PIL REVIEWER
Chapter 14 on The Use of Force Short of War and Chapter 15 on The Law of War
THE USE OF FORCE SHORT OF WAR
Use of Force
 General Principle: International law recognizes
the
a. Autonomy of individual states
b. Their right to freedom from coercion and to the
integrity of their territory
Art. 2(4) of the UN Charter: All Members shall
refrain in their international relations from the
threat or use of force against the territorial integrity
or political independence of any state, or in any
other manner inconsistent with the Purposes of the
United Nations.
 The above text does not use the word ―war
because it is a technical term which does not
include some uses of force
Hence, the prohibition is broader than the
prohibition of war noting that it applies to ―any
other matter inconsistent with the Purposes of the
United Nations
 The prohibition of the use of force is customary
international law
Threat of Force
 Charter prohibits not just use of force but also the
threat of force
 Typical form of threat of force:
A State is given an ultimatum, a time-limit, within
which to accept the demands made upon it and is
told that, if it rejects the demands, war will be
declared on it or certain coercive measures will be
taken
 Examples of coercive measures:
a. Naval blockade b. Bombardment c. Occupation
of a given territory
Legality of the Threat or Use of Nuclear
Weapons
The Charter recognizes the inherent right of
individual or collective self-defense if an armed
attack occurs. The entitlement to resort to self-
defense is subject to the conditions of necessity and
proportionality.
A further lawful use of force is envisage whereby
the Security Council may take military enforcement
measures in conformity of the Charter. These apply
to any use of force, regardless of the weapons
employed.
Individual and Collective Self-Defense  Exception
to the prohibition of the use of force
Article 51 Measures taken by Members in the
exercise of this right of self-defense shall be
immediately reported to the Security Council and
shall not in any way affect the authority and the
responsibility of the Security Council to take at any
time such actionas it deems necessary in order to
maintain or restore international peace and
security.
Is anticipatory self-defense allowed?
 2 views:
1. States do not invoke the right because they are
afraid that it might be used against them too
2. Israel launched a preemptive strike against its
Arab neighbors but the UN did not condemn the act
Traditionally Allowable Coercive Measures
1. Severance of Diplomatic Relations
-Reason: there is no obligation to maintain
diplomatic relations o Limitation: not be resorted
unless truly necessary because it might endanger
peace
-Suspension involves withdrawal of diplomatic
representation but not of consular representation
2. Retorsion
-Any forms of counter-measures in response to an
unfriendly act
-Includes:
a. Shutting of ports to vessels of an unfriendly State
b. Revocation of tariff concessions not guaranteed
by treaty
c. Display of naval forces near the waters of an
unfriendly State
3. Reprisal
Any kind of forcible or coercive measures where
by one State seeks to exercise a deterrent effect or
obtain redress or satisfaction, directly or indirectly,
for the consequences of illegal act of another State
which has refused to make amends for such illegal
acts
This must be preceded by an unsatisfied demand
for reparation
4. Embargo
A lawful measure o Consists of:
a. Seizure of vessels even in the high seas
b. State keeps its own vessels for fear that it might
find their way in foreign territory
 pacific embargo
c. Seizure of import of drugs or of oil
 collective embargo
5. Boycott
A form of reprisal which consists of suspension of
trade or business relations with the nationals of an
offending State
6. Non-intercourse
-Suspension of all commercial intercourse with a
State
7. Pacific Blockade
-Naval operation carried out in time of peace
whereby a State prevents access to or exit from
particular ports or portions of coast of another State
-Purpose: compel a State to yield to demands by the
blockading State Protection of Nationals Abroad
 Right to defend nationals abroad is an aspect of
the right to self-defense since population is an
essential element of Statehood
 Examples of forcible rescue of nationals
a. Raid of Entebee in Uganda
b. US intrusion into Stanleyville to rescue
American students Humanitarian Intervention
 The prohibition in Art. 2(4) is now considered jus
cogens
 Prevailing opinion: intervention without the
authorization of the Security Council violates
international law
THE LAW OF WAR
INTERNATIONAL HUMANITARIAN LAW
 Previously known as Laws of War
a. Provides for instances when the use of armed
force is justifiable – jus ad bellum
b. Regulates the conduct of armed conflict – jus in
bello
 Early international law did not consider as illegal
a war admittedly waged for the purpose of gaining
political or other advantages over another State
Art. 2(4) of the UN Charter: All Members shall
refrain in their international relations from the
threat or use of force against the territorial
integrity or political independence of any State, or
in any other manner inconsistent with the Purposes
of the United Nations.
 The above provisions outlaws war
 The paradox is that side by side with the
prohibition of armed conflict is the proliferation of
laws of war
-3 facts which explain the paradox:
a. Those who resort to the use of arms do not give
up until they have achieved victory
b. Humanitarian considerations dictate the need for
rules which curtail violence beyond what is
necessary to achieve a State’s goal
c. There still remains in the hearts of the soldiery
an acceptance of chivalry as a value
 On the assumption that wars can always occur,
there arose the need to formulate laws that can
humanize the conduct of war
THE HAGUE LAW
 In 1899, 26 Countries met at The Hague and
promulgated Conventions and Declaration which
adopted the principles constituting the law of
armed conflict, Law of the Hague, governing land
and naval warfare
GENEVA CONVENTIONS OF 1949
 Essence: persons not actively engaged in warfare
should be treated humanely o Geneva ―Red Cross
Conventions
a. Wounded and Sick in the Field b. Wounded, Sick
