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.
Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases.
The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:
(a) that the consignments may be diverted from their destination,
(b) that the control may not be effective, or
(c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods.
The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers.
Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.
The weaknesses of this rule are obvious. They permeate both the core requirement of access defined in the first paragraph and the exceptions enumerated in the second.
Medical and Hospital Stores
On its face, the text of Article 23(1) appears to require the free passage of objects of medical or religious character only as long as they are intended exclusively for civilians. Even at the time of the treaty’s agreement, the dissonance between this text and the posture of international humanitarian law (IHL) on medical care for combatants demanded a more protective interpretation.
The issue is relatively clear in relation to sick or wounded combatants. The Pictet Commentary correctly rejected the notion that parties could obstruct medical supplies destined for wounded and sick armed forces, noting the contrary requirement of Article 38 of Geneva Convention II in the maritime domain (1958 Commentary, p.180; see also 2025 Commentary, para. 2045).
However, the Pictet response is not sufficiently clear on the imperative to allow the passage of medical supplies intended for combatants who are not wounded or sick. This omission could implicate preventive medical supplies, such as vaccines or supplies necessary for sexual and reproductive health. Notably, both the Pictet Commentary and the 2025 Commentary recognize that preventive supplies count as “medical or hospital stores” for the purposes of Article 23 (1958 Commentary, p.180; 2025 Commentary, para. 2043). However, neither Commentary is explicit in specifying that they should be allowed through even if they are intended in part for healthy combatants.
There are multiple mutually supportive interpretive routes to the conclusion that the passage of preventive medical supplies to healthy combatants is required. First, one could point to IHL’s protection of medical care for all persons, including healthy combatants. Indeed, Article 38 — the very provision of Geneva Convention II upon which the Pictet Commentary relies to rebut the notion that passage for medical supplies intended for sick and wounded combatants would not be required under Article 23 of Convention IV — also requires the passage of medical equipment “for the prevention of disease.” Importantly, the latter is listed without any requirement that such equipment be destined for the wounded and sick. Second, preventive medical care often depends on its application to the population as a whole. In many circumstances, the non-vaccination of combatants would endanger civilians, too. In that sense, providing medical care to civilians requires providing it equally to combatants, including healthy combatants. Third, as understood in contemporary IHL, the presence of combatants in a predominantly civilian population does not deprive the population of its civilian character (Article 50(3), Protocol I; ICTY Prosecutor v. Karadžić Trial Judgment 2016, paras. 474, 4610 n.5510). In their analysis of the requirement in Article 23(1) that medical stores be intended for “civilians,” the authors of the updated Commentary argue that “the term ‘civilians’ refers to the civilian population generally” (2025 Commentary, para. 2045). Properly understood, the implication of this approach would be that medical and hospital stores intended for the “civilian population” (which may have combatants within it) would qualify as intended “only for civilians.”
Whether adopting all three of these arguments or a subset, it would have been powerful for the updated Commentary to state explicitly that under contemporary IHL hospital and medical stores must be allowed through even when they are destined in part for healthy combatants. In an analysis that otherwise sharpens our understanding of the relevant doctrine, neglecting to clarify this point was a missed opportunity.
Food, Clothing, and Tonics
The second component of the first paragraph of Article 23 is more dangerous. It requires free passage for consignments of food, clothing, and tonics only if those goods are intended for what the Pictet Commentary terms those civilians who are “most vulnerable and most worthy of protection and assistance” — namely, children under 15, expectant mothers, and maternity cases (1958 Commentary, p.179). In other words, in contrast to its more demanding requirements regarding the passage of medical supplies and religious objects, the plain text of Article 23 does not require belligerent parties to allow the passage of essential food or water to civilians generally. The distinction between medical and religious passage and that of food and other essentials was predicated on the notion that the former would not provide a “means of reinforcing the war economy,” whereas the latter could perform that function, at least if distributed to the civilian population as a whole (rather than the limited subset identified in Article 23(1)) (1958 Commentary, p.180). The result is a rule that is open to an interpretation that would leave the vast majority of civilians legally exposed to devastating starvation methods.
Exceptions
Even these limited Article 23(1) requirements were subject to the potentially overwhelming exceptions listed in the second paragraph. The enumerated caveats are notable not only for their apparent contingency on the belligerent party’s “satisfaction,” but also for their broad substantive scope. The 2025 Commentary notes that a broad interpretation of Article 23(2)(c) in particular “would allow virtually any consignment to be blocked” (2025 Commentary, para. 2055).
Here, too, a more demanding interpretation is possible and is asserted across both commentaries. The Pictet Commentary: (i) emphasized that the Article’s condition that the parties have no “serious reasons” to fear the presence of a circumstance allowing for aid restriction precludes a fully subjective interpretation of the test, and (ii) asserted, in relation to the circumstance specified in subparagraph (c), that “in the majority of cases” it is “hardly likely” that relief consignments would be sufficient to provide a “definite” military or economic advantage” (1958 Commentary, p.182). Similarly, the 2025 Commentary argues that interpreting the exceptions broadly would “not be consistent with the purpose of the provision” (2025 Commentary, para. 2055).
