International Humanitarian Law

What is International Humanitarian Law

(IHL)?

It is the branch of PIL which governs armed

conflicts to the end that the use of violence is
limited and that human suffering is mitigated or
reduced by regulating or limiting the means of
military operations and by protecting persons
who do not or no longer participate in
hostilities. It is also known as the law of armed
conflict or the law of war.
 What are the two branches of IHL?

Law of Geneva – designed to safeguard

military personnel who are no longer taking
part in the fighting and people not actively.

Law of the Hague – establishes the rights and

obligations of belligerents in the conduct of
military operations, and limits the means of
harming the enemy.
 WAR

What is war?

It is contention between two States, through

their armed forces, for the purpose of
overpowering the other and imposing such
conditions of peace as the victor pleases.
 WAR

What are the two categories of the Laws of

war?

Jus in Bello

Jus ad bellum or jus contra bellum

 Jus in Bello

also known as the law of war. The provisions of

international humanitarian law apply to the
warring parties irrespective of the reasons for
the conflict and whether or not the cause
upheld by either party is just. It regulates only
those aspects of international law, which are of
humanitarian concern.
 Jus ad bellum or jus contra bellum

Known as the law on the use of force or law on

the prevention of war. The application of
humanitarian law does not involve the
denunciation of guilty parties as that would be
bound to arouse controversy and not paralyze
implementation of the law, since each
adversary would claim to be a victim of
aggression. IHL is intended to protect war
victims and their fundamental rights, no matter
to which party they belong
 UN CHARTER ON WAR

Is the UN Charter committed to the

outlawing of war?

Yes. Under the UN Charter, the use of force is

allowed only in two instances, to wit, in the
exercise of the inherent right of self‐defense
and in pursuance of the so‐called enforcement
action that may be decreed by the Security
Council.
 What is a declaration of war?

A communication by one State to another

informing the latter that the condition of peace
between them has come to an end and a
condition of war has taken place.
 Q: What is an ultimatum?

A written communication by one State to

another which formulates, finally and
categorically, the demands to be fulfilled if
forcible measures are to be averted.
What are the effects of the outbreak of war?
 Laws of peace are superseded by the laws of war.
 Diplomatic and consular relations between the
belligerents are terminated.
 Treaties of political nature are automatically
cancelled, but those which are precisely intended to
operate during war such as one regulating the
conduct of hostilities, are activated.
 Enemy public property found in the territory of other
belligerent at the outbreak of the hostilities is with
certain exceptions, subject to confiscation.
Note: An army of occupation can only take
possession of the cash, funds, and property
liable to requisition belonging strictly to the
State, depots of arms, means of transport,
stores and supplies, and, generally, all
movable property of the State which may be
used for military operations. (Article 53, Laws
and Customs of War on Land (Hague II), July
29, 1899)
What are the tests in determining the enemy character
of individuals?

 Nationality test – If they are nationals of the other

belligerent, wherever they may be.
Domiciliary test – If they are domiciled aliens in the
territory of the other belligerent, on the assumption
that they contribute to its economic resources.
 Activities test – If, being foreigners, they
nevertheless participate in the hostilities in favor of
the other belligerent.
 What is the Principle of Distinction?
Parties to an armed conflict must at all times
distinguish between civilian and military
targets and that all military operations
should only be directed at military targets
Who are the participants in war?

Combatants ‐ those who engage directly in

the hostilities, and

Non‐combatants ‐ those who do not, such

as women and children.
 Who are regarded as combatants?
 Members of the armed forces except those not
actively engaged in combat
 The irregular forces, such as the guerrillas, provided
that:
 They are commanded by a person responsible for his
subordinates
 They wear a fixed distinctive sign
 They carry arms openly; and
 They conduct their operations in accordance with the
laws and customs of war.
 Levee en Masse –the inhabitants of
unoccupied territory who, on approach or
the enemy, spontaneously take arms to
resist the invading troops without having had
time to organize themselves, provided only
that they carry arms openly and observe the
laws and customs of war.
 The officers and crew members of merchant
vessels who forcibly resist attack.
 What are armed forces as defined under
R.A. 9851?
 These are all organized armed forces,
groups and units that belong to a party to an
armed conflict which are under a command
responsible to that party for the conduct of
its subordinates.
What are the basic principles that underlie
the rules of warfare?

