Key Common Provisions and Protection of Civilians in the 2025 Commentary on the Fourth Geneva Convention

As international lawyers debate the resilience of international law in the face of its most serious breaches, including aggression and mass atrocities against civilians, the International Committee of the Red Cross (ICRC) has released its Updated Commentary on the Fourth Geneva Convention under the overarching title Protecting Civilians in Good Faith (the “2025 Commentary”). Grounded in a vast and meticulously documented body of State, judicial, and institutional practice, the 2025 Commentary offers far more than authoritative legal analysis. Not only does it affirm the steady consolidation of international law, particularly international humanitarian law (IHL), over many decades, but it also issues a sober warning about what may be lost if international law is not actively and resolutely defended.  

With its focus on the protection of civilians, the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (GC IV) filled a critical gap in the international legal order.  Today, it enjoys universal ratification and applicability. The Commentary’s emphasis on “good faith” underscores a long-held ICRC position that the central challenge in implementing the Geneva Conventions lies not in normative gaps, but in failures of good-faith compliance. The obligation to implement treaties in good faith is a bedrock principle of the 1969 Vienna Convention on the Law of Treaties, which the 2025 Commentary expressly adopts as its analytical point of departure.

The 2025 Commentary is distinctly contemporary, owing to its systematic integration of developments across international human rights law (IHRL) and international criminal law (ICL) fields. When the first Commentary on GC IV was published in 1958, IHRL was still in its infancy, and ICL was largely confined to the jurisprudence of the Nuremberg and Tokyo Tribunals. The 2025 Commentary reflects the emergence of an extensive and interlocking legal architecture. Its central message is that, in matters of protection of civilians, GC IV must not be approached as a standalone instrument but rather understood as part of an integrated framework in which IHL, IHRL, and ICL are complementary and mutually reinforcing. In this sense, the 2025 Commentary speaks directly to IHL, IHRL, and ICL lawyers grappling with contemporary concerns regarding protection and accountability.

In this piece, I advance three cross-cutting observations, drawing on the 2025 Commentary’s treatment of selected aspects of Articles 1, 3, and 146, while also engaging with Article 147. Together, these provisions underscore the role of third States in the implementation of GC IV. While equivalent provisions were examined in earlier Commentaries, the distinguishing feature of the 2025 Commentary on GC IV lies in applying this analysis through a protection of civilians lens.

The selected provisions

It is useful to briefly recall the scope of the four provisions. Article 1 common to the four Geneva Conventions requires the High Contracting Parties to undertake to respect and to ensure respect for GC IV in all circumstances. As all States are now High Contracting Parties to the Geneva Conventions, this piece simply refers to “States.”

Article 3, also common to the four Geneva Conventions, occupies a singular place in IHL and for human rights practitioners. It is the only treaty provision with universal application that establishes minimum protections in non-international armed conflicts, including binding obligations applicable to non-state armed groups.  

Article 146 addresses core international criminal justice mechanisms for war crimes under GC IV, termed “grave breaches”, including universal jurisdiction, the duty to prosecute or extradite, and the obligation to provide for penal sanctions. Analogous provisions appear in the other 3 Geneva Conventions.

Article 147 specifies the grave breaches of GC IV that amount to war crimes. While provisions on grave breaches appear in the other three Geneva Conventions, Article 147 is the most comprehensive, detailing grave breaches affecting civilians, including those committed during hostilities and occupation. Some of the violations in Article 147 appear in the analogous provisions of other Conventions, such as wilful killing, and torture or inhuman treatment. Others are specific to GC IV, including unlawful deportation or transfer or unlawful confinement of a protected person, wilfully depriving a protected person of the rights of fair and regular trial, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Beyond the grave breaches regime, war crimes further encompass violations of common article 3 in non-international armed conflicts, including murder, torture, taking of hostages, rape and sexual violence.  

1. Normative clarity: international responsibility for the protection of civilians

As with earlier commentaries, the 2025 Commentary on Articles 1, 3, and 146 affirms that certain obligations under international humanitarian law are owed to the international community as a whole and are not limited to the States engaged in hostilities. It therefore rejects a narrow notion of limiting responsibility on the basis of territoriality, bilateralism, or participation. This is a particularly important clarification for practitioners working on the protection of civilians.

The 2025 Commentary emphasises the duty of States to respect and ensure respect for “the present Convention” and, therefore, the civilian protection norms it includes (para. 187). It clarifies that Article 1 has both an internal and an external dimension (para. 189). Internally, it applies to the State apparatus, armed forces, and population of the State concerned. Externally, it concerns ensuring respect for the Conventions by others that are party to a conflict. This external dimension entails both negative and positive obligations: States must not contribute to violations by others and must do everything reasonably within their power to prevent such violations committed by others or to bring them to an end. States cannot remain passive in the face of serious violations such as wilful killings, torture, and sexual violence acts committed by others in armed conflict.

