Scope of application of GC IV

This section addresses two issues relating to the scope of application of GC IV: its personal scope of application – i.e., who is protected by the Convention – and the applicability of the Convention’s rules during the so-called “invasion phase”. Other important issues pertaining to the scope of application of the Convention, such as its temporal and geographical scope more broadly, are not discussed here.Footnote ¹²

Beginning with the personal scope of application of GC IV, while its title suggests that it concerns civilians, the specific personal scope of application of its individual provisions is more nuanced. This is most evident in Part II, the provisions of which, under Article 13, apply to “the whole of the populations of the countries in conflict”. This may at times also include non-civilians. Article 15 on neutralized zones is a clear example, since it expressly extends protection also to “wounded and sick combatants”.Footnote ¹³ In that respect, the personal scope of certain provisions is broader than the category of civilians alone.Footnote ¹⁴

Notwithstanding the reference to “civilian persons” in the title of GC IV, most of the Convention’s operative protections apply to “protected persons”. That category is narrower than the class of all civilians affected by war. Under Article 4, protected persons are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. Some cases are quite straightforward – for instance, nationals of a State whose territory is occupied and who fall into the hands of the Occupying Power are undoubtedly protected persons. More difficult questions arise in a number of specific contexts that have generated sustained discussion in practice and doctrine and are examined in detail in the ICRC Commentary. Four such issues are highlighted briefly here.

First, the requirement that protected persons must “not [be] nationals” of the State in whose hands they find themselves raises questions in situations involving multiple nationality or forms of allegiance that extend beyond formal nationality.Footnote ¹⁵ Read literally, it might suggest that a dual citizen holding the nationality of the detaining State is excluded from protection, even if they also possess the nationality of the other party.Footnote ¹⁶ The Commentary rejects such a purely formal reading – in order to give effect to GC IV’s protective object and purpose,Footnote ¹⁷ it accepts that protected status should be determined on the basis of the person’s dominant nationality. Accordingly, a dual national whose dominant nationality is that of the adverse party may still qualify as a protected person.Footnote ¹⁸

Closely related is the question of allegiance. Drawing on consistent international case law, the Commentary recognizes that in exceptional circumstances, a sufficiently strong bond of allegiance to the adverse party may be relevant to the identification of protected person status under Article 4.Footnote ¹⁹ This may arise, for example, where a State treats some of its own nationals as having allegiance to the enemy.Footnote ²⁰ While formal nationality remains the primary criterion, it is not treated as invariably decisive where doing so would undermine the protective purpose of GC IV.

Second, questions have arisen in relation to individuals who would otherwise meet the criteria of Article 4 but whose presence in the territory is unlawful (so-called “infiltrators”) or those who take direct part in hostilities without entitlement to do so (so-called “unlawful combatants” or “unprivileged belligerents”). The Commentary acknowledges that such individuals may pose serious security risks and that this may justify their prosecutionFootnote ²¹ or the imposition of security measures in accordance with GC IV,Footnote ²² but it nevertheless rejects the view that unlawful presence or unauthorized participation in hostilities, as such, could remove protected person status. Provided that the criteria of Article 4 are met, such individuals remain within the Convention’s personal scope of application.Footnote ²³

Third, the Commentary addresses the position of the dead and highlights the protection offered to them by GC IV.Footnote ²⁴ It emphasizes that certain protections under GC IV apply to deceased individuals, in some cases expressly, as in Article 130 on the honourable burial of internees,Footnote ²⁵ and in others by interpretation, as with the prohibition of exposure to public curiosity under Article 27, which has been understood to extend to the dead.Footnote ²⁶

Fourth, the Commentary clarifies the exclusion from protected status in Article 4(2) for nationals of neutral and co-belligerent States where those States have “normal diplomatic representation” with the State in whose hands these persons find themselves.Footnote ²⁷ It explains that this criterion is not satisfied by the mere existence of formal diplomatic ties; rather, it requires an effective and satisfactory diplomatic relationship, such that the individuals concerned actually enjoy the standard diplomatic protection of their State.Footnote ²⁸ This means that the diplomatic representatives of the State of nationality must be aware of the fate of their nationals, must be able to visit them, and must be able to take diplomatic steps on their behalf.Footnote ²⁹ If this is not the case, or if the State of nationality is unwilling to protect them, the exclusion from protection will not apply, meaning that the individuals will qualify as protected persons.Footnote ³⁰

The questions discussed thus far concern the determination of protected person status as defined in Article 4. A different, though related, issue concerns GC IV’s temporal and geographical reach during the so-called invasion phase – namely, the period between the initial incursion of armed forces into foreign territory and the establishment of the effective control over that territory required for belligerent occupation. This is not primarily a question of personal scope, since residents of the invaded territory who fall into the hands of the foreign forces will ordinarily satisfy Article 4.Footnote ³¹ Rather, the question is which parts of the Convention apply in the invaded territory before occupation, in the technical sense, has come into being.

Some of the relevant rules, like the prohibitions against torture and corporal punishment, are found in Part III, Section I.Footnote ³² The Commentary takes the view that this section applies during the invasion phase and provides a minimum framework of protection for protected persons in the invaded areas.Footnote ³³ That interpretation is supported by the section title, “Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories”. The plural form “territories of the parties to the conflict” indicates that it applies also during invasion.Footnote ³⁴

Other rules, like the prohibition against forcible transfers, appear in Part III, Section III on occupied territories.Footnote ³⁵ The Commentary acknowledges that, strictly speaking, a situation does not formally qualify as occupation until effective control has been established over at least part of the invaded territory.Footnote ³⁶ It nevertheless notes that, as a practical matter, not all rules in this section are contingent on the prior establishment of such control.Footnote ³⁷ Negative obligations and individual-related rights, such as the prohibition on deporting protected persons outside the occupied territory,Footnote ³⁸ can apply immediately during the invasion phase; by contrast, positive obligations and governance-related norms, such as the obligation to facilitate the proper working of institutions devoted to the care and education of children,Footnote ³⁹ would take effect gradually as effective control is established.Footnote ⁴⁰

