Enforcing the Fourth Geneva Convention in Palestine: Between Legal Obligations and Political Deadlock

[Yaser Salarain is a lawyer and international law expert at the School of International Relations, Tehran]

The protracted conflict in the Occupied Palestinian Territory (OPT) has consistently tested the limits of international humanitarian law (IHL) and, more specifically, the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV). Despite repeated UNGA resolutions and diplomatic initiatives, recent developments — including the cancelled 2025 Conference of High Contracting Parties (HCPs) to the GCIV — have highlighted a persistent gap between the legal obligations of states and the political realities that hinder effective enforcement. This article examines the structural and legal obstacles to enforcing the GCIV in Palestine, critically assesses the failures of existing mechanisms such as Article 149, and explores whether a hybrid approach combining legal precision and political will could offer a viable path forward. 

A Pivotal Moment in Humanitarian Diplomacy

On 6 March 2024, Switzerland, acting in its capacity as the depositary of the Geneva Conventions, formally declared the cancellation of the long-anticipated Conference of HCPs to the GCIV, originally scheduled for the following day. This abrupt denouement, following five months of arduous negotiations and delicate consultations, signaled the breakdown of a rare diplomatic mechanism expressly mandated by paragraph 12 of UNGA Resolution A/RES/ES-10/24 of 18 September 2024. Switzerland had duly accepted this mandate on 11 November 2024, assuming the burden of convening the States Parties within the stipulated timeframe.

Although Article 7 of Protocol I to the Geneva Conventions envisages “meetings” of the HCPs to deliberate upon “general problems” of application, that provision is both procedurally and substantively narrower in scope. Not only is Israel not party to Protocol I, but the provision itself merely contemplates “meetings” to address general concerns, whereas the Assembly’s mandate unequivocally called for a “conference” focused on the concrete enforcement of IHL in the OPT.  

The ill-fated Conference was exceptional in character: convened outside the UN institutional framework yet intimately linked to its legal authority, it was to follow the 2014 precedent—a rigid procedural architecture of pre-scripted statements, carefully orchestrated interventions by the ICRC and UN organs, and the adoption of a consensus declaration without recourse to a formal vote. Participation remained strictly confined to HCPs, with limited observers and written statements incorporated into the official record. Yet, this elaborate formality, heavily reliant on Geneva-based consultations through Permanent Missions, proved ultimately counterproductive. The primacy of procedure over substance widened already deep fissures among States, rendering consensus unattainable and the promise of enforcement once again hostage to political inertia.

Commencement of Negotiations: Divergent Views and Procedural Impasses

The Swiss Ministry of Foreign Affairs has indicated that on 27 February 2025, Switzerland submitted the final draft. Switzerland stated that:

Given the feedback on the draft declaration of 27 February 2025 it became clear that the divergent positions of the high contracting parties meant there would not be sufficient support from the international community to hold the conference and adopt a final declaration.

In response, the Organization of Islamic Cooperation (OIC) declared:

The Group believes that the draft Declaration neither appeared to fulfill the agreed mandate nor was it commensurate with the gravity of situation. Thus, it could not muster necessary cross-regional support, including from OIC member states

What may be gleaned from the OIC’s media statement is that:

The OIC had made its position clear that it could not subscribe to an outcome that blurred the line between the perpetrator (Israel) and the victim (civilian population of the OPT)

This implies that Switzerland may have endeavored, akin to the ICRC’s regular Conferences, to act indiscreetly by omitting any reference to either party in the declaration, despite the insistence of the Islamic states that Israel be expressly identified in the declaration as a violator of the Convention. Moreover, the UNGA in OP 8 “stresses that such breaches seriously threaten regional and international peace and security” and the assertion by the Islamic states that “[t]he 2025 HCP Conference was tasked to focus on “measures to enforce the Convention in the Occupied Palestinian Territory” effectively constitutes a redefinition of the provisions set forth in OP 12 of the UNGA resolution.

The Paradox of Non-Binding Declarations: Form Versus Substance in Diplomatic Engagement 

Another point warrants mention regarding the UNGA’s employment of the phrase “measures to enforce the Convention” in the resolution. This phrasing is predicated upon two primary considerations. First, were the final declaration to merely reiterate the established rules of IHL, such repetition would appear somewhat superfluous—indeed, if such a declaration were adopted, it would be non-binding. In view of the fact that the rules of IHL are binding, unequivocally, and obligatorily enshrined in the text of the GCIV, their mere repetition would be of little consequence unless it were intended to prescribe concrete measures for the enforcement of the Convention. Second, in the preceding final declaration of the Conference—most notably, in 2001 (para. 13)—the Occupying Power was called upon to “refrain from committing grave breaches” enshrined in Article 147, while third States were likewise obliged to ensure that the perpetrators of such grave breaches be brought before justice. 

Now, 24 years having elapsed since that precedent, the UNGA has accordingly sought to incorporate “measures to enforce the Convention” in its resolution, thereby effectively delineating the objective of the Conference. And what the Islamic states asserted—that “[t]he 2025 HCP Conference was tasked to focus on ‘measures to enforce the Convention in the Occupied Palestinian Territory” — effectively constitutes a redefinition of the provisions set forth in paragraph 12 of the General Assembly resolution.  

However, the text of the GCIV remains silent as to the measures to be undertaken for its enforcement. Moreover, as stated, this is a non-binding declaration. Consequently, the vast majority of the HCPs are unable to establish a legally binding mechanism, for the creation of such a mechanism necessitates the presence of all HCPs at a diplomatic conference. 

