Part II - Ihl JLC Class 2019-01

UNDERSTANDING THE BASICS OF THE
INTERNATIONAL
HUMANITARIAN
LAW
COMMISSION ON HUMAN RIGHTS
OBJECTIVEs What is the International Humanitarian Law
When does the IHL apply?
IHL vs IHRL: What is the difference
Two Streams of IHL
Basic Principles of IHL
Questions and Post-Test

OBJECTIVEs What is the International Humanitarian Law
IHL vs IHRL: What is the difference
Two Streams of IHL
Questions and Post-Test

What is the International Humanitarian Law
To protect those who are not

involved in war!
•
•
•
•
•
•
Regulates the conduct of forces
• when engaged in war or armed
conflict.
Example:
• protection of civilians, non-combatant,
hors de combat, or POWs
•
✓"right to war"
✓is a set of criteria that are to be
consulted before engaging in war in
order to determine whether
entering into war is permissible,
that is, whether it is a just war.
•
• "right to war"
• is a set of criteria that are to be
consulted before engaging in war in
order to determine whether
entering into war is permissible,
that is, whether it is a just war.
•
•
•
•
•
•
•
•
The principle of right authority suggests

that a war is just only if waged by a
legitimate authority.
This also requires that the declaration

must be done publicly.
Proper authority is what differentiates war

from murder.
A soldier, if captured, is not a criminal if
he kills an enemy.
PHILIPPINES: What is the Philippine’s

Policy on War?
“The Philippines renounces war as an instrument
of national policy, adopts the generally accepted
principles of international law as part of the law of
the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity
with all nations.” (Article II, Sec. 2, Phil. Const.)
PHILIPPINES: WHO HAS THE AUTHORITY

TO DECLARE WAR?
“The Congress, by a vote of two-thirds of both
Houses in joint session assembled, voting
separately, shall have the sole power to declare
the existence of a state of war.”(Article VI, Sec. 23
(1) Phil. Const.)
•
The aim of war must not be to pursue
narrowly defined national interests, but
rather to re-establish a just peace.
Right cause includes humanitarian

intervention, particularly when actions
"shock the conscience".
•
Current doctrines of "anticipatory self-
defense" or preemptive strikes,
commonly called the Bush Doctrine,
have challenged concepts of right
intention/just cause.
•
There must be good grounds for
concluding that aims of the just war are
achievable.
This principle emphasizes that mass

violence must not be undertaken if it is
unlikely to secure the just cause.
•
The principle of proportionality stipulates
that the violence used in the war must be
proportional to the military objectives.
This objective is meant to preclude
"scorched earth" policies.
•
The principle of last resort stipulates that
all non-violent options must first be
exhausted before the use of force can be
justified.
Non-violent options includes diplomatic or

treaty-based grievance mechanisms.
Modern IHL is not naïve and accepts that

harm, destruction and death can be
lawful during armed conflict.
IHL simply looks to limit the harm and

respect the dignity of every human being.
IHL is the humanization

of war
International humanitarian law applies only to

armed conflict.
It does not cover:
• internal tensions or
• disturbances such as isolated acts of
violence
It applies only once a conflict has begun, and

then equally to all sides regardless of who
started the fighting.
What is an Armed Conflict?
War is an organized, armed, and, often, a

prolonged conflict that is carried on between
states, nations, or other parties typified by
extreme aggression, social disruption, and
usually high mortality.
IHL distinguishes an Armed Conflict between:
• International Armed Conflict, and

• Non-International Armed Conflict
IHL distinguishes an Armed Conflict between:
• International Armed Conflict, and

• Non-International Armed Conflict
International Armed Conflict

• International armed conflicts (IAC) are those
in which at least two States are involved.
Example:
• Between two waring State, or
• Between two groups of States (ex. Allied vs Axis)
International armed conflicts are subject to
a wide range of rules, including those set out
in the four Geneva Conventions and
Additional Protocol I.
Non-International Armed Conflict

