AUSL

Human Rights Law class – 10am- 12pm

Atty Roberto A. Demigillo
Chapter XVII – International Humanitarian Law

Q. Distinguish Jus ad bellum from Jus in bello ASPIRAS

JUS IN BELLO

Is the law that governs the way in which warfare is conducted. it seeks to minimize suffering in armed
conflicts, notably by protecting and assisting all victims of armed conflict to the greatest extent
possible.

The Principles Of Jus In Bello The rules of just conduct within war fall under the two broad principles
of discrimination and proportionality. The international humanitarian law rule of proportionality in
attacks holds that in the conduct of hostilities during an armed conflict parties to the conflict must not
launch an attack against lawful military objectives if the attack 'may be expected' to result in
excessive civilian harm (deaths, injuries, or damage to civilian objects, or a combination thereof)
compared to the 'concrete and direct military advantage anticipated'. If conducted intentionally a
disproportionate attack may constitute a war crime.

The principle of distinction requires parties to armed conflicts to distinguish at all times between
military objectives and civilian objects
In cyberspace, this means that during armed conflicts, the employment of cyber tools that spread and
cause damage indiscriminately is prohibited.

JUS AD BELLUM

This governs the grounds for resorting to war. The principles of the justice of war are commonly held
to be: having just cause, being a last resort, being declared by a proper authority, possessing right
intention, having a reasonable chance of success, and the end being proportional to the means used.

IN OTHER WORDS Jus ad Bellum governs the pre-engagement conduct of states and non-state
actors that are considering whether to engage in war and armed conflict. It is concerned with the
justification of and limits to the use of force. Jus in Bello is the body of legal norms governing battle
and occupation - the "conduct of individuals and units toward combatants, non-combatants, property,
and the environment." Violations are punishable under customary international law and international
legal instruments

Q. What are the primary legal instruments, (treaties, conventions or agreements) that constitute the
International Humanitarian Law? BILO

International humanitarian law (IHL), also known as the laws of war or the law of armed conflict, is the
legal framework applicable to situations of armed conflict and occupation. As a set of rules and
principles it aims, for humanitarian reasons, to limit the effects of armed conflict. IHL is a part
of public international law.  Public international law is a broad set of treaties, customary law, principles
and norms.  The framework traditionally regulated relationships only between States. It has evolved,
however, to cover a broad range of actors. IHL is notable in this regard, as it recognizes obligations
for both States and non-State armed groups that are parties to an armed conflict

Treaties and customary international law are the two main sources of IHL rules and regulations.
Treaties are agreements between States, and those States that ratify a treaty are bound by its terms.
Though a non-State armed group cannot sign a treaty, IHL treaty rules like Common Article Three
and Additional Protocol II nonetheless apply to these actors.

Many IHL rules are now considered to reflect customary international law as well. Customary
international law consists of rules derived from the consistent practice of States based on a belief that
the law requires them to act in that way. Such rules are binding on both states and non-State armed
 groups. The International Committee of the Red Cross published a study and created a database  on
customary international humanitarian law and based on the compilation there are 161 Rules of IHL.

The key IHL treaties include the 1907 Hague Regulations, the four Geneva Conventions, and their
Additional Protocols.

 1907 Hague Regulations (Convention (IV) respecting the Laws and Customs of War on Land
and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18
October 1907)

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Geneva, 12 August 1949 - these provide protection for the wounded and sick, but also for
medical and religious personnel, medical units and medical transports. The Convention also
recognizes the distinctive emblems. It has two annexes containing a draft agreement relating to
hospital zones and a model identity card for medical and religious personnel.

Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea. Geneva, 12 August 1949 -  addition to the protection of wounded, sick and
shipwrecked members of armed forces at sea, these articles provide specific protection for hospital
ships, coastal rescue craft, medical aircraft and other medical transports at sea, as well as religious,
medical and hospital personnel performing their duties in a naval context. The Convention also
recognizes the distinctive emblems. It has one annex, consisting of a model identity card for medical
and religious personnel attached to the armed forces at sea.

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 - he present
Convention replaced the Prisoners of War Convention of 1929. It contains 143 Articles whereas the
1929 Convention had only 97. It became necessary to revise the 1929 Convention on a number of
points owing to the changes that had occurred in the conduct of warfare and the consequences
thereof, as well as in the living condition of peoples.

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949
- The Geneva Conventions which were adopted before 1949 were concerned with combatants only,
not with civilians. Some provisions concerning the protection of populations against the
consequences of war and their protection in occupied territories are contained in the Regulations
concerning the laws and customs of war on land, annexed to the Hague Conventions of 1899 and
1907. During World War I the Hague provisions proved to be insufficient in view of the dangers
originating from air warfare and of the problems relating to the treatment of civilians in enemy territory
and in occupied territories. The International Conferences of the Red Cross of the 1920's took the first
steps towards laying down supplementary rules for the protection of civilians in time of war.  he
Convention adopted in 1949 takes account of the experiences of World War II. It contains a rather
short part concerning the general protection of populations against certain consequences of war (Part
II), leaving aside the problem of the limitation of the use of weapons. The great bulk of the Convention
(Part III - Articles 27-141) puts forth the regulations governing the status and treatment of protected
persons; these provisions distinguish between the situation of foreigners on the territory of one of the
parties to the conflict and that of civilians in occupied territory. 

