GC IV Commentary Series – Article 23 and Humanitarian Relief: What’s Right, What’s Left Unclear

Editors’ note: The following series considers ICRC’s 2025 updated Commentary on the Fourth Geneva Convention. Rosa-Lena Lauterbach, Liisi Adamson, and Sean Watts’s introduction to the series is available here.

Article 23 of the Fourth Geneva Convention of 1949 (GC IV) was adopted as a response to naval blockade, an ancient military tactic in which a conflict party coercively prevents or restricts ingress to and egress from a particular place. Blockade affects everyone in the target area, including both combatants and civilians.

The International Committee of the Red Cross’s (ICRC) concern about the impact of blockades on civilians dates back over a century, to the First World War. After the Second World War, the ICRC translated this concern into legal protection with Article 23. Blockades are still in use today. For example, the United States is currently enforcing a naval blockade of Iran.

Today, however, the law of armed conflict includes more robust protection for civilians from the effects of blockades than is available under Article 23, which the ICRC’s new Commentary on GC IV has unambiguously confirmed.

An Initial, Imperfect Free Passage Obligation

GC IV, Article 23 provides,

(1) Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.

(2) The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) that the consignments may be diverted from their destination,

(b) that the control may not be effective, or

(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.

(3) The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.

(4) Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.

This rule requires conflict parties and any transit State to grant free passage of relief and commercial items through blockades; other coercive forms of isolation, such as sieges (in which a smaller geographic area is encircled via operations on land); and whenever the items specified are destined for civilians, regardless of whether forcible isolation is in play (2025 Commentary, para. 2032).

There are several problems evident within Article 23, all of which relate to two carveouts that threaten to swallow the rule.

The first is the distinct treatment in paragraph 1 of “medical and hospital stores and objects necessary for religious worship,” on the one hand, and “essential foodstuffs, clothing and tonics,” on the other. The former must be granted free passage to all civilians, whereas the free passage obligation only attaches to the latter set of items if they are destined for “children under fifteen, expectant mothers and maternity cases.” The ICRC explained the reason for the distinction in its first Commentary on GC IV: it “is based on military considerations. The intention is to keep a strict check on the destination of provisions which might reinforce the economic potential of the enemy if used for other purposes” (1958 Commentary, p. 180).

The second exception is the broad discretion accorded to conflict parties in paragraph 2. The ICRC’s 1987 Commentary on the First Additional Protocol (AP I) noted that paragraph 2(c) in particular—which relates to the military or economic advantage that may accrue from relief or commercial items—“virtually allows the blockage of any relief action” (para. 2850).

New Law in 1977

Both exceptions are now largely irrelevant because of AP I’s humanitarian access framework (arts. 68-71). Article 70 is particularly relevant because, like GC IV Article 23, it articulates each “concerned” party’s obligations in relation to relief destined for civilians in unoccupied territory in international armed conflict. (GC IV covers humanitarian access to occupied territory in arts. 55, 59, and 60-63; AP I adds art. 69.)

Additional Protocol I, Article 70 creates a humanitarian access framework for third States and impartial humanitarian organizations to conduct emergency relief operations when civilians are “not adequately provided” with items essential for their survival (AP I, art. 70(1)). If this bar is met, concerned States have two obligations. First, they may not arbitrarily withhold consent regarding access to territory to offers of services that are “humanitarian and impartial in character” and will be conducted without adverse distinction (AP I, art. 70(1)). In other words, the “concerned” party must allow humanitarian actors access to the territory where civilians in need are located. Second, the conflict party in control of civilians in need, as well as any transit States, must “allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel” (AP I, art. 70(2)), meaning that they must facilitate the rapid distribution of humanitarian assistance.

This framework is “widely regarded” as customary international law and thus also governs States that have not ratified AP I (2025 Commentary, para. 2024).

A Critical Contribution …

In its 1987 Commentary on AP I, the ICRC noted that Article 70 “modifies” Article 23 and the latter’s paragraph 2 exceptions “should be considered as obsolete in any armed conflict to which Protocol I applies” (para. 2851). In the years and decades that followed, other important commentators made the same point (Bothe, Partsch, and Solf, p. 429; Akande & Gillard, p. 128 and p. 772).