Accounting for diverse experiences and requirements in the interpretation and implementation of GC IV

Individuals’ experiences of armed conflict are heavily shaped by their specific characteristics and requirements. Factors such as gender, age, disability, race, religion and socio-economic class (to name a few), as well as the intersections between them, have profound and complex impacts on how armed conflict is experienced.Footnote ⁴¹ For instance, shortages of essential supplies such as food and medicine may exacerbate pre-existing structural inequalities and impact women and girls disproportionately;Footnote ⁴² women and girls are at greater risk of suffering sexual violence;Footnote ⁴³ and women and girls have distinct requirements in terms of health care, hygiene and sanitation, and a failure to recognize these distinct needs could result in discrimination against them.Footnote ⁴⁴ Persons with disabilities are at greater risk of not being evacuated or being evacuated in unsatisfactory conditions,Footnote ⁴⁵ and children with disabilities are at greater risk of abandonment, institutionalization or separation from their families, caregivers and support networks.Footnote ⁴⁶ The severe and adverse impacts of armed conflict on the education of children, and on their well-being and development more broadly, are well documented.Footnote ⁴⁷ The impacts of destruction of public property and disruptions to public governance structures will vary by reference to class and socio-economic indicators.Footnote ⁴⁸

These diverse experiences and requirements must be accounted for in the interpretation of GC IV. This is a legal requirement mandated by the customary rules of treaty interpretation, which require, among other things, interpreting treaty terms in context and in light of their object and purpose.Footnote ⁴⁹ For the provisions of GC IV, the context includes Article 27 and its guarantees of humane and equal treatment of protected persons.Footnote ⁵⁰ This means that the various rules of the Convention must be interpreted in light of this overarching requirement of humane and equal treatment, which cannot be satisfied merely by formally applying the same rules to all protected persons – instead, it requires consideration of the actual circumstances of the individuals concerned, including the ways in which particular experiences and requirements may affect their ability to benefit from the Convention’s protections. Similarly, the object and purpose of GC IV is to protect civilians during armed conflict, including in situations where they are subject to permissible measures of control and security.Footnote ⁵¹ This broader purpose cannot be realized without accounting for individual experiences in order to understand what is required for the protection of particular civilians.

The updated Commentary on GC IV has sought to give effect to this interpretive requirement on two levels. To begin with, some provisions of the Convention directly address groups of persons with specific characteristics. For instance, there are provisions that explicitly protect women and girls (e.g., Articles 27, 76 and 85), children (e.g., Articles 24, 50 and 94), persons with disabilities (e.g., Articles 16, 17 and 18), persons facing economic distress (e.g., Articles 39 and 81), older persons (e.g., Articles 14 and 132) and refugees (e.g., Articles 44 and 70). The fact that the drafters of the Convention already recognized these specific protections in 1949 confirms their significance as an integral part of the treaty framework.

In interpreting these provisions, in keeping with the customary rules of treaty interpretation, the Commentary engages with other relevant rules of international law and broader social developments, while remaining conscious of the particularities of international humanitarian law (IHL). For instance, while Article 50(5) refers to children under the age of 15, the other four paragraphs of Article 50 refer simply to children. The original 1956 ICRC Commentary on GC IV took the position that paragraphs 1–4 of Article 50 should be read as referring to children under the age of 15,Footnote ⁵² but the updated Commentary now interprets the term “children” in Article 50(1)–(4) in line with the definition of that term in international law more broadly, which has evolved since the 1950s to include all persons under the age of 18, subject to applicable national law.Footnote ⁵³ Similarly, in light of broader social developments, the updated Commentary sets out contemporary interpretations of terms and concepts that are articulated in GC IV in a manner which does not reflect contemporary standards. This includes recognizing sexual violence as an attack upon physical and psychological integrity rather than honour and family rights, or that childcare responsibilities are not discharged solely by women and girls,Footnote ⁵⁴ and moving away from the medical-charitable approach to disability, as reflected in the Convention’s reference to persons with disabilities as “infirm”, towards a social and human rights model of disability informed by the 2006 Convention on the Rights of Persons with Disabilities.Footnote ⁵⁵

The second level at which the updated Commentary accounts for specific experiences and requirements relates to provisions of general application, which, in accordance with the overarching requirement of equal treatment of protected persons, entail different requirements for different people. For instance, in the interpretation of obligations related to humanitarian relief,Footnote ⁵⁶ nutrition,Footnote ⁵⁷ hygiene and sanitation,Footnote ⁵⁸ and medical services,Footnote ⁵⁹ the Commentary takes account of the specific needs of women and girls and the barriers to access encountered by them. This is equally true for persons with disabilities in the context of obligations relating to, for example, evacuation,Footnote ⁶⁰ conditions in places of internmentFootnote ⁶¹ and communication of information.Footnote ⁶² In relation to children, the Commentary highlights that, in keeping with the customary entitlement of children to special respect and protection, internment of children must be a measure of last resort.Footnote ⁶³ Similarly, in relation to the trial of children in the military courts of the Occupying Power, the requirement of a regular trial can only be met if decisions about judicial forum and process are adequately and effectively informed by juvenile justice norms and standards.Footnote ⁶⁴

Giving effect to diverse experiences and requirements in the interpretation of the provisions of GC IV, in the manner outlined here, requires proactive and preparatory measures. This includes ensuring the availability of advisers and focal points to provide input on these issues that can be accounted for in the planning and conduct of military operations.Footnote ⁶⁵ Another important measure is to consult affected persons and populations and to allow them opportunities to express their requirements, especially in contexts such as occupied territories or places of internment.Footnote ⁶⁶

Technological developments

The drafters of GC IV wanted to ensure that its rules would endure over time. They sought language precise enough to provide concrete protection but general enough to remain effective despite scientific and technological change. The Commentary thus finds ample room to interpret the treaty text in light of such subsequent developments. This section considers three sets of technological developments, relating to means of communication, surveillance, and means and methods of warfare.

