Saint Louis University

School of Law

Laws on Armed Conflict

Submitted by:
BALINO, Danica T.
LLB II-B

Submitted to:
Atty. Jose Adrian Bonifacio

December 13, 2016

When States cannot or will not settle their disagreements or differences by means of
peaceful discussion, weapons are suddenly made to speak. War inevitably results in
immeasurable suffering among people and in severe damage to objects.1 Hence, the need for
International Humanitarian Law.

What is international humanitarian law?

International humanitarian law (IHL) is a set of rules that seeks, for humanitarian
reasons, to limit the effects of armed conflict. It protects persons who are not, or are no longer,
participating in hostilities, and imposes limits on the means and methods of warfare. IHL is also
known as ‘the law of war’ or ‘the law of armed conflict’.2

IHL is part of public international law – the body of rules governing relations between
States. Public international law is made up primarily of treaties or conventions concluded
between States, customary rules, and general principles of law.3

Distinction must be made between IHL, which regulates the conduct of parties engaged
in an armed conflict (jus in bello), and that part of public international law set out in the Charter
of the United Nations that regulates whether a State may rightfully resort to armed force against
another State (jus ad bellum)4

Jus ad bellum (right to war) –is a set of criteria that are to be

Jus in bello (laws of war) –are the international rules pertaining to how armed
conflict must be conducted.5

What are the origins of IHL?6

Warfare has always been subject to certain principles and customs. It may be said
therefore that IHL has its roots in the rules of ancient civilizations and religions.

Universal codification of IHL began in the nineteenth century, notably through the
adoption of the 1864 Geneva Convention for the Amelioration of the Condition of the Wounded

1
Commission on Human Rights Presentation on Laws of Armed Conflict
2
International Committee of the Red Cross
3
Supra.
4
Supra.
5
Commission on Human Rights Presentation on Laws of Armed Conflict
6
International Committee of the Red Cross
in Armies in the Field and the 1868 Declaration of Saint Petersburg, which prohibited the use of
certain projectiles in wartime. Since then, States have agreed to and codified a series of
practical rules to keep pace with evolving means and methods of warfare and the related
humanitarian consequences. These rules strike a careful balance between humanitarian
concerns and the military requirements of States and non-State parties to armed conflict. They
address a broad range of issues, including: protection for wounded and sick soldiers; treatment
of prisoners of war and other persons detained in connection with an armed conflict; protection
for the civilian population and civilian objects, such as cultural property; and restrictions on the
use of certain weapons and methods of warfare.

Over time, the number of States adhering to these rules has grown, securing virtually
universal acceptance for the core treaties of IHL.

What are the treaty-based sources of IHL?

Streams of IHL7

1. Law of Geneva – deals with the protection of war victims, be they military or civilians, on land
or water. This protects all persons “hors de combat”: wounded, sick, shipwrecked and POW’s.

The four Geneva Conventions of 1949 (GC I, II, III and IV), which have been
universally ratified, constitute the core treaties of IHL. The Conventions have been
supplemented by Additional Protocols I and II of 1977 (AP I and AP II) relating to the protection
of victims of international and non- international armed conflict respectively; and by Additional
Protocol III of 2005 (AP III) relating to an additional distinctive emblem (the red crystal).8

2. Law of The Hague - deals with the regulation of the methods and means of combat and puts
emphasis on the conduct of military operations.

 Martens Clause Article 1(2) of Additional Protocol I; Preamble, 1907 Hague Convention
IV
“In cases not covered by this Protocol, or by other international
agreements, civilians and combatants remain under the protection and
authority of the principles of international law, derived from established
custom, from the principles of humanity, and from the dictates of public
conscience.”

7
Commission on Human Rights Presentation on Laws of Armed Conflict
8
International Committee of the Red Cross
 Other international treaties prohibit the use of certain weapons and military tactics, and
protect certain categories of person and object from the effects of hostilities. These treaties
include:9

 the 1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare
 the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict
and its two Protocols of 1954 and 1999
 the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction
 the 1976 Convention on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques
 the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate
Effects (CCW) and its five Protocols of 1980 (I, II and III), 1995 (IV), and 2003 (V)
 the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on their Destruction
 the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction (APMBC)
 the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict
 the 2006 International Convention for the Protection of All Persons from Enforced
Disappearance
 the 2008 Convention on Cluster Munitions (CCM)

In addition, the 1998 Statute of the International Criminal Court (ICC) established the Court’s
jurisdiction in respect of war crimes (Article 8), thus strengthening States’ obligation to prevent
serious violations of IHL.10

Many provisions of the treaties mentioned above are now thought to reflect customary
IHL and are, consequently, binding on all States and all parties to a conflict.11

When does IHL apply?12

IHL applies only to situations of armed conflict. It does not cover internal tensions or
disturbances such as isolated acts of violence that do not reach the threshold of an armed
conflict. In addition, IHL distinguishes between international and non-international armed conflict

International armed conflicts are those in which one or more States resort to the use of
armed force against another State. Wars of national liberation, under certain conditions, and

9
International Committee of the Red Cross
10
Supra.
11
Supra.
12
Supra.
situations of occupation are regarded as international armed conflicts. International armed
conflicts are governed by the four Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are restricted to the territory of a single State and
involve either governmental armed forces fighting one or more non-State armed groups, or such
groups fighting each other. The rules applicable to non-international armed conflict have a more
limited scope than those governing international armed conflict. These rules are set out in
Article 3 common to the four Geneva Conventions and in AP II. However, customary law
expands the protection provided by certain rules of IHL to all types of armed conflict, including
non-international conflicts.

