Law 9780199675449 Chapter 60

Part II Specific Issues and Regimes, C Geneva
Convention IV, 2 Civilians in the Hands of the

Enemy: General Protection, Ch.60 Other Issues
Relating to the Treatment of Civilians in Enemy
Hands
Iris van der Heijden
From: The 1949 Geneva Conventions: A Commentary

Edited By: Andrew Clapham, Paola Gaeta, Marco Sassòli
Content type: Book content

Product: Oxford Scholarly Authorities on International Law [OSAIL]
Series: Oxford Commentaries on International Law
Published in print: 15 October 2015
ISBN: 9780199675449
Subject(s):
Property — Equal treatment — Geneva Conventions 1949 — Geneva Conventions 1949 Additional
Protocol 1 — Geneva Conventions 1949 Additional Protocol 2 — Occupation — Responsibility of states
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Gujarat National Law University; date: 17 June 2024
(p. 1241) Chapter 60. Other Issues Relating to the
Treatment of Civilians in Enemy Hands
A. Introduction 1
B. Meaning and Application 5
I. Section I: Provisions common to the territories of the parties to the

conflict and to occupied territories 5
a. Treatment of protected persons in general: Article 27 5

b. Danger zones: Article 28 26
c. Responsibilities: Article 29 34
d. Application to Protecting Powers and relief organizations:
Articles 30, 142, and 143 40
e. Prohibition of coercion: Article 31 45
f. Prohibition of physical suffering: Article 32 48
II. Section II: Aliens in the territory of a party to the conflict 54
a. Persons in confinement: Article 37 54

b. Non-repatriated persons: Article 38 58
c. Means of existence: Article 39 64
d. Employment: Article 40 68
e. Cancellation of restrictive measures: Article 46 72
III. Section III: Inviolability of rights in occupied territories 77
C. Relevance in Non-International Armed Conflicts 80

D. Legal Consequences of a Violation 88
I. State responsibility 88
II. Individual criminal responsibility 89
E. Critical Assessment 92
Select Bibliography
Dederer, H.G., ‘Enemy Property’, in MPEPIL
Fleck, D. (ed), The Handbook of International Humanitarian Law (2nd edn, Oxford:
OUP, 2008)
Johannot Gradis, C., Le patrimoine culturel matériel et immatériel: quelle protection
en cas de conflit armé? (Zürich: Schulthess, 2013)
Kolb, R., ‘Etude sur l’occupation et sur l’article 47 de la Convention de Genève IV de
1949 relative à la protection des personnes civiles en temps de guerre: le degré de
l’intangibilité des droits en territoire occupé’, 10 Annuaire Africain de Droit
International (2002) 267
Melzer, N., Targeted Killing in International Law (Oxford: OUP, 2008), at 158–67
Sassòli, M., ‘State Responsibility for Violations of International Humanitarian Law’, 84
IRRC 846 (2002) 401
Sassòli, M., ‘Human Shields and International Humanitarian Law’, in A. Fischer-
Lescano et al (eds), Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag
(Baden-Baden: Nomos, 2008) 567.
Stewart, J.G., Prosecuting the Pillage of Natural Resources (New York: Open Society
Institute, 2011)
(p. 1242) A. Introduction

1 This chapter discusses certain issues relating to the treatment of civilians in enemy
hands. The fundamental guarantees for civilians protected by the Fourth Geneva
Convention (GC IV) underlie these issues, whilst many of the thematic chapters in this
volume have touched on these values this chapter will provide an Article by Article analysis
of the key provisions containing these guarantees.
2 Geneva Convention IV is concerned with the protection of civilians, and states have to
apply it in situations of international armed conflict (IAC) and occupation.1 The Tokyo Draft,
aimed at protecting civilians, served as inspiration for GC IV.2 The Draft was designed to
protect two categories: the first, which was an entirely new idea, consisted of ‘enemy
civilians on the territory of a belligerent’; the second, complementing the Hague
Regulations, consisted of ‘civilians in the power of the enemy in occupied territories’.
Although the Tokyo Draft was never put into effect, it was used as a basis for GC IV: Part II
of GC IV covers the ‘whole of the populations of the countries in conflict’, i.e. all civilians;3
and Part III of GC IV, entitled ‘Status and Treatment of Protected Persons’, is divided into
five sections, of which the first four cover specific categories of protected persons.4
3 The main issues in GC IV discussed in this chapter relate to the treatment of civilians in
enemy hands, namely: fundamental guarantees (Article 27); human shields (Article 28);
responsibilities (Article 29); application to Protecting Powers and relief organizations
(Articles 30, 142, and 143); prohibition of coercion (Article 31); prohibition of physical
suffering (Article 32); persons in confinement (Article 37); non-repatriated persons (Articles
38–40); restrictive measures (Article 46); and the inviolability of rights (Article 47). These
issues are laid down in Part III of GC IV and spread out over three sections, all of them
covering ‘protected persons’. At the same time, the category of civilians falling within the
scope of ‘protected persons’ differs in each section.5
4 In general, for each Article discussed in this chapter, an analysis of its meaning and
application will be given, taking into account other relevant fields of law. Furthermore,
section C briefly discusses the relevance in non-international armed conflicts (NIACs) and
section D touches upon the legal consequences of a violation of the aforementioned
provisions.
B. Meaning and Application
I. Section I: Provisions common to the territories of the parties to
the conflict and to occupied territories
a. Treatment of protected persons in general: Article 27
i. Preliminary remarks on Article 27
5 Article 27 is considered the basis of GC IV, reflecting the spirit of international
humanitarian law (IHL), proclaiming ‘the principle of respect for the human person and the
inviolable character of the basic rights of individual men and women’.6 This Article codifies
(p. 1243) the intrinsic rights and freedoms of the human being in IAC. The purpose of
Article 27 GC IV is clearly to protect the fundamental human rights of civilians. Being the
core provision of GC IV, all the other provisions have to be interpreted in line with this
Article. Notwithstanding the focus on individual rights, paragraph 4, stating that ‘the
Parties to the conflict may take such measures of control and security in regard to
protected persons as may be necessary as a result of the war’, allows the balancing of
individual rights with the interests of the belligerents. Considering that Article 27 is seen as
reflecting the intrinsic rights and freedoms of the human being, international human rights
law (IHRL) can and should be used to a certain extent as a means to interpret the
provisions contained in this Article.
6 Part III, Section I, and thus Article 27, applies to protected persons both in territories of
the parties to the conflict and in occupied territories. The first paragraph of Article 27
provides that protected persons are entitled to respect, in all circumstances, as regards
several ‘fundamental’ rights. The ‘right to respect’ means that a state should ‘refrain from
interfering directly or indirectly with the enjoyment of the right’.7 Thus, states should
refrain from interfering with the protected person’s person, honour, family rights, religious
convictions and practices, and manners and customs. Moreover, not only should High
Contracting Parties refrain from interfering with these rights, but they should also protect
persons against abuses of these rights, as mentioned in the second sentence of paragraph
1.8
ii. Respect for one’s person
7 The Pictet Commentary states that the right to respect for one’s person has to be
understood in its widest sense. Accordingly, ‘it covers all the rights of the individual, that is,
the rights and qualities which are inseparable from the human being by the very fact of his
existence and his mental and physical powers’.9 It then goes on to mention some rights
which are included, namely the right to physical, moral, and intellectual integrity, and
argues that the right to life, although not mentioned explicitly in the Article, may be
implied.10 Another right discussed in the Pictet Commentary in relation to the right to
respect for one’s person, is the ‘right to personal liberty, and in particular, the rights to
move about freely’. This right is said to be different from the absolute rights mentioned in
the Convention but is nevertheless applicable. As Pictet explains, this right
can naturally be made subject in war time to certain restrictions made necessary by
circumstances. So far as the local population is concerned, the freedom of
movement of civilians of enemy nationality may certainly be restricted, or even
temporarily suppressed, if circumstances so require. That right is not, therefore,
included among the other absolute rights laid down in the Convention, but that in
no wise means that it is suspended in a general manner. Quite the contrary: the
regulations concerning occupation and those concerning civilian aliens in the
territory of a Party to the conflict are based on the idea of the personal freedom of
civilians remaining in general unimpaired. The right in question is therefore a
relative one which the Party to the conflict or the occupying power may restrict or
even suspend within the limits laid down by the Convention.11
Pictet also states that the right to life is implied, ‘for without it there would be no reason for
the other rights mentioned’.12 We might also mention that the prohibition of slavery, the
prohibition of torture or inhuman or degrading treatment or punishment, and the (p. 1244)
prohibition of the retroactivity of penal measures are all non-derogable in time of armed
conflict.13 Thus, with regard to the interpretation of the right to respect for one’s person, it
may be asserted that the above-mentioned rights are included in its ambit. Furthermore, if
this right is to be interpreted in its widest sense, it might be argued that other key rights,
such as the right not to be taken hostage, the right not to be abducted, and the right not to
be detained without acknowledgement, would come within its scope as well.14
iii. Respect for honour
8 The right of respect for honour is described by Pictet as a right ‘invested in man because
he is endowed with a reason and a conscience’, and the fact that a civilian has the enemy
nationality does not justify any interference with that person’s honour or reputation. In
IHRL instruments, ‘honour’ and ‘reputation’ are either mentioned alongside or are included
in the rights to privacy, family, and home.15 The discrepancy here is that the Universal
Declaration of Human Rights (UDHR), the International Covenant on Civil and Political
