UNDERSTANDING
INTERNATIONAL
HUMANITARIAN LAW (IHL)
Atty. Evecar Cruz-Ferrer
REALITY OF WAR
Over the past 3,400 years,
humans have been entirely at
peace for 268 of them, or just 8
percent of recorded history.
WHAT IS IHL?
INTERNATIONAL HUMANITARIAN LAW (IHL)
LAW OF ARMED CONFLICT/ LAW OF WAR
• protects those not or no
longer participating in hostilities
• restricts the use of weapons and
methods of warfare
• aims to protect human dignity,
reduce suffering
WHEN DOES IHL APPLY?
• international armed
conflicts between
countries
• non-international armed
conflicts that take place
within one country
IHL applies to all parties to a conflict regardless of who started it
and regardless of formal declarations on the existence of an
armed conflict.
Conflicts in the Philippines
NIACs in the Philippines:
• GRP vs. NPA
• GRP vs. MILF
• GRP vs. MNLF
• GRP vs. BIFF
• GRP vs. ASG
• GRP vs. IS Ranao (a.k.a. Maute Group)
"armed
conflict"
"Armed Conflicts"
"we find that an armed conflict exists whenever
there is a resort to armed force between States
or protracted armed violence between
governmental authorities and organized armed
groups or between such groups within a State."
protracted armed violence
organised military forces
Tadić (Jurisdiction), ICTY, 1995
"armed
conflict"
"Other Situations of Violence"
" … shall not apply to situations of
internal disturbances and tensions, such as
riots, isolated and sporadic acts of
violence and other acts of a similar nature,
as not being armed conflicts."
Article 1 (2), AP II
OTHER SITUATIONS OF VIOLENCE
Internal disturbances: no armed conflict, but
confrontation with certain duration/seriousness
between more or less organized groups,
authorities call upon extensive police force
or even armed force to restore internal order
Internal tensions: less violent, mass arrests,
large number of political detainees, torture or
ill treatments, forced disappearance,
Suspension of judicial guarantees.
Definitio
n
International Armed Conflicts
• no formal declaration of war required
• even if the state of war is not recognized by all parties to the
conflict
• no minimal threshold of force or violence
A B
AF AF
Definitio
n
Non International Armed Conflicts
• armed conflict
• not of an international character
• occurring in the territory of one Country
A
AF AG
"armed
conflict"
Non International Armed Conflicts
"we find that an armed conflict exists whenever
there is a resort to armed force between States
or protracted armed violence between
governmental authorities and organized armed
groups or between such groups within a State."
protracted armed violence
organised military forces
Tadić (Jurisdiction), ICTY, 1995
"armed
conflict"
Non International Armed Conflicts
Organised military force
Indicative factors:
✓ the existence of a command structure and disciplinary rules and
mechanisms within the group
✓ the ability of the group to gain access to weapons, other military equipment,
recruits and military training
✓ its ability to plan, coordinate and carry out military operations, including
troop movements and logistics
✓ its ability to define a unified military strategy and use military tactics;
✓ its ability to speak with one voice and negotiate and conclude agreements
✓…
"armed
conflict"
Non International Armed Conflicts
Protracted armed violence (intensity / duration)
Indicative factors:
✓ the number, duration and intensity of individual
confrontations
✓ the type of weapons and other military equipment
used
✓ the number of persons and type of forces taking part
in the fighting
✓ the number of casualties
✓ the extent of material destruction
✓ the number of civilians fleeing combat zones
✓…
WHO DOES IHL PROTECT?
IHL protects those who are
not or no longer fighting,
such as:
• civilians
• medical and religious
personnel (both military
and civilian)
• wounded and sick
fighters
• those deprived of liberty
due to armed conflict
HOW DOES IHL PROTECT?