Few aspects of life have been so transformed by technology since 1949 as the ways in which people communicate. Article 25 of GC IV requires countries in conflict to enable their whole populations to exchange news with family members, as a form of “correspondence”.Footnote ⁶⁷ In 1949 this would have been understood primarily as referring to physical letters carried by postal mail, but in the drafting process, the ICRC emphasized that it was essential that the exchange of family news benefit from technological progress in the means of transmission.Footnote ⁶⁸ Accordingly, the updated Commentary concludes that the purpose of this provision can indeed be best realized today by ensuring access to the widest possible range of communication options, including ordinary post, telephone, text messages, email and social media.Footnote ⁶⁹

Several other provisions refer specifically to the sending of “letters” or “cards”; the Commentary generally interprets this as allowing for the use of electronic forms of transmission, although physical letters or cards should be retained as an option.Footnote ⁷⁰ GC IV also refers to an almost obsolete technology: telegrams.Footnote ⁷¹ The obsolescence of a technology does not, however, render the provision obsolete. The Commentary emphasizes that States must still respect the purpose of such provisions, including by making modern means of communication available where possible.Footnote ⁷² The Commentary also offers guidance on protection against “public curiosity” in the contemporary context of dissemination of images and information through mass and social media at a scale and speed that was unimaginable in 1949.Footnote ⁷³

Further, GC IV provides for the collection and “transmission” of personal information in order to maintain or re-establish links between separated family members.Footnote ⁷⁴ Prior to 1949, such work was carried out primarily through written cards and physical filing systems. Today, computers, the internet and other communications technologies enable speedier, more efficient and more scalable means of transmission and processing.Footnote ⁷⁵

Terms in these provisions such as “speedily and without undue delay”, “as rapidly as possible”, “within the shortest possible period” or “by the most rapid means” further support interpretations that progress in tandem with technological developments.Footnote ⁷⁶ At the same time, the reliability and integrity of the means of communication and storage are also relevant, particularly for sensitive data such as health information.Footnote ⁷⁷ States must take technology-appropriate measures to protect personal information against unauthorized access, disclosure or loss.Footnote ⁷⁸

Beyond means of communication, the Commentary also recognizes developments in surveillance technology;Footnote ⁷⁹ it provides guidance, for example, on minimizing the impacts of video surveillance on the privacy and dignity of internees and visitors in places of internment.Footnote ⁸⁰ The Commentary further notes that the obligation to permit the ICRC to interview internees, detainees and other protected persons “without witnesses”Footnote ⁸¹ precludes eavesdropping on an interview by any means, including through audio or video surveillance devices or techniques.Footnote ⁸²

Finally, the Commentary engages with technological developments relating to means and methods of warfare. For instance, today, electronic “cyber” operations can cause physical damage, injury and death similar to traditional “kinetic” operations. The Commentary finds little reason to doubt that such effects could qualify as “resort to armed force” in relation to classifying a situation as an international armed conflict,Footnote ⁸³ though whether merely disrupting the functioning of infrastructure without causing physical destruction or damage could do so is less clear.Footnote ⁸⁴ Similarly, in the context of GC IV’s prohibition against destruction of property in Article 53,Footnote ⁸⁵ the Commentary takes the view that data constitutes a form of “property” that is protected by this prohibition.Footnote ⁸⁶

These are just some of the technological developments that the Commentary engages with. Other issues which cannot be addressed in greater detail here include remote participation of witnesses or use of digital evidence in judicial proceedings,Footnote ⁸⁷ electronic recreation and education resources and distance learning for internees,Footnote ⁸⁸ remote working and property management by internees,Footnote ⁸⁹ and use of digital wallets and electronic money transfers in the context of resources of internees and delivery of relief assistance.Footnote ⁹⁰ The Commentary also notes the potential for uncrewed (drone) medical evacuation transports or aircraft to qualify for protection under GC IV,Footnote ⁹¹ and that protection of civilian hospitals extends to protection of their systems and data against disruption, manipulation, deletion or damage, including by cyber or other digital operations.Footnote ⁹²

Humanitarian relief and impartial humanitarian actors

Several articles in GC IV address humanitarian access and the activities of impartial humanitarian organizations in a State’s own territory, in situations of occupation and in detention.Footnote ⁹³ Although in many respects the law governing States’ obligations regarding humanitarian access and impartial humanitarian activities is clear from the ordinary meaning of the text of the Convention, the Commentary explores in detail developments in interpretation that have taken place since the Convention was adopted, such as greater clarity as to which essential supplies constitute humanitarian reliefFootnote ⁹⁴ and who is entitled to benefit from it.Footnote ⁹⁵

The most significant evolution in interpretation is related to humanitarian access and the delivery of humanitarian activities. Since GC IV was adopted, it has become clear that States no longer have an unlimited right to refuse consent to impartial humanitarian activities, notably relief operations, and that in some cases to do so would even be unlawful. Prior to GC IV, States had a virtually unlimited right to refuse the entry of impartial humanitarian relief into territory they controlled;Footnote ⁹⁶ the Convention clearly and explicitly limited this right for occupied territory under Article 59, and created a legal basis for the type of essential supplies that might constitute humanitarian relief to pass through all territory (whether occupied or not), subject to certain conditions.Footnote ⁹⁷

