin maxim pacta sunt servanda (“agreements must be honoured”).Footnote 12
The VCLT framework requires the interpreter to situate a treaty within its broader legal context, including by taking into account “any relevant rules of international law applicable to the relations between the parties”.Footnote 13 This means that the provisions of GC IV must be interpreted against the backdrop of the entire body of international law as it exists at the time of interpretation.Footnote 14
In this regard, several bodies of law have proven particularly relevant to the interpretation of GC IV. These include other IHL treaties (such as the 1907 Hague Regulations or the 1977 Additional Protocols) and customary IHL, as well as the law of State responsibility, international criminal law, human rights law, and refugee law. Some of these fields were still in their infancy when the original Commentaries were drafted but have since developed considerably. This evolving legal landscape has influenced how the Convention is interpreted and applied by States and, accordingly, is reflected in the updated Commentary.Footnote 15
For instance, the 1958 Commentary on GC IV stated that it was “a recognized principle of international law [that] it does not interfere in a State’s relations with its own nationals”.Footnote 16 As a result, the 1958 Commentary treated Article 70(2), which provides safeguards for persons who flee their home country to a territory that later becomes occupied by their State of nationality, as “absolutely exceptional”.Footnote 17 By contrast, the updated Commentary observes that “[t]oday, this categorical approach no longer prevails, given the emergence of international human rights law”.Footnote 18 It is no longer exceptional for international law to impose constraints on how States treat their own nationals.Footnote 19
Importantly, references in the Commentary to other treaties are made with the understanding that such instruments apply only where all conditions relating to their geographic, temporal and personal scope of application are fulfilled. In addition, they apply only to those States that have ratified or acceded to them. This is without prejudice to the application of customary international law, which may in some instances correspond to specific treaty provisions.Footnote 20
A brief history of efforts to incorporate civilian protection in the Geneva Conventions
Many scholars trace norms protecting civilians back to traditional religious or cultural practices in warfare;Footnote 21 indeed, sparing those who do not or no longer participate in hostilities has been a consideration whenever there have been attempts to regulate war. Although the very first Geneva Convention, adopted in 1864,Footnote 22 was focused on wounded and sick soldiers on the battlefield, one can trace efforts to codify protections for civilians in modern codified IHL to soon thereafter. For example, the 1874 Brussels Declaration included articles protecting “private persons”, populations of occupied territory, and their property,Footnote 23 recognizing the need to safeguard civilians during armed conflict. Similar provisions were subsequently incorporated in the 1899 and 1907 Hague Conventions and their accompanying Regulations.Footnote 24
The First World War highlighted that existing rules protecting civilians were not adequate. After early proposals to close this legal gap failed to result in a separate convention protecting civilians ahead of the 1929 Diplomatic Conference that adopted the two Geneva Conventions of 1929, States recommended that “an exhaustive study should be made with a view to the conclusion of an international Convention regarding the condition and protection of civilians of enemy nationality in the territory of a belligerent or in territory occupied by a belligerent”.Footnote 25
In 1934, the ICRC presented a draft Convention on the Condition and Protection of Civilians of Enemy Nationality at the 15th International Conference of the Red Cross and Red Crescent (International Conference), held in Tokyo.Footnote 26 The “Tokyo Draft” gained traction, and the International Conference adopted a resolution mandating the ICRC to take all necessary steps to ensure the adoption of the treaty.Footnote 27 Four years later, the next International Conference adopted a resolution recommending that a Diplomatic Conference be called “as soon as possible” to revise the existing Geneva Conventions and highlighting the need for a separate convention dedicated to the civilian population.Footnote 28 Following the adoption of this resolution, Switzerland announced a Diplomatic Conference scheduled for early 1940 to negotiate new IHL conventions, including one protecting civilians.Footnote 29 Due to the outbreak of the Second World War, however, this did not come to pass.