Rights (ICCPR), and the American Convention on Human Rights (ACHR) seem to cover
‘honour’ in private and public life, while the European Convention on Human Rights
(ECHR) seems to cover a person’s honour only in his or her private life. In order to see if
IHL covers both private and public life or only private life, we might take a look at the
Hague Regulations, where it is provided that ‘family honour and rights […] must be
respected’, which might be understood as meaning honour in private life given that it refers
to ‘family honour’.16 Violating family honour was considered to encompass sexual assault,
but this was not mentioned explicitly due to the conventions of that time.17 Article 27 GC IV,
by stating ‘their honour, their family rights’, makes a distinction between these two
concepts. Therefore, it might be argued that this distinction has been made deliberately in
order to include honour in public life within the notion of ‘honour’ as set out in this Article.
Another reason could be that the terms have been separated in order to give more attention
to violations of honour, following the meaning of the Hague Regulations, namely refraining
from acts of sexual assault. The term ‘honour’ is quite vague, and it is not clear precisely
what is included. However, it might be asserted that in IHL, respect for honour includes at
least that members of states’ armed forces should refrain from sexual assault. This is also
reinforced by the due diligence obligation in the second paragraph of Article 27 GC IV,
where it is mentioned that ‘[w]omen shall be especially protected against any attack on
their honour, in particular against rape, enforced prostitution or any form of indecent
assault’, stressing several forms of sexual assault in the context of honour.18 The kind of
violation mentioned above will mainly involve a physical attack. It is not clear if respect for
honour could also encompass a moral violation, for example when a person is being
humiliated or his or her reputation is being damaged. If this is the case, a certain level of
seriousness is probably necessary, as has been reasoned under some of the IHRL
instruments.19
(p. 1245) iv. Respect for family rights
9 As mentioned at MN 8, the right to respect for family rights stems from the Hague
Regulations that address the Occupying Power. Article 27 GC IV extends the scope to all
protected persons. Pictet explains that this right implies that family ties must be
maintained, as well as restored if necessary.20 The right of respect for family rights is also
considered as customary law,21 as shown, inter alia, by many military manuals and IHRL
instruments that contain provisions prohibiting arbitrary interference with family life.22 The
International Committee of the Red Cross (ICRC) Customary International Humanitarian
Law Study (CIHL Study) identified that ‘respect for family life requires, to the degree
possible, the maintenance of [the] family unit, contact between family members and the
provision of information on the whereabouts of family members’.23
10 These three aspects of the right to respect for family life identified in the CIHL Study
are reflected in several Articles of GC IV.24 Note, however, that those Articles are more
concerned with protecting than with respecting family rights. Considering that those
Articles are based on Article 27 GC IV, it seems that the notion ‘shall be protected’ in the
second sentence of Article 27 paragraph 1 also applies to all the rights mentioned in the
first sentence. The word ‘especially’ seems to reinforce this assertion: not only shall their
rights as protected persons as mentioned in the first sentence be protected, but they shall
also ‘especially’ be protected ‘against all acts of violence [etc]’.25 It might thus be argued
that a High Contracting Party has a positive obligation to undertake action to protect
persons from rights abuses.26
11 In order to interpret the notion of ‘family’, recourse may be had to IHRL instruments.
The ICCPR’s notion of family has been interpreted ‘to include all those comprising the
family as understood in the society of the state party’, which seems logical considering that
the inclusion criteria for ‘family’ differ as between states.27 The European Court of Human
Rights (ECtHR) has a similar understanding of family life, stating that it ‘is not confined
solely to families based on marriage and may encompass other de facto relationships,
taking into account a number of factors’.28
12 It seems that for IHL a similar interpretation may be used. Whether a (protected)
person is a member of a ‘family’ or not is of importance for a state, in order for it to comply
with the IHL obligations imposed upon it concerning the treatment of family (members). In
order to determine whether a person may be considered a ‘family member’, the parties to
the conflict have to comply with their own domestic law and, if applicable, private
international law, whereas Occupying Powers have to respect and apply the domestic law of
the occupied territory.29 Furthermore, it needs to be mentioned that the absolute protection
of family rights cannot be guaranteed in an armed conflict situation.30
(p. 1246) v. Respect for religious convictions and practices
13 Article 46 of the Hague Regulations provides that religious convictions and practice
have to be respected by the Occupying Power. Article 27 GC IV reaffirms this, extends it to
all protected persons, and adds that this right should be protected as well. At the same
time, neither the customary rule nor Additional Protocol (AP) I mentions that this right
should be protected but only demands explicitly that it be respected.31
14 Geneva Convention IV specifies explicitly in several Articles how the religious
convictions and practice of protected persons must be respected and protected.32 With
regard to the interpretation of religious convictions and practices, the Pictet Commentary,
reiterated in the Commentary to Article 75 AP I, notes that the notion of religious
convictions and practices should be understood in a broad sense, covering all philosophical
and ethical convictions.33 Some examples of what comes within the scope of this concept
may be found in the earlier-mentioned Articles of GC IV.34 In addition, IHRL instruments,
such as the ICCPR, determine that the right to freedom of religion ‘cannot be derogated
from, even in time of public emergency’.35 According to the Human Rights Committee’s
General Comment, the freedom to have or adopt a religion ‘does not permit any limitations
whatsoever’, but the freedom to manifest one’s religion may be limited.36 Furthermore,
states parties to the ICCPR are required to prohibit propaganda for war and the incitement
of religious hatred.37 International humanitarian law does not seem to limit the right to
have a religion either, considering that specific Articles underline the importance of religion
for persons in the most vulnerable situation, namely when interned.38 However, paragraph
4 of Article 27 GC IV provides a basis for the parties to the conflict to limit these rights by
taking measures of security and control with regard to protected persons.39
vi. Respect for manners and customs
15 Article 27 paragraph 1 also mentions respect for manners and customs. The Pictet
Commentary identifies ‘manners’ as ‘individual behaviour’ or ‘constant personal habits’,
whereas ‘customs’ refers to the ‘usages of a particular society’.40 It further explains that
respect for manners and customs is especially of importance during occupation, and is
meant to protect persons and communities against ‘cultural genocide’.41 Under IHL, culture
is protected in several Articles, such as the maintenance and education of children,42 the
prohibition of forcible transfer of protected persons,43 and by the protection of cultural
property as mentioned in Article 27 of the Hague Regulations and the Convention for the
Protection of Cultural Property in the Event of Armed Conflict.44 The Additional Protocols
similarly reiterate the other rights mentioned in the Articles concerning fundamental
guarantees, but not manners and customs or culture.45 In the field of IHRL, (p. 1247) some
instruments mention the right to cultural life46 and aim at safeguarding intangible cultural
heritage, which does include the manners and customs of communities, groups, and
individuals.47 It can thus be argued that cultural heritage, and therefore manners and
customs, are protected during armed conflict through IHL, IHRL, and the UNESCO
Convention.48
vii. Humane treatment
16 The principle of humane treatment is incorporated in Article 27 paragraph 1 GC IV. This
principle underlies all the Geneva Conventions (for all protected persons) as well as
Common Article 3 (in NIAC); it is recognized by the Additional Protocols as being a
fundamental guarantee (in IAC under Article 75 AP I, persons not benefiting from a more
favourable treatment, and in NIAC under Article 4 AP II, persons not, or no longer, taking
direct part in hostilities); and it is identified as customary law (for civilians and persons
hors de combat).49 This principle is especially important with regard to people who find
themselves in a most vulnerable position, namely when interned.
17 As Pictet had already stated and as repeated in the CIHL Study, it is unnecessary and
even useless to define precisely which acts would fall within the notion of humane
treatment.50 Instead, the question might be reversed to consider what inhuman treatment
is, or, as mentioned in the Pictet Commentary under Article 147 on inhuman treatment as a
grave breach, defining inhuman treatment as ‘the sort of treatment which [has] ceased to
be humane’.51 Geneva Convention IV contains provisions in which examples of inhuman
treatment may be found, among which the provision on grave breaches, which includes
several acts in the notion of inhuman treatment.52 The Pictet Commentary explains that the
meaning of inhuman treatment goes beyond physical injury or injury to health, and that
‘[c]ertain measures, for example, which might cut the civilian internees off completely from
the outside world and in particular from their families, or which caused grave injury to their
human dignity, could conceivably be considered as inhuman treatment’.53 The principle of
humane treatment applies ‘at all times’, meaning that, for example, the ongoing hostilities
cannot be used to justify any violation of the principle of humane treatment whatsoever.54
18 In international criminal law (ICL) the International Criminal Tribunal for the former
Yugoslavia (ICTY), in the Čelebići Camp case, found that
inhuman treatment is an intentional act or omission, that is an act which, judged

