WAR & THE USE

OF
FORCE
BASCO, CANDA, CARINO, GONZALES,
MATTA, PEREZ, RECALDE, SO
OUTLAWRY OF WAR
 OUTLAWRY OF WAR
• War was originally accepted as legitimate means of compulsion which
is an international delict or violation of the law.
• Bellum Justum or known as the Just War is a tradition of military ethics
studied by military leaders, theologians, ethicists and policy makers.
• There was a feeling of extreme disgust in the widespread of suffering
and it has inspired many attempts in forcibly putting an end to it. It is
mentioned in the Kellogg-Briand Pact of 1928 or known as the General
Treaty for the Renunciation of War and the United Nations Charter.
• Both agreements were not effective enough because they
accommodated certain exemptions when war could be legitimately
pursued.
 OUTLAWRY OF WAR (cont.)
• The Charter of the United Nations is committed to the outlawry
of war.
• The Organization stated that they are determined to save
succeeding generations from the scourge of war which twice in
our lifetime has brought untold sorrow to mankind.”
• All members are called upon to refuse the use of force to solve
international differences.
• Even non-members comply with the principles for the
maintenance of international peace and security.
• 2 instances that the use of force will be allowed.
LAWS OF WAR
 LAWS OF WAR
Important Laws of War:
1. The Declaration of Paris of 1856
2. The Hague Conventions of 1899
3. The Hague Conventions of 1907
4. The Geneva Convention of 1925
5. The Geneva convention of 1929
6. The Declaration of London of 1936
7. The Geneva Convention of 1949
8. The Nuclear Nonproliferation Treaty
 LAWS OF WAR
These agreements are enforced with the following
accepted sanctions:
A. Protest
B. Reparation for damages
C. Punishment of war criminals
 LAWS OF WAR
- The rules of war, or international humanitarian law (as
it is known formally) are a set of international rules that
set out what can and cannot be done during an armed
conflict.
- The rules of war are universal. The Geneva Conventions
(which are the core element of IHL) have been ratified
by all 196 states. Very few international treaties have
this level of support.
 LAWS OF WAR
- If the rules of war are broken, there are consequences.
War crimes are documented and investigated by States
and international courts. Individuals can be prosecuted
for war crimes.
COMMENCEMENT
OF WAR
 COMMENCEMENT OF WAR
• According to the Hague Convention of 1907 that hostiles
must not commence war without any clear warning the form
of either declaration of war or ultimatum with conditions
• War is suppose to commence on the date specified in the
declaration
• In the rule war is suppose to commence the moment of the
first act of force committed.
• Although, war can start when it is declared with the rejection
of an ultimatum.
 COMMENCEMENT OF WAR
• In the preamble of Hague of it is stated that,
• Considering that it is important, in order to ensure the
maintenance of pacific relations, that hostilities should not
commence without previous warning; That it is equally
important that the existence of a state of war should be
notified without delay to neutral Powers; Being desirous of
concluding a Convention to this effect, have appointed the
following as their plenipotentiaries.
 EFFECTS OF THE
OUTBREAK OF WAR
EFFECTS OF THE
OUTBREAK OF WAR
1. The laws of peace cease to regulate the relations of the belligerents and
are superseded by the laws of war. Third states are governed by the laws of
neutrality in their dealings with the belligerents.
2. Diplomatic and consular relations between the belligerents are terminated
and their respective representatives are allowed to return to their own
countries.
3. Treaties of political nature, such as treaties of alliance, are automatically
canceled, but those which are precisely intended to operate during war, such
as one regulating the conduct of hostilities between the parties, are activated.
Multipartite treaties dealing with technical or administrative matters, like
postal conventions, are deemed merely suspended as between the
belligerents.
EFFECTS OF THE
OUTBREAK OF WAR (cont.)
4. Individuals are impressed with enemy character:
a. Nationality test
b. Domiciliary test
c. Activities test
Corporations and other juridical persons, on the other hand, are regarded as
enemies if a majority or a substantial portion of their capital stock is in the hands of
enemy nationals or if they have incorporated in the territory or under the laws of
the other belligerent.
5. Enemy public property found in the territory of the other belligerent at the
outbreak of hostilities is, with certain exceptions, subject to confiscation. Enemy
private may be sequestered, subject to return, reimbursement or other disposition
after the war in accordance with the treaty of peace.
COMBATANTS AND
NON COMBATANTS
Combatants