IHL applies once the conditions for an armed conflict or occupation are met on the
ground – even if a state of conflicts not recognized as such by one of the parties and regardless
of whether the occupation encounters armed resistance.

IHL applies equally to all sides, irrespective of who started the fighting and, in the case
of international armed conflict, even if one of the belligerent States is not party to the Geneva
Conventions or Additional Protocol I.

The distinction between international and non-international conflict is not always clear-
cut. In recent years, conflicts have arisen that contain elements of both. A case-by-case
approach is therefore recommended to determine which normative framework is applicable.

What does IHL cover?

1) The protection of those who are not, or no longer, taking part in hostilities.13

The Geneva Conventions regulate the protection and treatment of four categories of person
during international armed conflict:
 the wounded and sick in armed forces in the field (GC I)
 wounded, sick and shipwrecked members of the armed forces at sea (GC II)
 prisoners of war (GC III)
 civilians, including those in occupied territories (GC IV)

The civilians protected under GC IV are those held by a party to the conflict, or an occupying
power, of which they are not nationals. Internally displaced persons, women, children, refugees,
stateless persons, and journalists are some of the groups that qualify for such protection.
Protection similar to that provided in international armed conflict applies in non-international
armed conflict to persons who are not, or are no longer, taking part in hostilities.

Persons protected by IHL are entitled to respect for their lives, their dignity, and their
physical and mental integrity. They are also afforded various legal guarantees. They must be

13
International Committee of the Red Cross
protected and treated humanely in all circumstances, with no adverse distinction. More
specifically, it is forbidden to kill or wound an enemy who surrenders or is unable to defend
himself or herself. The wounded and the sick must be collected and cared for by the party in
whose power they find themselves. Medical personnel, units and transports must all be
protected. Access to humanitarian assistance for the civilian population affected by the conflict
must be facilitated, subject to the consent of the parties concerned.

In addition, detailed rules govern the conditions of detention for prisoners of war and the
treatment of civilians under the authority of an enemy power. These rules cover such matters as
the provision of food, shelter and medical care, judicial and procedural guarantees, and the right
– of the people in question – to exchange messages with their families.

Reprisals against protected persons are forbidden. In order to facilitate the protection of
those who are not, or are no longer, participating in hostilities, IHL defines a number of clearly
recognizable ‘distinctive emblems, with a view to identifying and protecting objects and persons
providing humanitarian assistance and medical care. These emblems are the red cross, the red
crescent, the red lion and the red crystal (for States that have ratified AP III). The distinctive
emblems can be used, in times of armed conflict, to identify protected persons, places and
objects (including, primarily, armed forces’ medical units and transports, as well as other
medical and religious services). They may also be used, either during armed conflict or in
peacetime, for the purpose of identifying persons or objects linked to the International Red
Cross and Red Crescent Movement.

The rules on the conduct of hostilities also grant specific protection to certain objects,
including cultural property and places of worship (the 1954 Hague Convention for the Protection
of Cultural Property in the Event of Armed Conflict; AP I, Article 53; AP II, Article 16), objects
indispensable to the survival of the civilian population (AP I, Article 54; AP II, Article 14), and
“works and installations containing dangerous forces” (AP I, Article 56; AP II, Article 15). Such
works and installations, as well as cultural property and civil defence personnel and facilities,
can be identified by specific symbols.

2) Restrictions on the means of warfare – in particular weapons – and the methods of warfare,
such as military tactics.

General Rule14:

IHL prohibits means and methods of warfare that cause superfluous injury or
unnecessary suffering. Specific treaties have therefore banned or restricted the use of many
weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons,
anti-personnel mines, cluster munitions, and incendiary weapons. Pillage, starvation and perfidy
are some of the methods of warfare specifically prohibited under IHL.

14
International Committee of the Red Cross
Exceptions15:

Article 42: “Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such action by air, sea, or
land forces as may be necessary to maintain or restore international peace and security.”

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.”