 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption
of an Additional Distinctive Emblem (Protocol III), 8 December 2005
Q. What is the difference between International Human Rights Law (IHRL) and the International
Humanitarian Law (IHL)? CABIGTING

International Human Rights Law

Human rights law is a set of international rules, established by treaty or custom, on the  basis of which
individuals and groups can expect and/or claim certain rights that must be respected and protected by
their States. The body of international human rights standards also contains numerous non-treaty-
based principles and guidelines 

International Humanitarian Law (IHL)

A set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects
persons who are not or are no longer participating in the hostilities and restricts the means and
methods of warfare. This is used to be known as the Laws of War which provides for instances when
the use of armed force is justifiable (jus ad bellum) and regulates the conduct of armed conflict (jus in
bello) Both international humanitarian law and human rights law apply in armed conflicts.

The main difference in their application is that international human rights law allows a State to
suspend a number of human rights if it faces a situation of emergency.

IHL cannot be suspended (except as provided in Article 5 to the Fourth Geneva Convention).
However, a State cannot suspend or waive certain fundamental rights that must be respected in all
circumstances. These include the right to life, the prohibition of torture and inhuman punishment or
treatment, the outlawing of slavery or servitude, the principle of legality and the non-retroactivity of the
law and the right to freedom of thought, conscience and religion. States have a legal duty to respect
and implement both IHL and human rights law. Compliance with IHL requires a state to introduce
national legislation to implement its obligations, to train its military and to bring to trial those in grave
breach of such law.

Human rights law also contains provisions requiring a State to take legislative and other appropriate
measures to implement its rules and punish violations.

IHL is based on the Geneva and Hague Conventions, Additional Protocols and a series of treaties
governing means and methods of waging war such as those banning blinding laser weapons,
landmines and chemical and biological weapons, as well as customary law.

International human rights law is more complex and unlike IHL includes regional treaties. The main
global legal instrument is the Universal Declaration of Human Rights adopted by the UN General
Assembly in 1948. Other global treaties include the International Covenant on Civil and Political
Rights, the International Covenant on Economic, Social and Cultural Rights as well as treaties on the
prevention and punishment of torture and other forms of cruel, inhuman or degrading treatment or
punishment, on the elimination of racial discrimination and discrimination against women, or on the
rights of the child.

Geographical scope of application That IHL governing international armed conflicts applies

extraterritorially is not a subject of controversy, given that its purpose is to regulate the conduct of one
or more States involved in an armed conflict on the territory of another. The same reasoning
applies in non-international armed conflicts with an extraterritorial element: the parties to such
conflicts cannot be absolved of their IHL obligations when the conflict reaches beyond the territory of
a single State.

Human rights bodies generally admit the extraterritorial application of human rights law when a State
exercises control over a territory (e.g. occupation) or a person (e.g. detention). Personal scope of
application IHL aims to protect persons who are not or are no longer taking direct part in hostilities. It
protects civilians and combatants hors de combat, such as the wounded, the sick and the
shipwrecked or prisoners of war.

Parties bound by IHL and human rights law IHL binds all parties to an armed conflict and thus
establishes an equality of rights and obligations between the State and the non-State side for
the benefit of everyone who may be affected by their conduct (an essentially 'horizontal' relationship).
Human rights law explicitly governs the relationship between a State and persons who are on its
territory and/or subject to its jurisdiction laying out the obligations of States vis à vis individuals across
a wide spectrum of conduct.

Thus, human rights law binds only States, as evidenced by the fact that human rights treaties and
other sources of human rights standards do not create legal obligations for non-State armed groups.
Substantive scope of application IHL deals with many issues that are outside the purview of human
rights law, such as the status of 'combatants' and 'prisoners of war', the protection of the red cross
and red crescent emblems and the legality of specific kinds of weapon. Similarly, human rights law
deals with aspects of life that are not regulated by IHL, such as the freedom of the press, the right to
assembly, to vote, to strike, and other matters. Furthermore, there are areas that are governed by
both IHL and human rights law, but in different – and sometimes contradictory – ways. This is
especially the case for the use of force and detention.

Q. What are the fundamental rules of the IHL? CAPELLAN

FUNDAMENTAL RULES OF IHL

1. Belligerent States or combatants cannot use methods and weapons of warfare which are
prohibited.

2. Attacks must be limited to military objectives and must avid civilians

3. Torture, corporal punishment or cruel or degrading treatment must not be used

4. Civilians and persons hors de combat shall be treated humanely, so shall enemy who surrenders,
The wounded and the sick shall be afforded treatment and protection 5. Relief and medical providers
such as Red Cross or Red Crescent must be protected.

Q. Who are “Protected Persons? CARINGAL

International Humanitarian Law (IHL) applies to ‘protected persons’, i.e. persons who are not, or are
no longer participating in hostilities:
 In international conflicts ‘protected persons’ are defined in Article 13 GC I, Article 13 GC II,
Article 4 GC III and Article 4 GC IV.
 In non-international conflicts all persons affected by a conflict are ‘protected persons’.