-Person who takes a direct part in the hostilities of an

armed conflict

-If a combatant follows the law of war, then he or she is

considered a privileged combatant and upon capture he
or she will qualify as a prisoner of war under the third
geneva convention
Who are considered as combatants?

1. Members of the armed forces

2. Irregular forces
3. Levee en masse
4. The officers and crew of merchant vessels who forcibly
resist attack
Non Combatants

-Persons who are not engaged in warfare, regardless

of whether they are involved with an armed force or
not

-Member of armed forces whose duties do not

include fighting
Conduct of Hostilities
3 Basic Principles
1. Principle of military necessity
- All feasible precautions must be taken to limit the harm caused
2. Principle of humanity
- Prohibits the use of any measure that is not necessary for the
purposes of war
3. Principle of chivalry
- Required belligerents to give proper warning before launching
attack
KINDS OF
WARFARE
KINDS OF WARFARE
• Warfare may be engaged in to land or sea or in air, may it be
separately or simultaneously.
• The traditional methods of engaging has been changing by the
advent of modern developments in naval warfare and particularly,
in aerial warfare, which played a major role in the last two world
wars.
AERIAL WARFARE

• Most of the rules on aerial warfare have become obsolete and

need to be revised to make them conform to present realities.
• Aerial warfare is relatively modern. Balloons existed before aircraft
and their use in war was regulated in 1899, but aircraft as such
were not in use in warfare until the outbreak of World War I.
• With the rise of aerial warfare, non-combatants became extremely
vulnerable and were inevitably collateral targets in such warfare
potentially on a much larger scale than previously.
NAVAL WARFARE

• Naval warfare is the war that occurs in the sea. That includes the
submarines, boats, etc.
• The rules of Naval Warfare have substantially unaltered and deal
generally with treatment of combatants on the battlefield.
• One important rule is that booty, or personal property found in the
battlefield is subject to confiscation by the belligerent except the
personal belongings.
•
NAVAL WARFARE

• Articles:
• ON THE ARMED FORCE OF BELLIGERENT STATES Art. 2. War-ships. Constituting part
of the armed force of a belligerent State and, therefore, subject as such to the laws
of naval warfare are: (1) All ships belonging to the State which, under the direction
of a military commander and manned by a military crew, carry legally the ensign
and the pendant of the national navy. (2) Ships converted by the State into war-
ships in conformity with Articles 3-6. Art. 3. Conversion of public and private vessels
into war-ships. A vessel converted into a war-ship cannot have the rights and duties
accruing to such vessels, unless it is placed under the direct authority, immediate
control, and responsibility of the Power whose flag it flies.
BELLIGERENT
OCCUPATION
Belligerent Occupation
• One of the usual incidents of war is the occupation of hostile territory
by a belligerent that exercises authority over it until its forces
voluntarily withdraw or are expelled by the enemy.
• Territory is deemed occupied when it is actually placed under the
authority of the hostile army, but this occupation is limited only to the
area where such authority has been established and can be effectively
exercised.
• Nevertheless, it is not necessary that every square of the territory in
question be actually occupied.
Belligerent Occupation
• Belligerent occupation does not result in transfer or suspension of
the sovereignty of the legitimate government although it may at
the moment be unable to exercise it.
• Hence, the belligerent occupant cannot perform such acts as
declaring the independence of the occupied territory or requiring
its inhabitants to renounce their allegiance to the lawful
government.
• In the administration of occupied territory, the belligerent is
required to restore and ensure public order safety while
respecting, unless prevented, the laws in force in the country.
POSTLIMINIUM
 POSTLIMINIUM
• It is a part of public international law wherein it provides the
invalidity of all illegal acts that an occupant may have performed
on a certain territory after it has been captured by the legitimate
sovereign.
• Jus Postliminium imports the reinstatement of the authority of
the displaced government once control of the enemy is lost over
the territory affected.
• After the belligerent occupation, the laws of the government are
revived and all acts taken by the belligerent group can’t be
legally done under the law of nations, as well as lawful acts of a
political complexion, are invalid.
 POSTLIMINIUM (cont.)
• Example
If a private land belonged to X and is
confiscated by the enemy and is sold to Y, X
can recover his land after the occupation
without having to pay Y for the purchase
price.
 POSTLIMINIUM (cont.)
• Non-political acts performed during the
occupation such as decree of divorce or
judgment for recovery of debt will remain
valid even after the occupation;
• Acts of political character such as
conviction for a crime against the
occupying forces, automatically lose their
validity upon the end of occupation.
TERMINATION
OF WAR
TERMINATION OF WAR