• Non-international armed conflicts (NIAC) are
those restricted to the territory of a single State.
Example:
• regular armed forces fighting groups of armed dissidents, or
• Armed groups fighting each other
• Between a State and a belligerent group
A more limited range of rules apply to internal armed
conflicts and are laid down in Article 3 common to the
four Geneva Conventions as well as in Additional
Protocol II.
State of Belligerency
Belligerency is a term used in international law to
indicate the status of two or more entities,
generally sovereign states, being engaged in war.
Declaration of war is not necessary in

a state of belligerency.
A state of Belligerency could also happen:
- In invoking the right t self-defense under Article

51, UN Charter.
- Mutual defense-treaties
- Under the auspices of a UN Security Resolution

such as the UN Security Council Resolution 678
which gave the legal authority for the Gulf War.
A state of Belligerency could also happen:
- Between one or more sovereign states on one

side and rebel forces, if such rebel forces are
recognized as belligerents.
Rebellion not recognized as belligerents is

considered as insurgency.
Conditions for Recognition of a Belligerent
Community:
1. There must be an organized civil government
directing the rebel forces;
2. The rebels must occupy a substantial portion of the
territory of the state;
3. The conflict between the legitimate government
and the rebels must be serious, making the outcome
uncertain;
4. The rebels must be willing and able to observe the
laws of war.
Consequence of Recognition of Belligerency:
• The Laws of Armed Conflict takes
effect.
• Death occurring during armed conflict
not be subject to any municipal law.
IHL vs IHRL: What is the difference?
International Humanitarian Law (IHL)

and International Human Rights Law
(IHRL) are different bodies of rules which
were developed separately and are
governed by different treaties.
• International Humanitarian Law (IHL)

applies during existence of armed
conflict
• International Human Rights Law (IHRL)
generally applies during peacetime.
Certain IHRL also applies during armed
conflict. (ex. CRC and ICCPR)
Two Streams of IHL
Branchesof IHL:
•
Two Streams of IHL
The Hague Laws

The Hague Laws establishes the rights
and obligations of belligerents in the
conduct of military operations, and
limits the means of harming the enemy.
✓ Hague Convention of 1899

✓ Hague Convention of 1907
Two Streams of IHL
The Four Geneva Laws

The Four Geneva Laws or the Geneva
Conventions establish the standards of
international law for the humanitarian
treatment of the victims of war.
• Geneva Conventions of 1864, 1906,

1929, and 1949
• Protocols I, II , and III
Two Streams of IHL

First Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field, 1864
Second Geneva Convention for the Amelioration of
the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea,
1906
Third Geneva Convention relative to the Treatment
of Prisoners of War, 1929
Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War,
1949
Two Streams of IHL
Additional Protocols
Protocol I (1977) relating to the Protection of
Victims of International Armed Conflicts
Protocol II (1977) relating to the Protection of

Victims of Non-International Armed
Conflicts
Protocol III (2005) relating to the Adoption of an

Additional Distinctive Emblem.
Two Streams of IHL

Protected Emblems under IHL
Two Streams of IHL

Protected Emblems under IHL
Republic Act No. 10530
RA 10530
AN ACT DEFINING THE USE AND
PROTECTION OF THE RED CROSS, RED
CRESCENT, AND RED CRYSTAL
EMBLEMS, PROVIDING PENALTIES FOR
VIOLATIONS THEREOF AND FOR OTHER
PURPOSES
“The Red Cross and Other

Emblems Act of 2013”
Rationale:
The Philippines being a party to the
Hague Conventions of 1907 and the
1949 Geneva Convention and their
Additional Protocols shall secure the
protective use and indicative use of
the emblems both in times of peace
and in times of armed conflict.
Rationale:
The Philippines being a party to the
Hague Conventions of 1907 and the
1949 Geneva Convention and their
Additional Protocols shall secure the
protective use and indicative use of
the emblems both in times of peace
and in times of armed conflict.
Two Streams of IHL
TREATIES
Series of Treaties relating to use of specific
weapons, tactics or protected persons and objects
o 1954 Convention on the Protection of Cultural