objectively, is deliberate and not accidental, which causes serious mental or
physical suffering or injury or constitutes a serious attack on human dignity.
(p. 1248) The Tribunal continued:
[I]nhuman treatment is intentional treatment which does not conform with the
fundamental principle of humanity, and forms the umbrella under which the
remainder of the listed ‘grave breaches’ in the Conventions fall. Hence, acts
characterised in the Conventions and Commentaries as inhuman, or which are
inconsistent with the principle of humanity, constitute examples of actions that can
be characterised as inhuman treatment.55
It then stated that
[u]ltimately, the question of whether any particular act which does not fall within
the categories of the core group is inconsistent with the principle of humane
treatment, and thus constitutes inhuman(e) treatment, is a question of fact to be
judged in all the circumstances of the particular case.56
19 Several international and regional human rights instruments contain a prohibition of

inhuman treatment.57 The European Commission on Human Rights (ECommHR) defined the
notion of ‘torture or inhuman or degrading treatment or punishment’ on the basis of the
degree of severity of ill-treatment, distinguishing three levels: torture, inhuman treatment
or punishment, and degrading treatment or punishment. It defined inhuman treatment as
covering ‘at least such treatment as deliberately causing severe suffering, mental or
physical, which in the particular situation is unjustifiable’.58 The assessment of the
minimum level of severity ‘depends on all the circumstances of the case, such as the
duration of the treatment, its physical or mental effects and, in some cases, the sex, age and
state of health of the victim’.59 It can thus be seen that the assessment of the case depends
on the facts. The same approach is taken by the Human Rights Committee (HRCttee) with
regard to Article 7 ICCPR, in that the distinction between the terms depends on the ‘nature,
purpose and severity of the treatment applied’.60
20 As already stated at MN 17, defining humane treatment under IHL may be done by
asking what inhuman treatment comprises. Assessing whether an act would amount to
inhuman treatment depends on the facts of the case, and ICL and IHRL could complement
IHL in this determination. Nevertheless, it should be mentioned here that if the concept of
humane treatment under IHL is analysed by instead asking what inhuman treatment is,
while also taking into account the analysis under IHRL, the Geneva Conventions would
seem to skip over the possibility of a category of degrading treatment which, as can be seen
under IHRL, requires a lesser degree of severity than inhuman treatment.61 However, when
looking at Common Article 3, the substance of which is said to apply to IACs as well,62 it
requires that persons taking no active part in hostilities shall (p. 1249) be treated humanely,
and to that end it prohibits ‘outrages upon personal dignity, in particular humiliating and
degrading treatment’.63 It therefore might be argued that if a protected person were to
suffer degrading treatment or punishment, this would also violate the requirement for
humane treatment under Article 27 GC IV. It might then be argued that the notion of
inhuman treatment under Article 147 GC IV includes outrages upon personal dignity,
including humiliating and degrading treatment, and thus the threshold of the degree of
severity for inhuman treatment under the Geneva Conventions would be lower than in
IHRL.64
21 The ICTY Statute does not make any explicit reference to outrages upon personal
dignity, or degrading or humiliating treatment. It considers inhuman any ‘acts characterised
in the Conventions and Commentaries as inhuman, or which are inconsistent with the
principle of humanity’,65 which would mean that outrages upon personal dignity would
possibly come within its ambit. The Statute of the International Criminal Court (ICC)
includes in the list of war crimes in IAC, ‘Torture or inhuman treatment, including biological
experiments’, ‘Wilfully causing great suffering or serious injury to body or health’, and
‘Outrages upon personal dignity, and in particular humiliating and degrading treatment’.66
But the ICC Statute includes outrages upon personal dignity in a separate provision (thus
the notion does not appear in the paragraph listing inhuman treatment), and inhuman
treatment is considered as a grave breach by the ICC Statute whereas outrages upon
personal dignity are listed under ‘other serious violations’ (even though AP I considers
outrages upon personal dignity to constitute a grave breach).67
viii. All acts of violence or threats thereof
22 Under Article 27 GC IV, states must provide protection against all acts of violence or
threats thereof. It may thus be asserted that a High Contracting Party has to ensure the
safety of protected civilians in the face of acts of violence, regardless of whether such an
act is committed by military forces or not, or whether the act can be attributed to the state
or not. Note that Article 13 GC III sets out a similar provision, including protection of
prisoners of war (POWs) against ‘acts of intimidation’. Pictet’s Commentary explains there
that the protection extends to moral values, such as the moral independence of a POW.68
For the purposes of Article 27 GC IV, the ‘threat’ to commit a physical act of violence may
be considered the same as an ‘act of intimidation’. Protected persons also need to be
protected against insults and public curiosity, which may be said to fall within the notion of
honour, as found in the first sentence of paragraph 1 of Article 27. In an ICRC-sponsored
plenary debate in 2006, the British Red Cross Society proposed guidelines for a
contemporary interpretation to protect civilian security internees (and POWs) from public
curiosity, proposing to ‘interpret the existing prohibition against insults and public curiosity
[…] as normally prohibiting the public transmission of images of prisoners of war as
identifiable individuals, and in all cases, as forbidding the public transmission (p. 1250) of
images of prisoners of war which undermine their personal dignity’, and calling upon states
and others to apply this to civilian security internees too.69
23 Paragraph 2 of Article 27 concerns the special protection of women. Here again, honour
is discussed in the light of sexual assault. For more discussion of the special protection of
women, see Chapters 17 and 61 of this volume. Paragraph 3 of Article 27 concerns
discrimination, which is discussed in Chapter 10.
ix. Measures of control and security
24 Paragraph 4 of Article 27 reserves the right for the parties to the conflict to take
‘measures of control and security’. Whereas the first three paragraphs of Article 27 concern
individuals, paragraph 4 takes into account the interest of the state. This provision seems to
provide a broad general basis for law enforcement measures. The Pictet Commentary and
the travaux préparatoires, however, explain clearly that paragraph 4 is not meant to serve
as a derogation from the fundamental rights of the protected civilians, mentioned in
paragraph 1.70 No derogation is thus allowed, unless explicitly provided for under other
provisions of IHL.71
25 To understand what is actually provided for under IHL, the notion in Article 27
paragraph 4 of ‘such measures of control and security in regard to protected persons as
may be necessary as a result of the war’ needs to be elaborated upon. Examples of such
measures may be found in GC IV,72 and it is clearly specified that these measures have a
defined limit, to be found in Articles 41 and 78 GC IV, where it is stated that no recourse
may be had to ‘any other measure of control more severe than that of assigned residence or
internment’73 or ‘at the most, [subjection of the protected persons] to assigned residence or
to internment’.74 Article 27 paragraph 4 GC IV serves as the general basis for internment of
civilian detainees as set out in Articles 41–43, 68, and 78 GC IV.75 Article 42 allows
internment of protected persons (aliens in territory of a party to the conflict) ‘if the security
of the Detaining Power makes it absolutely necessary’. Article 68 requires states to ensure
that ‘the duration of such internment [replacing imprisonment after conviction] or
imprisonment is proportionate to the offence committed’ and ‘the only measure adopted for
depriving protected persons of their liberty’. Furthermore, Article 78 allows internment of
protected persons (civilians in occupied territory) ‘for imperative reasons of security’,
making it clear that an assessment of necessity and proportionality is required.76 It can thus
be concluded that the structure of GC IV (allowing for measures of security and control in
Article 27 paragraph 4) is a closed system, under which deprivation of life or liberty is
completely prohibited,77 except in the cases mentioned above.78 Measures of control and
security which are less invasive than assigned residence and internment in (p. 1251)
occupied territories are regulated by Article 43 of the Hague Regulations and Article 64 GC
IV which, save for some exceptions, explain that the local laws remain in force.
b. Danger zones: Article 28
26 The Pictet Commentary points out that putting persons in places of strategic
importance to render a point or area immune from military operations (danger zones)
cannot be considered a permissible ruse of war. It goes on to explain how the notion of
‘military operations’ should be interpreted, namely, as any act of warfare conducted by
enemy forces or groups that can be placed under the same umbrella as regular armed
forces.79
27 The concept of the prohibition of ‘human shields’ has developed over the years due to,
among other reasons, the increase of armed conflict in urban areas. International
humanitarian law has paid attention to this trend. Additional Protocol I extends the
prohibition against using persons to render objectives immune from military operations to
the (own) civilian population of a party to the conflict.80 The CIHL Study identifies that ‘the
use of human shields is prohibited’ in IAC and NIAC.81 In addition, a positive obligation is
also placed upon states to endeavour to remove the civilian population from the vicinity of
military objectives.82
28 In order to see which acts come within the scope of Article 28 GC IV, the elements of
the Article need to be assessed. The term ‘military operations’ has been explained above,
and it seems that this interpretation remains valid.83 Thus, we shall continue with the
notion ‘presence of a protected person’, which includes ‘movements’ of protected persons,
as can be seen from Article 51 paragraph 7 AP I, which specifies ‘movements’ explicitly.
With regard to the location or, in other words, the ‘points and areas’, the Pictet
Commentary explains that ‘the prohibition is expressed in an absolute form and applies to
the belligerents’ own territory as well as to occupied territory, to small sites as well as to
wide areas’.84
29 The wording ‘may not’ in Article 28 should be interpreted narrowly. At the same time,
the words ‘be used’ may be interpreted broadly, covering: putting a person near an object,
allowing a person to place himself or herself next to an object, forces or groups moving
themselves or placing a military object in an area where many protected persons are
situated, and so on.85
30 The meaning of ‘to render […] immune’ has been further explained in AP I, where it is
defined to include at the least ‘[to] shield, favour or impede military operations (or military
objectives)’.86 Although we are not discussing Article 51(7) AP I here, the explanation given
there may be used in the interpretation of Article 28 GC IV. That a certain point or area will
be actually rendered immune from military operations is not necessary for the provision to
be violated, because this depends on the assessment of proportionality. The adversary might
not necessarily be violating IHL, even though it attacks the military objective while there is
a protected person present.
(p. 1252) 31 Article 28 GC IV does not require states to remove protected civilians from
the vicinity of military objectives (as long as the intention behind leaving them there is not
to shield a military objective). However, Article 38 paragraph 4 GC IV guarantees the right
of protected persons to move from an area that is particularly exposed to the dangers of
war. This is subject to authorization of the state, which has to provide such authorization
without any discrimination between protected persons and nationals of the state. It may
thus be considered that states have a positive obligation here to protect the lives of these
protected persons.
32 Article 28 GC IV is written in such a way that it does not matter if the protected person
chose to be present in order to render a certain point or area immune from military
operations (also known as a voluntary human shield). Therefore, for the purpose of the
Geneva Conventions, there is no need to make a distinction between voluntary human
shields or persons who are present without their consent.
33 In the legal literature, it is sometimes argued that a distinction should be made
between persons who are voluntary human shields and those who are not, because those
who are voluntary could be said to be taking direct part in hostilities and would thus be
targetable.87 However, in practice it is almost impossible to judge or analyse whether a
person shielding a military objective is doing this of his or her own free will.88
c. Responsibilities: Article 29
34 Article 3 of Hague Convention IV already provided that a belligerent party ‘shall be
responsible for all acts committed by persons forming part of its armed forces’. Article 29
GC IV elaborates upon this provision by expanding the category of those committing the
acts to include ‘agents’ of the state, while limiting its scope in line with the goal of the given
Convention, applying only to the treatment accorded to protected persons by its agents.
Pictet explained in his Commentary that the application of the principle of state
responsibility is determined by the relevant rules of international law. He went on to say
that the ‘responsibility principle’ entails certain obligations upon states, namely an implied
obligation to ‘instruct their agents on their rights and duties’ and an obligation to make
reparation in the event that an agent of the state has committed an act in violation of the
Convention.89 A similar provision with regard to POWs may be found in Article 12 GC III.
Article 29 GC IV should be read in conjunction with Article 148 GC IV concerning the
prohibition on a High Contracting Party absolving itself from any liability incurred in
respect of grave breaches as listed under Article 147 GC IV.
35 With regard to the first part of Article 29 GC IV, which refers to ‘the Party to the conflict
in whose hands protected persons may be’, it might be argued that explicit reference is
made to ‘the Party to the conflict’ in order to exclude the application of the provision to the
Occupying Power, because states wanted to avoid direct responsibility for acts of local
authorities in cases of occupation.90 However, it might also be argued that it is phrased as
such to clarify that the ‘party’ responsible is the one in whose hands the protected person
is.91 This seems more logical, especially in light of the current law of state (p. 1253)
responsibility92 and the location of the Article in Section I which is applicable to both
situations, i.e. protecting both enemy civilians in the territory of a party to a conflict and
civilians in an occupied territory. Thus, when the protected person is in the party’s hands,
the party is responsible for the treatment accorded to that person.
36 Whereas Article 3 of Hague Convention IV and Article 91 AP I refer to ‘armed forces’,
Article 29 GC IV specifies that state responsibility is incurred for the treatment accorded to
protected persons ‘by its [state] agents’. The Commentary to the ILC Articles on State
Responsibility explains, based on several sources of law, that ‘the general rule is that the
only conduct attributed to the state at the international level is that of its organs of
government, or of others who have acted under the direction, instigation or control of those
organs, i.e. as agents of the state’, but not limited to those who have some kind of
allegiance towards the state.93
37 In order to discover whether a state is responsible for the treatment accorded to
protected persons, reference may be made to the ILC Articles on State Responsibility, as
well as to the case law of the ICJ and ICTY, where discussion is still ongoing as regards the
degree of control necessary for attribution to a state of the acts and omissions of individuals
not having the formal status of an organ of the state.94 A possible solution might be to
argue that the test of control applies differently in each situation. The test for the degree of
control by a state over an individual who is not a de jure organ of the state might then
differ, so that one would apply the overall control test for the classification of the conflict,
whereas the effective control test would apply as regards the attribution of acts for the
purposes of state responsibility.
38 Article 29 concerns responsibility for the ‘treatment’ of protected persons. In simple
terms, it may be understood that the conduct of a state consists of acts and omissions.95 It
may thus be argued that the treatment referred to in Article 29 includes omissions as well.
This reaffirms the due diligence obligation of the state and implies that a state may be held
responsible if it did not act in order to prevent or stop treatment to a protected person that
(p. 1254) would amount to a violation of IHL, or if it did not make full reparations for the
loss or injury caused.96
39 As a last point, the Article clarifies that state responsibility is to be viewed separately
from ‘any individual responsibility which may be incurred’.97 Pictet explains:
The Convention thus shows clearly that two distinct responsibilities [state
responsibility and individual responsibility] co-exist and emphasizes that they are
not alternatives but supplementary to one other. The fact that the State has made
good the damage caused in no way diminishes the responsibility of the author of the
offence and vice versa. […] [T]he two forms of punishment for violations of the
convention thus run parallel to each other.98
d. Application to Protecting Powers and relief organizations: Articles 30, 142,