The heavy toll paid by civilians during the Second World War further illustrated the need for specific rules protecting them during armed conflict. During the war, the ICRC was able to reach agreements with several belligerent States to apply the 1929 Geneva Convention relative to the Treatment of Prisoners of War to many civilians by analogy.Footnote 30 Even before peace was achieved in 1945, efforts to codify protections for civilians at the multilateral level were renewed and preparations were begun to revise the Geneva Conventions with the aim of addressing the harms suffered by civilians during the war.Footnote 31 During the ensuing preparatory meetings of experts and government officials, there were calls to update the Geneva Conventions with a view to “extend[ing] the benefit of [the] conventions to all categories of the population, in particular to the civilians who had been so cruelly treated during the last war”.Footnote 32
Years of consultations resulted in draft conventions that were submitted to the 1948 Stockholm Conference,Footnote 33 which debated the provisions in detail and made changes, ultimately adopting versions of the draft conventions that would form the basis for negotiations at the 1949 Diplomatic Conference.Footnote 34 After intense negotiations, the Diplomatic Conference adopted the four Geneva Conventions, including Convention IV relative to the Protection of Civilian Persons in Time of War, on 12 August 1949.Footnote 35
Impact of GC IV’s structure on its application
The 159 articles of GC IV provide a rich framework of realistic but essential protections for protected persons extending across the territories of parties to the conflict as well as occupied territories. The Convention contains four parts; some parts are subdivided into sections, some of which are further subdivided into chapters. The structure is relevant to the interpretation of GC IV as the scope of application of the Convention varies across these parts and sections, as will be explored more fully below.Footnote 36
Part I contains general provisions and the so-called “common articles”. GC IV starts with a series of articles expressed in the same, or very similar, terms as their counterparts in the other three Geneva Conventions. Articles 4–6 of GC IV, however, set out the personal and temporal scope of application specific to the subject matter of the Convention.Footnote 37
The gaps in legal protection observed during the Second World War led the drafters of GC IV to agree on a whole part of the Convention, Part II, protecting “the whole of the populations of the countries in conflict”. Part II includes several provisions dealing with the protection of the wounded and sick, the protection of certain other categories of civilians (such as children), and medical care.Footnote 38
The drafters understood, from experience, the particular humanitarian concerns arising in relation to the administration of occupied territories and the treatment of internees, and GC IV provides a detailed regulation of these situations. Part III of the Convention contains rules governing the rights, protections and treatment of “protected persons”, as defined under the Convention.Footnote 39 This is the part in which most of the Convention’s rules are found. It is further divided into five sections, the contents of which are discussed in more detail later in this article:
• Section I (“Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories”) sets out rules that apply to all protected persons, whether they are in the territory of a party to the conflict or in occupied territory. The rules contained in this section include a number of fundamental protections, such as the requirement of humane treatment, and prohibitions on rape, coercion, torture, human shields, hostage-taking and reprisals.
• Section II (“Aliens in the Territory of a Party to the Conflict)” deals with protected persons in the territory of a party to the conflict, including their right to leave the territory, the legal regime applicable to them, and their means of existence and employment. It also regulates the internment of protected persons and their transfer to another power.
• Section III (“Occupied Territories”) prescribes rules relating to protected persons in occupied territory. It places a series of restrictions on Occupying Powers in relation to the occupied territory, including in relation to deportations, transfers and evacuations, administration, destruction of property, necessary requirements of the population with regard to food and medical supplies, hygiene and public health, judicial guarantees, and internment.
• Section IV (“Regulations for the Treatment of Internees”) lays down detailed regulations for internment of protected persons, in both the territory of a party to the conflict and in occupied territory. It is divided into twelve chapters and addresses a broad range of issues that are essential to the well-being of internees, notably places of internment; food and clothing; hygiene and medical attention; religious, intellectual and physical activities; personal property and financial resources; administration and discipline; relations with the exterior; penal and disciplinary sanctions; transfers; deaths; and release, repatriation, return to places of residence and accommodation in neutral countries.
• Section V, Articles 136–141 (“Information Bureaux and Central Agency”), addresses the establishment and functioning of national information bureaux and a central information agency (now called the Central Tracing Agency). The mandate of these bodies relates to receiving and transmitting information related to protected persons and collecting and forwarding their personal valuables.
Part IV, on the execution of the Convention, contains a section on “general provisions” which prescribe a range of measures aimed at ensuring respect for the Convention, including ICRC visits to all places where protected persons are located, dissemination, translations, penal sanctions and enquiry.Footnote 40 As with Part I, most of these provisions are common to the four Geneva Conventions. As is standard in international law treaties, Part IV further includes a section entitled “Final Provisions”, and these provisions are also largely common to the four Conventions.
