1

Submitted by:
Marcelo, Ma. Costa Rica

Last Assignment for Public International Law

March 14, 2018
Asst. Ombudsman Leilani Bernadette Cabras
Adamson University
College of Law
 2

INTRODUCTION

International humanitarian law is part of the body of international law that

governs relations between States. IHL aims to limit the effects of armed conflicts
for humanitarian reasons. It aims to protect persons who are not or are no
longer taking part in hostilities, the sick and wounded, prisoners and civilians,
and to define the rights and obligations of the parties to a conflict in the conduct
of hostilities.

Because it is law, IHL imposes obligations on those engaged in armed

conflict. Not only must they respect the law, they have an obligation to ensure
respect as well.

Stated below are the clear legal obligations that enshrine basic
humanitarian principles:

1. Soldiers who surrender or who are hors de combat are entitled to

respect for their lives and their moral and physical integrity. It is
forbidden to kill or injure them.

2. The wounded and sick must be collected and cared for by the
party to the conflict which has them in its power. Protection also
covers medical personnel, establishments, transports and
equipment. The emblem of the red cross, red crescent or red
crystal is the sign of such protection and must be respected.

3. Captured combatants are entitled to respect for their lives, dignity,

personal rights and convictions. They must be protected against all
acts of violence and reprisals. They must have the right to
correspond with their families and to receive relief.
 3

4. Civilians under the authority of a party to the conflict or an

occupying power of which they are not nationals are entitled to
respect for their lives, dignity, personal rights and convictions.

5. Everyone must be entitled to benefit from fundamental judicial

guarantees. No one must be sentenced without previous judgment
pronounced by a regularly constituted court. No one must be held
responsible for an act he has not committed. No one must be
subjected to physical or mental torture, corporal punishment or
cruel or degrading treatment.

6. Parties to a conflict and members of their armed forces do not

have an unlimited choice of methods and means of warfare. It is
prohibited to employ weapons or methods of warfare of a nature to
cause unnecessary losses or excessive suffering.

7. Parties to a conflict must at all times distinguish between the

civilian population and combatants in order to spare civilian
population and property. Adequate precautions shall be taken in
this regard before launching an attack.

According to International Committee of the Red Cross, which is

regarded as the “guardian” of the Geneva Conventions and the various other
treaties that constitute international humanitarian law, armed conflicts have
always been customary practices in war, and States have made international
rules to limit the effects of armed conflict for humanitarian reasons.

The Geneva Conventions and the Hague Conventions are the main
examples. Usually called international humanitarian law (IHL), it is also known
as the law of war or the law of armed conflict.
 4

MARAWI SIEGE

Month of May last year, a firefight broke out between government forces
of the Philippines and an alliance of IS-aligned militants in Marawi.

The militants, including the Maute group and the Abu Sayyaf group,
quickly took control of large areas of the city, prompting the President Rodrigo
Duterte to impose martial law and suspend the privilege of the writ of habeas
corpus on the entire island of Mindanao.

Within a month, the conflict displaced 360,000 people in Marawi and

surrounding areas. Hundreds, if not thousands, of civilians remained in the
besieged city for weeks or months, either as hostages or trapped in the
crossfire.

The battle lasted for five months, and resulted in the mass displacement
of civilians, the widespread destruction of civilian infrastructure, and the loss of
civilian lives.
 5

EFFECTS AND THOUGHTS ON MARAWI SIEGE IN RELATION TO

INTERNATIONAL LAW AND HUMANITARIAN LAW, INCLUDING TREATIES
AND AGREEMENTS

According to official figures, 920 militants, 165 soldiers and 47 civilians

were killed in the fighting, and more than 1,780 hostages were rescued from the
IS-linked militants. But restrictions on access to Marawi during the conflict have
precluded any independent corroboration of these numbers.

Civilians on the island of Mindanao paid a high price with dozens killed
and widespread destruction of homes and property amid the ‘battle of Marawi’.

Philippine armed forces, meanwhile, detained and ill-treated fleeing

civilians, and also engaged in looting. Their extensive bombing of militant-held
areas of Marawi city wiped out entire neighbourhoods and killed civilians,
highlighting the need for an investigation into its compliance with international
humanitarian law.

“Marawi’s civilian population has suffered immensely amid one of the

Philippine military’s most intensive operations in decades. Displaced en masse
when the fighting began in May, thousands of people are now returning to a city
that has been utterly destroyed in places, where civilians have been slaughtered
by militants, and both sides have committed abuses.