 The principle of military necessity – The

belligerent may employ any amount of force
to compel the complete submission of the
enemy with the least possible loss of lives,
time and money.
 Note: Under R.A. 9851, it is the necessity of
employing measures which are
indispensible to achieve a legitimate aim of
the conflict and not prohibited by IHL
 The principle of humanity – Prohibits the use
of any measure that is not absolutely
necessary for the purpose of the war, such
as the poisoning of wells.
 The principle of chivalry – Prohibits the
belligerents from the employment of
treacherous methods, such as the illegal use
of Red Cross emblems.
 How may war be terminated?

 Simple cessation of hostilities, without the

conclusion of a formal treaty
 Treaty of peace
 Unilateral declaration
 The complete submission and subjugation of
one of the belligerents
The revival or reversion to the old laws and
sovereignty of territory which has been
under belligerent occupation once control of
the belligerent occupant is lost over the
territory affected.
 When is the Principle of Postliminium applied?
 Where the territory of one belligerent State is
occupied by the enemy during war, the
legitimate government is ousted from authority.
When the belligerent occupation ceases to be
effective, the authority of the legitimate
government is automatically restored, together
with all its laws, by virtue of the jus
postliminium. (1979 Bar Question)
 What is the Principle of Utipossidetis?
Allows retention of property or territory in the
belligerent’s actual possession at the time of
the cessation of hostilitites.
What is status quo ante bellum?

Each of the belligerents is entitled to the

territory and property which it had possession
of at the commencement of the war.
What are the “new” conflicts
covered by the IHL?
 Anarchic conflicts – It is a situation where armed
groups take advantage of the weakening or
breakdown of the State structures in an attempt to
grab power.
 Those in which group identity becomes a focal point –
These groups exclude the adversary through “ethnic
cleansing” which consists in forcibly displacing or even
exterminating populations. This strengthens group
feeling to the detriment of the existing national identity,
ruling out any possibility of coexistence with other
groups.
Note: IHL and international human rights law
(hereafter referred to as human rights) are
complementary. Both strive to protect the lives,
health and dignity of individuals, albeit from a
different angle.
 What is R.A. 9851?
R.A. 9851 is the Philippine Act on Crimes
Against International Humanitarian Law,
Genocide and other Crimes Against
Humanity. Its State policies include:
 The renunciation of war and adherence to a
policy of peace, equality, justice, freedom,
cooperation and amity with all nations
 Values the dignity of every human person
and guarantees full respect of human rights
 Promotion of Children as zones of peace
 Adoption of the generally accepted
principles of international law
 Punishment of the most serious crimes of concern to
the international community
To ensure persons accused of committing grave crimes
under international law all rights for a fair and strict
trial in accordance with national and international law
as well as accessible and gender‐sensitive avenues
of redress for victims of armed conflicts
The application of the provisions of this Act shall not
affect the legal status of the parties to a conflict, nor
give an implied recognition of the status of
belligerency.
 What is the effect /relevance of the passage
of R.A. 9851?
 R.A. 9851 mandates both the State and
non‐ state armed groups to observe
international humanitarian law standards
and gives the victims of war‐crimes,
genocide and crimes against humanity legal
recourse
 What is an “attack directed against any
civilian population”?