Scope of application of GC IV
Personal scope of application of GC IV
The personal scope of application of GC IV is significantly broader than that of the other three Geneva Conventions. As their titles indicate, Geneva Conventions I, II and III are limited to specific categories of persons;Footnote 41 by contrast, Part II of GC IV covers the entire populations of the countries in conflict. This is evident from the title of Part II (“General Protection of Populations against Certain Consequences of War”) and is reaffirmed by Article 13, which stipulates that the rules in Part II “cover the whole of the populations of the countries in conflict”.Footnote 42 Although some of the provisions of Part II have a more specific personal scope of application (e.g., Articles 18–23), others are not limited to civilians and may also cover persons protected under the other Geneva Conventions, such as wounded, sick and shipwrecked combatants.Footnote 43
Most of the provisions in the other parts of GC IV apply to individuals who qualify as “protected persons”, a category defined in Article 4. This is a complex provision, and its application has raised difficulties in various contexts since the Convention’s adoption. The updated Commentary on Article 4 therefore considers how this provision has been interpreted in practice, drawing on international jurisprudence and scholarly analysis.Footnote 44
As per Article 4(1), the category of protected persons includes all individuals who find themselves in the hands of a party to the conflict (or an Occupying Power) of which they are not nationals. However, this may seem to exclude persons with multiple nationalities or individuals who have allegiance to a party to the conflict of which they are not nationals – an outcome that is difficult to reconcile with the Convention’s object and purpose.Footnote 45 The Commentary accordingly analyzes the conditions under which such individuals may still qualify as protected persons.Footnote 46
Finally, GC IV’s personal scope must not be confused with its geographical scope.Footnote 47 While many of its provisions only apply either in a State’s own territory or in occupied territory, protected person status as defined in Article 4 is not geographically circumscribed. Accordingly, the Commentary on Article 4 makes clear that provisions whose application is not tied to specific territories – such as Part III, Section V on national information bureaux and the Central Tracing Agency, and Part IV on the execution of the Convention – apply to protected persons wherever they may be.Footnote 48
Material and temporal scope of application of GC IV
While some provisions apply already in peacetime,Footnote 49 the bulk of GC IV’s provisions apply from the outset of armed conflict.Footnote 50 As with the other three Geneva Conventions, GC IV applies principally to international armed conflict, including occupation.Footnote 51
What is specific to GC IV is that it contains a whole section with substantive rules regulating occupation,Footnote 52 which comes into force once a territory is deemed occupied.Footnote 53 The existence of an occupation must be determined solely based on the prevailing facts.Footnote 54 Such a determination conforms with the strict separation of jus in bello and jus ad bellum.Footnote 55 Similarly, the question of applicability of occupation law rules must be distinguished from the question of legality of the presence of the Occupying Power in the occupied territory under jus ad bellum; the former rules apply to any belligerent occupation regardless of its legality or illegality under jus ad bellum.Footnote 56 The constitutive elements of occupation are derived from Article 42 of the 1907 Hague Regulations.Footnote 57
Through common Article 3, known as a “convention in miniature”, GC IV also applies in non-international armed conflict.Footnote 58 Common Article 3 contains essential protections for civilians and persons hors de combat. As non-international armed conflicts are still the most prevalent form of armed conflict today, this provision remains of paramount importance.
Since the publication of the initial ICRC Commentary on GC IV in 1958, a number of issues have arisen in relation to the substantive protections covered by common Article 3, both those covered explicitly, such as the prohibition against torture, and those not mentioned explicitly, such as the prohibition of sexual violence and the obligation of non-refoulement.Footnote 59 The updated discussion of this provision takes up a prominent place in the Commentary on GC IV.
The protections of GC IV do not automatically cease at the end of active hostilities. In the territory of parties to the conflict, Article 6 provides that the Convention continues to apply until the “general close of military operations”,Footnote 60 which the Commentary defines as “the end of military movements of a bellicose nature, including those that reform, reorganize or reconstitute, so that the likelihood of the resumption of hostilities can reasonably be discarded”.Footnote 61 In occupied territory, if the occupation continues beyond the general close of military operations, Article 6(3) stipulates that GC IV, with the exception of certain explicitly enumerated provisions, ceases to apply one year after the general close of military operations.Footnote 62 However, in the opinion of the ICRC, the provision would be rendered inoperative by the resurgence in the occupied territory of hostilities or military operations linked to hostilities.Footnote 63 Furthermore, the practical relevance of Article 6(3) is also limited. Given that the maintenance of an occupation can generally only be enforced through continued military operations that would preclude the general close of military operations, in general the Convention would continue to apply until the end of an occupation.Footnote 64 There is also broader practice suggesting that the provision is now irrelevant and outdated.Footnote 65 Notwithstanding the applicability of Article 6(3), in all cases, protected persons remain protected by the Convention until their release, repatriation or re-establishment – i.e., until they have been able to resume a normal existence.Footnote 66
Substantive protections
General protections
While it is inevitable that civilians living in countries involved in armed conflict or in occupied territory will in some ways be affected by the conflict, the general protections in Part II of GC IV, applying not only to protected persons in the sense of Article 4 but to “the whole populations of the countries in conflict”, including a State’s own nationals,Footnote 67 aim to minimize this impact.Footnote 68 Article 13 provides that these provisions “are intended to alleviate the suffering caused by war”.Footnote 69 Many of the articles in Part II therefore offer specific protection for groups who would be most affected by the consequences of war: the wounded and sick, older persons, children, persons with disabilities, pregnant women and mothers with young children.Footnote 70 States must apply these general protections without discrimination based on, for example, race, nationality, religion or political opinion.Footnote 71
The final two provisions of Part II, Articles 25 (family news) and 26 (dispersed families), are discussed below, together with other provisions of GC IV that aim to protect family links.