Multiple witnesses described incidents where militants killed civilians by

shooting them or slitting their throats. Most were targeted because they were
Christians, and some were killed as they attempted to flee to safety. It is a war
crime to murder civilians.

Survivors and witnesses also described how militants captured a large

number of civilians as hostages, subjected them to forced labor and used them
as human shields. Some were summarily executed, and many were physically
abused.
 6

According to a report from Amnesty International said that the Maute

Group and government forces both committed violations of international
humanitarian law (IHL) and international human rights law (IHRL) during the
Marawi siege.

The militants’ acts and incidents of extrajudicial execution and other

forms of direct targeting of civilians are clear violations of the cardinal rule of
distinction in IHL and amount to war crimes.

The International Criminal Court (ICC) defines war crimes as “grave

breaches of the Geneva Conventions in the context of armed conflict.” These
include, among others, the use of child soldiers, killing and torturing civilians and
prisoners of war, attacks against hospitals, and historical monuments.

The rules of IHL aim to minimize human suffering and ensure protection
of civilians who are not directly participating in hostilities. Intentionally directing
attacks against civilians who are not directly participating in hostilities and
civilian objects is prohibited under IHL and is a war crime.

On the other hand, it is said that the government forces have also
violated the prohibition against torture and other ill-treatment of detainees
suspected to be part of the Maute Group. They also are accused of likely
committing pillage and may also have carried out disproportionate air and
ground attacks.

Their extensive bombing of militant-held areas of Marawi city wiped out

entire neighborhoods and killed civilians, highlighting the need for an
investigation into its compliance with international humanitarian law.

Some local leaders had earlier wondered whether the physical

destruction from military aerial bombings could have been avoided, although
 7

thankful that the fighters of the Maute armed group have been flushed out of
their city. The leaders also said that they were against the air strikes from the
very beginning and that they were hoping for a different strategy. They believed
that it was overkill, because there was an opportunity for negotiations with the
Maute and they were considering surrender.

Military leaders were quick to admit weaknesses: their troops were not
used to urban warfare; they had underestimated the attackers' numbers and
firepower. As scores of military and police officers died early in the battle, many
from sniper fire, the government launched air raids to prevent further losses.

As a result, the move sparked opposition and criticism from local civic
and religious leaders but the military justified it. They said they were using
"appropriate and commensurate force because the Maute fighters have the
advantage of knowing the different nooks and crannies of the city".

In this regard, there is a clear necessity for “prompt, independent, and

effective” investigations into the allegations of abuses and violations of IHRL
and IHL done by both sides. Those found to have committed war crimes should
bear individual criminal responsibility.

The government must also provide fair and adequate reparation to

civilian victims.

“The loss of human life and the scale of the destruction of the civilian
infrastructure in Marawi City is immense and raises serious questions about
whether the government’s air and ground attacks were disproportionate to the
threat posed by the militants that require further investigation.

But surely, the President will not mention about the daily sufferings of the
victims of human rights violations in Marawi, who have to transfer places to stay
every week notwithstanding where to get their daily food because the operatives
of the security sector are following and monitoring them.
 8

The indigenous peoples and the peoples of Marawi have been pleading
to the government and the security sector to lift-up Martial Law and stop the
indiscriminate bombings of their city. They are doing these not because they
support Maute and the terrorists. But they are doing these because they know
that they can contribute in ending the war soonest by driving out the terrorists
and rebuild their own lives and their city. And they are doing the best that they
can afford to salvage of what is left with their properties and reclaim their rights
and dignity.

In addition to this, the war in Marawi seemed disrupted the citizen’s right
to education. Schools had either been shut down or destroyed after clashes
between government forces and terror groups started in the city. According to
DepEd records, Marawi City has 87 public and 45 private schools. More than
700 teachers (out of 1,424 public school teachers) remain unaccounted for.

International humanitarian law (IHL) does not establish a right to

education as such. IHL does, however, contain rules that are aimed at
guaranteeing that, in situations of armed conflict, education can continue.