The 2025 Commentary on common Article 3 expressly links this provision to common Article 1, confirming that States are bound not only to respect common Article 3 themselves, but also not to contribute to violations in non-international armed conflicts and to take reasonable steps to prevent or end such violations by others (para. 988). These obligations apply regardless of the conflict’s non-international character . To support this interpretation, the 2025 Commentary draws on human rights materials as evidence of State and institutional practice, including the work of UN human rights investigative mechanisms, such as those on Syria and Yemen (para. 195), thereby reinforcing the growing doctrinal convergence between IHL and the application of IHRL.

The 2025 Commentary on Article 146 further consolidates this outward-looking responsibility by specifying that this provision imposes on all States the obligation to search for persons alleged to have committed grave breaches and to prosecute or extradite them, irrespective of the nationality of the suspect, the victim, or the place where the crime was committed (paras. 6564, 6565, 6578, 6579 – 6602).

The 2025 Commentary incorporates a clear definition of universal jurisdiction (para. 6582) and stresses that it must also be provided for in national legislation (para. 6583). It clarifies that the preparatory work for the Conventions confirms that the drafters intended to confer on all States Parties an additional basis of jurisdiction, enabling any State Party to assert its jurisdiction over alleged perpetrators of grave breaches (para. 6584).  It also notes that a similar approach was subsequently adopted in other international instruments, notably in the UN Convention against Torture and the Enforced Disappearances Convention (para. 6538), offering yet another illustration of convergence between IHL and IHRL.   

2. Standard of conduct: due diligence, foreseeability, and the duty to prevent violations

A second major contribution of the 2025 Commentary lies in clarifying the expected standard of protection of civilians when responding to violations by others. While the 2025 Commentary reaffirms a framework centred on due diligence, prevention, foreseeability, and the adoption of reasonable measures, as articulated in prior commentaries, these notions assume heightened significance within a protection of civilians framework.

Under Article 1, the 2025 Commentary clarifies that the obligation to ensure respect is a means obligation, offering concrete guidance on its implementation. It requires States to act with due diligence (para. 241), citing the UN human rights due diligence policy on UN support to non-United Nations security forces (footnotes 41 and 145). This obligation entails refraining from contributing to violations through acts or omissions, including by providing assistance that facilitates breaches (paras. 224–228). This clarification is particularly salient where allegations of grave breaches and other war crimes have been credibly raised.

The 2015 Commentary states that due diligence requires States to assess allegations of such breaches. The scope of this obligation depends on certain circumstances, including States’ knowledge of violations, influence, and capacity to address them (para. 241).  This brings into sharper focus the question of foreseeability, actual or constructive knowledge, which is relevant in this context, as well as the duty to conduct meaningful risk assessments when providing support such as weapons, training, or intelligence (paras. 227 and 228).

Pronouncements by human rights investigative bodies contribute directly to the foreseeability requirement. For instance, in its report, A War of Atrocities, the Fact-Finding Mission for the Sudan, of which I am a member, invoked Article 1 in its analysis of the current non-international armed conflict, recommending that other States and the international community respect, enforce and expand the Security Council arms embargo imposed in Darfur to all Sudan and halt all material support to the parties, including via private actors and transit routes. It also recommended stopping involvement that fuels instability and deepens the illicit war economy. Our report last month, Hallmarks of Genocide in El-Fasher,  called for the use of all available diplomatic, political, and preventive tools to halt further mass violence.

The Commentary on Common Article 3 affirms that, as with Article 1, in non-international armed conflict, third States also have negative obligations not to contribute to violations and positive obligations to do everything reasonably possible to prevent violations and to bring ongoing violations to an end (para. 988).  It follows that standards of due diligence, risk assessment, foreseeability, and prevention apply to non-international armed conflict as well.

The 2025 Commentary on Article 146 reinforces the non-discretionary nature of accountability, emphasising that repression of grave breaches is an essential component of the preventive architecture of GC IV.  Among the key issues addressed is whether Article 146 requires the presence of the suspect of grave breaches on the territory of the prosecuting State. The 2025 Commentary indicates that physical presence is not a prerequisite for prosecution, while acknowledging that some States have imposed such conditions in universal jurisdiction cases. Crucially, it affirms that investigations and arrest warrants may be initiated even when the alleged perpetrator is outside the issuing State’s territory, provided that fair trial guarantees are respected. It also reiterates the ICRC’s conclusion that “States may institute legal enquiries or proceedings even against persons outside their territory” (para. 6585).