However, persons protected by the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces, by the Geneva Convention for the Amelioration of the Wounded,
Sick and Shipwrecked Members of the Armed Forces at Sea, and by the Geneva Convention relative
to the Treatment of Prisoners of War shall not be considered as protected persons within the meaning
of the present Convention.

The Fourth Geneva Convention or the Civilians Convention defines protected persons as those who,
at a given moment and in any manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

But it is important to take note that nationals of a state which is not bound by the Convention are not
protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State,
and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of
which they are nationals has normal diplomatic representation in the State in whose hands they are.

Q. Distinguish International Armed Conflict from Non- International Armed Conflict. DAVID

There is not a single definition of armed conflict under international humanitarian law. Instead,
international humanitarian law distinguishes between international armed conflicts and armed
conflicts ‘not of an international character.’
Military occupations are a particular form of international armed conflict. Pursuant to a widely
accepted general definition of the Appeals Chamber of the International Criminal Tribunal for the
former Yuogslavia, ‘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.’ In other words, there is an international armed
conflict whenever there is a resort to armed force between states, regardless of the intensity of such
force.

In contrast, for a non-international armed conflict to exist, two cumulative criteria must be fulfilled.
First, there must be ‘protracted armed violence’ in the sense that a certain threshold of armed
violence has been reached in terms of intensity. Second, at least one side to the conflict is an
organized armed group. The distinction between international and non-international armed conflict is
thus based on two factors: The structure and status of the parties involved is different. International
armed conflicts involve sovereign states. In contrast, non-international armed conflicts involve states
and organized armed groups. The threshold of the intensity of violence is different. The level of
violence required to trigger an international armed conflict is significantly lower than that necessary to
constitute a non-international armed conflict.

Q. The 4 Geneva Conventions have 2 protocols. What are the protocols about? DANIPOG

Protocols to the Geneva Conventions

Protocol I: 
The signing Nations agreed to further restrictions on the treatment of "protected persons" according to the
original Conventions, and clarification of the terms used in the Conventions was introduced. Finally, new rules
regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and
nuclear installations) were produced.

Protocol II:
In this Protocol, the fundamentals of "humane treatment" were further clarified. Additionally, the rights of
interned persons were specifically enumerated, providing protections for those charged with crimes during
wartime. It also identified new protections and rights of civilian populations.

Protocol III: 
Adopted in 2005 to add another emblem, the "red crystal," to the list of emblems used to identify neutral
humanitarian aide workers.

 The United States has signed and ratified the four Conventions of 1949 and Protocol III of 2005, but
has not ratified the two Protocols of 1977, though it has signed them.
 Disputes arising under the Conventions or the Protocols are settled by courts of the member nations
(Article 49 of Convention I) or by international tribunals.
 The ICRC has a special role given by the Geneva Conventions: it handles, and is granted access to,
the wounded, sick, and POWs.

Protocol I
What is the purpose of Protocol I?
Protocol I applies to international armed conflicts, imposing constraints on the way in which military operations
may be conducted. The obligations laid down in this instrument do not impose an intolerable burden on those
in charge of military operations since they do not affect the right of each State to defend itself by any legitimate
means. This treaty came into being because new methods of combat had been developed and the rules
applicable to the conduct of hostilities had become outdated. Civilians are now entitled to protection from the
effects of war. Protocol I provides a reminder that the right of the parties to conflict to choose methods and
means of warfare is not unlimited and that it is prohibited to employ weapons, projectiles, material or tactics of
a nature to cause superfluous injury or unnecessary suffering (Art. 35).
What new provisions does Protocol I contain?
Protocol I extends the Geneva Conventions' definition of international armed conflict to include wars of national
liberation (Art. 1) and specifies what constitutes a legitimate target of military attack. Specifically,
Protocol I:
a) prohibits indiscriminate attacks and attacks or reprisals directed against:
- the civilian population and individual civilians (Art. 48 and 51); accordingly shall direct their operations
only against military objectives.
- civilian objects (Art. 48 and 52);
o military objectives are limited to those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.
o Presumption is in favour of not being used for military objectives
- objects indispensable to the survival of the civilian population (Art. 54);
o Starvation is prohibited
o Ex. foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water
installations and supplies and irrigation works,
o The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used
by an adverse Party:
 a) as sustenance solely for the members of its armed forces; or
 b) if not as sustenance, then in direct support of military action
- cultural objects and places of worship (Art. 53);
o it is prohibited:
 a) to commit any acts of hostility directed against the historic monuments, works of art or
places of worship which constitute the cultural or spiritual heritage of peoples;
 b) to use such objects in support of the military effort;
 c) to make such objects the object of reprisals.
- works and installations containing dangerous forces (Art. 56);
o dams, dykes and nuclear electrical generating stations, shall not be made the object of attack,
even
o where these objects are military objectives, if such attack may cause the release of dangerous
forces and consequent severe losses among the civilian population.
o Other military objectives located at or in the vicinity of these works or installations
- the natural environment (Art. 55);
b) extends the protection accorded under the Geneva Conventions to all medical personnel, units and
means of transport, both civilian and military (Art. 8-31);
c) lays down an obligation to search for missing persons (Art. 33);
a. missing persons reported by the adverse party
d) strengthens the provisions concerning relief for the civilian population (Art. 68-71);
a. relief actions which are humanitarian and impartial in character and conducted without any
adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in
such relief actions.
b. Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly
acts. In the distribution of relief consignments, priority shall be given to those persons, such as
children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth
Convention or under this Protocol, are to be accorded privileged treatment or special protection.
e) protects the activities of civil defence organizations (Art. 61-67);
a. “civil defence” means the performance of some or all of the undermentioned humanitarian tasks
intended to protect the civilian population against the dangers, and to help it to recover from the
immediate effects, of hostilities or disasters and also to provide the conditions necessary for its
survival. These tasks are:
i. warning;
ii. evacuation;
iii. management of shelters;
iv. management of blackout measures;
v. rescue;
vi. medical services, including first aid, and religious assistance;
vii. fire-fighting;
viii. detection and marking of danger areas;
ix. decontamination and similar protective measures;
x. provision of emergency accommodation and supplies;
xi. emergency assistance in the restoration and maintenance of order in distressed areas;
xii. emergency repair of indispensable public utilities;
xiii. emergency disposal of the dead;
xiv. assistance in the preservation of objects essential for survival;
 xv. complementary activities necessary to carry out any of the tasks mentioned above,
including, but not limited to, planning and organization;
f) specifies measures that must be taken by the States to facilitate the implementation of humanitarian
law (Art 80-91).
Most attacks or other acts carried out in violation of point a) above are, subject to certain provisos, considered
grave breaches of humanitarian law and classified as war crimes.
Article 90 of Protocol I provides for the establishment of an International Fact-Finding Commission to
investigate alleged grave breaches or other serious violations of the Conventions and of Protocol I. All States
Parties to Protocol I may accept the competence of this Commission.
- i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or
other serious violation of the Conventions or of this Protocol;
- ii) facilitate, through its good offices, the restoration

