Who Is Protected by the Fourth Geneva Convention? The Case of Civilians in Invaded Territory
Since the 19th century, the International Committee of the Red Cross (ICRC) has produced a long line of commentaries explaining the core treaties of international humanitarian law (IHL). It is currently in the process of updating its commentaries on the 1949 Geneva Conventions and their Additional Protocols of 1977. It recently published updated commentaries on the First, Second, and Third Geneva Conventions, and it is now working on the Fourth Convention.
One of the key questions that must be answered in this project relates to the scope of application of each of the international treaties. Having a clear and precise understanding of when, where, and to whom the treaties apply is a necessary precondition for the accurate explanation of the meaning of the individual provisions.
A specific question to address in the context of the current work on the Fourth Convention relates to its personal scope, and specifically the extent to which the Convention protects the inhabitants of territories under invasion by foreign military forces. Do such individuals qualify as protected persons under the Convention? And could acts against them amount to war crimes?
Two Protective Frameworks in One Convention
To begin with, the Geneva Conventions establish a system of protection based on a distinction between combatants and civilians. Combatants are covered by the first three Conventions, which provide safeguards for wounded, sick, and shipwrecked combatants, as well as for those that are captured by the enemy and thus turned into prisoners of war. By contrast, the Fourth Convention is dedicated solely to civilians: its complementarity to the previous three is confirmed by Article 4(4), which clarifies that the Fourth Convention does not cover persons protected by the other Geneva Conventions.
Within the Fourth Convention, two main frameworks of protection must be distinguished. First, according to Article 4(3), the provisions of Part II of the Convention (i.e., Articles 13–26) are wider in application than the rest of the instrument. Article 13 then stipulates that these provisions “cover the whole of the populations of the countries in conflict.” This formulation ensures that the scope of Part II is as general and extensive as possible; in other words, it provides a “safety net” for any individual who falls outside the ambit of the other framework. Although this safety net is of crucial importance, it does not contain guarantees of humane treatment or rules criminalizing the violation of such guarantees.
For those provisions, we must look to the second framework established by the Convention. This framework consists of the rest of the Convention, and its personal scope of application is demarcated by the concept of “protected persons,” as it is defined in Article 4 of the Convention. According to paragraph 1 of that provision, “[p]ersons protected by the Convention 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.”
As an aside, the following paragraphs of the same article exclude some categories of individuals from the entitlement to protected person status. As noted earlier, paragraph 4 provides for mutual exclusivity between the first three Conventions and the present Convention. And paragraph 2 excludes “nationals of a State which is not bound by the Convention” (today an empty set) and certain nationals of third States (i.e., co-belligerent and neutral States). None of these categories need to concern us for our present purposes.
The formulation in Article 4(1) is very broad, as it covers all persons who, at a given moment and in any manner whatsoever, find themselves in the hands of a party to the conflict or occupying power. Only nationals of the Power in whose hands they find themselves are excluded. On this reading, nationals of an invaded State who are in the hands of the invading State would—as non-nationals of the Detaining Power—clearly qualify for the protected person status. But does their location make a difference for the protections they are due under the Convention?
In this respect, an argument has been made that for individuals to be entitled to the protected person status, they must be “either  foreign civilians who are in the territory of a party to the conflict when hostilities break out or  civilians who are in occupied territory” (Rosas, The Legal Status of Prisoners of War, p. 411; for a similar view, see US DoD Law of War Manual, para. 10.3.2.2). The implication of this position is that it would exclude all inhabitants of an invaded (i.e., non-occupied) territory from protection under the Convention. It should be acknowledged that  and  are also the two main categories that were discussed by the drafters of the Convention, as evidenced by the preparatory works (Final Record, vol. II-A, p. 821) as well as by the ICRC’s original commentary on the Fourth Convention (p. 46).