and 143
40 Article 30 GC IV, providing a way for protected persons to ask for assistance, was new
in the field of IHL. The importance of this Article has to be stressed here, in that it provides
the possibility for individuals, as protected persons, to be heard. The Article should be read
in conjunction with Articles 142 and 143 GC IV, which cover the special roles of relief
societies and other organizations.
41 To understand what is included in Article 30 GC IV, we need to start with its wording
that protected persons
shall have every facility for making application to the Protecting Powers, the
International Committee of the Red Cross, the National Red Cross (Red Crescent,
Red Lion and Sun) Society of the country where they may be, as well as to any
organization that might assist them.
The words ‘shall have’ entitle protected persons to use this right, while placing an
obligation on the High Contracting Parties to facilitate applications to the organizations
listed in the Article. As explained by the Pictet Commentary, this right is absolute, meaning
that all protected persons, as defined by Article 4 GC IV, are entitled to it. According to
Pictet, ‘every facility for making application to’ is understood as ‘a right of communication
which may be exercised under all circumstances’ but ‘may be suspended if the seriousness
of the circumstances so demands’.99 It may thus be concluded that this phrase should be
interpreted broadly, and that the right to communicate, based on the need for assistance of
protected persons, may be executed in many different ways for many different reasons. It is
not specified precisely what is understood by the right to communicate, nor the facility for
making application.
42 The application may be made to the Protecting Powers and the ICRC, or to the National
Red Cross Society of the country where the protected person may be. Pictet has already
highlighted the difficult position of the National Red Cross Societies with regard to
protected persons in states party to the conflict, or in occupied territory, due to their
affiliations with the nationals of the country in which they work.100 Therefore, it might be
helpful to apply to National Red Cross Societies of other states that are not parties to the
conflict and might have (p. 1255) more independence in their way of working.101 This is
possible because Article 30 also includes a further body to which protected persons must be
able to apply, that is, ‘any organization that might assist them’. There is no definition or
exhaustive list of which other organizations would come within the scope of this term, but
some indications are given in other provisions of IHL treaties, namely organizations whose
object is to give spiritual aid or material relief,102 as well as relief societies103 and
humanitarian organizations.104 Furthermore, Article 142, addressed to the Detaining Power,
demands that, with regard to protected persons who are interned, the facilitation of visits
by ‘such societies or organizations [as the ones stated above] may be constituted in the
territory of the Detaining Power, or in any other country, or they may have an international
character’. This would mean that those organizations, as long as they have been lawfully
constituted under the law of any country in the world, would have the right to provide their
assistance and receive all facilities from the parties to the conflict or Occupying Power, as
long as their aim is in compliance with the activities mentioned in paragraph 1 of Article
142 GC IV and they are capable of executing these activities. It should be noted that the
granting of facilities to assist organizations may be restricted or limited due to military or
security considerations.105 Furthermore, Article 5 paragraph 2 GC IV provides for
derogation from the right to communicate as well.106
43 Article 30 paragraph 2 GC IV stresses that the authorities must grant all facilities in
order to enable protected persons to make an application to those organizations. This
means not only that the making of an application should not be hindered, but that the
Article also contains a positive obligation requiring the states parties to undertake action in
order to facilitate applications by protected persons to the relevant organizations. In
addition to some examples of what actions parties should undertake as mentioned by the
Pictet Commentary, one could today consider the provision of (limited) access to the
Internet and social media in order to enable communication by protected persons with the
said organizations.
44 The first phrase of Article 30 paragraph 3 emphasizes the right of the Protecting Power
and the ICRC to visit protected persons as provided for in Article 143.107 The paragraph
then stresses that, in addition to facilitating the right to visit for the above-mentioned
organizations, other organizations providing spiritual aid or material relief should also have
their visits to protected persons facilitated. While the right for the Protecting Powers and
the ICRC to visit protected persons is almost absolute, and the Detaining Power and
Occupying Power do not have much discretion to prohibit or restrict those visits, it seems
that they have more discretion as regards the facilitation of visits by other organizations
due to the use of the wording ‘shall facilitate as much as possible’.
e. Prohibition of coercion: Article 31
45 This Article is very general in that it prohibits the exercise of physical or moral coercion
against protected persons. Article 31 GC IV represented an enormous step forward in the
protection of civilians as it expands significantly the scope of the prohibition of one (p.
1256) type of coercion, namely the compelling of inhabitants of an occupied territory to
provide information, as laid down in Article 44 of the Hague Regulations. Pictet explains in
his Commentary that this prohibition is not absolute but ‘applies in so far as the other
provisions of the Convention do not implicitly or explicitly authorize a resort to coercion’.108
An example of such an authorization to coerce is Article 40 GC IV, which provides a basis to
compel protected persons to work. What will not be discussed here is coercion as a means
and method of warfare;109 neither will we look at coercion as a defence under criminal law,
or at economic coercion by states, which could affect protected persons.110
46 ‘Coercion’ may be understood as ‘[t]he action of persuading someone to do something
by using force or threats’.111 International human rights law may also be used to interpret
the notion. There are many kinds of coercion. The ECtHR, in the case of MC v Bulgaria,
explained the kinds of circumstances that can create a coercive environment.112 A report by
Amnesty International listed several of these forms of coercive circumstances in the context
of sexual violence, namely fear of violence, duress, detention, psychological oppression, and
abuse of power.113 These forms of circumstances relate to both physical and mental or
moral coercion. The prohibition in Article 31 GC IV goes beyond these forms of coercion,
but includes those of torture and inhuman or degrading treatment.114
47 International humanitarian law implicitly and explicitly allows certain coercive
measures. In some cases, such as in the case of compelled labour as provided for under
Article 40 GC IV, the state is specifically allowed to exercise some form of coercion.115 The
prohibition of coercion as laid down in Article 31 is not absolute but needs to be read
together with those Articles that allow for the limitation of the prohibition. Especially of
importance are the measures of control and security that parties may take as provided for
in Article 27 paragraph 4 GC IV, as regards which parties have a broad discretion.
f. Prohibition of physical suffering: Article 32
48 The purpose of the prohibition of physical suffering in Article 32, even though it might
be said that this prohibition is already encompassed by Article 27 GC IV (see section B.I.a of
this chapter), is to emphasize expressly absolute respect for the human person.116 It
addresses the ‘High Contracting Parties’ instead of the parties to the conflict or Occupying
Powers, in order to emphasize the importance of the prohibition. At the same time the
Article is concerned mostly with parties to the conflict and the Occupying Powers because it
refers to the fact that the parties should have ‘protected persons in their hands’.117 The
High Contracting Parties are thus ‘prohibited from taking any measure of such a character
as to cause the physical suffering or extermination’ of such protected persons.
(p. 1257) 49 As mentioned in the Pictet Commentary, the initial draft prohibited acts or
omissions that are ‘likely to cause’ physical suffering was changed at the Diplomatic
Conference into ‘of such a character as to cause’.118 This may be interpreted as covering
not only any measures directly causing, but also any measure indirectly causing the
physical suffering of a protected person in the hands of a High Contracting Party.119 An
example of a measure with direct effect would be a measure requiring the killing of a
protected person, while the Article also seems to cover indirect measures, such as denying
a protected person water to drink, which indirectly would lead to his or her death. Such an
act can also be defined as murder. Another example that might be mentioned here is the
use of forced labour as a method of indirect extermination of POWs during the Second
World War.120 In the criminalization of extermination, this ‘indirectness’ has been taken into
account as well. While the notion of ‘physical suffering’, as set out in Article 32 GC IV, may
be interpreted as comprising any bodily harm, ‘extermination’ has a different connotation,
namely ‘murder on a large scale—mass murder’,121 including indirect means of causing
death.122 The former notion is understood as covering measures directed at individuals,
while the latter is understood to cover measures addressing groups.
50 Article 32 then sets out the acts to which the prohibition applies. The notion of murder
does not need much explanation. Murder refers to ‘any form of homicide not resulting from
a capital sentence by a court of law in conformity with the provisions of the Convention’.123
What needs to be mentioned here is that murder committed without a causal connection to
the armed conflict is not covered by this Article but would be covered by the domestic law
of the state that has jurisdiction over the crime.124 This can also be seen from the possible
authors of the prohibited acts, namely, civilian or military agents.125 But any such act
committed by a non-agent with a nexus to the conflict would nevertheless violate IHL, as
they are all prohibited by the first sentence of Article 32 and other provisions of IHL.
51 Corporal punishment had already been prohibited under the 1929 Convention with
regard to POWs.126 Furthermore, its prohibition is identified as a customary rule by the
CIHL Study.127 Article 75(2)(a)(iii) AP I also repeats the prohibition, while extending its
scope. Corporal punishment may be interpreted as ‘any punishment in which physical force
is used and intended to cause some degree of discomfort, however light’.128 The prohibition
is absolute, and in Articles 118 and 119 GC IV specific provisions are set out with regard to
penalties and punishment for internees. Human rights law may also be used to interpret the
prohibition of corporal punishment.129 Corporal punishment would amount to a grave
breach if it (p. 1258) were to amount to torture or inhuman treatment, or if it would cause
great suffering or serious injury to body and health.130 According to the HRCttee, the
prohibition on torture, cruel, inhuman, or degrading treatment or punishment ‘must extend
to corporal punishment’.131
52 The Commentary on Article 11 AP I, which repeats the prohibition of mutilation, states
that ‘physical mutilation’ refers ‘particularly [to] amputations and injury to limbs’.
Furthermore, ICL may be consulted to see how the term ‘mutilation’ is interpreted. In the
Tadić case before the ICTY, reference is made to sexual mutilation in the finding of the
facts.132 Under the ICC Statute, mutilation is defined as a war crime.133 In the Elements of
Crimes it is stated that for this crime, ‘[t]he perpetrator subjected one or more persons to
mutilation, in particular by permanently disfiguring the persons or persons, or by
permanently disabling or removing an organ or appendage’, which leaves room for other
acts to fall within the notion of ‘mutilation’.134 These acts do not appear to be prohibited as
such under IHRL, but would fall under the prohibition of torture and inhuman or degrading
treatment or punishment. Rule 92 of the CIHL Study also asserts that the prohibition of
mutilation, as well as the prohibition of medical or scientific experiments, is customary law.
Non-consensual medical or scientific experimentation is expressly prohibited under Article
7 ICCPR. International humanitarian law repeats the prohibition of medical and scientific
experiments in Article 11 AP I, and provides more guidance on how to interpret this notion.
53 As can be seen in the last part of Article 32 GC IV, the list is made non-exhaustive
through the wording ‘any other measures of brutality’. According to the Pictet Commentary,
this wording is similar to the reference to ‘acts of violence’ in Article 27 GC IV.135
Furthermore, reference is made to the possible authors of such acts, namely civilian or
military agents, in order to address the responsibility of both the individual perpetrators
and the state.136
II. Section II: Aliens in the territory of a party to the conflict