What is the purpose of Protocol II?

Most conflicts since the Second World War have been non-international. The only provision in the Geneva
Conventions of 1949 which is applicable in this type of conflict is Article 3 common to all four Conventions.
Although it sets out basic principles for protecting people in wartime, Article 3 is not enough to solve the
serious problems of humanitarian concern that arise in internal conflicts.
The purpose of Protocol II is hence to ensure the application to internal conflicts of the main rules of the law of
war. It nevertheless in no way restricts the rights of the States or the means available to them to maintain or
restore law and order; nor can it be used to justify foreign intervention (Art. 3 of Protocol II).
Compliance with the provisions of Protocol II does not, therefore, imply recognition of any particular status for
armed rebels.
What new provisions does Protocol II contain?
Unlike Article 3 common to the four Conventions, which fails to set criteria for the definition of internal conflict
to which it applies, Protocol II describes its own field of application in considerable detail, excluding such low-
intensity conflicts as internal tensions and rioting.
The situations covered by Protocol II are non-international conflicts that take place on the territory of a
State between the armed forces of that State and rebel armed forces that are under responsible
command and control part of the national territory.
Common Article 3 planted the seed of humanitarian considerations in law relating to civil war. Protocol II takes
this modest beginning much further.
Specifically, Protocol II:
a) strengthens the fundamental guarantees enjoyed by all persons not, or no longer, taking part in
the hostilities (Art. 4);
b) lays down rights for persons deprived of their freedom and provides judicial guarantees for
those prosecuted in connection with an armed conflict (Art. 5-6);
c) prohibits attacks on:
i. the civilian population and individual civilians (Art. 13);
ii. objects indispensable to the survival of the civilian population (Art. 14);
iii. works and installations containing dangerous forces (Art. 15);
iv. cultural objects and places of worship (Art. 16);
d) regulates the forced movement of civilians (Art. 17);
e) protects the wounded, sick and shipwrecked (Art. 7);
f) protects religious personnel and all medical personnel, units and means of transport (Art. 9 11);
g) limits the use of the red cross and red crescent emblems to those persons and objects duly
authorized to display it.
Additional Protocol III relating to the adoption of the red crystal
Protocol III, adopted in 2005, enshrines an additional emblem – composed of a red frame in the form of a
square standing on the peak – commonly known as the red crystal.
Since the red cross and the red crescent are sometimes perceived in certain contexts as having a religious or
political connotation, this new emblem responds to the need for an additional option deprived of any type of
connotation and usable everywhere in the world. The authorized users of the red crystal are the same persons
and entities allowed to use the emblems of the Geneva Conventions of 1949. These are the medical services
of State armed forces, authorized civil hospitals as well as the different components of the International Red
Cross and Red Crescent movement – namely, the International Committee of the Red Cross (ICRC), the
national societies and their International Federation.

Q. What is Common Article 3 of the Geneva Conventions about ? Is it applicable to International Armed
Conflict? DIRONGAWON

What is Common Article 3 of the Geneva Convention about?

It is about protection to persons taking no active part in hostilities, including members of armed forces
in certain situations specifically stated in the article. It requires humane treatment for all persons in
enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture,
cruel, humiliating and degrading treatment, the taking of hostages and unfair trial. It requires that the
wounded, sick and shipwrecked be collected and cared for.