Humane and equal treatment of civilians in the hands of the adversary
The obligation of humane treatment is central to the protection of civilians in GC IV.Footnote 72 Article 27(1) requires that protected persons are treated humanely “at all times”.Footnote 73 Reinforcing the overarching obligation of humane treatment is the obligation to ensure respect for the persons, honour, family rights, religious convictions and practices, and manners and customs of protected individuals, which applies “in all circumstances”.Footnote 74 The obligation of humane treatment reflects a minimum standard, a duty to always respect protected persons’ inherent human dignity and inviolable quality as human beings. GC IV does not provide a definition of humane treatment, and neither does its Commentary; offering a comprehensive definition would not be possible because this obligation pervades all aspects of the treatment of protected persons. Rather, to decide what is humane is a matter of “common sense and good faith”.Footnote 75 Other provisions of GC IV, such as the prohibitions against coercion, ill-treatment and torture, the requirements around sufficient food, water and medical care for internees, and rules protecting family contact, illustrate what constitutes humane treatment, but the scope of the obligation of humane treatment is not limited by them.Footnote 76 The meaning of humane treatment is context-specific and depends, among other things, on the individual circumstances and social identities of the person concerned. Populations comprise, by definition, diverse individuals who may be affected by armed conflict, occupation or detention in different ways. What constitutes humane treatment for one person might not do so for another. Parties to the conflict must take these factors into account and ensure that all persons are treated humanely.Footnote 77
Further fundamental guarantees in GC IV include the obligation of equal treatment of protected persons in the sense of Article 4,Footnote 78 and the prohibition against adverse distinction, which covers all persons affected by armed conflict.Footnote 79 Parties to the conflict must ensure that treatment provided is without adverse distinction based on, for example, race, gender, political opinion, religion, disability, gender identity or sexual orientation.Footnote 80 This prohibition covers not only measures that explicitly single out certain individuals or groups, but also standardized and seemingly neutral measures that adversely affect certain individuals or groups.Footnote 81 For example, giving all internees the exact same food rations would adversely affect those who, for health reasons, need an adjusted diet, or those who do not eat certain food items due to cultural, religious or conscience-based dietary restrictions.Footnote 82 Similarly, offering only one or a few types of sports or recreational activities for internees could adversely affect persons with disabilities. Specific reasonable accommodation must be provided to ensure that the types of activities available, and the premises for such activities, are accessible.Footnote 83
This demonstrates that not all treatment should be identical, and that certain non-adverse distinctions are permitted or required. When there is an objective and reasonable justification for differentiated treatment, such distinctions contribute to providing equal treatment.Footnote 84 GC IV itself also recognizes that different categories of persons have specific needs, capacities and perspectives and face distinct risks which must be taken into account in ensuring that they are adequately protected and that they can all benefit equally from humane treatment and other protections in the Convention. For example, Article 50 requires an Occupying Power to ensure that institutions for the care and education of children function properly, and Article 85 requires separate sleeping quarters and sanitary conveniences for women internees. All such provisions are an operationalization of the obligation of humane treatment.
Prohibition of coercion, ill-treatment and torture
Torture and other forms of ill-treatment self-evidently violate the general requirement of humane treatment under Article 27. Further articles explicitly prohibit these and other specific abuses, making absolutely clear that they are inherently unlawful. This was seen as necessary in the aftermath of atrocities during the Second World War, and to pre-empt any attempt to justify exceptions.Footnote 85
Article 31, for instance, prohibits coercion of protected persons, including with the purpose of obtaining information. Other examples include forced participation in propaganda or forcing protected persons in occupied territory to take on the nationality of the Occupying Power.Footnote 86
Article 32 prohibits “any measure of such a character as to cause the physical suffering or extermination” of protected persons, including but not limited to “murder, torture, corporal punishment, mutilation” and “medical or scientific experiments” that are not necessary for the person’s medical treatment, as well as “any other measures of brutality”. This article affirms that such violations are prohibited “whether applied by civilian or military agents”. Acts prohibited by Article 32 also generally constitute grave breaches under Article 147, entailing individual criminal responsibility.Footnote 87
Whether a protected person has been subjected to coercion, torture or other ill-treatment can depend in part on their individual circumstances. These include, for example, the environment in which they find themselves, their physical or mental condition, and their cultural beliefs and sensitivities, gender, age, social, cultural, religious or political background, and past experiences. The cumulative effect of the totality of their treatment must be taken into account.Footnote 88
Together with Articles 27, 33 (collective punishment, intimidation, terrorism, pillage, reprisals) and 34 (hostage-taking), these provisions were designed to operate in an overlapping manner to constitute a seamless bulwark of protection against abuse; any attempt to interpret each provision narrowly to create gaps between them would be inconsistent with their intended combined effect and with the object and purpose of GC IV.