Property during armed conflict,
o 1972 Biological Weapons Convention,
o 1980 Convention on Conventional Weapons,
and
o 1997 Ottawa Convention on anti-personnel
mines
IHL is founded upon the following

principles:
➢ Principle of Distinction
➢ Prohibition of Attacks Against Hors de
Combat
➢ Prohibition on the infliction of unnecessary
suffering
➢ Principle of Proportionality
➢ Notion of Necessity, and
➢ Principle of Humanity
1. Principle of Distinction Between

Civilians and Combatants
Only fighters may be directly targeted.
1. Principle of Distinction Between

Civilians and Combatants
• Without this principle waring parties would

have no limitation on the methods of warfare
• Any direct attack against a civilian or civilian
object is not only a violation of IHL but also a
grave breach. It is categorized as war crimes.
• Any weapon incapable of distinguishing

between civilians/civilian object and
fighters/military object is also prohibited under
IHL.
2. Prohibition of attacks against those

hors de combat
Protocol I of the Geneva Conventions defines:
“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;

hors de combat
While a soldier could be

targeted lawfully under
normal circumstances, if
that soldier surrenders or
is wounded and no longer
poses a threat, an attack
against him is prohibited.

hors de combat
What about this picture?
3. Prohibition on the infliction of

unnecessary suffering
While IHL recognizes
violence is inherent to
war it prohibits the
infliction of
unnecessary suffering
and superfluous injury.
4. Principle of Proportionality
This principle limits and protects potential harm

to civilians by demanding that the least amount
of harm is caused to civilians, and when harm to
civilians must occur it needs be proportional to
the military advantage.
Article 51 of Protocol I prohibits attacks when

the civilian harm would be excessive in relation
to the military advantage sought.
4. Principle of Proportionality
In the conduct of hostilities this principle is
only applied when a strike is made against a
lawful military target.
It is in this area of the IHL rules that we usually

hear the word “collateral damage”.
5. Notion of Necessity
Military Necessity vs Humanitarian Protection
Military necessity permits armed forces to
engage in conduct that will result in destruction
and harm being inflicted.
The concept of military necessity acknowledges

that under the laws of war, winning the war or
battle is a legitimate consideration.
5. Notion of Necessity
However, the concept of military necessity does
not give the armed forces the freedom to ignore
humanitarian consideration altogether and do
what they want.
It must be interpreted in the context of specific
prohibition and in accordance with the other
principle of IHL.
6. Principle of Humanity
The principle stipulates that all humans have
the capacity and ability to show respect and
care for all, even their sworn enemies.
This separates human from animals.

6. Principle of Humanity
The principle stipulates that all humans have
the capacity and ability to show respect and
care for all, even their sworn enemies.
This separates human from animals.

Protected Properties
Medical Units and Transport

Cultural Property
The Natural Environment

Cultural Property
The Natural Environment

• Medical Units
Establishments, civilian or military, fixed
or temporary, organized for medical
purposes.
• Medical Transport
Any means of transportation, civilian or
military, fixed or temporary, assigned
exclusively for medical purposes.

Obligation of Parties
• Obligation to Respect
Should not be subject to Military attacks.
• Obligation to Protect
In order to function properly active
assistance must be provided.
Cultural Properties
• Movable and Immovable
Dedicated to religion, art, science,
education or charitable purposes, or
historic monuments.
• Property of Cultural Heritage

Architectural or historic monuments,
archeologic sites, works of art, books,
including the buildings where it is located.


Is the Philippines bound by IHL?
Three Reasons:
• Article II of the Philippine Constitution
The Philippines is bound by generally accepted
principles of international law, which are
considered to be automatically part of our own
laws.
Three Reasons:
• Republic Act 9851 or the “Philippine Act on

Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against
Humanity” signed into law on 11 December
2009
Three Reasons:
• Republic Act 9851 defines and criminalizes

“the most serious crimes of concern to the
international community as a whole” such as:
1. War Crimes
2. Genocide
3. Crimes against humanity
Three Reasons:
• Comprehensive Agreement on the Respect

of Human Rights and International
Humanitarian Law (CAHRIHL)
What is the CARHRIHL?
Comprehensive Agreement on the

Respect of Human Rights and
International Humanitarian Law
(CARHRIHL)
• It is a comprehensive agreement signed on

March 16, 1998 between the Government of
the Republic of the Philippines (GRP) and the
National Democratic Front of the Philippines
(NDFP). It was signed at The Hague,
Netherlands.