Is it applicable to international armed conflict?

Article 3 is applicable in case of armed conflict not of international character occurring in the territory
of one of the contracting parties to the 1949 Conventions. It also applies to a situation where the
conflict is within the State, between the Government and the rebel forces or between the rebel forces
themselves.

Q. Who is a person Hors de Combat? YAPCHIONGCO

Hors de combat is a French term used in diplomacy and international law to refer to military
personnel who are incapable of performing their duties during war.
A person hors de combat is a person who is no longer participating in hostilities, by choice or
circumstance.
Under Rule 47 of customary international law, a person can be placed hors de combat in three
situations arising in both international and non-international armed conflicts:
(i) Anyone who is in the power of an adverse party. It is uncontested that a person who is in
the power of an adverse party is hors de combat. This rule is set forth in Additional Protocol I
and is implicit in common Article 3 of the Geneva Conventions and in Additional Protocol II .
[20] It has been confirmed in numerous military manuals.[21] Respect for and protection of persons
who are in the power of an adverse party is a cornerstone of international humanitarian law as
reflected in several provisions of the Geneva Conventions and Additional Protocols. Practice,
therefore, focuses rather on the treatment to be given to such persons (see in particular Chapters 32
and 37).

(ii) Anyone who is defenceless because of unconsciousness, shipwreck, wounds or

sickness. This category is based on the Hague Regulations, common Article 3 of the Geneva
Conventions and Additional Protocol I, which prohibit attacks on defenceless persons.[22] It is
found in numerous military manuals.[23] It is contained in the legislation of many States.[24] It is also
supported by case-law, official statements and other practice, such as instructions to armed forces.
[25] In addition, respect for and protection of the wounded, sick and shipwrecked is a cornerstone of
international humanitarian law applicable in both international and non-international armed conflicts
as reflected in several provisions of the Geneva Conventions and their Additional Protocols. Practice,
therefore, focuses rather on the treatment to be given to such persons (see Chapter 34).

(iii) Anyone who clearly indicates an intention to surrender ;provided he or she abstains from
any hostile act and does not attempt to escape.. This category is based on the Hague
Regulations, common Article 3 of the Geneva Conventions and Additional Protocol I.[26] It is
contained in numerous military manuals.[27] It is included in the national legislation of many States.
[28] It is also supported by official statements and other practice, such as instructions to armed
forces.[29] The general tenet that emerges from this practice is that a clear indication of unconditional
surrender renders a person hors de combat. In land warfare, a clear intention to surrender is
generally shown by laying down one’s weapons and raising one’s hands. Other examples, such as
emerging from one’s position displaying a white flag, are mentioned in many military manuals.
[30] There are specific examples of ways of showing an intent to surrender in air and naval warfare.
[31]

Loss of protection
According to Additional Protocol I, immunity from attack is conditional on refraining from any hostile
act or attempt to escape.[39] This is also set forth in several military manuals.[40] The commission of
these acts signifies that the person in question is in fact no longer hors de combat and does not
qualify for protection under this rule. The Third Geneva Convention specifies that “the use of weapons
against prisoners of war, especially against those who are escaping or attempting to escape, shall
constitute an extreme measure, which shall always be preceded by warnings appropriate to the
circumstances”

Q. What kind of treatment is he entitled to? See Art 41, par. 2 of Protocol 1 of Geneva Convention.
DUGAYO
ARTICLE 41 - SAFEGUARD OF AN ENEMY HORS DE COMBAT

1. A person who is recognized or who, in the circumstances, should be recognized to be ' hors de
combat ' shall not be made the object of attack.

2. A person is ' hors de combat ' if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and
therefore is incapable of defending himself;

provided that in any of these cases he abstains from any hostile act and does not attempt to escape.

3. When persons entitled to protection as prisoners of war have fallen into the power of an adverse
Party under unusual conditions of combat which prevent their evacuation as provided for in Part III,
Section I, of the Third Convention, they shall be released and all feasible precautions shall be taken
to ensure their safety.

Q. Who is a prisoner of war? GARCIA

Refer to PDF copy for Prisoners of War

Q. Who are protected persons under the Geneva Conventions? GUIEB

International humanitarian law protects a wide range of people and objects during armed conflict.
The Geneva Conventions and their Additional Protocols protect sick, wounded and shipwrecked
persons not taking part in hostilities, prisoners of war and other detainees, civilians and civilian
objects.

Q. Is it the purpose of the International Humanitarian Law to prohibit war and other armed conflict?
MARALIT
As previously discussed by the reporters, the International humanitarian law limits the effects of
armed conflict. They cover two areas: the protection of those who are not, or no longer, taking part in
fighting and restrictions on the means of warfare – in particular weapons – and the methods of
warfare, such as military tactics. The IHL applies only international armed conflicts, not single state
armed conflicts or non-international armed conflicts.

Q. What are the rules governing the neutrality of states in times of war? See art 1,2,3, and 4 of Hague
Convention respecting the Rights and Duties of Neutral Powers of 18 October 1907 MENDOZA

Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in
Case of War on Land

The Rights and Duties of Neutral Powers

Article 1. The territory of neutral Powers is inviolable.