 For this reason, the declarations adopted at the Conferences of 1999, 2001, and 2014 employed the expression: “The participating High Contracting Parties,” and it was expressly provided in its opening paragraph that “[t]his Declaration reflects the common understanding reached by the participating High Contracting Parties to the Conference.” It is noteworthy that on 17 December 2014, 128 HCPs participated in the Conference; accordingly, this Declaration could not have imposed legally binding obligations upon the remaining approximately 68 states. 

Enforcement Challenges and the Limits of Article 149: Legal Lacunae and the Quest for Accountability

Ambassador Franz Perez, director of the Office of International Law of the Federal Department of Foreign Affairs, announced at a press conference on 7 March 2025, regarding the cancellation of the conference:

The problem was rather that some of the proposed measures were not part of the 4th Convention, and there were limits that we could not surpass. Some were part of it, some were not part of the Assembly’s mandate, and some were unacceptable for one side or another. Some believed the proposed measures went too far, while others felt they did not go far enough. It was more about that; it was not that we did not want to discuss measures to strengthen the implementation of the 4th Convention.

[Translation from the French remarks of Ambassador Perez]

While it is undisputed that the UN General Assembly’s mandate delineates a clear framework for proposing measures to ensure compliance, the Fourth Geneva Convention itself erects intrinsic legal constraints that cannot be disregarded. Yet such textual limitations must not be invoked to justify inaction. The Convention’s architecture, particularly the sparse remedial avenues under Article 149, remains ill-suited to address complex and grave breaches such as those prevailing in the OPT.

Under Article 149, any “Party to the conflict” may “request” an enquiry into alleged violation of the Convention, to be conducted by mutual arrangement, or failing that, through an “umpire” agreed by the parties. However, this mechanism—designed for classical inter-state disputes—offers no robust enforcement tool to compel compliance in situations of entrenched occupation and systemic grave breaches. Palestine, as a recognized Party, retains the right to invoke this provision, yet the practical effect is negligible when the Parties cannot agree upon procedure or accept its findings. Thus, the enquiry mechanism, rooted in post-World War precedents, fails to fulfil the Assembly’s call for tangible “measures to enforce the Convention” and leaves a profound gap between legal aspiration and enforceable remedy. 

Towards a Hybrid Solution: Legal Precision Meets Political Will: Integrating Legal and Political Remedies

The inherent frailty of Article 149 has long been acknowledged. The 1958 Commentary, crafted barely a decade after the Convention’s adoption, candidly concedes that this provision, while theoretically obligatory, would in practice prove inoperative in certain conflicts—most notably where mutual agreement among belligerents is elusive. The Palestinian context starkly exemplifies this foresight: even the most resolute jurists remain unconvinced that convening an enquiry, reliant upon consent and procedure jointly determined by the very Parties accused of grave breaches, could arrest systematic violations. Indeed, as the Commentary notes, the enquiry mechanism—tracing its lineage to the Geneva Convention of 1929 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Article 30 )—has never once been successfully invoked, a testament to its enduring impotence amid entrenched impunity.

The proposition of a legal solution for the implementation of the UNGA resolution mandating the enforcement of the Convention is not exclusively a matter of law, since, as has been stated, it is the Convention in its extant form and cannot be amended or revised under the present circumstances. In certain instances, legal pragmatism necessitates an infusion of political insight. In its Advisory Opinion of 19 July 2024, the Court expressly declared that “the Court is of the view that the precise modalities to bring to an end Israel’s unlawful presence in the Occupied Palestinian Territory is a matter to be dealt with by the General Assembly” (para. 281), and subsequently stated that “consider the precise modalities and further action required to bring to an end” (para. 285). Accordingly, the legal quandary arising from the inherent weakness of Article 149’s text—essentially a non-binding political declaration—could be resolved by invoking Articles 146–148, which address the flagrant breaches of the Convention and the attendant remedial measures, thereby enabling “[t]he participating High Contracting Parties” to urge the UNGA to establish a committee to bring an end to the breaches of the GCIV and to implement the measures contemplated in paragraph 285 of the Court’s Advisory Opinion.

Concluding Reflections: Bridging Legal Ambitions with Political Realities 

In conclusion, the present analysis underscores the inherent challenges and limitations in enforcing the GCIV through the convening of a HCP Conference. The cancellation of the 2025 HCP Conference, despite extensive negotiations and a clear mandate from the UNGA, illustrates a profound disjunction between lofty legal aspirations and the stark realities of international politics. This article demonstrates that the legal framework underpinning the Convention—particularly Articles 146 through 149—is, in the context of Palestine, essentially unenforceable and fails to provide a robust mechanism for enforcement. Moreover, divergent positions among HCPs and the deliberate omission of explicit references to violations by designated parties, notably Israel, have further impeded effective action. The Court’s Advisory Opinion, which asserts that the precise modalities to end unlawful presence in the OPT must be determined by the UNGA, reinforces the need for political insight to complement legal procedures. Consequently, a hybrid approach, incorporating remedial measures from Articles 146–148 and galvanizing the influence of the participating HCPs, is imperative. Such a synthesis of legal rigor and political pragmatism is essential to curtail the persistent breaches of IHL. Thus, enduring progress.

Photo attribution: “Facsimile of the original first Geneva Convention from 1864” by Kevin T. Quinn is licensed under CC BY 2.0