• requires parties to distinguish between
fighters and civilians
• prohibits attacks on civilians
• prohibits indiscriminate attacks and
the use of weapons that do not
distinguish
• requires care for wounded and sick and
protects medical personnel
• aims to promote dignity of those affected
by armed conflict
• prohibits or limits the use of weapons that
are particularly cruel
(cause unnecessary suffering)
RA 9851
• Individual responsibility:
• Individuals are criminally responsible for violations
• RA 9851
• RA 9851, signed on 11 December 2009, penalizes Crimes
Against IHL, Genocide & Other Crimes Against Humanity
• Regional Trial Courts in the Philippines have the jurisdiction
• State responsibility for training judges, prosecutors and
investigators
• Reclusion perpetua and 1,000,000 fine are the maximum
penalties
PROHIBITED ACTS UNDER
NIAC:
• violence to life and person – willful killings, mutilation, cruel
treatment and torture
• committing outrages upon personal dignity – humiliating and
degrading treatment
• taking of hostages
• passing of sentences and carrying out of executions without
previous judgment pronounced by a regularly constituted court
PROHIBITED ACTS UNDER
NIAC:
• intentionally directing attacks against the civilian
population and civilian objects
• intentionally directing attacks against buildings, medical
units and transport, personnel using the red
cross/crescent/crystal emblems
• launching an attack in the knowledge that it will cause
widespread, long term and severe damage to natural
environment
PROHIBITED ACTS UNDER NIAC:
• launching an attack against works or installations containing
dangerous forces
• attacking by whatever means towns, villages, dwellings or
buildings which are not military objectives
• killing or wounding a person that is hors de combat
• perfidy
• intentionally directing attacks against buildings dedicated to
religion, education, art, science, charitable purposes, historic
monuments, hospitals that are not military objectives
PROHIBITED ACTS UNDER
NIAC:
• subjecting persons to physical mutilation or to medical or
scientific experiments, or to removal of tissue or organs for
transplantation
• pillaging a town or place
• ordering the displacement of civilian population, unless security
of civilians and imperative military reasons so demand
• employing means of warfare which are prohibited under IHL
• Rape, sexual violence and sexual slavery
COMMAND RESPONSIBILITY
• There is individual criminal responsibility
• Responsibility of Superiors. - a superior shall be criminally
responsible as a principal for such crimes committed by
subordinates, where:
• (a) That superior either knew or, owing to the
circumstances at the time, should have known that the
subordinates were committing or about to commit such
crimes;
• (b) That superior failed to take all necessary and
reasonable measures within his/her power to prevent or
repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
PENAL PROVISIONS
• Reclusion Temporal and a fine
from 100,000 to 500,000
• Reclusion Perpetua and a fine
from 500,000-1,000,000 – when
it results to death, serious bodily
injury or rape
RA 10530
• act defining the use and protection of the Red
Cross, Red Crescent and Red Crystal
Emblems, providing protection for violations
thereof Came into effect on June 2013
Punishes the misuse of the 3 emblems and
words in any official language and dialect
• Ordinary Misuse – does not result to death or
serious bodily harm
• arresto mayor (1 month to 6 months),
50,000 pesos fine
• Misuse results in death or serious bodily harm
• reclusion perpetua (up to 30 years),
500,000-1,000,000 pesos fine
IHL PRINCIPLES
DISTINCTION
Civilians: Loss of protection
"Civilians shall enjoy the
protection afforded by [IHL],
unless and for such time as they
take a direct part in hostilities."
What?
When?
Direct participation in hostilities?
attacking enemy
capturing equipment
laying mines
sabotaging
tactical intelligence
collection on the
battlefield
care and feeding of
troops
ammunition/weapons
factory workers
PROPORTIONALITY
AP I – Art. 51(5). Among others, the following types of attacks are
to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which
treats as a single military objective a number of clearly
separated and distinct military objectives located in a city, town,
village or other area containing a similar concentration of
civilians or civilian objects; and
(b) an attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a
combination thereof, which would be excessive in relation to
the concrete and direct military advantage anticipated.
PRECAUTIONS
Article 57 AP I
• (i) do everything feasible to verify that the objectives to be attacked are
neither civilians nor civilian objects and are not subject to special
protection but are military objectives within the meaning of paragraph 2
of Article 52 and that it is not prohibited by the provisions of this
Protocol to attack them;
(ii) take all feasible precautions in the choice of means and methods of
attack with a view to avoiding, and in any event to minimizing, incidental
loss of civilian life, injury to civilians and damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian
objects, or a combination thereof, which would be excessive in relation to
the concrete and direct military advantage anticipated;
LIMITATIONS ON MEANS AND
METHODS OF WARFARE
The right of the Parties to the conflict
to choose methods and means of
warfare is not unlimited.
Art. 22, Hague
C.
Art. 35, AP I
LIMITATIONS ON MEANS AND
METHODS OF WARFARE
It is prohibited to employ means
and methods of warfare of a
nature to cause superfluous
injury or unnecessary suffering
Art. 23, Hague
C.
Art. 35, AP I
IHL IHRL
Only in times of armed conflict Both in times of peace & armed
conflict
Holds accountable all parties to the Holds accountable only states
conflict, including states & non-state through their governments
actors, as well as individuals
Protects human dignity & deals with Protects human dignity
conduct of hostilities
Use of lethal force permitted by Lethal force only if absolutely
military necessity necessary (self-defense or defense
of others, for example)
Absolutely non-derogable Permits derogation of some rights
during public emergency
SOURCES OF IHL
• Four Geneva Conventions of 1949
• Additional Protocols 1 & 2 of 1977
• Additional Protocol 3 of 2005
• Other treaties, which restrict means
and methods of warfare (Hague
Conventions, Ottawa treaty, Convention
on Cluster Munitions, etc.)
• Customary law
Over 30 treaties, conventions and other legal instruments nowadays.
IHL IN A NUTSHELL
• Basic minimum standards in conflict
• Balance between military necessity and humanitarian
considerations
• Distinction between fighters/civilian population; military
objectives/civilian objects
• Limitation of the means and methods of warfare
• Humanitarian assistance is not an interference in the conflict
EVEN WARS HAVE LIMITS
THANK YOU!