Maintaining family links
Reinforcing more general requirements of humane treatment and respect for family rights,Footnote 89 specific provisions of GC IV aim to maintain contact between family members and to prevent persons from going missing or being disappeared. To achieve these aims, “family” and related terms require a broad interpretation that reflects the huge diversity found across cultures and communities, and which gives weight to the views of the affected individuals about who their family members are.Footnote 90
Article 25 of GC IV requires parties to a conflict to enable family members to exchange personal news, while Article 26 requires them to facilitate enquiries made by members of families “dispersed owing to the war” with the object of renewing contact and, if possible, meeting. These articles in Part II apply to everyone in the territory of a party to the conflict or occupied territory, including a State’s own nationals.Footnote 91
Additional provisions apply to “protected persons” as defined in Article 4. Parties must collect and update personal details of all such persons who are interned or in assigned residence, and those otherwise detained for more than two weeks.Footnote 92 National information bureaux are to receive and centralize this information,Footnote 93 and to send it to the Central Tracing Agency, operated by the ICRC, which can also independently collect relevant information from other sources.Footnote 94 In most cases, the information must be transmitted onwards to the person’s country of origin or residence.Footnote 95 Family members receive information about loved ones both through this system of centralization and exchange and more directly through internment cards and exchanges of correspondence.Footnote 96 Additional provisions require that families be kept together in internment or during evacuationFootnote 97 and aim to preserve or restore links between children and their parents.Footnote 98
Movement of people
GC IV deals with several aspects of the movement of people during armed conflict. Some of these relate to families being able to stay in touch while they have moved or have been displaced or evacuated.Footnote 99 Others relate to the right to move or the prohibition against being moved, and their content differs according to the territory in which civilians find themselves (in a State’s own territory or in occupied territory) or whether they are interned or detained.Footnote 100
Protected persons in a State’s own territory are entitled to leave that territory if they wish to do so.Footnote 101 Permission to leave can be denied where departure would be contrary to the national interests of the State,Footnote 102 but the denial is subject to procedural guarantees stipulated by GC IV, including reconsideration by a court or administrative board.Footnote 103 The Convention makes similar provision for protected persons in occupied territory who are not nationals of the occupied territory.Footnote 104 These articles concern only voluntary departures and do not constitute a basis for States to force people to leave against their will.Footnote 105
In terms of involuntary movements in or from a State’s own territory, Article 45 of GC IV regulates the transfer, to another power, of protected persons who find themselves in the territory of a party to the conflict. Such a transfer may only take place if the receiving power is also a party to GC IV,Footnote 106 and after the transferring power has satisfied itself of the willingness and ability of the receiving power to apply the Convention. If the receiving power “fails to carry out the provisions of the Convention in any important respect”, the transferring power must “take effective measures to correct the situation or shall request the return of the protected persons”.Footnote 107 One benchmark for determining whether a breach is “important” is whether it violates the obligation of humane treatment in Article 27 – this includes all conduct that qualifies as grave breaches. Other examples include denying protected persons contact with the outside world, or failing to provide for their basic needs as relates to, for instance, food, water and medical care.Footnote 108
Another important part of Article 45 is the prohibition against non-refoulement, which today is also recognized in refugee and human rights law.Footnote 109 A protected person may under no circumstances be transferred to a country where they may have reason to fear persecution for their political opinions or religious beliefs.Footnote 110 This is an absolute obligation, and a State Party must take proactive steps to carry out a careful and good-faith assessment of whether such a reason to fear persecution exists.Footnote 111
In occupied territory, specific rules apply to preserve family life and to protect the civilian population against attempts to change the demographic composition of their communities. Article 49 is a key provision of GC IV in this regard – it prohibits forcible transfer and deportation of civilians within and outside occupied territory,Footnote 112 and it explicitly spells out that this applies to both individual and mass transfers and deportations. The only exceptions to this prohibition are evacuations for the safety of the civilian population or imperative military reasons. Evacuation can be total or partial, but must always be temporary; that is a key characteristic of an evacuation. In principle, an evacuation has to take place inside occupied territory unless for material reasons it is impossible to avoid an evacuation outside occupied territory.
The same provision also spells out the prohibition against transferring parts of a State’s own population to the territory it occupies. This prohibition is not restricted to forcible transfers, but also covers indirect support such as acts of inducement or facilitation.Footnote 113
Finally, GC IV provides rules on the transfer of internees, both during their internment and for the purposes of their release and repatriation (insofar as these involve transfers during which internees are deprived of liberty), wherever they may be located (including both the Detaining Power’s own territory and occupied territory).Footnote 114 Transfers of internees may pose increased risks to their safety and security, and the Convention provides certain rules that seek to ensure that internees are kept safe and in good health during transfer. While the obligation of humane treatment of protected persons, including internees, applies “at all times”,Footnote 115 the Convention additionally emphasizes that all transfers must be “effected humanely”.Footnote 116 It provides rules, for example, on the means of transport, restricting transfers on foot to exceptional circumstances,Footnote 117 and on the provision of food, water, clothing, shelter and medical attention during transfer.Footnote 118 GC IV also includes safeguards to ensure that internees do not go missing, by requiring the establishment of lists of all internees who are being transferred,Footnote 119 and that their families know their whereabouts – internees must be informed of their new postal address so that they can inform their next of kin.Footnote 120
Upon the close of hostilities or occupation, High Contracting Parties to GC IV (not only the parties to the conflictFootnote 121) are obliged to endeavour – i.e., to make good-faith efforts – to ensure the return of all internees to their last place of residence.Footnote 122 If they cannot be so returned, their repatriation – i.e., their return to their places of origin or nationality – must be facilitated.Footnote 123 Recognizing that return or repatriation may be delayed by disputes over who should bear the associated costs, the Convention specifies the allocation of these costs.Footnote 124 Internees remain subject to the protections of the Convention during the process of return or repatriation.Footnote 125
Humanitarian access and delivery of relief
Armed conflicts inevitably produce suffering among the civilian population. In response to this, GC IV contains provisions related to efforts to reduce that suffering, in particular through humanitarian access and the delivery of humanitarian relief.