It is prohibited to commit any act of hostility whatsoever on such territory

Neutrality describes the formal position taken by a State which is not participating in an armed conflict or
which does not want to become involved. The neutral State has the right to stand apart from and not be
adversely affected by the conflict. On the other hand, it has a duty of non-participation and impartiality.

Neutral space comprises the national territory of the neutral State, its territorial waters and its national air
space.

Neutral persons are nationals of neutral States. They lose their neutral status if they commit hostile acts
against a belligerent. Individuals may join the armed forces of a belligerent party, but then they also lose their
neutral status

Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies
across the territory of a neutral Power.

A belligerent is an individual, group, country, or other entity that acts in a hostile manner, such as engaging in
combat.

Illustration:

A humanitarian convoy with civilian drivers passing through neutral territory is suspected of carrying
arms for one of the belligerent parties. You command a checkpoint through which this convoy will
pass. What action should you take when the convoy arrives?

Answer: As a rule, such convoys should be allowed free passage through neutral territory. However,
they must be intended purely for humanitarian purposes. As the commander of the checkpoint and
based on your intelligence warning, you are duty-bound to search the convoy thoroughly. In any
case, a neutral State has a duty to inspect to safeguard its neutrality. If nothing untoward is found, the
matter is reported through the chain of command and the convoy allowed to proceed. If arms are
found, the matter should be treated seriously. The convoy vehicles and goods can be impounded
under domestic law. Similarly, the civilian drivers can be arrested and dealt with by your own civilian
courts and law

Art. 3. Belligerents are likewise forbidden to:

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the
purpose of communicating with belligerent forces on land or sea;

(b) Use any installation of this kind established by them before the war on the territory of a neutral
Power for purely military purposes, and which has not been opened for the service of public
messages.

Regarding the use of telecommunication equipment, again State practice and technology have moved on since
1907. However, the principles of the Hague Convention No. V remain valid. The outbreak of an armed
conflict does not result in the obligation for a neutral State to prevent the use of its telecommunication
installations by a party to the conflict which used them or had access to them before. Existing non-
military telecommunications, in particular those owned by public companies, may be used by the
parties to the conflict. They can rent fixed lines for voice and data communication of a military nature and
may be granted access from such lines to satellite communications. On the other hand, it would be
considered a non-neutral act for a neutral State to place at the disposal of a party to the conflict
telecommunication installations not available to it under normal conditions, e.g. its own military
communications system, to create new infrastructure for a party to the conflict or to allow it to create
such facilities itself.

Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a
neutral Power to assist the belligerents.

A neutral State must never assist a party to the armed conflict, in particular it must not supply
warships, ammunition or other war materials directly or indirectly to a belligerent power, but otherwise
its trade with the belligerent States remains unaffected.

Art. 5-10 of Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land deal with what must a Neutral State do and not to do

Q. What is the “Material Field of Application? PEREZ

Article 1 - Material field of application Protocol Additional to the Geneva Conventions of 12

August 1949, and Relating to the Protection of Victims
of Non-International Armed Conflicts (Protocol II)

1. This Protocol, which develops and supplements Article 3 common to the Geneva Conventions
of 12 August 1949 without modifying its existing conditions of application, shall apply to all
armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed
Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between
its armed forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to implement this Protocol.
2. This Protocol 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.

Q. State the three ways by which the jurisdiction of the ICC is triggered? Read Article 13 PILA

1) Referral by a State Party - refer to Art. 14

2) Referral by the UN Security Council - refer to Chapter VII of the Charter

3) Investigation proprio motu by the ICC Prosecutor - refer to Art. 15

Q. The ICC follows the principle of Ne Bis in Idem. What is this principle? REGALA

The principle of ne bis in idem , also known as double jeopardy, is deemed a constitutional right and
a procedural right in the constitutions or the domestic legislations of many states. It is also an
internationally protected human right under Art 14 (7) of the The International covenant on Civil and
political Rights. The purpose of a provision on ne bis in idem is to protect the individual against the
arbitrary power of a state and to prevent a state from prosecuting someone for the same offense
twice. Its ratio is two fold : on the one hand, (1) to offer judicial protection to persons against the
State’s jus puniendi, once they have been subject to a prosecution (as part of the principles of fair trial
and equity (2), and on the other hand to ensure legal certainty and the respect of the res judiciata.

Q. The ICC adheres to the following principles

 a. Principle of legality/ Nullum crimen sine lege SAN JOSE

"Nullum crimen sine lege" is a Latin maxim which when literally translated in English means "no crime
without a law."
The principle of nullum crimen sine lege forms the principle of legality which is of fundamental
importance to international criminal law and requires, as a prerequisite to just punishment, a fair
notice to the defendant, of the conduct classified as criminal.

Article 22 of the Rome Statute provides for this principle of legality. Under this Article:

(1) A person shall not be criminally responsible under the Rome Statute unless the conduct in
question constitutes, at the time it takes place, a crime within the jurisdiction of the Court
(referring to ICC). Not only was the need for a provision on the nullum crimen principle noticed
early in the preparation of the Rome Statute but the need for a provision on non-retroactivity,
which as well was considered fundamental to a criminal legal system. The principle of non-
retroactivity states that a certain conduct can only be deemed as illegal if that specific conduct
was prohibited at the time when the conduct took place. In cases when the specific conduct
was not criminalised at the time of the conduct, Article 22(1) prescribes that the person shall
not be convicted. Article 22(1) also refers to the jurisdiction of the Court. To determine whether
a person can be held criminally responsible under the Rome statute it is therefore necessary to
establish the jurisdiction of the Court.