Although only Article 59 covering occupied territory explicitly states that relief schemes must be allowed where all or part of the population is inadequately supplied, developments in international law in the ensuing decades have since made it clear that in territory that is not occupied, States are also required to consent to impartial humanitarian activities, notably relief operations, where belligerents are unwilling or unable to meet the basic needs of all or part of the population under their control.Footnote ⁹⁸ Stated another way, in the ICRC’s view, the only two lawful grounds for refusal of an offer of humanitarian services are (1) that the population in question is entirely adequately supplied, either because there are no needs or because their needs are being met through other means,Footnote ⁹⁹ or (2) that the entity making the offer does not meet the requirements of Article 10, namely of being an impartial humanitarian organization.Footnote ¹⁰⁰ This is closely related to States’ obligation to meet the basic needs of the population living under their control and is particularly clear in occupied territory under the wording of Article 59(1), which specifies that “the Occupying Power shall agree to relief schemes”.Footnote ¹⁰¹ In territory that is not occupied, this obligation stems from the requirement of humane treatment.Footnote ¹⁰²

Once agreed to, all States, even those not party to the conflict, have an obligation to allow and facilitate rapid and unimpeded passage of impartial humanitarian relief consignments and equipment intended for the civilian population under certain circumstances, subject to their right of control.Footnote ¹⁰³ Measures of control allow parties to armed conflict to verify that consignments are exclusively humanitarian, protect relief from being endangered by military operations, and ensure that supplies and equipment meet minimum health and safety standards.Footnote ¹⁰⁴

This is where considerations of military necessity or other security concerns may be taken into account. Such measures must be imposed in good faith and with the goal of ensuring that relief is delivered safely and efficiently and does not hamper ongoing military operations. They must not be so onerous as to invalidate the general consent to humanitarian operations, as was recently confirmed by the International Court of Justice (ICJ).Footnote ¹⁰⁵ Since considerations of military necessity are already baked into the right to impose measures of control on individual relief operations, they cannot be invoked to deny consent to a genuine offer of impartial humanitarian services.

Allowing and facilitating impartial humanitarian relief operations is a manifestation of the authorities’ consent to those operations and is an obligation of result. Refusal to allow and facilitate impartial humanitarian relief operations resulting in a violation of a party’s IHL obligations, such as the obligation to ensure that the population under its control is adequately supplied, constitutes unlawful denial of humanitarian access. It would also be unlawful to refuse to allow and facilitate impartial humanitarian relief operations on the basis of prohibited adverse distinction, such as on the basis of race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria, including gender, ethnicity, disability, gender identity, sexual orientation, caste, level of education, family connections, age, state of health or such grounds associated with a child’s parent or guardian.Footnote ¹⁰⁶

Impartial humanitarian organizations also carry out operations beyond the delivery of humanitarian relief, as evidenced by the range of humanitarian activities explicitly provided for in GC IV. The Commentary makes this clear in defining “humanitarian activities” to include all activities that “prevent and alleviate human suffering wherever it may be found” and the purpose of which is to “protect life and health and to ensure respect for the human being”.Footnote ¹⁰⁷

GC IV further recognizes that other organizations may work on behalf of protected persons, even if they do not meet all the criteria to qualify as an impartial humanitarian organization – for example, it requires that protected persons be allowed to contact “any organization that might assist them”,Footnote ¹⁰⁸ and protected persons may also receive allowances from such organizations.Footnote ¹⁰⁹ If there are limits on what type of relief such organizations may send internees, the Detaining Power is required to inform the internees as well as the organizations working to assist them.Footnote ¹¹⁰ In occupied territory, the Occupying Power is prohibited from interfering with these organizations’ humanitarian functions.Footnote ¹¹¹ GC IV thus recognizes that other organizations may also work on behalf of protected persons, though it specifies that “[t]he special position of the International Committee of the Red Cross in this field shall be recognized and respected at all times”.Footnote ¹¹²

Of course, there are other ways in which a State may meet the needs of the population living under its control besides allowing impartial humanitarian relief.Footnote ¹¹³ For example, it may itself bring in necessary goods and services to meet basic needs or allow other States to do so; it may also contract with private entities to supply the population. In any case, the State retains its primary obligation to meet the basic needs of the population. This includes all segments of the population, and while States or organizations not qualifying as humanitarian organizations in the sense of Article 10 are not required to comply with the principle of impartiality in how they distribute essential supplies, according to Article 27(3), the State controlling the territory in question must ensure that distribution of humanitarian relief does not create any adverse distinction on the basis of race, religion, political opinion or other similar criteria, as described above.Footnote ¹¹⁴ This means that the State in question must ensure that the whole of the population is adequately supplied, taking into account any disparate impact that the policies or practices of those supplying essential goods may have on particular segments of the population.Footnote ¹¹⁵

The separate roles of Protecting Powers and the ICRC

The institution of Protecting Powers, where a State is mandated to safeguard the interests of another State and those of its nationals, is a well-established diplomatic practice. The drafters of GC IV envisaged a supervisory role for Protecting Powers to ensure that civilians were benefiting from the Convention’s protections. The articles governing Protecting Powers and their substitutes are common to all four Geneva Conventions.Footnote ¹¹⁶ The role of Protecting Powers and their substitutes is similar to – but separate from – the role of impartial humanitarian organizations and others seeking to protect and assist civilians under GC IV. Since 1949, Protecting Powers are only known to have been appointed under the Geneva Conventions in five armed conflicts,Footnote ¹¹⁷ and no organizations have been appointed as formal substitutes.Footnote ¹¹⁸ This may not represent the full picture, however, as Protecting Powers appointed under treaties governing diplomatic and consular law may also sometimes carry out functions described in the Geneva Conventions, and it can be unclear under which mandate a Protecting Power is operating.Footnote ¹¹⁹ At the same time, there has been no protest at the failure of States to appoint Protecting Powers or substitutes. Based on this subsequent practice, the updated Commentary on GC IV explains that, although the Convention uses mandatory language (“shall”), appointing a Protecting Power or a substitute no longer appears to be considered an obligation on the parties to a conflict. That being said, there is no indication that the High Contracting Parties consider Articles 9 and 11 of GC IV to have fallen into desuetude.Footnote ¹²⁰