Nonetheless, even read narrowly, the loopholes are significant. They were inserted deliberately at the insistence of powerful States that were not ready to give up coercive methods of deprivation (see, for example, Final Record of the Diplomatic Conference of Geneva of 1949 Vol II(A), at p.820). Recognizing the danger, the Pictet Commentary concluded that criticisms that the enumerated exceptions left “too much to the discretion of the blockading Powers” were “only too well justified” (1958 Commentary, pp.182–183). The key contribution of the new Commentary is not in reinterpreting these aspects of the provision, but in specifying and explaining their obsolescence.
A New Legal Paradigm
Additional Protocol I of 1977, agreed less than three decades after the Fourth Convention, included updated and much more demanding rules on humanitarian access (Articles 68–71) and a robust prohibition of starvation of civilians as a method of warfare (Article 54). These rules have subsequently:
These developments have rendered both the limitations internal to the core requirements of the first paragraph of Article 23 and the exceptions of its second paragraph largely obsolete.
Drawing in particular on the humanitarian access rule codified in Article 70 of Protocol I and its customary analogue, the 2025 ICRC Commentary reasons that Article 23 of Convention IV has largely been superseded in relation to humanitarian access (2025 Commentary, para. 2024). The Commentary’s understanding of the customary rule in that regard is that, “subject to their right of control, Parties to the conflict must allow and facilitate the rapid and unimpeded passage of humanitarian relief consignments and equipment intended for the civilian population” (2025 Commentary, para. 2024). With respect to “civilians in need” (2025 Commentary, para. 2048), the rules in Articles 69–71 of Protocol I and their customary analogues “require States to grant free passage to relief consignments, including a broader range of essential supplies intended for a wider group of recipients than those listed in Article 23(1)” (2025 Commentary, 2047).
Protection for All Civilians and for the Civilian Population
The “wider group,” the 2025 Commentary authors argue, includes all civilians, not only the small subset identified in Article 23(1). Here, the Commentary’s argument that “the term ‘civilians’ refers to the civilian population generally” is again highly salient (and for the same reason discussed above) (2025 Commentary, para. 2045). Again, however, the Commentary could have been more explicit about the specific implication of this insight. In particular, it would have been powerful to combine this with (i) the aforementioned principle that the civilian population does not lose its civilian character in virtue of the presence of combatants within it and (ii) the “basic rule” of international humanitarian law that all military operations must be directed at combatants and not at the civilian population (Protocol I, Article 48). The necessary implication is that food, water, and medical care may not be denied to a civilian population even when the ultimate goal of that denial is ensuring that these goods do not reach combatants in that population.
Parenthetically, it is notable that the Commentary’s analysis of the more robust duties of an occupying power — (i) to ensure food and medical supplies to the occupied population under Article 55 of Convention IV and (ii) to grant humanitarian access to that population when inadequately supplied under Article 59 — holds that these obligations are not contingent on civilian status, but instead apply to all persons within the population, including members of the armed forces of the occupied State present in the occupied territory (2025 Commentary, paras. 3442, 3568).
A More Comprehensive Understanding of Essential Supplies
Pointing to customary developments superseding Article 23’s “range of essential supplies,” the Commentary spotlights bedding, means of shelter, and sanitary supplies, among other items that must be included in that category today (2025 Commentary, para. 2049; see also para. 3576). In describing the process for elaborating this list, the authors are correct that the rule must be attentive to civilians’ “actual needs” in context, taking into account the diverse needs of different constituencies (2025 Commentary, para. 2049). However, it should also be emphasized that certain objects are intrinsically indispensable to survival and must never be blocked for the purpose of denying their sustenance value to civilians or a civilian population, even if that population has not yet exhausted its stocks of those items (see here at p.139). Although not explicitly articulated in these terms, it is notable that the Commentary’s analysis of Article 59 describes food, medical supplies, and clothing as “vital to survival” without reference to context (2025 Commentary, para. 3589), while recognizing other supplies as “essential” in certain circumstances (2025 Commentary, para. 3590).
Following the lead of the Pictet Commentary, which emphasized Article 23’s inclusion of all “consignments” of the specified goods, in contradistinction to the focus on humanitarian relief in Article 59 (1958 Commentary, p.181), the 2025 Commentary differentiates the post-1949 access rules (which pertain specifically to humanitarian relief) from Article 23 “consignments,” which include “commercial goods” (2025 Commentary, paras. 2039–2041, 2047). The implication is that the developments in relation to the obligation to allow humanitarian access do not bear on commercial consignments of food and other essentials. For those, it is implied, the provisions of Article 23 endure in their original form. On this point, the Commentary drafters could have elaborated a separate argument, namely that the prohibition of starvation of civilians as a method of warfare (codified in Article 54 of Protocol I and established in customary law) also applies to all consignments. As I have argued previously, this prohibits the deliberate deprivation of essentials to a civilian population either for the purpose of denying their sustenance value or in contexts in which starvation would be the known consequence (see also here).