In particular, the Geneva Conventions (GC) and Additional Protocol (AP)

1 specifically address education with regard to the following situations in
international armed conflict:

1. All children under (fifteen) 15 orphaned or separated as a result of war

(Articles 13 and 24 GC IV);

2. Civilian internees, notably children and young people (Articles 94, 108
and 142 GC IV); occupation (Articles 50 GC IV);

3. Circumstances involving evacuation of children (Article 78 AP I); and

prisoners of war (Articles 38, 72 and 125 GC III).

Also, AP II obliges parties to a non-international armed conflict, States

and non-state armed groups, to provide children with a number of fundamental
guarantees. They must provide them with the care and aid that they require. In
 9

particular, children must receive an education, including religious and moral

education, in keeping with the wishes of their parents, or in the absence of
parents, of those responsible for their care (Article 4.3(a) APII).

In both international and non-international armed conflict, children

affected by armed conflict are entitled to special respect and protection, which
can comprise education (Rule 135 Customary International Humanitarian Law).

Students and educational personnel are presumed to be civilians. As any

other civilians, they are protected from direct attack, unless and for such time as
they directly participate in hostilities, regardless of whether a school or other
educational facility has turned into a military objective. Relatedly, schools and
other educational facilities are presumed to be civilian objects and are, thus,
protected against attack; like for all other civilian objects protection may cease
when educational institutions are turned into military objectives. Even in such
case, all feasible precautions would have to be taken when attacking such
military objective to avoid, or at least minimize, incidental harm to civilian
students and educational personnel and attacks expected to cause excessive
incidental harm are prohibited.

Parties to an armed conflict have a general obligation to take all feasible

precautions to protect the civilian population and civilian objects under their
control against the effect of hostilities. These obligations also apply with respect
to schools and other educational facilities and with respect to students and
teachers.

In most international treaties, educational institutions are not listed as

forming part of cultural property. However, State practice indicates that
educational building in general can be considered as part of cultural property.
This implies that special care must be taken in military operations to avoid
damage to buildings dedicated to education unless they are military objectives
(Rule 38 CIHL, applicable both in international armed conflict and non-
international armed conflict) and that seizure of or destruction or willful damage
done to institutions dedicated education is prohibited (Rule 40 CIHL, applicable
both in IAC and NIAC). In some exceptional cases, educational institutions
 10

considered of great cultural importance benefit from a heightened protection

(1954 Hague Convention and 1999 Second Protocol: and APII).

The Secretary of Education appealed to the Islamic State-linked Maute

and Abu Sayyaf groups to spare children in the ongoing clashes between
government forces and terrorist groups in Marawi City and said that children
should not be part of the conflict. Two-thousand (2,000) displaced students had
enrolled in nearby areas like Iligan City, while one-thousand (1,000) others had
transferred to Cagayan de Oro, Cebu City and in Northern and Central Luzon.
Around seventeen-thousand (17,000) of at least twenty-thousand (20,000)
school children in Marawi City had not yet enrolled since schools opened.

Schools are zones of peace and children are innocent. They are Filipinos,
and they have the right to be educated. However, during the Marawi siege,
educational facilities like schools, have been militarily occupied or otherwise
used by State or non-State armed actors in the said city that was affected by
armed conflict. Close proximity with weapon bearers also puts students—
notably minors—at risks of various abuses, such as forced recruitment, sexual
violence or abduction, and disrupt their learning atmosphere.

Due to restrictions on access to Marawi city itself, concerned groups were

unable to determine whether the Philippine armed forces’ use of artillery and
airstrikes breached their international humanitarian law obligations. Further
independent investigation is needed to determine whether the infrastructure
damage and the loss of civilian life were militarily necessary and proportional to
the threat posed by the militants.

It is believed that the authorities must bring those responsible for torture
and other violations to justice and ensure that the victims receive adequate
reparations.

The government and its respective authorities must also initiate a prompt,
effective and impartial investigation into whether its bombing of civilian
neighborhoods was proportional under international humanitarian law.
 11

The Philippines is a country where insurgency and terrorism overlap, as

global terrorists often exploit local grievances and resentments to spread an
ideology of enmity and violence.

The importance of each cause of the government and the Maute group
can be debated, but stated below are some of the thoughts in accordance to the
Marawi siege and the declaration of martial law in Mindanao:

1. IHL prohibits acts of terrorism on the part of parties to an armed conflict.

2. Parties to an armed conflict are those of sufficient organization and structure

as to be able to recognize and observe the laws and rules of war.