This interpretation impacts all the other articles in GC IV that relate to Protecting Powers or their substitutes. States are still subject to the obligations aimed at ensuring effective supervision of the Convention’s implementation, and therefore must find alternative methods for achieving this, such as an impartial humanitarian organization to fulfil the same functions. In practice, both prior to and since 1949, the ICRC has often carried out this role, acting on its right of humanitarian initiative under Article 10 rather than as a substitute of a Protecting Power under Article 11.Footnote ¹²¹

Article 11(3) provides that an impartial humanitarian organization, like the ICRC, may perform the “humanitarian functions performed by Protecting Powers under” the Convention. Initially, the ICRC interpreted this restrictively and declined to carry out functions related to scrutinizing the implementation of the Geneva Conventions.Footnote ¹²² Over time, the list of functions that were considered “humanitarian” expanded to include all the functions performed by Protecting Powers.Footnote ¹²³ Nevertheless, where the ICRC has performed the functions of a Protecting Power, it has done so under its own right of humanitarian initiative rather than on behalf of a party to the conflict.Footnote ¹²⁴

While both the Protecting Powers and the ICRC work in the interests of protected persons during armed conflict, they are not interchangeable. The ICRC also has its own role under GC IV, entirely separate from that of the Protecting Powers – as evidenced by the fact that the Convention often provides that both the Protecting Powers (if any) and the ICRC may carry out a particular function, or similar functions, simultaneously.Footnote ¹²⁵ The ICRC is frequently listed in GC IV as an example of an impartial humanitarian organization,Footnote ¹²⁶ although the Convention expressly states that it is in a “special position” as compared to similar organizations.Footnote ¹²⁷ The ICRC is also given specific roles with regard to visiting and communicating with protected persons; additionally, the Central Tracing Agency – which is run by the ICRC – is given specific roles and protections aimed at ensuring that people do not go missing and at maintaining and restoring family links.Footnote ¹²⁸

Internment

Internment refers to a non-criminal measure 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 ¹²⁹ As stated in Article 41 of GC IV, internment (and assigned residence) of protected persons is the most severe measure of control available to a party to a conflict.Footnote ¹³⁰ The Convention regulates grounds and procedures for internment of protected persons,Footnote ¹³¹ and it prohibits internment of protected persons that does not conform to these provisions,Footnote ¹³² which may amount to the grave breach of unlawful confinement.Footnote ¹³³ The regime governing grounds and procedures for internment under GC IV reflects the exceptional nature of this measure.Footnote ¹³⁴

Although GC IV does grant discretion to States in determining the need for internment measures, this discretion is not unfettered. First, States may only resort to internment if other security measures have proved inadequate to mitigate the threat; therefore, States must consider whether other, less severe measures can be imposed to address a security risk before imposing internment or assigned residence upon a protected person.Footnote ¹³⁵ Second, States may only resort to internment if they have determined that the relevant grounds provided for in GC IV have been established. The updated Commentary discusses the general contours of the security interests that could justify the use of internment, as well as the limits on State discretion in this regard.Footnote ¹³⁶

The updated Commentary endorses the view that the GC IV internment regime requires decisions to intern always to be made on an individualized basis.Footnote ¹³⁷ Even where a number of protected persons are to be interned simultaneously, the Convention requires the State contemplating such measures to determine, separately, grounds that justify internment for each protected person subjected to the measure.Footnote ¹³⁸

As a practical matter, States cannot evade their responsibility to internees by simply detaining protected persons without determining the grounds for their deprivation of liberty.Footnote ¹³⁹ A formal decision to intern or release a protected person should be made as soon as possible.Footnote ¹⁴⁰ In the ICRC’s view, a State should, in any event, ensure full compliance with the rules of GC IV with respect to any such persons no later than fourteen days after the initial deprivation of liberty.Footnote ¹⁴¹

A hallmark of the internment regime provided for under GC IV is that it requires procedures for initial and periodic review of decisions to intern individuals or place them in assigned residence.Footnote ¹⁴² Notwithstanding certain variations in terminology,Footnote ¹⁴³ under either of the relevant GC IV articles a protected person subjected to internment is entitled to expeditious initial reconsideration of the order, either by a court or an administrative board, and then subsequent review on a six-monthly basis.

Such review is essential insofar as it is intended to check misuse of the discretion granted to intern and to ensure that States which resort to internment do not go beyond the limits permitted by GC IV.Footnote ¹⁴⁴ An essential prerequisite for such review is that it should be considered by a review body which is independent and impartial.Footnote ¹⁴⁵ The ICRC takes the view that the procedure provided for in the Convention constitutes a minimum standard and that States party to the Convention should endeavour to provide more extensive procedural safeguards.Footnote ¹⁴⁶ In this regard, States should undertake initial reconsideration of an internment order in every case, regardless of whether this is initiated by the protected person concerned.Footnote ¹⁴⁷ Furthermore, where the internment persists, States should endeavour to conduct, wherever feasible in the circumstances, subsequent reviews of the internment order more frequently than every six months.Footnote ¹⁴⁸

Law of occupation

This section focuses on selected issues drawn from specific articles of GC IV that are pertinent to situations of occupation – namely with respect to Articles 49, 53 and 64 – as well as some general considerations pertinent to the phenomenon of prolonged occupations.

Article 49 of GC IV prohibits various forms of transfer of the population, including the forcible transfer or deportation of protected persons within or outside occupied territory (paragraph 1) and deportation or transfer by the Occupying Power of its own civilian population into the territory that it occupies (paragraph 6).