IHL also regulates the general conduct of hostilities on the basis of the following
principles:

Principles of IHRL16:

The principle of distinction requires that the parties to an armed conflict distinguish at
all times between civilians and civilian objects on the one hand, and combatants and military
objectives on the other, and that attacks may only be directed against combatants and military
objectives. The purpose of this is to protect individual civilians, civilian property, and the civilian
population as a whole. Under this principle, indiscriminate attacks are prohibited.17

15
Commission on Human Rights Presentation on Laws of Armed Conflict
16
Supra.
17
International Committee of the Red Cross
 The principle of necessity and proportionality, a corollary to the principle of distinction,
dictates that incidental loss of civilian life and property or injury to civilians must not be
excessive in relation to the concrete and direct military advantage anticipated.18

18
International Committee of the Red Cross
 Principle of humane treatment requires that civilians are treated humanely at all times.
Civilians are entitled to respect for their physical and mental integrity, their honor, family rights,
religious convictions and practices, and their manners and customs.19

The principle of non-discrimination means that All protected persons shall be treated
with the same consideration by parties to the conflict, without distinction based on race, religion,
sex or political opinion. 20

How is IHL implemented?21

Implementation of IHL is primarily the responsibility of States. They must respect and
ensure respect for these rules in all circumstances (Article 1 common to the four Geneva
Conventions). States must adopt legislation and regulations aimed at ensuring full compliance
with IHL. In particular, they must enact laws to punish the most serious violations of the Geneva
Conventions and their Additional Protocols – that is, violations that amount to war crimes.

States must also adopt laws protecting the red cross, red crescent, red crystal and other
symbols. Other domestic implementation measures should also be taken:
 developing educational programmes for the armed forces and the general public;
 recruiting and/or training qualified, specialist personnel;
 producing identity cards and other documents for protected persons, etc.

At the international level, IHL treaties provide for certain compliance mechanisms. These
include, in particular:
 the protecting power system;
 the possibility to resort to an enquiry procedure;
 and the International Humanitarian Fact-Finding Commission, a mechanism specifically
envisaged in Article 90 of AP I. States party to AP I also undertake to cooperate with the
United Nations to deal with serious violations of AP I or of the Geneva Conventions.

Some weapons treaties, including the APMBC, the CCW and the CCM, provide for reporting
mechanisms aimed at monitoring States Parties’ compliance with the obligations deriving from
these treaties.

In terms of repression of IHL violations, the ICC is empowered to prosecute the most serious
crimes of international concern, including war crimes. By virtue of the principle of
complementarity its jurisdiction is intended to come into play only when a State is genuinely
unable or unwilling to prosecuted alleged war criminals over which it has jurisdiction. In addition
to the ICC, the United Nations Security Council has established two international tribunals to
prosecute crimes committed during the armed conflicts in the former Yugoslavia and in Rwanda,
including serious violations of IHL. Mixed courts, comprising both domestic and international

19
Commission on Human Rights Presentation on Laws of Armed Conflict
20
Supra.
21
International Committee of the Red Cross
elements, have also been put in place to address crimes committed during certain armed
conflicts, including the ones in Cambodia, Lebanon, Sierra Leone and Timor-Leste.

What is the difference between humanitarian law and human rights law?

There are similarities between some of the rules of humanitarian law and human rights law.
And both bodies of law strive to protect the lives, health and dignity of individuals. However,
these two branches of public international law have developed separately, have different scopes
of application, are contained in different treaties, and are subject to different compliance
mechanisms. In particular, human rights law – unlike international humanitarian law – applies
during both armed conflict and peacetime, although many of its provisions can be derogated
from during an armed conflict.22

23

Implementation of IHL in the Philippines

Declaration of Principles and State Policies Article II, Section 2

“The Philippines renounces war as an instrument of national policy, adopts the

22
International Committee of the Red Cross
23
Commission on Human Rights Presentation on Laws of Armed Conflict
Republic Act 9851 “Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity”24

Republic Act 9851 is a national statute that defines and penalizes “the most
serious crimes of concern to the international community as a whole” – namely, war
crimes, genocide, and crimes against humanity.

Salient Features:

 Defining and penalizing war crimes, genocide, and other crimes against
humanity.
 Applicability to all individual perpetrators, whether state agents or non-state
actors (unlike the Anti-Torture Act which is limited to state-agent perpetrators)
 Applying certain international criminal law principles of irrelevance of official
capacity (for immunities), responsibility of superiors (i.e. command responsibility),
unlawful superior orders, and non-prescription, among others.
 Instituting a form of universal jurisdiction, albeit qualified.
 Providing for international standards for protection of victims and witnesses, as
well as reparations to the former.
 Express applicability of international law, including of specific international
treaties.
 Providing for the designation of special courts, prosecutors and investigators,
and their effective training in human rights, IHL and international criminal law.
 No requirement of implementing rules and regulations (unlike the Anti-Torture
Act)

Non- compliance with the obligation under the IHL25

 Render individual liable under penal law as many as national and international courts
have recognized (ex. Philippine Act on Crimes Against International Humanitarian Law,
Genocide , and Other Crimes Against Humanity of RA 9851)

 When state becomes party to the treaty of international humanitarian law, it undertakes
to respect all the obligations contained in the treaty. It may therefore be liable under the
law if it does not meet its obligations.

What courts should impose punishment?26

The National Court of a State should impose punishment for IHL violation.

 International Criminal Court will be competent only on the condition that the state do not
wish to try those accused of war crimes themselves or unable to do so. (ICC)
complements with the local courts.

24
Santos, Soliman Jr. R.A. No. 9851 – Breakthrough Law for IHL Enforcement in the Philippines
25
Commission on Human Rights Presentation on Laws of Armed Conflict
26
Supra.