 It means a course of conduct involving the

multiple commission of acts referred to in
other crimes against humanity against any
civilian population, pursuant to or in
furtherance of a State or organizational
policy to commit such attack.
 What are war crimes?
In case of an international armed conflict, grave
breaches of the Geneva Conventions of August
12, 1949, namely any of the following acts
against persons or property protected:
 Willful killing
 Torture or inhuman treatment, including
biological experiments
 Willfully causing great suffering, or serious
injury to body or health
 Extensive destruction and appropriation of
property not justified by military necessity and
carried out unlawfully and wantonly
 Willfully depriving a prisoner of war or other
protected person of the rights of fair and
regular trial
 Arbitrary deportation or forcible transfer of
population or unlawful confinement
 Taking hostages
 Compelling a prisoner of war or other protected
person to serve in the forces of a hostile
power; and
 Unjustifiable delay in the repatriation of
prisoners of war or other protected persons
 Violence to life and person, in particular,
willful killings, mutilation, cruel treatment and
torture
 Committing outrages upon personal dignity, in
particular humiliating and degrading treatment
Taking of hostages; and The passing of
sentences and the carrying out of executions
without previous judgment pronounced by a
regularly constituted court, affording all judicial
guarantees which are generally recognized as
indispensible.
 Other serious violations of the laws and customs
applicable in the armed conflict within the established
framework of international law, namely:
 a. Intentionally directing attacks against the civilian
population as such or against individual civilians not
taking direct part in hostilities
 b. Intentionally directing attacks against civilian
objects, that is, objects which are not military
objectives
 c. Intentionally directing attacks against buildings,
material, medical units and transport, and personnel
using the distinctive emblems of Additional Protocol II
in conformity with international law
 d. Intentionally directing attacks against
personnel, installations, material, units or
vehicles involved in a humanitarian
assistance or peacekeeping mission in
accordance with the Charter of the United
Nations as long as they are entitled to the
protection given to civilians or civilian objects
under the international law of armed conflict.
 e. Launching an attack in the knowledge that
such attack will cause incidental loss of life
or injury to civilians or damage to civilian
objects or widespread long‐ term and severe
damage to the natural environment which
would be excessive in relation to the concrete
and direct military advantage anticipated
 Launching an attack against works or
installations containing dangerous forces in the
knowledge that such attack will cause
excessive loss of life, injury to civilians or
damage to civilian objects, and causing death
or serious injury to body or health
 Attacking or bombarding, by whatever means,
towns, villages, dwellings or buildings which
are undefended and which are not military
objectives, or making non‐ defended localities
or demilitarized zones the object of attack
 Killing or wounding a person in the knowledge
that he/she is hors de combat, including a
combatant who, having laid down his/her arms
no longer having means of defense, has
surrendered at discretion
 Making improper use of a flag of truce, of the flag
or the military insignia and uniform of the enemy
or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions
or other protective signs under the International
Humanitarian Law, resulting in death, serious
personal injury or capture;
 Intentionally directing attacks against buildings
dedicated to religion, education, art, science, or
charitable purposes, historic monuments,
hospitals and places where the sick and
wounded are collected, provided that they are
not military objectives. Note: In case of doubt,
they shall be presumed not to be so used.
 Subjecting persons who are in the power of an
adverse party to physical mutilation or to
medical or scientific experiments of any kind,
or to removal of tissue or organs for
transplantation, which are neither justified by
the medical, dental or hospital treatment of the
person concerned not carried out in his/her
interest, and which cause death to or seriously
endanger the health of such person or persons
 Killing wounding or capturing an adversary by
resort to perfidy
 Declaring that no quarter will be given
 Destroying or seizing the enemy’s property
unless such destruction or seizure is
imperatively demanded by the necessities of
war
 Pillaging a town or place, even when taken by
assault
 Ordering the displacement of the civilian
population for reasons related to the conflict,
unless the security of the civilians involved or
imperative military reasons so demand
 Transferring, directly or indirectly, by occupying
power of parts of its own civilian population into
the territory it occupies, or the deportation or
transfer of all or parts of the population of the
occupied territory within or outside this territory
 Committing outrages upon personal dignity, in
particular, humiliating and degrading treatment
 Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual
violence
 Utilizing the presence of a civilian or other
protected person to render certain points, areas
or military forces immune from military
operations
 Intentionally using starvation of civilians as a
method of warfare by depriving them of objects
indispensable to their survival, including willfully
impending relief supplies
 In an international armed conflict, compelling the
nationals of the hostile party to take part in the
operations of war directed against their own
country, even if they were in the belligerent’s
service before the commencement of the war