GC IV Commentary Series – Article 13: The Personal Field of Application of Part II

Editors’ note: The author of this post served on the Reading Committee of the updated Commentary on the Fourth Geneva Convention project. He provided feedback on early versions of the Commentary and co-authored, with a project team member, the Commentary’s sections on Articles 127 and 128. This post is based entirely on the author’s review of the final published version of the Commentary over which he had no editorial authority beyond the two sections he co-authored. Rosa-Lena Lauterbach, Liisi Adamson, and Sean Watts’s introduction to the series is available here.

Sitting atop Part II of the Fourth Geneva Convention of 1949 (GC IV), Article 13 appears as a chapeau provision, framing the thirteen articles of the Convention that follow. Both military legal doctrine and scholarship frequently cite it to identify the persons who benefit from the later protective provisions of Part II of the Convention (p. 219, n. 136).

Article 13 is also thought to highlight an important structural contrast between Part II and other parts of the Fourth Convention. Where Part III protections are restricted to a discrete class of persons who find themselves in specified circumstances, Part II is thought to apply far more widely, to “entire populations” (p. 4).

The characterization is understandable. The adopted title of Part II, “General Protection of Populations Against Certain Consequences of War,” certainly suggests as much. In this respect, academic literature frequently brands Part II as exceptional—a collection of safeguards benefitting all persons—and a departure from the Convention’s otherwise carefully parsed and tailored protections for civilians (p. 223-24; see also here, p. 302, fig. 8.3.1). States’ military legal manuals are widely in accord, instructing armed forces that GC IV Part II protections apply to the whole population of the belligerents’ territory (§ 10.3.3).

Such is the accepted wisdom, including that offered by much of the International Committee of the Red Cross’s (ICRC) updated Fourth Geneva Convention Commentary. However, careful examination undermines Article 13 as a reliable guide to the scope of the Convention’s Part II safeguards. In fact, as the Commentary itself briefly concedes, most Fourth Convention Part II protections apply only to select segments of the civilian population and in very specific circumstances, leaving Article 13 as, at best, an indicator of preliminary eligibility rather than of entitlement to protection.

This post explores the updated Commentary and other sources’ approach to Article 13 and identifies an opportunity to further clarify this deceptively unedifying article of the Fourth Geneva Convention.

Article 13 and Part II

Article 13 reads,

The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the suffering caused by war.

If the purpose of the article is to lay out the scope of application of Part II protections, it does an especially poor job. The article’s opening clause is simply not correct. In fact, very few of the provisions of Part II apply to the whole population of any country in conflict. Nearly all are carefully tailored to quite specific groups of persons thought to be particularly vulnerable within those populations.

A brief tour through Part II illustrates the point.

The protective provisions of Part II begin with two articles that suggest belligerents establish protective areas or zones. Article 14 suggests the possibility of hospital and safety zones to insulate against the effects of hostilities. Although the whole civilian population might well benefit from such zones, Article 14 clearly identifies “wounded, sick and aged persons, children under fifteen, expectant mothers, and mothers of children” as its designated beneficiaries.

Article 15 then addresses the possibility of “neutralized zones” during conflict. Again, though a wider personal scope of application could be foreseen, the article specifies as beneficiaries only “wounded and sick combatants or non-combatants” and “civilian persons who take no part in hostilities and who, while they reside in the zones, perform no work of military character.”

The pattern of tailored protection repeats in succeeding articles. Article 16 identifies the “wounded and sick, as well as the infirm, and expectant mothers” as subjects of “particular protection and respect.” And a duty to search for persons and protection against pillage applies to “the killed and wounded, … the shipwrecked and other persons exposed to grave danger.”

Article 17, a subject of renewed attention in light of siege operations, continues the pattern. It requires parties to “endeavour” to agree to remove persons from besieged areas. But again, the personal scope of protection includes only “wounded, sick, infirm, and aged persons, children and maternity cases, and … ministers of all religions [and] medical personnel … .”

Meanwhile, Articles 18 through 22 designate various segments of the medical profession, their facilities, and the transports they use as protected. In each case the relevant article tailors protection to specified medical or administrative personnel. Examination of Article 23 reveals a provision similarly limited in personal and material coverage (p. 21). Only specified consignments of relief must be given passage, and then only for specified groups of persons. Finally, Articles 24 through 26 offer safeguards to children and families.

Ultimately, only Article 25—which offers “all persons in the territory of a Party to the conflict” access to family news—seems to match the Article 13 characterization of universal coverage. In nearly every other respect, the opening clause of Article 13 mischaracterizes the Convention’s Part II coverage.