a. Persons in confinement: Article 37
54 The purpose of Article 37 GC IV is to protect persons with enemy nationality on the
territory of a party to the conflict from arbitrary treatment by the authorities during their
confinement. This Article covers protected persons confined pending criminal proceedings
or serving a sentence, but is not concerned with persons detained for security purposes
which is dealt with in Articles 41 to 43 GC IV.137 The confinement pending proceedings or
the serving of a sentence is regulated by domestic penal law. Furthermore, IHRL provides
for extensive procedural and substantive law regarding persons in confinement. Therefore,
IHRL should be consulted in order to understand the notions ‘confined pending
proceedings’ and ‘serving a sentence involving loss of liberty’.138
(p. 1259) 55 The CIHL Study identifies a customary rule prohibiting arbitrary deprivation
of liberty, applying to both IAC and NIAC situations.139 Arbitrary deprivation of liberty may
amount to inhuman treatment which would violate Article 37 paragraph 1 GC IV and Article
27 GC IV, and in a NIAC situation it would violate Common Article 3. Furthermore, if
applicable, it would amount to a violation of Article 75 AP I (considered to reflect customary
law) and Article 5(3) AP II. According to Article 147 GC IV, inhuman treatment and unlawful
confinement are considered to be grave breaches of the Geneva Conventions, and are
criminalized by several statutes of international criminal courts and tribunals.140 Examples
of inhuman treatment (relating to deprivation of liberty) include poor conditions of
detention, cases of solitary confinement, and lack of adequate food, water, and medical
treatment.141
56 Article 37 paragraph 2 starts with the words ‘As soon as they are released’, which is an
interesting phrase. The question is what is meant by ‘release’ today: does this comprise, for
example, home arrest, detention at home, release on temporary licence, or release on
conditions? This is of relevance with regard to the moment that protected persons who
were in confinement may ask to leave the territory. Especially in the case of release after
being confined pending proceedings, it could be that the final verdict has not been given yet
but a protected person suspected of a crime is released on conditions (awaiting trial). What
likely will happen then is that a protected person will file a demand to leave, which will
often be refused on grounds that it is ‘contrary to the national interests of the state’.142
57 It should be noted that both Articles 37 and 38 GC IV may be said to contain an implicit
obligation on the party to the conflict to provide judicial guarantees for protected persons.
Under Article 37, it might be argued that if there were insufficient judicial guarantees, that
could amount to inhuman treatment, which assertion could be backed up by the vulnerable
situation of persons in confinement needing all the safeguards they can get. Under Article
38, it might be argued that protected persons should have at least the right to fair trial,
which could be added to the non-exhaustive list of minimum guarantees seen below.
b. Non-repatriated persons: Article 38
58 As the Hague Regulations dealt only with the situation of protected persons in occupied
territory, GC IV complements them with further provisions regarding protected persons in
the territory of the party to the conflict.
59 Article 38 regulates the minimum standards applicable with regard to those protected
civilians who are not willing or able to make use of the right to leave the territory of a party
to the conflict.143 Persons who are likely to benefit from this provision include ‘enemy
aliens’ and refugees in the territory of a party to the conflict (note that Section II concerns
only the territory of a party to the conflict and not occupied territory).144 The (p. 1260)
chapeau of Article 38 explains that, in principle, the domestic law, complemented by the
relevant international law concerning aliens, will continue to apply to the situation of
protected persons (law applicable to aliens during peacetime). The exception to this rule is
the restrictive measures or ‘special measures’ as authorized by GC IV, ‘particularly by
Articles 27 and 41’. As discussed, the system of measures of control and security is a closed
system under GC IV. Although states parties have considerable discretion in implementing
those measures, they cannot be more strict or more severe than assigned residence or
internment.145 Thus, domestic and international law, such as IHRL, refugee law, and private
international law, as well as treaties and custom between states regarding residence and
diplomatic protection, regulate the situation of protected persons, unless IHL has provided
for regulation, as can be understood by the wording ‘in principle’, which leaves room for
exceptions under IHL. Furthermore, Pictet refers to the growing tendency in national and
international law to protect the principle of equal treatment between a state’s own
nationals and aliens, which is also reflected in some of the rights mentioned in Article 38
GC IV. Under IHRL, aliens are supposed to have the same rights as nationals, except for
political rights and the right to enter the country.146 It is not clear to what extent limitations
are allowed under IHRL with regard to enemy aliens. This has to be assessed according to
the situation in the light of applicable domestic and international law.147
60 Article 38 GC IV continues with a non-exhaustive list of the rights granted to protected
persons in any case. The first right entitles protected persons to be enabled to receive
individual and collective relief, meaning that the party in whose hands the protected person
is, is not allowed to prohibit this.148 The second right listed is the entitlement to receive
medical attention and hospital treatment. Here the principle of equal treatment (or non-
discrimination on the basis of nationality) is explicitly added.149 This does not, however,
preclude the possibility of discriminatory treatment based on medical urgency.150 The third
right entitles protected persons to practise their religion. This can be interpreted in the
same way as has been explained above.151
61 The fourth right aims at preventing a situation where only protected persons are left in
a danger zone while the nationals of the territory are authorized to move away from it. The
wording of this Article leaves it to the party to the conflict concerned to decide whether
civilians are authorized to move or not. Again, the equal treatment principle is used as the
(p. 1261) means to protect the protected persons. Thus, if the party decides that its
nationals should move, it must so authorize the protected persons too. Article 38 paragraph
4 is closely linked to Article 28 GC IV. If a state would authorize the departure of its
nationals but not enemy aliens or refugees residing in such a danger zone, not only would
this right have been breached but it could also amount to a violation of Article 28 which
prohibits the use of protected persons as human shields.152 Furthermore, according to
Article 27 GC IV, the parties have a positive obligation to protect protected persons against
all acts of violence or threats thereof. If nothing is done to protect them from the dangers of
war, this might amount to a violation of Article 27 GC IV.
62 The last right in the list provides special protection for three categories of persons who
are more vulnerable: children under the age of 15, pregnant women, and mothers of
children under 7 years of age. Not only should they benefit from the same treatment as the
nationals of the territory, they should as much as possible benefit from preferential
treatment.153 Preferential treatment covers ‘the whole body of provisions, normally
promulgated in countries at war, for the benefit of persons whose weakness in one respect
or another warrants special care. Measures granting preferential treatment may be most
varied in scope and application’.154
63 A right which is not listed but is of crucial importance is the right to judicial
guarantees, especially the right to a fair trial. As scholars have pointed out, ‘Aliens accused
of having committed a criminal offence in connection with the conflict are entitled to a trial
in accordance with the international obligations of the state, in particular with the human
rights conventions.’155 Furthermore, the minimum guarantees, including judicial
guarantees, as listed under Article 75 AP I are considered to be customary law, so it can be
asserted that the ‘minimum’ guarantees listed under that Article are likely the same
guarantees that should be granted to the protected persons ‘in any case’ under Article 38
GC IV.156
c. Means of existence: Article 39
64 Although states had been making efforts to support enemy civilians in their means of
existence, because they were suffering from difficult living conditions as a result of war, the
experiences in the Second World War showed that these measures were not sufficient.
Therefore, Article 39 was drafted in order to address these issues.157
65 The Article provides the opportunity to find paid employment to protected persons who
have become jobless as a result of the war. This implies that there must be a causal
connection between the armed conflict and the reason why a person lost his or her job, and
it seems that the Article does not apply to protected persons who had already lost their jobs
before the beginning of the armed conflict. Note that Article 39 refers to an ‘opportunity’
and not to a ‘right’.158 Granting an opportunity is not the same as granting (p. 1262) a
right.159 The ordinary meaning of ‘opportunity’ is ‘a time or set of circumstances that makes
it possible to do something’.160 It can thus be asserted that the party to the conflict has to
create equal opportunities for both its own nationals and for protected persons in its hands,
who have lost their jobs due to the armed conflict, to find paid employment without
discrimination on the basis of nationality.
66 The creation of such an opportunity may be limited in two ways, namely, by security
considerations and by compelled labour. The former limitation may endanger any
opportunity to find paid employment, because parties have a lot of discretion in deciding
upon measures of control and security. The latter limitation is discussed in section B.II.d of
this chapter. If measures of control are applied, for example assigned residence or
internment, which result in the protected person’s being unable to support himself or
herself, Article 39 paragraph 2 provides that ‘the said Party shall ensure his support and
that of his dependents’, where ‘shall ensure’ may be interpreted in the light of IHRL ‘to
guarantee that the holder of the right is able to gain access to the enjoyment of the right
when he or she is unable to do it for him or herself’.161 It is not clear precisely what is
meant by ‘especially if such a person is prevented for reasons of security from finding paid
employment on reasonable conditions’. It could mean that the party to the conflict has to
support such persons (and their dependants) because they are not able to find jobs at all
due to the measures applied to them; because they did find jobs but they bear no relation to
what those persons are qualified to do, leaving them with insufficient income for their
dependants (e.g. a lawyer working on a conveyor belt in a shoe factory); or because they
are not able to negotiate reasonable conditions for their employment due to the fact that
they are enemy aliens. No clarity is provided, and it is left to the authorities to apply this
phrase in a reasonable manner.
67 The Pictet Commentary seems to interpret the ‘support’ mentioned in Article 39 as
referring to an allowance, i.e. financial support, and gives some indicators as to the amount
to be given. There seems to be room to argue that ‘support’ may be interpreted in a broader
manner, allowing for support in the form of food, clothes, shelter, and so on. Allowances are
explicitly mentioned in Article 39 paragraph 3, where it is stated that protected persons
may receive them from the providers listed in the Article. (It should be recalled that Article
38 GC IV already provides for the right of protected persons to receive individual or
collective relief sent to them by whomever.) As a last point it should be explained that
‘dependents’ in paragraph 2 of the Article should be interpreted according to the domestic
law of the state. Note, however, that Article 39 itself does not require that a dependant
must be a relative of a protected person referred to in paragraph 2.
d. Employment: Article 40
68 The Hague Regulations prohibit a state ‘to compel the nationals of the hostile party to
take part in the operations of war directed against their own country’, while the 1929 GC II
allowed forced labour for POWs but restricted it to ‘work having no direct connection (p.
1263) with the operations of the war’.162 The Geneva Conventions contain several Articles
regulating forced labour with regard to POWs,163 protected persons in the territory of a
party to the conflict and occupied territory, and protected persons who have been
interned.164 Furthermore, according to the CIHL Study, ‘uncompensated or abusive forced
labour is prohibited’.165
69 The purpose of Article 40 GC IV was not to prevent or prohibit forced labour but,
according to Pictet, ‘to prevent enemy aliens from being employed for purposes which
conflict with the interests of their home country’. The first paragraph of the provision spells
out the requirement for equal treatment between nationals and protected persons, namely
that if nationals are not compelled to work, protected persons should not be either. It is
important to understand what is meant by ‘compelled to work’. The notion ‘compelled to
work’ is similar to ‘forced labour’. Forced labour is defined by the International Labour
Organization (ILO) as ‘all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself voluntarily’.166
The ILO also explains what is not included under ‘forced labour’ for the purposes of its
Convention.167 Most of the IHRL instruments have similar provisions on forced labour.168
Articles 40 and 51 GC IV allow the party to the conflict and the Occupying Power to compel
protected persons to work, whereas this would only be acceptable under ILO Convention
29, which excludes from the scope of forced labour ‘cases of emergency’, or circumstances
that would ‘endanger the existence or the well-being of the whole or part of the
population’.169 If the facts of the case do not comply with this ground of exception, then the
activities would seem to fall under the ‘forced labour’ definition and thus amount to a
violation of this Convention. The question is consequently which law takes precedence,
which normally is solved by taking into account the lex specialis rule or the lex posteriori
rule. It seems, however, that Article 40 GC IV itself already contains the solution. As the
first paragraph requires that protected persons may be compelled to work only to the same
extent as nationals, we should first take a look at the nationals. The civilian nationals of a
party to the conflict are not covered by GC IV but by domestic law (and relevant ILO
Conventions). Thus, this means that the prohibition of forced labour applies to them, unless
the activities would fall under one of the exceptions already mentioned above. If the
nationals are prohibited from being compelled to work, protected persons cannot be
compelled to work either. This construction could render Article 40 moot.
70 In the event that the exception applies, nationals as well as protected persons could be
compelled to work. Paragraph 2 of Article 40 GC IV explains that persons of enemy
nationality may only be compelled to do work which is not directly related to the conduct of
military operations, preventing their waging war against their own country. The list of
permitted activities in paragraph 2 nevertheless leaves a broad margin for interpretation,
and the question is to what extent enemy aliens would be prevented from contributing to
the war effort against their own state.
71 The third paragraph of Article 40 requires that protected persons should benefit from
equality of treatment with nationals concerning working conditions and safeguards. This
means that, in general, domestic law should be consulted to see what the applicable law (p.
1264) is. The fourth paragraph provides protected persons compelled to work with the right
to complain by making an application to the Protecting Powers, the ICRC, the National Red
Cross Society, or any other organization assisting them.170
e. Cancellation of restrictive measures: Article 46
72 Article 46 GC IV regulates the cancellation of restrictive measures regarding protected
persons. All the measures that are still in place after the close of hostilities, i.e. ‘in so far as
they have not been previously withdrawn’, shall be cancelled as soon as possible after the
close of hostilities. This implies that if a measure could have been withdrawn before the
close of hostilities, this should have happened already.
73 Restrictive measures may be understood as measures of control and security. As
mentioned, states have a considerable margin of appreciation in taking such measures.171
This may be seen, for example, in Article 39 paragraph 2 GC IV, which is aimed at persons
who are in assigned residence or forbidden to work in certain areas due to measures of
security or control. Other examples are internment as in Article 41 GC IV, or the restriction
of movement. Article 64 GC IV, which applies to a situation of occupation, may be used for
the interpretation of measures of security.172
74 As mentioned in numerous documents, restrictive measures should not result in
increased suffering for the most vulnerable population groups.173 In addition, for Article 46
to apply, the states concerned must be parties to the conflict, and it would concern only
those measures aimed at, or affecting, protected persons.
75 The interpretation of the notion ‘as soon as possible after the close of hostilities’ has
been discussed elsewhere in this Commentary.174 It suffices to say here that the close of
hostilities is not the same as the conclusion of a peace agreement. As stated in Article 6
paragraph 4 GC IV, protected persons shall continue to benefit from GC IV when their
release, repatriation, or re-establishment takes place after the general close of military
operations.
76 As already mentioned by Pictet, the second paragraph of Article 46 GC IV seems rather
out of place because it concerns property and not persons. The paragraph concerns ‘their
property’, where ‘their’ seems to refer to all protected persons as in the first paragraph. It
then states that the cancellation has to be in accordance with the law of the ‘Detaining
Power’, which seems to limit the scope of application of this paragraph to protected persons
who are/were detained. However, GC IV apparently uses the term ‘Detaining Power’ in a
wider sense as the power (other than an Occupying Power) in whose hands a protected
person is, even if that person is not deprived of his or her liberty. Restrictive measures
affecting property include, for example, the freezing of bank accounts.175 To get a clearer
understanding of enemy property law, national law and IHRL should therefore be
consulted.176
(p. 1265) III. Section III: Inviolability of rights in occupied