(CARHRIHL)
• It was approved on April 10, 1998 by NDFP

National Council Chairperson Mariano Orosa
and on August 7, 1998 by GRP President
Joseph E. Estrada.

(CARHRIHL)
• Among others, the parties agree that respect

for human rights and international
humanitarian law is of crucial importance and
an urgent necessity in laying the ground for a
just and lasting peace.

(CARHRIHL)
Objectives of the agreement are…
• to guarantee the protection of human

rights to all Filipinos under all
circumstances, especially the workers,
peasants and other poor people

(CARHRIHL)
• to affirm and apply the principles of
international humanitarian law in order to
protect the civilian population and individual
civilians, as well as persons who do not take
direct part or who have ceased to take part in the
armed hostilities, including persons deprived of
their liberty for reasons related to the armed
conflict.

(CARHRIHL)
• To establish effective mechanisms and
measures for realizing, monitoring, verifying
and ensuring compliance with its provisions

(CARHRIHL)
• To pave the way form comprehensive
agreements on economic, social and political
reforms that will ensure the attainment of a

(CARHRIHL)
• To pave the way form comprehensive
agreements on economic, social and political
reforms that will ensure the attainment of a
Any Questions?
Post test
END OF session
Presented by:
Joey Fabiania

Part II - Ihl JLC Class 2019-01

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Part II - Ihl JLC Class 2019-01

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UNDERSTANDING THE BASICS OF THE

When does the IHL apply?

IHL vs IHRL: What is the difference

Two Streams of IHL

Basic Principles of IHL

Questions and Post-Test

When does the IHL apply?

IHL vs IHRL: What is the difference

Two Streams of IHL

Basic Principles of IHL

Questions and Post-Test

To protect those who are not

The principle of right authority suggests

This also requires that the declaration

Proper authority is what differentiates war

PHILIPPINES: What is the Philippine’s

PHILIPPINES: WHO HAS THE AUTHORITY

Right cause includes humanitarian

This principle emphasizes that mass

Non-violent options includes diplomatic or

Modern IHL is not naïve and accepts that

IHL simply looks to limit the harm and

IHL is the humanization

International humanitarian law applies only to

It applies only once a conflict has begun, and

What is an Armed Conflict?

War is an organized, armed, and, often, a

IHL distinguishes an Armed Conflict between:

• International Armed Conflict, and

IHL distinguishes an Armed Conflict between:

• International Armed Conflict, and

International Armed Conflict

Non-International Armed Conflict

Declaration of war is not necessary in

A state of Belligerency could also happen:

- In invoking the right t self-defense under Article

- Under the auspices of a UN Security Resolution

A state of Belligerency could also happen:

- Between one or more sovereign states on one

Rebellion not recognized as belligerents is

International Humanitarian Law (IHL)

• International Humanitarian Law (IHL)

The Hague Laws

✓ Hague Convention of 1899

The Four Geneva Laws

• Geneva Conventions of 1864, 1906,

The Four Geneva Laws

The Four Geneva Laws

Protocol II (1977) relating to the Protection of

Protocol III (2005) relating to the Adoption of an

The Four Geneva Laws

The Four Geneva Laws

“The Red Cross and Other

o 1954 Convention on the Protection of Cultural

IHL is founded upon the following

1. Principle of Distinction Between

1. Principle of Distinction Between

• Without this principle waring parties would

• Any weapon incapable of distinguishing

2. Prohibition of attacks against those

“A person is “hors de combat” if:

2. Prohibition of attacks against those

While a soldier could be