With regard to forcible transfer or deportation of protected persons (Article 49(1)), the Commentary recognizes that the notion of “forcible” transfers can include both direct and indirect transfers.Footnote ¹⁴⁹ The only exceptions to the prohibition of forcible transfer in Article 49(1) are listed in paragraph 2, including “total or partial evacuation of a given area if the security of the population or imperative military reasons so demand”. Forcible transfer beyond these exceptions, even in relation to individuals, is prohibited regardless of motive.Footnote ¹⁵⁰ The prohibition is not subject to any requirement that protected persons need to be lawfully present in the occupied territory in order to be protected by the provision.Footnote ¹⁵¹ Breach of this prohibition would not result in loss of protection or protected person status.Footnote ¹⁵² Considering that, according to Article 49(2), protected persons have a right to return to their homes once the circumstances justifying their displacement have ceased, it is clear that protected persons subjected to transfer in violation of Article 49(1) must also be returned.Footnote ¹⁵³

The terms “deportation” and “transfer” in Article 49(6) differ in their meaning as compared to how the terms are used in the rest of Article 49. Whereas Article 49(1) prohibits forcible transfer, Article 49(6) prohibits transfers, whether forcible or not, in which the Occupying Power is involved, either directly or indirectly.Footnote ¹⁵⁴ Furthermore, while the rest of Article 49 deals with protected persons, Article 49(6) is concerned with the movement of “parts of” the Occupying Power’s “own civilian population”. The civilian population of the Occupying Power is composed of its nationals, as well as other persons such as permanent residents of the Occupying Power.Footnote ¹⁵⁵ The wording of paragraph 6, which refers to “parts of” the civilian population of the Occupying Power, suggests that the paragraph refers to deportation or transfer of a certain number of individuals.Footnote ¹⁵⁶ This numerical requirement must be interpreted in good faith and on a case-by-case basis, and in light of the overall circumstances.Footnote ¹⁵⁷

Article 53 of GC IV prohibits destruction of property in broad terms, subject to one expressly stipulated exception, namely “where such destruction is rendered absolutely necessary by military operations”. As explored in further detail in the Commentary, Article 53 exceptionally allows the destruction of property in occupied territory only if it is absolutely necessary (i.e. materially indispensable)Footnote ¹⁵⁸ for military operations (i.e. for fighting or combat and directly related activities).Footnote ¹⁵⁹ The requirement of absolute necessity for military operations is an objective standard, and the Occupying Power must interpret the clause in a reasonable manner:Footnote ¹⁶⁰ it must assess in good faith whether the destruction is absolutely necessary for military operations, recognizing that the purpose of Article 53 is to prohibit destruction and that the exception must be construed narrowly.Footnote ¹⁶¹ Even if destruction is absolutely necessary, it must be proportionate to the anticipated military advantage;Footnote ¹⁶² for instance, large-scale destruction to create a buffer zone for the general security of military operations would not normally meet the requirement of proportionality.

Article 53 must be read alongside other rules of IHL relating to property and to the conduct of hostilities, including Article 23(g) of the 1907 Hague Regulations and the rules on the conduct of hostilities set out in Additional Protocol I (AP I) (and their customary counterparts).Footnote ¹⁶³ Insofar as Article 23(g) of the Hague Regulations applies in occupied territory,Footnote ¹⁶⁴ it is displaced by Article 53 of GC IV, which is both more recent and specific to occupied territory.Footnote ¹⁶⁵ This is particularly significant because the exceptional destruction of property permitted by Article 53 is narrower in scope than that permitted by Article 23(g).Footnote ¹⁶⁶ As far as IHL rules on the conduct of hostilities are concerned, when applicable, they would displace Article 53.Footnote ¹⁶⁷ The conduct of hostilities rules would become applicable, displacing Article 53 of GC IV, when the act of destruction in question is an attack – i.e., it is directed against property that is in the physical or tactical control of the adversary.Footnote ¹⁶⁸ If the conduct of hostilities rules displace GC IV Art. 53, the lawfulness of destruction would be assessed by reference to the requirements of those rules (including distinction, proportionality and precaution) rather than the narrow exception set out in Article 53.

The significance of the prohibitions in Articles 49 and 53 is underscored by the fact that violations of both Article 49(1) and Article 53 may amount to grave breaches under Article 147 of GC IV, implicating individual criminal responsibility.Footnote ¹⁶⁹

Article 64 of GC IV provides for the continuity of the legal order in place at the start of the occupation and the continued functioning of the courts of the occupied territory, subject to certain specified exceptions.Footnote ¹⁷⁰ This provision gives effect to one of the underlying principles of the law of occupation – maintaining the status quo ante in occupied territory and the related transient character of the occupation.

With respect to the continuity of the legal order of the occupied territory, Article 64, in its first paragraph, refers to “penal” laws. This provision is nevertheless understood to cover the whole of the law, both civil and criminal, in the occupied territory.Footnote ¹⁷¹ In accordance with this rule, the Occupying Power must maintain the laws and not modify, suspend or replace them with its own legislative measures applicable to the occupied territory, subject to the limited exceptions governed by Article 43 of the Hague Regulations and Article 64 of GC IV.Footnote ¹⁷² The Occupying Power must furthermore exercise its powers in this regard in good faith and must refrain from oppressing the local population.Footnote ¹⁷³ In terms of the personal scope of the existing law of the occupied territory, while it would not extend to members of the forces of the Occupying Power or its nationals accompanying those troops, it would extend to nationals of the Occupying Power unrelated to the occupying army or administration who visit the occupied territory.Footnote ¹⁷⁴