territories
77 Article 47 GC IV applies only to occupied territories.177 In an occupied territory, almost
everyone may be considered to be a protected person.178 The purpose of this provision,
which is at the beginning of Section III, is to provide protection through the law of
occupation with regard to persons in the hands of the Occupying Power.179 It should be
read in conjunction with Articles 7 and 8 GC IV, which prohibit or render ineffective (see
Chapters 7 and 8 of this volume respectively), first, special agreements that ‘adversely
affect the situation of protected persons’ or ‘restrict the rights which [the Convention]
confers upon them’ and, secondly, the renunciation by protected persons of any of the rights
conferred upon them or granted to them through special agreements.180
78 Article 47 GC IV provides the guarantees for protected persons in occupied territory,
which in no way may be affected by any new or modified institutions or government, or by
any other agreements concluded between the authorities of the occupied territory and the
Occupying Power, or by a unilateral statement of annexation.181 In short, the guarantees for
protected persons in occupied territory are protected through Article 47 GC IV and cannot
drop below the level guaranteed by GC IV in any way.182 However, there may be
agreements that provide more rights and guarantees.
79 If occupation continues after the general close of military operations, Article 47 remains
applicable until the end of occupation.183
C. Relevance in Non-International Armed Conflicts
80 In a NIAC situation, Common Article 3 provides for minimum guarantees, requiring,
like Article 27 GC IV in an IAC situation (MN 16–21), that ‘[p]ersons taking no active part in
the hostilities […] shall in all circumstances be treated humanely’. To that end, Common
Article 3 prohibits several acts, such as violence to life and person,184 the taking of
hostages,185 and outrages upon personal dignity, and it requires judicial guarantees.186
81 There is no explicit prohibition against using ‘human shields’ in NIACs, as is found in
Article 28 GC IV. However, the use of human shields in NIACs is considered a violation of a
customary rule of IHL.187 Furthermore, it may sometimes constitute the taking of hostages,
and will always be considered an outrage upon personal dignity, in particular as humiliating
and degrading treatment as prohibited by Common Article 3.
82 State responsibility may arise in situations of NIAC for the treatment of persons as
defined under Common Article 3, namely, persons taking no active part in hostilities and
those placed hors de combat. This has been discussed in Chapter 20 of this volume at MN
55–60.188
(p. 1266) 83 Common Article 3 does not provide an explicit right to make application to the
Protecting Powers or the ICRC, but it allows ‘an impartial humanitarian body, such as the
International Committee of the Red Cross’, to offer its services to the parties to the
conflict.189 There is no explicit reference to a Protecting Power.190
84 In situations of NIAC, coercion is not explicitly prohibited. However, Common Article 3
paragraph 1(1) requires humane treatment, and prohibits violence to life and person,
including torture. If the act of coercion would amount to any such acts, it is certainly
prohibited under Common Article 3.
85 Common Article 3 paragraph 1(1)(a) protects the fundamental guarantees of persons
taking no active part in hostilities and persons placed hors de combat in a similar manner to
Article 32 GC IV, prohibiting acts such as murder, mutilation, and torture.191 This has been
reaffirmed in the CIHL Study, which shows state practice and opinio juris in NIAC situations
prohibiting the same acts as listed in Article 32 GC IV.192
86 As already mentioned above,193 if arbitrary deprivation of liberty would amount to
inhuman treatment, this would violate Common Article 3. Furthermore, Common Article 3
provides for judicial guarantees.194
87 Articles 38 to 40 GC IV provide for minimum guarantees with regard to non-repatriated
persons. In Common Article 3 there are no specific regulations for non-repatriated persons
because its minimum guarantees apply to all persons taking no active part in hostilities or
hors de combat, without making a distinction based on nationality.195 Neither is there a
provision similar to Article 46 GC IV in Common Article 3. However, there remains the
possibility to agree upon similar guarantees under a special agreement. The same applies to
the inviolability of rights in occupied territory as provided for under Article 47 GC IV,
considering that the concept of occupied territories is not provided for under the law of
NIAC.
D. Legal Consequences of a Violation

I. State responsibility
88 Violations of the provisions discussed in this chapter will give rise to state responsibility
with all the usual consequences. Aspects of attribution are discussed at MN 34–39. Chapter
20 of this volume (at MN 55–60) explains issues of state responsibility in NIACs, while
Chapter 6 covers issues regarding the due diligence obligations of states.
II. Individual criminal responsibility