and Shipwrecked at Sea c. Prisoners of War d.
Civilians
CUSTOMARY and CONVENTIONAL LAW
 What is embodied in Hague and Geneva
Conventions are customary law
-Thus, non-parties are still covered Commencement
and Termination of Hostilities
 Under Hague Convention III, for an armed
conflict to be considered a war, the hostilities
should be preceded by a declaration of war or an
ultimatum with a fixed limit
 While the Constitution gives to the legislature the
power to declare the existence of a state of war and
to enact all measures to support the war, the actual
power to make war is lodge in the executive
 The commencement of hostilities result in the
severance of all normal relations, including treaties,
except treaties of a humanitarian character
 Nationals of a combatant State residing in enemy
territory become subject to restrictions which the
enemy might impose subject to limitations found in
customary or treaty law
 Merchant vessels found in enemy territory are
given a period of grace to depart
 Laws of armed conflict remain in effect until the
conflict is terminated, by means of a
a. peace treaty
b. in the absence thereof, by declaration made by
the combatant states that hostilities have come to an
end
 Armistice – an agreement to suspend hostilities,
whether local or general, does not end the conflict
but only puts an end to the active fighting
Protocol I
 International armed conflict includes armed
conflicts in which peoples are fighting against
a. Colonial denomination
b. Alien occupation
c. Racist regimes
 Those engaged in such conflict receive combatant
status and are entitled to combatant rights
-Instead being treated as ordinary criminals when
captured, they are treated as prisoners of war
METHODS OF WARFARE: JUS IN BELLO
 Declaration of St. Petersburg:
-The only legitimate object which States should
endeavor to accomplish during war is to weaken
the military forces of this enemy
-This object would be exceeded by the employment
of arms which uselessly aggravate the sufferings of
disabled men, or render their death inevitable
 The Hague Convention prohibits the employment
of ―arms, projectiles or material calculated to
cause unnecessary suffering‖
 There is a need to balance military necessity and
humanitarian consideration Legality of the Threat
or Use of Nuclear Weapons (ICJ 1996) Cardinal
Principles constituting the Fabric of Humanitarian
Law:
1. States must never make civilians the object of
attack and must consequently never use weapons
that are incapable of distinguishing between
civilian and military targets
2. It is prohibited to cause unnecessary suffering to
combatants
INTERNATIONAL COMMISSION ON RED
CROSS
Basic Rules Governing Armed Conflicts:
1. Soldier’s Rules
a. Fight only enemy combatants and attack only
military objectives
b. Prisoners of war must be treated humanely and
are bound to give only information about their
identity
c. Looting is prohibited. Respect other’s property.
2. Fundamental Rules of International
Humanitarian Law Applicable to Armed Conflicts
a. Persons hors de combat and those who do not
take a direct part in hostilities are entitled to respect
for their lives and moral and physical integrity
b. It is forbidden to kill or injure an enemy who
surrenders or is hors de combat
3. Non-International Armed Conflicts
a. Obligation to distinguish between combatants
and civilians
b. Prohibition of attacks against the civilian
population as such or against individual citizens
c. Customary rule prohibiting the use of chemical
weapons, bullets which expand or flatten easily in
the human body, poison as means of warfare, and
booby-traps NEUTRALITY
 To adopt an attitude of impartiality towards the
belligerents
 Such attitude must be recognized by belligerents
and creates both rights and duties in the neutral
states
 Neutrals must not engage in activities which
interfere with the activities of the belligerents
NON-INTERNATIONAL CONFLICTS
 Civil wars or rebellion do not violate
international law
 International law on armed conflict does not
apply to internal conflicts
 Outside help for governments experiencing
rebellion is legitimate provided requested by the
government
 Aid to rebels is contrary to international law
Common Article 3
 In case of armed conflict not of an international
character, persons should still be accorded a
minimum humanitarian protection
 Prohibited acts:
a. Violence like murder of all kinds, mutilation,
cruel treatment and torture
b. Taking of hostages
c. Outrages on human dignity d. Passing of
sentences and carrying out of executions without
previous judgment pronounced by a regular court
 International Committee of the Red Cross – an
impartial humanitarian body Protocol II
 The first and only international agreement
exclusively regulating the conduct of parties in a
non-international armed conflict
 International armed conflict – that which takes
place in the territory of a Contracting Party
between its armed forces and dissident armed
forces or other organized armed groups which

 Material Field of Application:

a. Armed dissidents must be under responsible

command
b. They must ―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

INTERNATIONAL TERRORISM

 There is no crime terrorism in Philippines statute

books but some acts are considered terroristic and
are independently punished by the RPC
 Terrorism Act (British Law) – violent moves
against person or property or against public health
and safety which have for their purpose to
influence the government or to intimidate a section
of the public or to advance a political, religious or
ideological cause
 Draft of an International Convention for the
Suppression of the Financing of Terrorism:

-Any person commits an offense of terrorism if he

does an act intended to cause:

a. Death or serious bodily injury to any person

b. Serious damage to a State or Government
Facility with the intent to cause extensive
destruction
 Attack on WTC on 9-11 was characterized as
Crime against Humanity through the atrocious
character exhibited by the act: its magnitude,
gravity, targeting of civilians

-The importance of this characterization is that it

led to what seems to be a development in the
international law of self-defense

 Self-defense – legitimate response to an armed

attack by a State