The Updated Commentary

The updated Commentary’s first treatment of Article 13 appears in an introductory section to Part II of the Fourth Convention. It observes that the scope of protection applies “not only to protected persons as defined in Article 4, but also to the belligerents’ own nationals and anyone else who finds themselves in the territory belonging to or occupied by a Party to the conflict” (para. 1526). The comment to Article 13 itself then adds that although “protected persons” of the Fourth Convention find their own regime of protection through Article 4 and Part III, they also enjoy protection under Part II (para. 1533).

Concerning the range of persons protected by Part II, the comment’s introduction helpfully emphasizes that in addition to persons found in a foreign belligerent’s hands, Part II applies to a belligerent’s own nationals (para. 1539). Though easily deduced from the text of Article 13, the point is useful for readers accustomed to the Fourth Convention’s persistent focus on foreigners and aliens. As a final, though understated, introductory remark, the Commentary adds, “several provisions in Part II have a more specific personal scope of application …” (para. 1539).

The discussion section of the Commentary then offers what has become the accepted wisdom of Article 13, advising that Part II covers “‘the whole of the populations of the countries in conflict’, both in occupied territory and in the territory of the Parties to the conflict” (para. 1539). Later sections of the Commentary that address other GC IV, Part II articles reiterate this insight (see e.g., para. 2184). A journal article by the ICRC’s Commentary project team doubles down observing, “The rules in Part II of the Convention protect the entire populations of the countries in conflict …” (p. 4).

To make the preceding point clear, the comment dwells on the term “population.” It emphasizes that “all persons present in the relevant territory” enjoy Part II protection by virtue of Article 13, including non-permanent residents and aliens (para. 1540). It further distinguishes the personal scope of GC IV Part II from that of Part III. While Article 4, which provides the personal scope of application of Part III, excludes persons protected by GCs I, II, and III from protection, Article 13 does not with respect to Part II (para. 1541). Thus, the wounded and sick on land and at sea and prisoners of war remain technically eligible for Part II protections. Finally, the comment notes the explicit purpose of Part II, stated in Article 13, namely “to alleviate the sufferings caused by war” (para. 1542).

The Updated Commentary’s Predecessor

Like its successor, a 1956 Commentary on GC IV (1958 in English), edited by Dr. Jean Pictet, addressed the field of application of Part II of the Convention in conjunction with Article 13. Noting the threat to populations presented by aerial bombing as a major impetus for Part II, Dr. Pictet identified the object of Part II as providing “the civilian population with general protection against certain consequences of war” (p. 118).

To emphasize the point, Dr. Pictet highlighted a cross-reference to Part II that appears in GC IV Article 4 (p. 119). At sub-paragraph 3, Article 4—which provides the personal field of application of Part III of the Convention—notes that Part II is “wider in application.” The updated Commentary wisely retains this point from Dr. Pictet’s work (para. 1540). His comment also offered the useful point that Part II protections apply to the conduct of hostilities, whereas most other protections of GC IV prohibit arbitrary action against persons in the hands of a belligerent party, usually outside contact with enemy forces (p. 118).

With the object of general protection established, Dr. Pictet then clarified that Part II erects “protective barriers to shield certain categories of the population who, by definition, take no part in the fighting” (p. 118). In this respect, Dr. Pictet appears to appreciate that Part II employs safeguards chiefly for distinct segments of the population.

Resort to the term “population” to identify a protected class indeed suggests exceptionally broad coverage. The 1899 and 1907 Hague Regulations are not generally understood as providing broad civilian protections. Yet their prohibition on collective punishments applies in the official French version to “les populations” (most often translated to “the population”) of occupied territory, indicating a universal scope of protection in that context (art. 50). Similarly, prohibitions on forcibly extracting information, on conscription, and on certain requisitions protect “la population” or “des habitants” (most often translated to “inhabitants”) quite generally, without further qualification (arts. 44, 45, & 52).

Yet there is tension in Dr. Pictet’s identification of protection of “the whole of the populations of the countries in conflict,” including persons protected by other parts of GC IV as well as enemies, aliens, neutrals, and “the belligerents’ own nationals” within the scope of Part II protection. While these are technically correct observations, clearer emphasis that only discrete segments of those populations are covered by most Part II protections would have greatly aided principled application of the Convention.