The continued force of the legal order of the occupied territory is subject to the exception that the Occupying Power may suspend, repeal or enact laws for certain limited purposes enumerated in Article 64. Despite differences in how these purposes are worded in Article 64 with regard to suspension and repeal versus enactment of laws, the permitted purposes for all such legislative actions should be read consistently.Footnote ¹⁷⁵ In addition to the purposes enumerated in Article 64, international human rights law today may permit – or in certain circumstances even require – an Occupying Power to suspend and repeal existing laws of the occupied territory, or enact new laws.Footnote ¹⁷⁶ Legislative acts by the Occupying Power must nevertheless conform to the constraints and outer limits of the law of occupation placed upon the Occupying Power. The law of occupation prohibits certain legislative efforts which could be mounted on the basis of international human rights law obligations, including those which would provide for permanent changes, transformation of the occupied territory, or social change without consultation of the occupied population.Footnote ¹⁷⁷

The Commentary on GC IV also addresses the issue of prolonged occupation.Footnote ¹⁷⁸ Regardless of the duration of a situation of occupation, the same IHL legal regime applies; notwithstanding this, a certain flexibility is required in interpreting how certain obligations incumbent upon the Occupying Power take effect over time. This interpretive flexibility must allow for measures that permit the natural development of the occupied territory with the passage of time, notably in the economic and social realms, though any such measures are still subject to the limits imposed by IHL on the Occupying Power, which does not acquire additional powers merely with the passage of time.Footnote ¹⁷⁹

Compliance with GC IV and measures that should be taken in peacetime

In order to give effect to the protections of GC IV, States are required to take a certain number of preparatory measures in peacetime. Some of the provisions explicitly require that action be taken in peacetime, such as the requirements to disseminate the Convention and to criminalize grave breaches, while others necessitate that measures be taken in advance in order to have full effect. Proper planning and preparation include ensuring that GC IV is implemented under national law and that the domestic legal and regulatory frameworks are up to date.Footnote ¹⁸⁰ Relatedly, States should communicate this and implementing legislation and other legislation and regulations (as well as official translations) to each other through the Swiss depositary as soon as possible, without waiting for an armed conflict to arise.Footnote ¹⁸¹

Another example is the requirement that authorities publicize the Convention “as widely as possible … and, in particular, [that they] include the study thereof in their programmes of military and, if possible, civil instruction”,Footnote ¹⁸² which is reinforced under GC IV as it relates to the armed forces and other State agents with duties under the Convention. Training on how to apply GC IV must obviously take place prior to personnel actually carrying out duties requiring them to apply it, and is therefore best done during peacetime.Footnote ¹⁸³

Experience has shown that there are several other provisions which, while not expressly requiring peacetime implementation, require advance preparation for authorities to be able to comply with them. These include, in particular, those that may be triggered immediately or soon after a conflict breaks out. This is in line with the obligation to respect and ensure respect for GC IV under Article 1 common to the four Geneva Conventions (common Article 1).Footnote ¹⁸⁴

One example explored in the Commentary is that of national information bureaux, which must already be set up and functioning in order for States to be able to transmit information about protected persons as soon as such persons fall into their hands, which may happen as soon as armed conflict breaks out.Footnote ¹⁸⁵ It may therefore be advantageous to designate a body that will be responsible for establishing such a bureau and for training personnel who will be assigned to work in that bureau in peacetime, in order to be prepared in the event of an armed conflict. In the same vein, States should prepare in advance to ensure that any security measure amounting to deprivation of liberty, including internment, remains exceptional and is only carried out when necessary and in a manner compliant with the rules governing internment under GC IV.Footnote ¹⁸⁶

Similarly, as the Commentary points out, provisions related to children are reliant on being able to identify them as such. To ensure that children are able to benefit from the relevant provisions of GC IV, States should therefore set up an identification system for them. The complexity of doing so, including the necessity of systematic registration at birth, means that this must be done in advance.Footnote ¹⁸⁷

Further, the establishment of hospital and safety zones and localities also requires advance preparation to be effective, as setting up and managing them may not be a priority in the early days of an armed conflict. The establishment of such zones and localities is best done in peacetime, allowing them to be activated as soon as armed conflict breaks out.Footnote ¹⁸⁸ Similarly, if other preparatory measures are being taken, it may be helpful to mark civilian hospitals already in peacetime or, alternatively, provide them with flags or other materials displaying the appropriate emblem.Footnote ¹⁸⁹

Another area where authorities should prepare in peacetime is with regard to their obligations to allow and facilitate humanitarian access and the rapid and unimpeded passage of impartial humanitarian relief, which is discussed in detail above. As previously stated, this requires that proactive measures be put in place, such as removing or simplifying administrative barriers and ensuring that the relevant legal and regulatory frameworks do not unnecessarily impede those operations, including issuing visas or other immigration matters, field trip approvals, import/export controls and ensuring safe access to roads and other infrastructure. It can also include guaranteeing the privileges and immunities necessary for impartial humanitarian organizations to carry out their work.Footnote ¹⁹⁰ Adopting such measures is time-consuming and it would be easier to put them in place before they are needed.

These are just some examples given in the updated Commentary on GC IV of obligations where it is explicitly or implicitly necessary for authorities to take some form of action in advance in order to be in a position to comply with their obligations in the event that an armed conflict occurs. Other instances where States must take action in advance, or where they should do so in order to facilitate compliance with the Convention, can be found throughout the updated Commentary.Footnote ¹⁹¹

Enforcement and accountability

The Geneva Conventions set out several mechanisms for ensuring and facilitating compliance with the Conventions – for instance, the overarching obligation upon all High Contracting Parties to respect and ensure respect for the Conventions;Footnote ¹⁹² the role of the Protecting Powers and substitutes in supervising the implementation of the Convention;Footnote ¹⁹³ a conciliation mechanism;Footnote ¹⁹⁴ the role of national information bureaux and the Central Tracing Agency in facilitating exchange of information;Footnote ¹⁹⁵ and crucial obligations of training and dissemination.Footnote ¹⁹⁶ Additionally, the Geneva Conventions specify mechanisms to secure accountability for contraventions of the Conventions, including the grave breaches regimeFootnote ¹⁹⁷ and the enquiry procedure.Footnote ¹⁹⁸ This section discusses two of these mechanisms – the obligation to respect and ensure respect under common Article 1, and the grave breaches regime.