Each party to an armed conflict bears the primary responsibility for meeting the needs of the population living under its control.Footnote 126 Impartial humanitarian organizations may offer their services in both international and non-international armed conflicts; this is sometimes called the “right of humanitarian initiative”.Footnote 127 As indicated by the wording “may offer” in both common Article 3 and Article 10 of GC IV, such organizations are not required to provide relief but rather may do so, especially where the needs of the population affected by armed conflict are not being met.Footnote 128 This is particularly true in occupied territory under Articles 55(1), 56(1) and 59.
In order to benefit from the right of humanitarian initiative, humanitarian organizations must be “impartial” – meaning that they must provide their services based only on the needs of the people affected by the armed conflict and without discrimination based on nationality, race, ethnicity, colour, religious beliefs, class, political opinions, disability, gender identity, sexual orientation, level of education, family connections, age, state of health, caste, any of these grounds associated with a child’s parent or guardian, or other, similar grounds.Footnote 129 This does not mean that a programme cannot target a category of persons if it is based on their needs – for example, it would not be in line with the requirement to adhere to the principle of impartiality to carry out relief programmes for women based solely on their gender, but where women have specific needs because they have fewer financial resources and less access to the job market, humanitarian operations must take account of their needs, and programmes specifically targeting women heads of households would be appropriate.Footnote 130
The ICRC is explicitly listed several times in GC IV as an example of an impartial humanitarian organization,Footnote 131 but it is not necessary that an impartial humanitarian organization closely resemble the ICRC. Notably, an impartial humanitarian organization does not need to be international in character, nor does it need to have been carrying out humanitarian activities prior to the armed conflict.Footnote 132 For instance, a development actor operating in a territory can decide to start carrying out humanitarian operations after the outbreak of an armed conflict in that territory.Footnote 133
The fact that services are “offered” by an impartial humanitarian organization implies that a party may decline that offer, but the Geneva Conventions themselves do not provide guidance on the circumstances under which a party can lawfully refuse. Based on State practice, IHL has evolved so that such consent must not be refused on arbitrary grounds.Footnote 134 In the ICRC’s view, there are only two grounds for a party to an international armed conflict to deny consent to an offer of services foreseen in IHL: the first is where the offer of services comes from an organization that does not qualify as an impartial humanitarian organization, and the second is where the needs of the population are otherwise fully met – for example, if the party has the capacity and political will to fulfil its primary obligation to meet the needs of the population under its control.Footnote 135 Where a lack of supplies is intended to, or can be expected to, result in the starvation of the civilian population – a prohibited method of warfare – there can be no valid reason to refuse an impartial humanitarian organization’s offer to undertake humanitarian activities.Footnote 136 This was confirmed by the International Court of Justice (ICJ) in its advisory opinion on the Obligations of Israel in Relation to the Presence and Activities of the United Nations, Other International Organizations and Third States in and in Relation to the Occupied Palestinian Territory, issued just five days after the publication of the updated Commentary on GC IV.Footnote 137
Once a party has accepted an offer of services, States have an obligation to allow and facilitate the rapid and unimpeded passage of relief.Footnote 138 This is without prejudice to the parties’ right to impose measures of control to ensure that relief is indeed humanitarian and impartial in character (known as the “right of control”). Permissible measures may include searching relief consignments, restricting the times and routes by which relief may be delivered, and requiring that delivery be supervised by a Protecting Power or impartial humanitarian organization.Footnote 139 Military necessity can be invoked to regulate humanitarian access but must be temporary in nature and limited geographically; it cannot indefinitely prevent humanitarian operations.Footnote 140
Not all actors that work to alleviate the suffering of the civilian population qualify as impartial humanitarian organizations. GC IV recognizes that other types of relief organizations, economic actors and organs of States not party to the conflict may also provide goods and services that benefit civilians.Footnote 141 Parties are under no IHL obligation to accept an offer of services from actors who do not qualify as impartial humanitarian organizations,Footnote 142 although they may of course do so; however, in all instances, they remain responsible for the population under their control. Where access to essential supplies provided by such an organization is denied based on nationality, race, religious beliefs, class, political opinion or other similar criteria, the State concerned may be in violation of its obligations. This is particularly clear in occupied territory.Footnote 143
Administration of occupied territory
The duty of an Occupying Power to administer occupied territory is derived from Article 43 of the 1907 Hague Regulations in conjunction with Article 64 of GC IV.Footnote 144 The Occupying Power has a duty to restore and maintain public order and civil life in the territory that it occupies.Footnote 145 While it might not be able to achieve this, it must make every effort to do so; for this reason, this foundational obligation has been described as an obligation of means and not of result.Footnote 146 Under this obligation, the Occupying Power must assume the administration of the occupied territory, including responsibility for the welfare of the territory’s population. In doing so, it must comply with GC IV, which governs in detail what falls within the notion of “civil life” and the range of measures that the Occupying Power is required, permitted or forbidden to take to restore or maintain it.Footnote 147
Internment, assigned residence and other measures of control