However, the text of the provision does not support such a narrow reading. In fact, Article 4 does not contain any geographical limitations. The decisive criterion for protected status is that a person is “in the hands of” a belligerent of which that person is not a national. Moreover, the very first Article of the Convention lays down a general obligation on States to respect and ensure respect for the Convention “in all circumstances.” As one of us recently explained elsewhere, this means that the Convention – and the protected status that it establishes – is in principle applicable in any location where an armed conflict may be occurringany location where an armed conflict may be occurring.
This interpretation is confirmed by reference to the object and purpose of the Fourth Convention. Although several formulations have been proposed (see, e.g., the ICRC’s original commentary, pp. 10–11, the ICTY’s Tadić appeal judgment, para. 168, and Benvenisti, The International Law of Occupation, pp. 11–12), what they all share is that the Convention is directed to protecting civilians in the hands of the parties to the conflict. At the same time, enemy nationals in invaded territory are one of the most vulnerable categories of civilians in armed conflict settings. Excluding them from eligibility for the protected person status would in our view defy the protective object and purpose of the Fourth Convention (see also Van Schaack, Animating the U.S. War Crimes Act, p. 1570).
In sum, if a person meets the Article 4 criteria (including, as mentioned, that they are in the hands of the Party to the conflict of which they are not nationals), they will qualify for protected status under the Convention irrespective of where they are. Therefore, nationals of a belligerent State in the power of enemy forces are protected persons under the Fourth Convention, including in invaded (i.e., non-occupied) territories.
And yet, that by itself does not fully answer the question at the outset of this post. In order to fully appreciate the extent of protection owed to protected persons, Article 4 must be read in conjunction with the geographical scope of application of the various parts of the Fourth Convention, as the extent of protection varies depending on where the protected persons find themselves. In particular, Part III of the Convention distinguishes between provisions common to the territories of the Parties to the conflict and to occupied territories (section I), those dealing with aliens in the territory of a Party to the conflict (section II), and those covering occupied territories (section III).
Firstly, section I is titled “Provisions common to the territories of the parties to the conflict and to occupied territories.” The use of the plural form in the title, has been interpreted by some to indicate that the foreign forces have an obligation to respect the obligations set out in that section not only in their own territory or in occupied territory, but also while they are invading enemy territory (see ICRC, Occupation Report, 2012, p. 26). According to that interpretation, with which we agree, this section provides a minimum framework of protection for protected persons trapped in the invaded areas. Therefore, for instance, torturing such persons would constitute a violation of several of these provisions (see Articles 27(2) and 32, in particular).
Secondly, section II is titled “Aliens in the territory of a party to the conflict.” As evidenced by the word “aliens,” the rules in the section are applicable to those individuals who are non-nationals of the party in whose territory they find themselves. As such, these rules do not cover enemy nationals who find themselves in the hands of an invading State—the subject of the present post. This is because the affected nationals of the invaded State are in their own State’s territory, so they are not “aliens.” As documented by Nishat Nishat at a much greater length than this post permits, this interpretation is also corroborated by the actual content of these provisions, which confirms that they are intended for civilians in a party’s own territory.
Finally, section III covers all protected persons in occupied territory. The rules of IHL specifically applicable to occupied territory come into force once the territory is deemed occupied, in accordance with Article 42 of the Hague Regulations. The question of whether rules applicable to occupation may also apply at an earlier stage, once local inhabitants have fallen into the power of the invading foreign forces, has been the subject of debate.
The ICRC’s original commentary on the Fourth Geneva Convention suggests that there is “no loophole” left in the safeguards in the Convention governing protected persons, such that even “a patrol which penetrates into enemy territory without any intention of staying there must respect the Conventions in its dealings with the civilians it meets.” This interpretation is not universally accepted (see, e.g., this 2012 exchange between Professors Zwanenburg, Bothe, and Sassòli, which captures the main academic views in this regard). While there is disagreement on the extent to which these rules apply beyond occupied territory as a matter of law, some seek to apply these rules as a matter of policy (see, e.g., ICRC, Occupation Report, 2012, pp. 24–25, and US DoD Law of War Manual, para. 126.96.36.199).