89 With regard to a violation of Articles 27, 31, 32, or 37 GC IV, Article 147 GC IV classifies
torture and inhuman treatment as grave breaches. For discussion of individual criminal
responsibility for these acts, see Chapter 16 of this volume, at MN 78–90.
(p. 1267) 90 Furthermore, the prohibition of the use of human shields has been addressed
at the international level by military tribunals,196 the ICTY,197 and the ICC.198 In some
cases, the use of human shields may amount to the taking of hostages, which explicitly
qualifies as a grave breach under Article 147 GC IV, while the use of human shields is not
listed explicitly as a grave breach but could qualify as such when it amounts to inhuman
treatment. The same may be seen in the ICC Statute, where the taking of hostages is a
grave breach under Article 8(2)(a)(viii) and the use of human shields is considered a war
crime under Article 8(2)(b)(xxiii).199 In many countries domestic legislation is in place
criminalizing the use of human shields.200 Their use in NIACs has been identified as a
violation of a customary rule of IHL.201 Furthermore, it may sometimes constitute the
taking of hostages, and will always be considered as an outrage upon personal dignity, in
particular humiliating and degrading treatment as prohibited by Common Article 3.
91 Other violations of the Geneva Conventions, such as violations of the right to make
application to the ICRC or of the provisions concerning non-repatriated persons,202 are not
considered war crimes as such.
E. Critical Assessment
92 Over the last few decades some fields of international law, in particular IHRL and ICL,
have evolved extensively, influencing in turn the interpretation of some of the notions used
in IHL, in particular those relating to the fundamental guarantees of protected civilians
(Articles 27, 31–34, 37, 38 GC IV).
93 Some of the Articles discussed in this chapter have become the subject of intense legal
debate, such as the those on human shields (Articles 28 and 38 paragraph 4) or state
responsibility (Article 29), triggering many discussions among the judiciary and scholars,
while other topics seem to have received a clear and straightforward interpretation, such as
the facilitation of applications (Article 30), which has not been influenced by other fields of
law in any significant way.
(p. 1268) 94 At the same time, there are also some rights which raise the question whether
they are still of relevance today or whether they require clarification, such as the regulation
of forced labour (Article 40) and the cancellation of restrictive measures affecting property
in accordance with the law of the Detaining Power (Article 46 paragraph 2).
95 It remains to be seen how the influence of other fields of law will impact the
interpretation and development of IHL in the future. In all likelihood, as may be seen from
the foregoing analysis, the influence of other fields of international law will reinforce and
strengthen the protection of civilians even further.
Iris van der Heijden
Footnotes:
1 CA 2; see further Chs 1, 2, 3, and 4 of this volume.
2
Draft International Convention on the Condition and Protection of Civilians of enemy
nationality who are on territory belonging to or occupied by a belligerent, adopted at the
15th International Conference of the Red Cross in 1934.
3
Arts 4 para 3 and 13 GC IV.
4
See further Chs 52 and 55 of this volume.
5
See further Chs 52, 55, and 67 of this volume.
6
Pictet Commentary GC IV, at 200.
7
See CESCR, General Comment 14 (E/C.12/2000/4), para 33. See Ch 6, MN 42–43, of this
volume for the interpretation of the wording ‘in all circumstances’.
8
See MN 10 and Ch 6 of this volume.
9
10
Ibid.
11
Ibid, at 201–2.
12
Ibid, at 201.
13
See HRCttee, General Comment 29, para 13; ECtHR, Saadi v Italy, Grand Chamber
Judgment, 28 February 2008, paras 127, 138, and 140.
14
HRCttee, above n 13, para 13.
15
The word ‘honour’ is expressly mentioned in Art 12 UDHR, Art 17 ICCPR, and Art 11
ACHR, while it is deliberately omitted from Art 8 ECHR which nevertheless protects it
under the notion of ‘private life’.
16
Hague Convention (IV) on War on Land and its Annexed Regulations (1907), Art 46.
17
C. Arrabal Ward, ‘Significance of Wartime Rape’, in M. Texler Segal and V. Demos (eds),
Gendered Perspectives on Conflict and Violence (Bingley: Emerald Group Publishing Ltd,
2013), vol 18, 189.
18
See Chs 17, MN 7–42, and 61, MN 12–13, of this volume.
19
ECtHR, A v Norway, Judgment, 9 April 2009, paras 63, 64.
20
21
ICRC CIHL Study, vol I, at 379, Rule 105.
22
See, e.g., Art 23(1) ICCPR, Art 10 ICESCR, Art 17(1) ACHR, and Art 15(1) ACHPR.
23
ICRC CIHL Study, vol I, at 380–2. See also Ch 53.
24
See, e.g., Arts 25, 26, 39, 40, and 50 GC IV.
25
However, the customary rule and AP I only mention ‘respect’.
26
While ‘respecting’ means that a state should refrain from interfering with a right,
‘protecting’ implies action on the part of the state to ensure that individuals’ rights are not
abused (CESCR, General Comment 14, E/C.12/2000/4, para 33).
27
HRCttee, General Comment 16, para 5.
28
ECtHR, X, Y, and Z v UK, Grand Chamber Judgment, 22 April 1997, para 36, recalling
several cases where this has been said by the Court; I. Roagna, Protecting the Right to
Respect for Private and Family Life under the European Convention on Human Rights
(Strasbourg: Council of Europe, 2012).
29
Art 43 Hague Regulations and Art 64 GC IV.
30
EECC, Civilians Claims—Eritrea’s Claims 15, 16, 23 & 27–32, Partial Award, 17
December 2004, para 154.
31
ICRC CIHL Study, vol I, at 375, Rule 104 and Art 75 AP I. Note, however, that the scope
of these rules is broader, applying to all persons not profiting from a more favourable
treatment.
32
Arts 30 para 3, 38 para 3, 50 para 3, 76 para 3, 86, 93, and 130 GC IV.
33
ICRC Commentary APs, para 3034.
34
Above n 32.
35
Art 4(2) ICCPR; HRCttee, General Comment 22, para 1.
36
Art 18 ICCPR; HRCttee, General Comment 22, paras 3 and 8.
37
Art 20 ICCPR; HRCttee, General Comment 11, para 2.
38
See, e.g., Arts 30 para 3 and 93 GC IV.
39
See MN 24–25.
40
41
Ibid.
42
Art 50 GC IV.
43
Art 49 para 1 GC IV.
44
Convention for the Protection of Cultural Property in the Event of Armed Conflict
(1954).
45
Art 75 AP I; Art 4 AP II.
46
See, e.g., Art 27 ICCPR; Art 27 UDHR; and Arts 13, 14, 15 ICESCR.
47
UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003), Art 2.
48
Ibid; C. Johannot Gradis, Le patrimoine culturel matériel et immatériel: quelle protection
en cas de conflit armé? (Zürich: Schulthess, 2013), at 149–87, 497–701, 709–13.
49
50
51
52
E.g., Art 27 para 1 second sentence (emphasis added): ‘They shall at all times be
humanely treated, and shall be protected especially against all acts of violence or threats
thereof and against insults and public curiosity.’ This would mean that, e.g., violation of the
protection against public curiosity could amount to inhuman treatment. Furthermore, Art
32 gives examples of inhuman treatment that may be considered to form a non-exhaustive
list. See also the provision on grave breaches, Art 147 GC IV, which includes in the notion of
inhumane treatment ‘biological experiments, wilfully causing great suffering or serious
injury to body or health’.
53
54
H. Fischer, ‘Protection of Prisoners of War’, in D. Fleck (ed), The Handbook of
International Humanitarian Law (2nd edn, Oxford: OUP, 2008) 367, at 378.
55
ICTY, The Prosecutor v Zejnil Delalić et al (Čelebići Camp), Trial Chamber Judgment,
IT-96-21-T, 16 November 1998, paras 512–44, esp para 543.
56
Ibid, para 544; See also the ICC Elements of Crimes, ‘Definition of Inhuman Treatment
as a War Crime’ (ICC Statute, Art 8(2)(a)(ii)-2), at 14. For a further discussion on the
threshold of severity and intent, see Ch 16, MN 42–46, of this volume.
57
E.g. Art 7 ICCPR, Art 5 UDHR, Art 3 ECHR, Art 5(2) ACHR, and Art 5 ACHPR.
58
ECommHR, The Greek case, 5 November 1969, 12-II YECHR (1969), at 186.
59
ECtHR, Ireland v UK, Judgment, 18 January 1978, para 162.
60
HRCttee, General Comment 20, para 4.
61
See, e.g., ECtHR, in the Greek Case, above n 58, where it defined degrading treatment
as treatment or punishment that ‘grossly humiliates the victim before others or drives the
detainee to act against his/her will or conscience’.
62
Pictet Commentary GC IV, at 38; ICJ, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States of America), Merits, Judgment, 27 June 1986, at 114,
para 218.
63
CA 3 para 1(1)(c).
64
Note that Art 85(4)(c) AP I has added to the list of grave breaches ‘other inhuman and
degrading practices involving outrages upon personal dignity, based on racial
discrimination’.
65
See MN 18.
66
Art 8(2)(a)(ii) and (b)(xxi) ICC Statute.
67
Art 85(4)(c) AP I. See also Ch 16 of this volume, esp MN 28, 38–57, and M. Nowak,
‘Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, in A. Clapham
and P. Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford:
OUP, 2014) 387, esp at 399–401.
68
Pictet Commentary GC III, at 141.
69
M. Meyer and K. Studds, Upholding Human Dignity and the Geneva Conventions: The
Role of the Media in Protecting Prisoners of War and Civilian Security Internees against
Insults and Public Curiosity, Draft Resolution, 5th draft of 1 September 2005, 14 July 2006,
available at <http://www.icrc.org/eng/assets/files/other/amic_kevin_studds_final.pdf>.
70
71
E.g., Arts 5 or 53 GC IV.
72
Arts 64 and 66 GC IV.
73
Art 41 GC IV.
74
Art 78 GC IV.
75
Art 79 GC IV.
76
ICTY, Čelebići Camp, above n 55, para 576.
77
See, e.g., Art 32 GC IV, where murder or any other measure of brutality by civilian or
military agents is prohibited.
78
Art 79 GC IV: no internment of protected persons except in accordance with Arts 41–43,
68 (where the death penalty is allowed only if ‘such offences were punishable by death
under the law of the occupied territory in force before the occupation began’), and 78 GC
IV.
79
Pictet Commentary GC IV, at 208; to identify regular armed forces, Art 4 GC III and Art
43 AP I (which is considered to be customary law in the ICRC CIHL Study, vol I, at 12) may
be consulted.
80
Art 51(7) AP I.
81
82
Art 58(a) AP I.
83
At MN 26.
84
85
E.g., the ‘Early Warning Procedure’ conducted by the IDF. See, for an assessment, R.
Otto, ‘Neighbours as Human Shields? The Israel Defense Forces’ “Early Warning
Procedure” and International Humanitarian Law’, 86 IRRC 856 (2004) 771.
86
AP I is used to interpret Art 28 GC IV.
87
Y. Dinstein, The International Law of Belligerent Occupation (Cambridge: CUP, 2009), at
105.
88
M. Sassòli, ‘Human Shields and International Humanitarian Law’, in A. Fischer-Lescano
et al (eds), Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Baden-Baden:
Nomos, 2008) 567.
89
Coming from Art 3 Hague Regulations already.
90
Final Record, vol II-A, at 713.
91
See Ch 52 of this volume: to be a protected person, you have to be ‘in the hands of a
Party to the conflict’ (Art 4 GC IV).
92
E.g., GC IV imposes obligations on the Occupying Power which may be responsible for
acts attributable to it under the law of state responsibility, which includes local authorities.
See the Report of the ILC Commission on the work of its 53rd session, Draft Articles on
Responsibility of States for Internationally Wrongful Acts with commentaries, II(2) YILC
(2001), at 68.
93
Ibid, at 38.
94
In short, the ICJ in the Nicaragua case concluded that although the US was responsible
for the ‘planning, direction and support’, there was ‘no clear evidence of the United States
having actually exercised such a degree of control in all fields as to justify treating the
contras as acting on its behalf’. The ICTY Appeals Chamber rejected the position of the ICJ
as applied by the Trial Chamber and decided that ‘the requirement of international law for
the attribution to States of acts performed by private individuals is that the State exercises
control over the individuals. The degree of control may, however, vary according to the
factual circumstances of each case. The Appeals Chamber fails to see why in each and every
circumstance international law should require a high threshold for the test of control’. It
thus applied the ‘overall control’ test. In the later Genocide case, the ICJ did not subscribe
to the view of the ICTY Appeals Chamber. It argued that the Appeals Chamber was not
called to rule on questions of state responsibility, while the overall control test may be