GC IV allows both parties to the conflict and Occupying Powers to take security measures, in the form of “measures of control and security”.Footnote 148 This permission to take such measures is granted subject to the rights and protections of protected persons contained in the Convention, and it is not to be taken as a general limitation or suspension of those rights and protections.Footnote 149 These measures may be taken in regard to protected persons if they are “necessary as a result of the war”; as such, they must be for a lawful purpose, and they must be necessary and proportionate.Footnote 150 While GC IV does not include a list of such measures of control and security,Footnote 151 it is clear from the wording of the Convention that the most severe measures of control and security that a party to the conflict or Occupying Power may resort to are internment and assigned residence.Footnote 152 Internment and assigned residence refer to non-criminal measures ordered against a protected person based on the serious threat that their activities pose to the security of the Detaining Power in the context of an armed conflict.Footnote 153 GC IV also strictly regulates the grounds and procedures for internment and assigned residence,Footnote 154 and sets forth rules pertaining to the treatment of internees and persons placed in assigned residence.Footnote 155
GC IV sets out detailed rules on the treatment of internees. For example, it:
• establishes conditions regarding places of internment – their location and the physical characteristics of the premises, including sleeping quarters, sanitary conveniences, installations and facilities for laundry and personal toilet, separation of men and women, premises for religious services, and provision of canteens and air raid shelters;Footnote 156
• lays out standards for food and clothing,Footnote 157 hygiene and medical attention,Footnote 158 religious, intellectual and physical activities and labour,Footnote 159 and personal property and financial resources;Footnote 160
• regulates the administration of the place of detention, including who can be a responsible officer charged with implementation of the Convention, posting of Convention text and internment regulations, consistency of the general disciplinary regime with humanitarian principles, complaints and petitions, and internee committees;Footnote 161
• ensures that internees can maintain relations with the outside world, through, for instance, internment cards, correspondence (subject to certain rules about censorship), relief shipments, management of legal and property affairs, and visits;Footnote 162
• sets substantive and procedural requirements for penal and disciplinary sanctions (as well as restricting the range of possible punishments), and for responses to escapes and escape attempts;Footnote 163 and
• imposes rules about internee transfersFootnote 164 and measures to be taken in the event of the death of an internee.Footnote 165
This extensive regime is based on parallel rules for prisoners of war found in Geneva Convention III. Furthermore, nearly all of the provisions discussed above also apply to internees, including, for instance, the obligations of humane treatment, equal treatment, protection against public curiosity and other provisions in Article 27; the prohibition against coercion in Article 31; the prohibitions against murder, torture, corporal punishment, mutilation, medical or scientific experiments, and other prohibitions in Article 32; the prohibition against collective punishment, pillage and reprisals in Article 33; and the prohibition against hostage-taking in Article 34.
Even when hostilities or occupation are still ongoing, internees must be released as soon as the reasons that necessitated their internment cease to exist;Footnote 166 this presumes regular review of interment decisions as envisaged in Articles 43 and 78 of GC IV.Footnote 167 In any case, internees must be released as soon as possible after hostilities have come to a closeFootnote 168 – i.e., when there is no reasonable expectation of their resumption.Footnote 169 The only exception to the obligation to release internees, whether during or after hostilities, relates to internees subject to criminal proceedings entailing detention, whose release may be deferred until they have served their sentence.Footnote 170 Once triggered, whether during or after the close of hostilities, the obligation of release is unilateral and does not depend upon reciprocity.Footnote 171 A breach of these obligations may amount to the grave breaches of unlawful confinement or hostage-taking, as well as an arbitrary deprivation of liberty in contravention of applicable international human rights law obligations.Footnote 172 Following release, internees must be returned to their places of residence or repatriated, and they retain the protections of GC IV until they are returned or repatriated.Footnote 173
Due process guarantees in judicial and disciplinary contexts
Regarding judicial due process, common Article 3 prohibits, in non-international armed conflicts, “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. In occupied territory, GC IV also regulates in some detail due process guarantees applicable in the “properly constituted, non-political military courts” of the Occupying Power, and which would be applicable in any proceedings involving protected persons before those courts.Footnote 174 Furthermore, the Convention provides that the provisions of Articles 71–76, which regulate criminal cases (whether against internees or other protected persons) in occupied territory, shall apply, by analogy, to proceedings against internees who are in the national territory of the Detaining Power.Footnote 175 Importantly, “wilfully depriving a protected person of the rights of fair and regular trial” prescribed in the Convention constitutes a grave breach.Footnote 176 All protected persons are covered by the requirement under customary IHL that “[n]o one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees”.Footnote 177 IHL recognizes fair trial rights beyond those listed in GC IV, in particular the non-exhaustive list of guarantees set out in Article 75(4) of Additional Protocol I (AP I), which are now recognized as part of customary international law.Footnote 178
GC IV similarly sets out due process requirements in relation to, for example, proceedings leading to disciplinary punishment of internees,Footnote 179 and decisions to deny protected persons permission to leave a State’s own territory or occupied territory.Footnote 180 The more general prohibitions against coercion (Article 31), torture (Article 32) and collective penalties (Article 33) also imply certain procedural guarantees in criminal trials and other kinds of proceedings, such as the inadmissibility of evidence obtained by coercion, torture or other ill-treatment.