3. This goes for both international armed conflicts, where of course, the parties
are states so the question of organization is evidently met (Fourth Geneva
Convention) and non-international armed conflicts ( Two Additional Protocols to
the Geneva Conventions), where usually, the parties are non-state actors
ranged against the state, or non-state actors fighting one another. The Geneva
Conventions are part of Philippine law by way of the Constitution’s treaty clause
(as we are parties to them) and by way of the incorporation clause, as they also
form part of customary international law.

4. In IHL, terrorism is not defined but acts designed to spread terror among the
civilian populace in an armed conflict are tagged as “acts of terror” that are
illegal and criminal in nature. In other words, there is a distinction made in IHL
between status and act. A group may have the status of a party to an armed
conflict, whether non-international or international and yet may be prosecuted
for war crimes for engaging in acts of terror.

5. Generally, IHL is not applied to groups that are considered no more than
terrorist in nature. IHL does not apply to the latter, as in the first place, it rejects
 12

the rules and laws of war.To date, the ICRC does not consider ISIS/ISL as a
rebel group or as a state fighting a transnational war (despite its claim that it is
waging a war to establish a Caliphate in Iraq and Syria). A briefing paper of the
ICRC puts it thus:

With respect to the phenomenon of armed groups that are perceived as

having a global reach, such as al-Qaeda or the Islamic State group, the ICRC
does not share the view that an armed conflict of global dimensions is, or has
been, taking place. This would require, in the first place, the existence of a
‘unitary’ non-State party opposing one or more States. Based on available facts,
there are not sufficient elements to consider the al-Qaeda ‘core’ and its
associated groups in other parts of the world as one and the same party within
the meaning of IHL. The same reasoning also applies, for the time being, to the
Islamic State group and affiliated groups.

Indeed, the Wall Advisory Opinion of the International Court of Justice

denies recognition to groups organizing a state that wantonly and openly violate
IHL and IHRL.

6. In practice, terrorist groups are often prosecuted for common crimes under
domestic law in various jurisdictions.

Military officials, with regard to the Marawi siege, have encouraged

civilians to report abuse and assured that perpetrators would be punished.

As per the former President of the United States John F. Kennedy, “The
world is very different now. For man holds in his mortal hands the power to
abolish all forms of human poverty, and all forms of human life.” It is a sad fact
of life.
 13

REFERENCES:

Atty. Lorna Patajo-Kapunan, June 18, 2017, Education in situations of conflict,

disasters and other emergencies, Retrieved from:
https://businessmirror.com.ph/education-in-situations-of-conflict-disasters-and-
other-emergencies/

Amnesty International, 17 November 2017, Philippines: ‘Battle of Marawi’ leaves

trail of death and destruction, Retrieved from:
https://www.amnesty.org/en/latest/news/2017/11/philippines-battle-of-marawi-
leaves-trail-of-death-and-destruction/

Cabalza, Chester, 02 June 2017, The Diplomat, Marawi Siege: Testing the
Philippines' Anti-Terror Law: 10 years after the law’s passage, the violence in
Mindanao highlights legal weaknesses. Retrieved from:
https://thediplomat.com/2017/06/marawi-siege-testing-the-philippines-anti-terror-
law/

Gavilan, Jodesz, 17 November, 2017, Both sides in Marawi siege committed

abuses – Amnesty International, Rappler Inc., Retrieved from:
https://www.rappler.com/nation/188673-both-sides-marawi-siege-humanitarian-
human-rights-law-violations-amnesty-international

Jazeera, Al, 30 October 2017, Overkill? Some locals question Marawi shelling,
Retrieved from: https://www.rappler.com/nation/186789-overkill-some-locals-
question-marawi-shelling

Silva, Raymund, 27 July 2017, The Marawi Siege and the Declaration of Martial
Law in Mindanao – Part IV, Retrieved from:
http://www.internationalviewpoint.org/spip.php?article5076
 14

International Committee of the Red Cross, 29 October 2010, War and

international humanitarian law, Retrieved from: https://www.icrc.org/eng/war-
and-law/overview-war-and-law.htm#.Wp4PYOnVOCw.facebook

Cerejano, Teresa, 17 November 2017, Rights group: Militants, troops violated

law in Marawi siege, Retrieved from:
http://www.foxnews.com/world/2017/11/16/rights-group-militants-troops-violated-
law-in-marawi-siege.html

Brainy quote, Retrieved from: https://www.brainyquote.com/topics/human_life_3