(2) The definition of a crime shall be strictly construed and shall not be extended by analogy. In
case of ambiguity, the definition shall be interpreted in favor of the person being investigated,
prosecuted or convicted. The rule of strict interpretation enshrined in Article 22(2) protects both
the state parties of the Rome Statute as it ensures that the judges will interpret the Statute
narrowly, and the individual that is under investigation by guarantying that the criminal
responsibility of that individual will be judged according to the legislation and nothing else. The
crimes within the jurisdiction of the Court should be defined with the clarity and precision
required for criminal law in accordance with the principle of legality. The principle of nullum
crimen also acknowledges that the individual virtually always is the weaker part in the criminal
process and that the individual therefore has a need to be protected from a misuse of powers
by the judiciary. (3) This article shall not affect the characterization of any conduct as criminal
under international law independently of this Statute (Rome Statute). This means that Article
22(3) acknowledges that the nullum crimen principle in Article 22 does not affect customary
international law and that it applies only to the definitions of crimes in the Rome Statute.

b. Principle of legality/ Nullum poena sine lege SENORES

Nulla poena sine lege is a legal principle which states that one cannot be punished for doing
something that is not prohibited by law. This principle is accepted and codified in modern democratic
states as a basic requirement of the rule of law.

It has been described as "one of the most 'widely held value-judgement[s] in the entire history of
human thought". Article 23 - Nulla poena sine lege A person convicted by the Court may be punished
only in accordance with this Statute.

In modern European criminal law, e.g. of the Constitutional Court of Germany, the principle of nulla
poena sine lege has been found to consist of four separate requirements:

(1) Nulla poena sine lege praevia There is to be no penalty without previous law. This prohibits ex
post facto laws, and the retroactive application of criminal law. It is a basic maxim in continental
European legal thinking. It was written by Paul Johann Anselm Ritter von Feuerbach as part of the
Bavarian Criminal Code in 1813.

(2) Nulla poena sine lege scripta There is to be no penalty without written law. That is, criminal
prohibitions must be set out in written legal instruments of general application, normally statutes,
adopted in the form required by constitutional law. This excludes customary law as a basis of criminal
punishment.

(3) Nulla poena sine lege certa There is to be no penalty without well-defined law. This provides that
a penal statute must define the punishable conduct and the penalty with sufficient definiteness. This
to allow citizens to foresee when a specific action would be punishable, and to conduct themselves
accordingly, a rule expressed in the general principle of legal certainty in matters of criminal law. It is
recognised or codified in many national jurisdictions, as well as e.g. by the European Court of Justice
as a "general principle of Union law".
(4) Nulla poena sine lege stricta There is to be no penalty without exact law. This prohibits the
application by analogy of statutory provisions in criminal law.

c. Principle of retroactivity SEVERINO

Article 24 Non-retroactivity ratione personae

1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force
of the Statute.
2. In the event of a change in the law applicable to a given case prior to a final judgement, the law
more favourable to the person being investigated, prosecuted or convicted shall apply.

It states that the prohibition shall not prejudice the trial and punishment of any person for any act or
omission which, at the time it was committed, was criminal according to general principles of law
recognized by the community of nations.
The principle of legality occupies a central place in the Rome Statute of the International Criminal
Court (ICC). Its core element is the principle of non-retroactivity, which requires that criminal acts be
previously prohibited and punishable by law. Nevertheless, there are two main instances where the
application of the Statute risks being substantively retroactive: when the UN Security Council (SC)
refers a situation to the ICC, or a state makes an ad hoc declaration accepting the Court’s jurisdiction
for a situation, and the relevant conduct was not criminal under any previously binding source of law.
Despite the significance of this issue, it has only been briefly discussed in the literature. It has also
been overlooked by the drafters of the Statute and by the ICC itself. Against this backdrop, the
purpose of this article is to critically appraise the few solutions that have been proposed so far and to
identify the key elements of a better avenue for reconciling the Rome Statute with the principle of
legality.

d. Individual criminal responsibility SUQUE

Article 258 Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court shall be individually
responsible and liable for punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another
person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise
assists in its commission or its attempted commission, including providing the means for its
commission;

(d) In any other way contributes to the commission or attempted commission of such a
crime by a group of persons acting with a common purpose. Such contribution shall be
 intentional and shall either: Be made with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or purpose involves the commission of a
crime within the jurisdiction of the Court; or Be made in the knowledge of the intention of
the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit
genocide;

(f) Attempts to commit such a crime by taking action that commence its execution by
means of a substantial step, but the crime does not occur because of circumstances
independent of the person's intentions. However, a person who abandons the effort to
commit the crime or otherwise prevents the completion of the crime shall not be liable for
punishment under this Statute for the attempt to commit that crime if that person completely
and voluntarily gave up the criminal purpose.