A more frank and practicable comment by both Dr. Pictet and the ICRC update to his Commentary might have observed that Article 13 purports to capture an aspect of eligibility requiring further refinement rather than to assert a general field of application for Part II. In reality, the overwhelming majority of Part II has no general field of application. It is instead a collection of safeguards, each with distinct fields of application. Like the ICRC’s update to his work, Dr. Pictet either overlooks or seeks to pass over the Article 13 mischaracterization that, as a general matter, Part II protects all persons.

Others’ Work

To be fair, neither Dr. Pictet nor the ICRC’s updated Commentary is alone in its approach. Other sources have glossed over the personal application of Part II. Denmark’s military legal doctrine advises “only the provisions of Part II afford protection to all segments of the civilian populations of the belligerent States” (p. 191). Canada also instructs that those protections found in Articles 14 – 26 apply to the “whole of populations of the countries in conflict,” including Fourth Convention “protected persons and all other civilians.” However, subsequent instructions clarify and inform its forces of the actual beneficiaries of each Part II protection (paras. 1108-17). Perhaps most glaringly, the U.S. Army Judge Advocate General School’s Operational Law Handbook advises, “GC IV Part II protections apply to every civilian in countries that are a party to an [international armed conflict], regardless of nationality or citizenship” (Ch. 2, para. II.F.4.b.(2)).

Thankfully, other sources offer more guarded or qualified characterizations of GC IV Part II protection. For example, the French Manual of the Law of Military Operations includes no reference to Article 13 or to its phrase “whole of the populations,” preferring instead to address protections according to the specific obligations of GC IV. Australia likewise declines to address any Part II obligation owed in the sense described by Article 13 and instead addresses obligations owed to specific segments rather than as owed to the whole population (para. 6.53).

Professor Dinstein likely realized the limited instructional value of Article 13 as well in his decision not to address it and instead to analyze individual provisions of Part II, including their respective fields of application (paras. 677, 682). Professors Emily Crawford and Alison Pert approach Part II similarly, skipping over the generalization of Article 13 and identifying the specific protections of Part II and their respective beneficiaries (p. 160). And even in a concise text, Professor Geoff Corn, Brigadier General Ken Watkin and Jamie Williamson find space to note that what “the treaty characterizes as general protections for all civilians …” are in fact an “individualized-article approach to civilian protection” (The Law in War, p. 82-83).

Concluding Thoughts

In both military and humanitarian terms, some of the most consequential work in applying the Geneva Conventions involves sorting out who benefits from their protections and who does not. From a humanitarian perspective, the urge to guide readers toward the widest possible application of Part II protections is understandable.

But Part II of the Fourth Geneva Convention is not as exceptional or as universally applicable as many suppose. True, unlike Part III protections, Part II does not distinguish on the basis of nationality or availability of protection from other Geneva Conventions. But almost all Part II protections are very much like their counterparts in Part III: limited in their field of application to specific victims of war who find themselves in very precise circumstances. As with so much of the rest of the Fourth Convention, principled implementation requires careful consideration of precisely who is likely to be affected by an operation and in precisely what circumstances they are found. In this sense, Part II reflects more closely what a historical examination termed a “Faustian bargain to keep state sovereignty partly intact in exchange from more robust protections for enemy civilians” (van Dijk, p. 82).

If Part II is exceptional with respect to the rest of GC IV, it is for the point of custody or control. Where most of the Convention protects persons “in the hands of” their nation’s enemy, Part II includes protections for persons outside any such control. Part II protections can even be conceived in some respects as an exception to the Geneva tradition’s focus on victims of war in enemy hands, straying into the territory of the Hague tradition’s rules on the conduct of hostilities in contested areas.

To be sure, the Convention itself and its drafters are chiefly to blame for the misleading characterization offered by Article 13 concerning Part II of the Convention. From the moment it was adopted, it could not be read as literally descriptive. The updated Commentary is certainly not to blame for this unhelpful opening clause of GC IV.

However, clearing up its misstatements for the Convention’s users seems precisely the sort of contribution the updated Commentary should be expected to make. A more pronounced effort to reconcile Article 13 with the scope of coverage included in the respective articles of Part II would have greatly improved the Commentary. A more helpful approach, one adopted by several preceding law of war sources, might have recharacterized the Article’s use of the term “whole population” as a provision on preliminary eligibility or non-discrimination rather than of entitlement or as a snapshot of general coverage of Part II. Fortunately, through careful research, our field offers sources noted above that have carefully, though nearly as subtly as the ICRC, done this work.

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Sean Watts is a Professor in the Department of Law and Philosophy at the United States Military Academy, Co-Director of the Lieber Institute for Law and Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

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Photo credit: U.S. Army, Army Pfc. Amy Rayo