Now, the ICRC has made the same point in relation to Article 23 itself. The new Commentary notes that in light of AP I Article 70, the importance of Article 23 has “significantly diminished” (para. 2024). It goes on to explain that AP I Article 70 “modifies Article 23, and paragraph 2 is not applicable in any armed conflict to which” AP I applies (para. 2056, emphasis added). Further, because AP I Article 70 reflects customary international law, the same is true for States that have not ratified AP I (2025 Commentary, para. 2057).

This is a critical contribution, because in recent years some commentators, such as Pomson and Lovitky, have ignored Article 70 in favour of the Article 23(2) balancing act, even though it has been clear since at least 1987 that AP I Article 70 modifies the GC IV Article 23(2) exception. (Pomson subsequently argued that the Article 23(2) exception is part of customary international law, so States that have not ratified AP I may rely on it. As mentioned above, the ICRC’s new Commentary does not reflect this view (para. 2057).)

… that May Provoke Confusion

Yet this critical contribution could have been structured more clearly. The new Commentary proceeds partly in line with the distinction in Article 23(1) between (a) medical supplies and religious items and (b) consignments of essential foodstuffs, clothing, and tonics. As mentioned above, in light of military considerations, under Article 23(1) the supplies in category (a) must be granted free passage, while those in category (b) need only be given free passage if they are destined for certain enumerated vulnerable groups. The ICRC’s analysis of how AP I Article 70 modifies Article 23(2) is clearly stated in relation to category (b) (see paras. 2047-2048) but not in relation to category (a) (see paras. 2043-2045), as though the medical supplies and religious items listed in category (a) might still be subject to the Article 23(2) exceptions.

This implication was not intentional, as the broad wording of paragraph 2056 (cited above) shows. Additionally, AP I makes clear that relief actions consist of “food and medical supplies” (as well as “clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population … and objects necessary for religious worship;” AP I art. 70(1) read with AP I art. 69(1), emphasis added). Additionally, the ICRC has itself defined “relief” as consisting of “all activities, services and delivery of goods, primarily in the field of health, water, habitat and economic security and which seek to ensure that persons caught up in armed conflict can survive and live in dignity” (p. 373, emphasis added).

Missed Opportunities

While the clear statement that AP I Article 70 has superseded the GC IV Article 23(2) exceptions is an important contribution, the ICRC could have done more to clarify the role of Article 23 in relation to humanitarian assistance.

Professor Dannenbaum argues that it should have explained the additional circumstances in which Article 23 must be read alongside other related provisions. The ICRC limited itself to AP I Article 70, discussed above, and cognate rules on relief for particular beneficiaries, “protected persons” (within the meaning of GC IV art. 4), civilians in occupied territory, and internees (para. 2025). Dannenbaum argues that the ICRC should have also addressed the GC rules on medical supplies for both wounded and healthy combatants and the AP I Article 54 prohibition of the starvation of civilians as a method of warfare.

The ICRC should have also emphasized the continued relevance of Article 23 in relation to preventive assistance. While the new Commentary points out that, unlike AP I’s Article 70, Article 23 “does not require proof that the population is ‘inadequately supplied’” (para. 2041), it does not explain the importance of this distinction. The significance relates to the difference between preventive assistance, which can help avert crisis, and emergency assistance, which responds to it. Since the applicability of Article 23 does not depend upon the existence of unmet needs among the civilian population, the provision remains essential to ensuring that medical supplies and food can reach people before health crises and malnutrition set in.

Conclusion

The new Commentary represents both an important clarification and a missed opportunity. Its unequivocal recognition that the broad exceptions in Article 23(2) have been superseded by the humanitarian access framework reflected in AP I and customary international law should put a confusing issue to rest. Ironically, however, the way the Commentary presents that conclusion risks creating a different source of uncertainty by suggesting that medical supplies and objects necessary for religious worship may remain subject to Article 23(2) when supplied as humanitarian relief.

A fuller account of Article 23’s relationship with the broader law of humanitarian assistance would also have made clearer that the provision continues to perform an important function. Although no longer the primary legal framework governing emergency relief operations, Article 23 remains a distinct and valuable mechanism for facilitating preventive assistance before humanitarian need reaches the threshold that triggers the modern humanitarian access regime.

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Marina Sharpe is Associate Professor of international law at Canada’s Royal Military College Saint-Jean.

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

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: U.S. DoD, PH1 Michael D. Kennedy