War maybe terminated by:

• simple cessation of hostilities

• conclusion of a negotiated treaty of peace
• defeat of one of the belligerents followed by treaty of peace or
annexation of the conquered country
Cessation of Hostilities

Ex: Sweden and Poland in 1716

France and Spain in 1720
Spain and its American colonies in 1825
France and Mexico in 1862-67

- property or territory in the possession of respective belligerents upon

the determination of the war is retained by them in accordance with
the principle of uti possidetis.
Treaty of Peace

- two belligerents are unable to effect a decisive victory against each

other

Ex: Great Britain and United States

With Treaty of Ghent (1812)
Defeat one of the Belligerents

- War may be terminated by the defeat of one of the belligerents

*conditionally or unconditionally
- Conditional: treaty of peace is concluded embodying the conditions
specified in the surrender
- Unconditional: victorious belligerent issues a unilateral declaration
announcing the end of the war
> a peace treaty
>rules on the settlement of the obligation of the vanquished state
>disposition of territories
Defeat one of the Belligerents

however, it is not possible always to conclude a peace treaty of this nature

- formal proclamation or treaty of peace indicate the exact date of the

termination of the war
AFTERMATH
OF WAR
AFTERMATH OF WAR
- The vanquished belligerent is the guilty part in the dispute that caused
hostilities
- The treaty of peace imposed by the victor upon the defeated state is
regarded as a punishment
- The vanquished state is compelled to acknowledge the obligation to
reparation for injuries and losses suffered by the victorious state
- Nationals of the vanquished state may be protected and punished as
war criminals and for other violations of international law
 Principle I
Any person who commits an act which constitutes a crime under
international law is responsible therefor and liable to punishment.
Principle II
The fact that internal law does not impose a penalty for an act
which constitutes a crime under international law does not relieve
the person who committed the act from responsibility under
international law.
Principle III
The fact that a person who committed an act which constitutes a
crime under international law acted as Head of State or
responsible Government official does not relieve him from
responsibility under international law.
Principle IV
The fact that a person acted pursuant to order of his Government
or of a superior does not relieve him from responsibility under
international law, provided a moral choice was in fact possible to
him.
Principle V
Any person charged with a crime under international law has the
right to a fair trial on the facts and law.
Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a
war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of
any of the acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war which include, but are not limited to,
murder, ill treatment or deportation to slave-labour or for any other purpose of
civilian population of or in occupied territory, murder or ill-treatment of
prisoners of war, of persons on the seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns, or villages, or devastation
not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done
against any civilian population, or persecutions on political, racial or religious
grounds, when such acts are 3 done or such persecutions are carried on in
execution of or in connection with any crime against peace or any war crime.
Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime
against humanity as set forth in Principle VI is a crime under international law.
AFTERMATH OF WAR
- “ In Yamashita v. Styer, the Commanding General of the Imperial
Japanese Forces in the Philippines was convicted of war atrocities by a
military commision and sentenced to death by hanging. He questioned
his trial and conviction on the ground that the military commision had
no authority or jurisdiction to try him, but the sentence was affirmed by
the Philippines Supreme Court and later by the US Supreme Court. The
latter court declared inter alia as follows:
“It is not denied that such acts directed against the civilian population of an occupied country and against
prisoners of war are recognized in international law as violations of the law of war. Articles 4, 28, 46, and 47,
Annex to Fourth Hague Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the charge
does not allege that petitioner has either committed or directed the commission of such acts, and consequently that
no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach
of duty by petitioner as an army commander to control the operations of the members of his command by
"permitting them to commit" the extensive and widespread atrocities specified. The question, then, is whether the
law of war imposes on an army commander a duty to take such appropriate measures as are within his power to
control the troops under his command for the prevention of the specified acts which are violations of the law of
war and which
are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged
with personal responsibility for his failure to take such measures when violations result. That this was the precise
issue to be tried was made clear by the statement of the prosecution at the opening of the trial.