The Desuetude of the Exceptions
Regarding the exceptions in Article 23(2), the new Commentary laments “disastrous” instances in which the exception in paragraph 2(c) has been invoked broadly, emphasizing that it is precisely this abuse of the discretion in paragraph 2 that gave “rise to the need” for the rule codified in Article 70 of Protocol I, which “does not replicate the conditions contained in Article 23(2)” and which “modifies” Article 23, rendering the exceptions in paragraph 2 “not applicable in any armed conflict to which the Protocol applies” (2025 Commentary, para. 2056). Moreover, given the customary status of the later rule, “this should also be the case for States not party to the Protocol” (2025 Commentary, para. 2057).
Importantly, the exceptions in Article 23(2) were never codified as general authorizations for the denial of humanitarian access. Rather, they were incorporated only as exceptions to the specific “obligation … indicated in the preceding paragraph.” As such, they are straightforwardly inapplicable to core obligations of access derived from any other source, whether that is the more demanding obligations of Geneva Convention IV in relation to occupied territory (most obviously in Article 59, which includes no analogous exceptions to its requirement that occupying powers “shall agree” to impartial relief schemes when the occupied population is inadequately supplied and “shall facilitate them by all means at its disposal”) or the more demanding obligations that have arisen since for contexts other than occupation, whether through Additional Protocol I or customary international law. Although not explicitly articulated, this point about the language of Article 23(2) is wholly consistent with the 2025 Commentary and bolsters the ICRC’s core claim in this context.
Aptly, the Commentary identifies the key safeguard for a party permitting passage pursuant to this framework as inhering in its authority to apply “technical arrangements” and to require “the supervision of the Protecting Power” (2025 Commentary, para. 2056). The International Court of Justice has emphasized the importance of recognizing a “limited right of control” in this respect (para. 91). Crucially, the 2025 Commentary is explicit in precluding the abuse of this limited right, reasoning that the absence of a Protecting Power or substitute cannot be the basis for denying free passage, particularly since the ICRC or another impartial humanitarian organization can perform the same function (2025 Commentary, para. 2061). The authors make the same point in relation to Article 55, which provides for the duty of an occupying power to ensure the food and medical supply of an occupied population (2025 Commentary, para. 3473).
As a final backstop against destructive denial of access, the new Commentary reasons that the operationalization of any of the exceptions in paragraph 2 of Article 23 must “comply with the requirement of proportionality” (2025 Commentary, para. 2058). This is plausible. But it, too, is a missed opportunity to note the relevance of starvation of civilians as a method of warfare – a rule the new Commentary incorporates into its analyses of Articles 55 and 59 (2025 Commentary paras. 3462, 3578). The latter, which is not contingent on a comparison with military advantage, prohibits blocking consignments for the purpose of denying their sustenance value, or for any other reason if their obstruction would cause civilian starvation.
In addition to developments in IHL, the Commentary also notes developments in international human rights law, including specifically the recognition of child-specific rights obtaining up to the age of 18 (a higher threshold than Article 23’s focus on children under 15 in the first paragraph). This, too, is an area in which Article 23 has been superseded, with enduring heightened customary priorities regarding humanitarian access to children applicable to persons under 18, rather than those under 15 (2025 Commentary, para. 2050).
Final Points of Note
Emphasizing the “overall purpose” of Article 23, the Commentary correctly dismisses any notion that the location of the relevant population in a besieged, encircled, or blockaded area would affect the obligation to grant access. Put simply, “[w]hat matters is whether the consignments concerned can move freely into, within and out of the territory,” not the designation of a siege, blockade, or other form of control (2025 Commentary, para. 2032). The degree of external control would matter only once it exceeds that necessary to trigger the law of belligerent occupation and its more demanding obligations of humanitarian access and direct provision (Geneva Convention IV, Articles 55–62).
The 2025 Commentary is also noteworthy in its analysis of the positive aspects of belligerents’ core responsibility to “forward” relief “as rapidly as possible” under paragraph 4 of Article 23. The authors emphasize that this includes a duty to take “proactive measures” to “facilitate” rapid passage, such as by simplifying administrative procedures, including those associated with visa requirements and movement approvals for humanitarian personnel (2025 Commentary, para. 2062). In particular, “technical arrangements may not be such that they de facto amount to a refusal of consent, unduly hinder humanitarian operations or make their implementation impossible” (2025 Commentary, para. 2065; see also paras. 3602–3605). The contemporary significance of this observation is obvious.
Conclusion
The bottom line is simple. Article 23 cannot be invoked in a vacuum. The legal context has changed, and the provision’s significance has diminished in light of Additional Protocol I and customary international law. To seize upon either the narrowness of the core requirements in its first paragraph or the enumerated exceptions in its second paragraph as cover for impeding humanitarian access to a civilian population is to engage in a specious legal distortion. One of the most important contributions of the updated Commentary is to have added the imprimatur of the ICRC to that fundamental point and to have done so with the clarity that the moment demands.
FEATURED IMAGE: Vehicles of the International Committee of the Red Cross (ICRC) move near Saraya Square in western Gaza City on Jan. 19, 2025. (Photo by Youssef Alzanoun/Middle East Images/AFP via Getty Images)