The scope of common Article 1’s obligation to respect and ensure respect for the Geneva Conventions is broad. To begin with, it applies “in all circumstances”; this means that it applies in international as well as in non-international armed conflicts,Footnote ¹⁹⁹ without considerations of reciprocity or capacity,Footnote ²⁰⁰ and regardless of the legality of the use of force under the jus ad bellum.Footnote ²⁰¹ Furthermore, it applies not only to parties to conflicts, but to the High Contracting Parties more broadly.Footnote ²⁰² This indicates that it applies equally in peacetime and in times of armed conflict and applies also to those provisions of the Geneva Conventions that are applicable during peacetime.Footnote ²⁰³ The corresponding customary rule is not limited to the Geneva Conventions, but covers the entire body of IHL rules binding upon a State.Footnote ²⁰⁴

Common Article 1 stipulates an “undertaking” to “respect” the Geneva Conventions, and to “ensure respect” for them. As a legal obligation, an undertaking is “not merely hortatory or purposive”,Footnote ²⁰⁵ but a formal guarantee, pledge or promise.Footnote ²⁰⁶ The obligation to respect the Geneva Conventions reiterates the broader principle of pacta sunt servanda.Footnote ²⁰⁷ The obligation to ensure respect is an obligation of means entailing a general duty of due diligence to prevent and repress violations of the Conventions.Footnote ²⁰⁸

In concrete terms, common Article 1 gives rise to three sets of obligations for a High Contracting Party. First, it must respect the Geneva Conventions and ensure they are respected by its armed forces and other persons, groups or organs whose conduct is attributable to it.Footnote ²⁰⁹ Second, it must ensure respect by the whole population over which it exercises authority, including persons in occupied territory.Footnote ²¹⁰ Third, it must ensure respect by others. This last external obligation to ensure respect by others has a negative aspect – not contributing to violations of the Geneva Conventions by othersFootnote ²¹¹ – as well as a positive aspect – preventing violations when there is a clear risk that they will be committed and bringing ongoing violations to an end.Footnote ²¹² A few States contest the existence of a positive external obligation to ensure respect, notwithstanding the extensive support for this obligation in the text and drafting history of the provision, and in the practice of States and international organizations.Footnote ²¹³

Shifting to accountability, the grave breaches regime of the Geneva Conventions (common Articles 49/50/129/146 and 50/51/130/147) sets out a series of obligations designed to ensure appropriate and effective sanctions for violations of the Conventions.Footnote ²¹⁴ As with common Article 1, the grave breaches regime applies broadly to High Contracting Parties.

Grave breaches are a subset of the broader category of war crimes, i.e. serious violations of IHL, that implicate individual criminal responsibility.Footnote ²¹⁵ While grave breaches involve breaches of the underlying IHL rules, their scope is narrower than that of those rules, in keeping with the particular requirements of individual criminal responsibility.Footnote ²¹⁶ And although the grave breaches regime does not apply in non-international armed conflicts, the principle of individual criminal responsibility for serious violations of IHL in non-international armed conflicts is recognized in both treaty and custom.Footnote ²¹⁷

In relation to grave breaches, the first requirement set out in the Geneva Conventions is the enactment of any legislation required to ensure effective penal sanctions for persons committing or ordering the commission of grave breaches.Footnote ²¹⁸ While High Contracting Parties have discretion as to the form of the domestic legislation,Footnote ²¹⁹ this is subject to the overriding requirement that the legislation provide “effective penal sanctions”.Footnote ²²⁰ Although the grave breaches regime refers only to the commission and ordering of grave breaches, subsequent developments in international criminal law recognize various other modes of liability, and other modes recognized in national law are not precluded by the grave breaches regime.Footnote ²²¹

The second requirement is to search for and prosecute alleged offenders regardless of their nationality.Footnote ²²² The only exception to this obligation is in cases where the alleged offender is handed over to another High Contracting Party for trial, provided that the other High Contracting Party has made out a prima facie case and is genuinely able and willing to prosecute the alleged offender.Footnote ²²³ In all other cases, there is an unconditional obligation to investigate, search for and prosecute offenders whenever and as soon as a High Contracting Party is in a position to do so.Footnote ²²⁴ In the investigation and prosecution of grave breaches, High Contracting Parties are expressly obliged to exercise universal jurisdiction – i.e., they may initiate investigations and issue arrest warrants even if the alleged perpetrator is not present on the territory of the issuing State, and may even try the accused in absentia if this is reconcilable with the fair trial rights of the accused.Footnote ²²⁵

Additionally, the grave breaches regime mandates measures to suppress other violations of the Conventions (beyond grave breaches) and guarantees the fair trial rights of persons accused of grave breaches.Footnote ²²⁶

As with the commentaries on other common articles in the Geneva Conventions, the commentaries on common Articles 1, 49/50/129/146 and 50/51/130/147 in the ICRC Commentary on GC IV have been updated.Footnote ²²⁷ In relation to common Article 1, the updates primarily reflect developments in the understanding of due diligence obligations in international law and, consequently, refine the understanding of the positive and negative aspects of the external obligation to ensure respect. In relation to the grave breaches regime, these updates reflect developments in the case law of international criminal courts and tribunals, as well as developments in international law more broadly relating to immunities and universal jurisdiction.Footnote ²²⁸