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or
efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to
prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if
the commander of an invading army could, with impunity, neglect to take reasonable measures for their protection.
Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war
by commanders who are to some extent responsible for their subordinates.”
Charter of the United
Nations
Article 2(3),
2(4), 24, 25, and 51
 Article 24 (Functions & Powers)
1. In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.
2. In discharging these duties the Security Council shall act in
accordance with the Purposes and Principles of the United Nations.
The specific powers granted to the Security Council for the discharge
of these duties are laid down in Chapters VI, VII, VIII, and XII.
3. The Security Council shall submit annual and, when necessary,
special reports to the General Assembly for its consideration.
 Article 25 & 51
Article 25 - The Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the present
Charter.
Article 51 - Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken the
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defense
shall be immediately reported to the Security Council and shall not in any
way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary
in order to maintain or restore international peace and security.
*ICE BREAKER*
 ARMED ACTIVITIES
ON THE TERRITORY OF THE
CONGO
(DEMOCRATIC REPUBLIC
OF THE CONGO v. UGANDA)
Judgement: Dec. 19,2005
SITUATION IN THE GREAT LAKES REGION AND
TASK OF THE COURT (para. 26)
• The Court notes that it is aware of the complex and
tragic situation which has long prevailed in the Great
Lakes region and of the suffering by the local population.
It observes that the instability in the DRC in particular
has had negative security implications for Uganda and
some other neighboring States. It however states that its
task is to respond, on the basis of international law, to
the particular legal dispute brought before it.
 THE
GREAT
AFRICAN
LAKES
 Claims of DRC VS Uganda
1. That the Republic of Uganda, by engaging in
military and paramilitary activities against the
Democratic Republic of the Congo, by occupying its
territory and by actively extending military, logistic,
economic and financial support to irregular forces
having operated there, has violated principles of
conventional and customary law.
 Claims of DRC VS Uganda (CONT.)
2. That the Republic of Uganda, by committing acts of
violence against nationals of the Democratic Republic of
the Congo, by killing and injuring them or despoiling them
of their property, by failing to take adequate measures to
prevent violations of human rights in the DRC by persons
under its jurisdiction or control, and/or failing to punish
persons under its jurisdiction or control having engaged in
the above-mentioned acts, has violated the principles of
conventional and customary law.
 Claims of DRC VS Uganda (CONT.)
3. That the Republic of Uganda, by engaging in the illegal
exploitation of Congolese natural resources, by pillaging
its assets and wealth, by failing to take adequate
measures to prevent the illegal exploitation of the
resources of the DRC by persons under its jurisdiction or
control, and/or failing to punish persons under its
jurisdiction or control having engaged in the above-
mentioned acts, has violated the principles of
conventional and customary law.
 The Ruling
• The International Court of Justice ordered Uganda
to pay reparations to the Democratic Republic of
Congo for the five-year occupation of its eastern
regions.
• The International Court of Justice also ruled that
Uganda's 1998-2003 intervention violated
international sovereignty and led to the killing and
torture of civilians and the destruction of villages.