In one of the most striking lines of the new International Committee of the Red Cross (ICRC) Commentary on Geneva Convention IV, the authors describe Article 23 — the treaty’s key provision governing the duty to allow the passage of essentials to civilians — as “significantly diminished” in importance in the contemporary context. Put simply, the law has moved on since 1949. This is important in no small part because Article 23, which is subject to several significant limitations and caveats, has been invoked to curtail as much as to ensure humanitarian access (and the delivery of essentials more broadly) in war. As the Commentary aptly implies, today, analyses that rely on the intricacies of Article 23 to defend the denial or limitation of humanitarian access are far more likely to mislead and obscure than they are to illuminate. With tactics of mass deprivation resurgent, the new Commentary’s clear position on this is a vital corrective.

Historically Important, But Deeply Flawed

Geneva Convention IV was the most innovative of the four conventions at the time of their agreement in 1949. In the three quarters of a century since then (and since the ICRC’s original 1958 “Pictet Commentary” the definitive ICRC interpretation of the Geneva Conventions led by Jean Pictet), the subject matter of the treaty has also undergone the most significant evolution in customary international law. Article 23 exemplifies both realities.

In 1949, it was a landmark in the restriction of weaponized deprivation — specifying, for the first time, a legal obligation to allow the free passage of certain essentials, namely those necessary for medical care, religious worship, food, clothing, and tonics, even in contexts of siege or blockade. And yet that advance was deliberately and severely limited. Article 23 defined the core obligations of access narrowly and supplemented them with gaping exceptions that threatened to swallow the rule. The Fourth Convention was significantly more demanding on related issues in contexts of belligerent occupation (Articles 55–62). But outside of that distinctive context, Article 23 was definitive. 

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