Property protected under GC IV
Several provisions of GC IV impose restrictions upon parties to a conflict in relation to various kinds of property, both tangible and intangible.Footnote 181 For instance, Article 18 provides that civilian hospitals cannot be the object of attack and must be respected and protected at all times;Footnote 182 Article 33 prohibits pillageFootnote 183 and prohibits reprisals against the property of protected persons; Article 53 prohibits destruction of any property in occupied territory except where such destruction is rendered absolutely necessary (i.e., materially indispensable) by military operations (i.e., movements, manoeuvres and other action taken by armed forces with a view to fighting);Footnote 184 and Articles 55 and 57 regulate the ability of an Occupying Power to requisition food, medical supplies or civilian hospitals in the occupied territory.
In addition to the protections for property enumerated in GC IV, a number of protections for property, especially property in occupied territory, are set out in Sections II and III of the 1899 and 1907 Hague Regulations. For States that are party to these instruments, the provisions of GC IV “supplement” those provisions of the Hague Regulations.Footnote 185 Unless the Hague Regulations’ property-protecting provisions are inconsistent with those in GC IV, both sets of rules apply concurrently.Footnote 186
Certain violations of GC IV, if committed against “property protected by the Convention”, may amount to grave breaches of the Convention. All property that is protected by provisions of the Convention, or concurrently by provisions of Sections II and III of the 1899 and 1907 Hague Regulations, is “property protected by” the Convention.Footnote 187 As such, its destruction or appropriation, if extensive, unjustified by military necessity, unlawful and wanton, may amount to a grave breach of the Convention, giving rise to individual criminal responsibility.Footnote 188
Role of the ICRC and the International Red Cross and Red Crescent Movement
In addition to the provisions that apply to impartial humanitarian organizations generally, the ICRCFootnote 189 and National Red Cross and Red Crescent Societies (National Societies)Footnote 190 are explicitly mentioned several times in GC IV. Furthermore, under Article 63, National Societies in occupied territory are explicitly protected against interference by the Occupying Power.
The ICRC is cited several times as an example of an impartial humanitarian organization that may offer its services and carry out relief operations.Footnote 191 It is also recognized as a neutral actor that parties to conflict are likely to trust in Article 14(3), which recognizes the ICRC as a trusted neutral intermediary that could offer its good offices to facilitate the institution and recognition of hospital and safety zones and localities. The ICRC is also mentioned as a potential substitute for the Protecting Powers under Article 11, although the organization prefers to act on its own humanitarian initiative.Footnote 192
The ICRC has a right to visit protected persons separate from visits by Protecting Powers or other organizations who may assist protected persons under GC IV.Footnote 193 Article 30 provides a corollary right for protected persons to appeal to the ICRC and National Societies, which is reinforced by Article 76(6) for protected persons when detained. Internee Committees have the right to meet with the ICRC, and Detaining Powers must facilitate communication between Internee Committees and the ICRC.Footnote 194 Reinforcing these provisions, Article 142 recognizes “the special position” of the ICRC among organizations assisting protected persons, which States must grant all facilities to visit protected persons and provide them with relief.
GC IV also gives the ICRC a role in collecting and disseminating information. The commandant of a place of internment that employs labour detachments must communicate and update lists of those detachments to the ICRC, among other actors.Footnote 195 Similarly, the ICRC plays a role in gathering information on protected persons, including internees. As the text of Article 140 itself anticipates, the role of the Central Agency in this respect, discussed earlier in relation to “maintaining family links”, has in practice been fulfilled by the Central Tracing Agency operated by the ICRC.Footnote 196 National Societies are also listed as cooperating with the Central Tracing Agency under Article 25(2).
Conclusion
The updated Commentary on GC IV explores all of the topics discussed above in more depth than can be reproduced here, and we encourage readers to refer to it when topics related to GC IV come up in their work, as the Commentary can serve as a starting point for further research on any topic related to GC IV. As a practical reference tool, it can jump-start that research and its extensive footnotes and select bibliography can guide readers to further resources.
The ultimate goal of producing the updated ICRC Commentaries is to alleviate the suffering caused by war by enabling good-faith application of these foundational IHL treaties. Better understanding of GC IV is a crucial first step to ensuring that its terms are adequately interpreted and applied in good faith to provide the protections for civilians envisaged by the drafters.
Going forward, research continues with respect to the protections of civilians against the effects of hostilities and other topics, both in international and non-international armed conflicts, as part of the forthcoming updates of the Commentaries on Additional Protocols I and II of 1977.
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