applicable and suitable to determine the nature of an armed conflict. ICJ, Nicaragua v
United States of America, above n 62, at 51, para 86, and at 62, para 109; ICTY, The
Prosecutor v Duško Tadić, Appeals Chamber Judgment, IT-94-1-A (1999), at 1518, 1541,
para 117, and at 167, paras 396–407; ICJ, Case concerning Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia
and Montenegro), Judgment, 26 February 2007, at 204–6, paras 391–5, see also ibid,
Dissenting Opinion of Judge Al-Khasawneh, at 241.
95
Art 2 ILC Articles on State Responsibility.
96
ICJ, Corfu Channel, Merits, Judgment, 9 April 1949, at 22–3; ICJ, United States
Diplomatic and Consular Staff in Tehran (United States of America v Iran), Judgment, 24
May 1980, at 31–2, paras 63 and 67. See further Ch 6 of this volume on due diligence.
97
See Ch 36 of this volume.
98
99
Pictet Commentary GC IV, at 214–15.
100
Ibid, at 216.
101
It should be noted that such National Societies are then coordinated by the ICRC as a
lead agency, according to Art 5.3.1 of the Seville Agreement on the organization of the
international activities of the components of the International Red Cross and Red Crescent
Movement (1997).
102
Art 30 para 3 GC IV.
103
Arts 30 and 142 para 1 GC IV.
104
Art 81 para 4 AP I.
105
Arts 30 para 2 and 142 para 1 GC IV
106
Art 5 para 2 GC IV and Ch 54 of this volume.
107
See also Ch 26, MN 25–26, of this volume.
108
109
See D.L. Byman and M.C. Waxman, ‘Kosovo and the Great Air Power Debate’, 24
International Security (2000) 5.
110
See G.J. Knoops, Defenses in Contemporary International Criminal Law (2nd edn,
Leiden: Nijhoff, 2008).
111
Oxford Dictionaries, ‘coercion’, available at <http://www.oxforddictionaries.com/
definition/english/coercion?>.
112
ECtHR, MC v Bulgaria, Judgment, 4 December 2003, at 180.
113
Amnesty International, Rape and Sexual Violence: Human Rights Law and Standards in
the International Criminal Court (London: Amnesty International Publications, 2011), at 19.
114
115
See further section B.II.d of this chapter.
116
117
Art 4 GC IV and Ch 55 of this volume.
118
119
Note that this is an interpretation different from the one given in the Pictet
Commentary.
120
See, e.g., IMT, Trial of the Major War Criminals before the International Military
Tribunal (Nuremberg: IMT, 1948), vol XX, at 1.
121
UNWCC, 1948 History of the United Nations War Crimes Commission and the
Developments of the Laws of War (London: HMSO, 1948), at 194.
122
ICTR, The Prosecutor v Clément Kayishema and Obed Ruzindana, Trial Chamber
Judgment, ICTR-95-1-T, 21 May 1999, para 146, ‘extermination includes […] the creation of
conditions of life that leads to mass killing’.
123
124
See ICRC CIHL Study, vol I, at 311, and vol II, at 2061.
125
See, for the meaning of ‘agents’, MN 36.
126
Art 46 para 3 1929 GC II.
127
ICRC CIHL Study, vol I, at 3.
128
UN Committee on the Rights of the Child (2001), General Comment 1, para 11.
129
See, e.g., ECtHR, A v UK, Judgment, 23 September 1998; ECtHR, Tyrer v UK,
Judgment, 25 April 1978; see also HRC, Osbourne v Jamaica, Communication 759/1997, 13
April 2000, UN Doc CCPR/C/68/D/759/1997, para 9.1; IACtHR, Caesar v Trinidad and
Tobago, Judgment, 11 March 2005, paras 67–89.
130
Art 147 GC IV.
131
HCRttee, General Comment 20, 10 March 1992, para 5.
132
ICTY, The Prosecutor v Duško Tadić, Trial Chamber Judgment, IT-94-1-T, paras 193,
237, 726–30.
133
Arts 8(2)(b)(x)-1 and 8(2)(c)(i)-2, 8(2)(e)(xi)-1 ICC Statute.
134
ICC Elements of Crimes, War Crime of Mutilation (ICC Statute, Article 8(2)(b)(x)-1).
135
At first sight ‘acts’ seem to exclude conduct through omission; it is however also
possible to contend that the word is used here also to encompass omission.
136
See MN 34.
137
138
See Ch 23 of this volume, although concerned with the context of a NIAC, and Ch 59 of
this volume, written in the context of protected civilians, can be consulted for the discussion
of judicial guarantees deriving from IHRL. Also, the ICRC CIHL Study, vol II, at 2328–492
provides a clear overview.
139
ICRC CIHL Study, vol I, at 344 and 352.
140
See Art 8(2)(a)(ii) and (vii) ICC Statute; and Art 2(b) and (g) ICTY Statute.
141
ICRC CIHL Study, at 318, 319.
142
Pictet Commentary, at 235, 236; Ch 57 of this volume.
143
See Art 35 GC IV and Ch 57 of this volume.
144
See also Art 73 AP I, ‘refugee’ can be interpreted broadly: a person who does not in
fact enjoy the protection of a government. Several instruments provide for a definition of
‘refugee’, such as the Convention Relating to the Status of Refugees of 28 July 1951 (and its
Protocol of 1967), the Statute of the Office of the United Nations High Commissioner for
Refugees (UNHCR) of 14 December 1950, and the Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969. Under
Art 38 GC IV only refugees with ‘enemy’ nationality were covered by GC IV, while Art 73 AP
I extends this to all refugees who are on the territory of a party to the Conflict.
145
Art 41 GC IV.
146
Pictet Commentary GC IV, at 245; and IHRL instruments, such as ICCPR, ICESCR,
ECHR, ACHR, ACHPR.
147
See, e.g., Arts 1(3), 55, and 56 UN Charter (1945); Art 14 and Protocol 12 ECHR; Art
24 ACHR; Art 2 ACHPR; ICJ, Barcelona Traction, Light and Power Company Limited
(Belgium v Spain), Judgment, 5 February 1970, para 34; Germany’s Administrative Court of
Berlin, Serbian Prisoners of War case, 11 April 2006, para 33; H. Lambert, The Position of
Aliens in Relation to the European Convention on Human Rights (Strasbourg: Council of
Europe Publishing, 2007).
148
See also Ch 12 of this volume; Arts 58–62 GC IV regarding occupied territory (by
analogy); Part IV Section II AP I; Rule 55 ICRC CIHL Study.
149
If this right is elaborated upon, it may be argued that IHRL should be used for the
interpretation of the right to health. An example is General Comment 14 to the ICESCR,
explaining that states have a several obligations deriving from this right, namely to respect,
protect, and fulfil (CESCR, General Comment 14, E/C.12/2000/4, para 33).
150
Note that the principle of equal treatment is not precisely the same as the principle of
non-discrimination. Equal treatment can still be discriminatory. See also Ch 10 of this
volume.
151
MN 14 and 42.
152
MN 26–33.
153
IHRL instruments with regard to protection of children are: the CRC (1989), the CRC-
OPAC (2000), the ILO Convention No 182 on the Elimination of the Worst Forms of Child
Labour (1999), the ICC Statute, as well as Security Council Resolutions 1261 (1999), 1314
(2000), 1379 (2001), and 1460 (2003). See also Chs 61 and 62 of this volume.
154
Pictet Commentary GC IV, at 248, 249.
155
H.P. Gasser, ‘Protection of the Civilian Population’, in Fleck (ed), above n 54, 237, at
315.
156
See further Ch 59 of this volume.
157
Final Record, vol I, at 119; vol II-A, at 656, 740, 824–5.
158
Nevertheless, the Pictet Commentary GC IV refers, at 250, to the ‘right to work’.
159
See, e.g., R.M. Veatch, ‘Justice and the Right to Health Care: An Egalitarian Account’,
in T.J. Bole and W.B. Bondeson (eds), Rights to Health Care (Dordrecht: Kluwer, 1991) 83, at
91, 92.
160
Oxford Dictionaries, ‘opportunity’, available at <http://www.oxforddictionaries.com/
definition/english/opportunity>.
161
V. Abramovich and C. Courtis, ‘Apuntes sobre la exiligibilidad judicial de los derechos
sociales’, in C. Courtis and R.A. Santamaría (eds), La protección judicial de los derechos
sociales (Quito: Ministerio de Justicia y Derechos Humanos, 2009) 3, at 8.
162
Art 23 Hague Regulations; and Arts 27–34 of 1929 GC II.
163
Arts 49–57 GC III.
164
Arts 40, 51, and 95 GC IV.
165
Rule 95 ICRC CIHL Study.
166
Art 2(1) Forced Labour Convention No 29 (1930).
167
Art 2(2).
168
Art 8(3) ICCPR; Art 6 ICESCR; Art 6 ACHR; Art 4 ECHR.
169
Art 2(2)(d).
170
See Art 30 GC IV.
171
ICTY, Čelebići Camp, above n 55, paras 574–76; MN 24–25.
172
N. Melzer, Targeted Killing in International Law (Oxford: OUP, 2008), at 162–5.
173
See, e.g., ‘Consistent policy towards regimes against which the EU applies restrictive
measures’, 20 August 2013, (2013/C 239 E/02), available at <http://eur-lex.europa.eu/
LexUriServ/LexUriServ.do?uri=OJ:C:2013:239E:0011:0018:EN:PDF>, which is a
recommendation from the European Parliament to the Council stating, under general
observation ‘R’, that ‘all restrictive measures must comply with human rights, international
humanitarian law, due process, proportionality and the right to effective redress, and must
on no account penalise the most vulnerable population groups in countries affected by
these measures’.
174
Ch 66, MN 15–18, of this volume.
175
EECC, Eritrea’s Claims 15, 16, 23 & 27–32, above n 30, at 32, 33, para 145, 146.
176
For a concise overview on enemy property, see H.G. Dederer, ‘Enemy Property’, in
MPEPIL, at 430.
177
See Chs 67–74 of this volume.
178
179
Pictet Commentary GC IV.
180
Arts 7 and 8 GC IV.
181
See further Ch 69 of this volume, at MN 18–29.
182
R. Kolb, ‘Etude sur l’occupation et sur l’article 47 de la Convention de Genève IV de
1949 relative à la protection des personnes civiles en temps de guerre: le degré de
l’intangibilité des droits en territoire occupé’, 10 Annuaire Africain de Droit International
(2002) 267, at 300.
183
Art 6 para 3 GC IV.
184
185
186
187
188
See also Ch 16, MN 71–77, of this volume.
189
CA 3 para 2.
190
See further Ch 27 of this volume, at MN 27.
191
192
Inter alia, ICRC CIHL Study, Rules 87–93.
193
MN 55.
194
195
Note, however, Art 5 AP II, concerning persons whose liberty has been restricted,
which provides for similar guarantees.
196
Trial of Kurt Student, British Military Court, Lüneberg, 1948, UNWCC Law Reports, vol
IV, at 118; The United States of America v Wilhelm von Leeb et al, US Military Tribunal,
Nuremberg, Judgment, 27 October 1948.
197
ICTY, The Prosecutor v Radovan Karadžić and Ratko Mladić, Initial Indictment, IT-95-5-
I, 24 July 1995, paras 46–8. The use of human shields is not criminalized as such in the
Statute of the ICTY, but if it can be considered as, e.g., inhuman or cruel treatment, it
comes within the scope of a grave breach as defined in Art 2(b) of the Statute. Other
possibilities could be Art 2(c) and/or a violation of the laws or customs of war as in Art 3 of
the Statute.
198
Art 8(2)(b)(xxiii) ICC Statute, with regard to IAC.
199
See Ch 15 of this volume and the ICC Elements of Crimes describing the elements of
hostage-taking, namely: ‘1. The perpetrator seized, detained or otherwise held hostage one
or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such
person or persons. 3. The perpetrator intended to compel a State, an international
organization, a natural or legal person or a group of persons to act or refrain from acting as
an explicit or implicit condition for the safety or the release of such person or persons.’
Taking a protected person as to serve as a human shield in order to prevent an attack from
the belligerent is likely to comply with these elements, and could thus amount to the taking
of hostages.
200
See, for an overview, the practice found by the ICRC CIHL Study, vol II, at 2285.
201
202
See further Ch 10 of this volume regarding non-discrimination (based on nationality):
discrimination as such is not a war crime but can be considered an element of certain war
crimes, crimes against humanity, and genocide.

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Part II Specific Issues and Regimes, C Geneva

Convention IV, 2 Civilians in the Hands of the

From: The 1949 Geneva Conventions: A Commentary

Content type: Book content

I. Section I: Provisions common to the territories of the parties to the

a. Treatment of protected persons in general: Article 27 5

II. Section II: Aliens in the territory of a party to the conflict 54

a. Persons in confinement: Article 37 54

III. Section III: Inviolability of rights in occupied territories 77

C. Relevance in Non-International Armed Conflicts 80

(p. 1242) A. Introduction

inhuman treatment is an intentional act or omission, that is an act which, judged

It then stated that

19 Several international and regional human rights instruments contain a prohibition of

d. Application to Protecting Powers and relief organizations: Articles 30, 142,

II. Section II: Aliens in the territory of a party to the conflict

(p. 1265) III. Section III: Inviolability of rights in occupied

D. Legal Consequences of a Violation

II. Individual criminal responsibility

Iris van der Heijden

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