Even where the above positions were already made in previous commentaries, their explicit restatement within a protection of civilians framework carries distinct operational significance, situating them firmly within the broader justice and accountability ecosystem. A concrete illustration is provided by the work of the Ukraine Commission of Inquiry. Its 2025 report details the transfer and deportation of children and adults to the Russian Federation, including detainees (paras. 55-80). These are among the grave breaches specific to GC IV. After concluding that both practices are unlawful and constitute war crimes, the Commission underscored the importance of judicial accountability, including the investigation and prosecution of those responsible (para. 84). The Commission has reported on these violations since March 2023 and has developed its analysis in its report of 12 March 2026. Its findings align with the International Criminal Court’s determinations, including the issuance of arrest warrants for these crimes. 

3. Enforcement and accountability

A third cross-cutting theme is the consolidation of lawful measures that States and others may take, individually and collectively, to institutionalise enforcement and accountability as integral components of international responsibility.

As in earlier commentaries, the 2025 Commentary under Article 1 supports responsibility not only for violations by its own forces and by the whole population under its control, but also for structural failures of protection, including regular inaction and tolerance of civilian harm (paras. 216, 221-223). This clarification is relevant for IHRL practitioners. For instance, the Independent International Commission of Inquiry on the Occupied Palestinian Territory highlighted in its report of August 2025 the increase in violent attacks by Israeli settlers in the West Bank, including East Jerusalem, which has resulted in the forcible displacement of Palestinian communities in violation of GC IV. It noted that many settler attacks were committed by settler-soldiers or were observed by Israeli military forces who took no action. Invoking individual criminal responsibility, it named six high-level officials, including those “responsible for driving settlement construction and expansion in the West Bank, including East Jerusalem” (para. 86). It recommended that all States conduct investigations under domestic law or under universal jurisdiction to hold perpetrators of such crimes accountable (para. 90).

The 2025 Commentary on Common Article 1 devotes extensive analysis to identifying the measures available to States to ensure respect by others (paras. 229–253). These include diplomatic action, public condemnation, suspension of cooperation, arms embargoes, economic and financial restrictions, and recourse to international dispute-settlement and accountability mechanisms, including the International Court of Justice and international criminal jurisdictions (para. 251). Recalling its approach to the obligation to respect and ensure respect for the Geneva Conventions in all circumstances, the 2025 Commentary on Common Article 3 reiterates that this wording applies in both international and non-international armed conflict. The measures identified align with those specified in Article 1 (para 988).

Article 146 provides the most concrete legal expression of collective enforcement. By establishing universal jurisdiction over grave breaches, it ensures that serious violations of GC IV are subject to repression by all States, thereby eliminating safe havens and anchoring accountability in a decentralised, yet legally mandatory enforcement system. A critical issue concerns the extent of the State’s discretion in implementing Article 146, particularly where domestic legal requirements for authorisation impede prosecution. As in previous commentaries, the 2025 Commentary makes clear that where sufficient evidence exists, and physical control over the suspect can be exercised, prosecutorial discretion cannot be invoked to avoid compliance with Article 146 (2)” (para. 6586).

An instructive example is the criminal case currently underway in Sweden before the District Court of Stockholm, which I have observed, although it concerns a non-international armed conflict. The trial that started in September 2023 involves two directors of a Swedish company, Lundin Oil, who are charged with complicity in war crimes committed in Sudan between 1997 and 2003, in an area that is now in South Sudan. Despite the lapse of time, the prosecutor proceeded with the case, believing that sufficient evidence exists and that physical control over the suspects can be exercised, as the two executives had submitted to the Court’s jurisdiction. The trial is scheduled to conclude in a few months.

Final remarks

In sum, the 2025 Commentary constitutes a remarkable and timely tool not only for IHL experts but also for IHRL and ICL practitioners. It assists in identifying common patterns of violations, clarifying the responsibilities of duty-bearers, and supporting pathways to accountability, including in transitional justice contexts. It also provides valuable guidance on documentation and fact-finding, as well as on assessing State compliance with international legal obligations.

Warm congratulations to the ICRC for this comprehensive and forward-looking work, which powerfully demonstrates the continued potential of GC IV to protect civilians when implemented in good faith.

Note: This post forms part of a joint symposium with the International Committee of the Red Cross (ICRC) and the editors of Just Security, sharing expert contributions on selected topics addressed in the updated ICRC Commentary on the Fourth Geneva Convention.