In our view, certain occupation law rules—contained in Part III, section III of the Convention and in other sources of occupation law—are applicable during the invasion phase (in further support of this view, see experts cited in ICRC, Occupation Report, 2012, p. 25). In general, occupation law rules have been calibrated in relation to a certain level of control which only occurs when the territory is considered occupied according to IHL (see Ferraro, Determining the beginning and end of an occupation, p. 147). However, not all occupation law rules require this level of control to be implemented.
Broadly, while governance-related rules and some positive obligations of the occupying power would depend on a certain level of control, negative obligations of the occupying power and rules protecting the individual rights of protected persons do not depend on a minimum level of control to be implementable. The applicability of the rules of occupation law in the invasion phase should therefore be assessed on a case-by-case basis, taking into account whether the relevant rules involve individual-related rights versus governance-related norms and whether they involve positive versus negative obligations (for example see, ICRC, Occupation Report, 2012, p. 25, and for a similar approach see Marco Sassòli’s views at pp. 48–49 of the exchange cited earlier).
The remaining question is the geographical scope of the grave breaches provision in the Fourth Geneva Convention. The relevant provision in the Fourth Convention is Article 147, which contains an exhaustive list of serious offences that qualify as grave breaches of the Convention—a type of war crime—if they are committed against persons or property protected by the Convention. These include acts such as wilful killing, torture or inhumane treatment, or unlawful deportation of protected persons. It is also worth remembering that customary international law criminalizes a host of other actions or omissions which also constitute serious violations of IHL.
Like Article 4, Article 147 is not constrained by any territorial limitations. From a systematic perspective, it belongs to a separate Part IV of the Convention titled “Execution of the Convention.” Unlike the three sections of Part III analyzed above, Part IV does not limit its applicability to specific types of territory. Accordingly, if a person qualifies for protected status under the Convention, then that person is also—in principle—protected against the war crimes listed in Article 147, irrespective of where they find themselves.
As long as the person comes within the scope of the relevant obligations in preceding parts of the Convention, they will also be covered by the criminalized part of the obligation, which is found in the grave breaches provisions. For example, we have shown earlier that individuals in invaded territories are covered by the prohibition of torture in Articles 27(2) and 32. It therefore follows that they are equally protected against the corresponding grave breach of torture codified in Article 147.
The link that exists between “ordinary” obligations laid down by the substantive provisions of the Convention and their grave breaches counterparts further corroborates the interpretive approach to sections I and III of Part III that we have argued for in this post. Otherwise, the victims of such crimes committed by parties to the conflict in non-occupied territories would be deprived of protection against the most serious violations of the Convention, which is an outcome that cannot be reconciled with the object and purpose of that treaty.
This post highlights one of the interpretive dilemmas faced by the ICRC in updating the Commentary on the Fourth Geneva Convention. While situations such as that described at the outset of the post may not have been a key point of focus during the 1949 Diplomatic Conference, it is clear that the Convention did not leave persons in those circumstances without any legal protection.
They would without any doubt benefit from the provisions contained in Part II of the Convention, which covers the entirety of the populations of the belligerent States. Provided they meet the criteria under Article 4, they would also be entitled to protected person status, unlocking access to the substantive protections across the rest of the Convention.
While some controversy continues to surround the exact territorial scope of the individual sections in Part III, the importance of rules in this section for the population of an invaded territory is often urgent, clear, and undeniable from a humanitarian perspective. Finally, acts committed against persons in such situations may qualify as grave breaches of the Convention, in other words, as war crimes.
Dr Kubo Mačák is a Legal Adviser assigned jointly to the Arms and Conduct of Hostilities Unit and the Commentaries Unit at the International Committee of the Red Cross (ICRC).
Mikhail Orkin is a Legal Adviser in the Commentaries Update Unit at the International Committee of the Red Cross (ICRC).
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