In respect of the crime of aggression, the provisions of this article shall apply only to
persons in a position effectively to exercise control over or to direct the political or military
action of a State. 4. No provision in this Statute relating to individual criminal responsibility
shall affect the responsibility of States under international law.

e. Principle of superior responsibility TANGUNAN

Also known as command responsibility - Embodied in Article 28, ICC Article 28 Responsibility of
commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the
jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as the case may be, as a result of
his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time,
should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution. (b) With respect to superior and
subordinate relationships not described in paragraph (a), a superior shall be criminally
responsible for crimes within the jurisdiction of the Court committed by subordinates under
his or her effective authority and control, as a result of his or her failure to exercise control
properly over such subordinates, where: (i) The superior either knew, or consciously
disregarded information which clearly indicated, that the subordinates were committing or
about to commit such crimes; (ii) The crimes concerned activities that were within the
effective responsibility and control of the superior; and (iii) The superior failed to take all
necessary and reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for investigation and
prosecution.

Requisites of the principle:

1. There must be superior-subordinate relationship.

2. The superior knew or should have known that the crime had been committed or was about to
be committed.

3. The superior failed to take all necessary and reasonable measures within his power to prevent
or punish the criminal conduct.

f. Mens Rea YANSON

The ICC Statute upholds the principle of no liability without fault to the letter:
 Unless otherwise provided, a person shall be criminally responsible and liable for the punishment
for a crime within the jurisdiction of the court only if the material elements are committed with
intent and knowledge.

The conjunctive requirement of intent and knowledge is further defined in ICC Statute Article 30
(2)

For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct

(b) In relation to a consequence, that person means to cause that consequence or is aware that it
will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means
awareness that a circumstance exists or a consequence will occur in the ordinary course of
events. "Know" and "knowingly" shall be construed accordingly .

Q. Can sovereignty be subject to limitations? Read Tanada v Angara on theory of Auto-limitation

PANTI

YES.
While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines as a
member of the family of nations. (expressly or impliedly)

Unquestionably, the Constitution did not envision a hermit-type isolation of the country. When the
Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its
sovereign rights under the "concept of sovereignty as auto-limitation." Under Article 2 of the UN
Charter," (a)ll members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action." The underlying consideration in
this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in
granting the same privilege and immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-GATT.

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land and adheres to the policy of . . .
cooperation and amity with all nations. A state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of
the obligations undertaken. By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture:

(1) limitations imposed by the very nature of membership in the family of nations and

(2) limitations imposed by treaty stipulations.

Q. Is the State criminally responsible? OBREGON

No, the State is not criminally responsible. Penal sanctions are pronounced against individuals.
Governments, States, and organizations cannot be found guilty in the criminal law sense of the term.
Hence, they do not incur penal or criminal sanctions, as such, although States can be held
responsible by the International Court of Justice for damages caused by their activities and obliged
to pay reparations, only their leaders can be held individually criminally responsible and
prosecuted as individuals.

While the State may not be held criminally liable, it is still responsible in the acts or omissions
enumerated in the Rules of Customary International Humanitarian Law. (Rule 149, 150, 158, 161)

A State is responsible for violations of international humanitarian law attributable to it, including:
Violations committed by its organs, including its armed forces; Violations committed by persons or
entities it empowered to exercise elements of governmental authority; Violations committed by
persons or groups acting in fact on its instructions, or under its direction or control; and Violations
committed by private persons or groups that it acknowledges and adopts as its own conduct (Rule
149).

A State responsible for violations of international humanitarian law in the context of an international or
a non-international armed conflict is required to make full reparation for the loss or injury caused
(Rule 150). States must investigate war crimes allegedly committed by their nationals or armed
forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate
other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (Rule
158).

Finally, States must make every effort to cooperate, to the extent possible, with each other in order to
facilitate the investigation of war crimes and the prosecution of the suspects (Rule 161). State
responsibility for failing to respect obligations under IHL can be triggered in front of the International
Court of Justice by other governments suffering damages related to such violations and can lead to
compensation. State failure to prosecute perpetrators of war crimes, crimes against humanity, and
genocide at the national level may in certain circumstances trigger the competence of the
International Criminal Court. The Court’s jurisdiction over a situation is established by the State
ratification of the ICC Statute or by a binding decision of the United Nations Security Council, when
this State is unwilling or unable to prosecute alleged offenders. Responsibility of the State in
Jurisprudence Responsibility of the State for the Conduct of Its Agents and Organs In several cases,
the International Court of Justice (ICJ) held that the conduct of a State organ always triggers the
responsibility of that State, without having to prove that this group acted under the States’ orders or
that it overstepped them.

Q. What is the principle of Dual responsibility? PARAS

Principle of Dual or Shared Responsibility

it is when two or more states commit an internationally wrongful act and share responsibility.
Requisites:
(1) A commission of one or more internationally wrongful acts by multiple international persons that
contribute to indivisible injury that entails shared responsibility; and
(2) Contribution to the indivisible injury
Effects:
Each international person sharing responsibility is under an obligation:
(a) to cease the act attributable to it, if this act is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.
Reparation in situations of shared responsibility
Full reparation for the indivisible injury caused shall take the form of restitution,
compensation and satisfaction, either singly or in combination.