International Humanitarian Law | PUBLIC INTERNATIONAL LAW

International Humanitarian Law (IHL) - Overview

International Humanitarian Law (IHL), often referred to as the law of war or law of armed conflict, is a branch of public international law aimed at regulating conduct during armed conflicts to protect individuals who are not, or are no longer, participating in hostilities, and to limit the means and methods of warfare.

Sources of International Humanitarian Law

IHL is primarily based on the Geneva Conventions of 1949 and their Additional Protocols (1977), alongside customary international law and various other treaties and conventions. Some key instruments include:

1. The Four Geneva Conventions of 1949:

   • First Geneva Convention: Protection of wounded and sick soldiers on land.
   • Second Geneva Convention: Protection of wounded, sick, and shipwrecked soldiers at sea.
   • Third Geneva Convention: Treatment of prisoners of war (POWs).
   • Fourth Geneva Convention: Protection of civilians in times of war.

2. Additional Protocols I and II (1977):

   • Protocol I: Applies to international armed conflicts.
   • Protocol II: Applies to non-international armed conflicts.

3. Customary International Humanitarian Law: Many rules of IHL, particularly those not codified in treaties, have become customary international law, binding on all states, regardless of their participation in specific treaties.

4. Other Treaties and Conventions:

   • The Hague Conventions (1899 and 1907) focus on the methods and means of warfare.
   • Convention on Certain Conventional Weapons (1980) and its Protocols limit the use of certain types of weapons (e.g., landmines, incendiary weapons).
   • Ottawa Treaty (1997) prohibits anti-personnel mines.
   • Rome Statute of the International Criminal Court (ICC) (1998) incorporates war crimes provisions under IHL.

Core Principles of International Humanitarian Law

IHL is based on key principles that aim to balance military necessity with humanitarian considerations. These include:

1. Distinction:

   • Parties to a conflict must always distinguish between combatants and civilians, and between military objectives and civilian objects. Attacks must only be directed at military targets.

2. Proportionality:

   • The harm caused to civilians and civilian property must not be excessive in relation to the anticipated military advantage gained from an attack.

3. Precaution:

   • Parties must take all feasible precautions to minimize harm to civilians during military operations.

4. Humanity:

   • Unnecessary suffering and superfluous injury to combatants and civilians must be avoided. This principle limits the use of weapons and tactics that cause excessive harm.

5. Non-discrimination:

   • IHL applies equally to all persons affected by armed conflict, without adverse distinction based on nationality, race, religion, or other criteria.

6. Necessity:

   • Military actions must be necessary for achieving a legitimate military objective and must not go beyond what is required.

Categories of Armed Conflict under IHL

1. International Armed Conflicts (IACs):

   • Conflicts between two or more states. The full set of Geneva Conventions and Additional Protocol I apply in such conflicts.

2. Non-International Armed Conflicts (NIACs):

   • Conflicts between government forces and non-state armed groups or between such groups within a state. Common Article 3 of the Geneva Conventions and Additional Protocol II apply in such conflicts. NIACs do not involve conflicts of a purely internal nature (e.g., riots or isolated acts of violence).

Protection of Persons under IHL

1. Civilians:

   • Civilians are protected against attack unless they take a direct part in hostilities. In IACs, civilians enjoy broader protections under the Fourth Geneva Convention.

2. Combatants:

   • Combatants are lawful participants in hostilities and may be attacked, but they must be treated humanely if they are wounded or captured. In IACs, captured combatants are entitled to POW status under the Third Geneva Convention.

3. Prisoners of War (POWs):

   • POWs are protected under the Third Geneva Convention. They must be treated humanely, protected from violence, intimidation, and public curiosity, and provided with adequate food, shelter, and medical care.

4. Wounded and Sick:

   • The First and Second Geneva Conventions provide protection for the wounded and sick in armed forces, both on land and at sea. They must be treated humanely and without adverse distinction.

5. Medical and Religious Personnel:

   • Medical personnel, units, and transports must be respected and protected. They should not be attacked, and they must be allowed to perform their duties. Religious personnel attached to armed forces are also protected.

6. Humanitarian Relief Workers:

   • Humanitarian workers, especially those associated with neutral organizations such as the International Committee of the Red Cross (ICRC), must be allowed access to provide aid to those in need, subject to security requirements.

Means and Methods of Warfare

IHL places significant restrictions on the means and methods of warfare to limit unnecessary suffering and destruction. These restrictions include:

1. Prohibited Weapons:

   • IHL prohibits the use of certain weapons that cause unnecessary suffering or have indiscriminate effects. These include:
     • Biological and chemical weapons (under the Biological Weapons Convention and Chemical Weapons Convention).
     • Anti-personnel landmines (under the Ottawa Treaty).
     • Blinding laser weapons (under the Protocol on Blinding Laser Weapons).

2. Protection of the Natural Environment:

   • Under IHL, the environment is protected against widespread, long-term, and severe damage. Methods and means of warfare that cause such damage are prohibited.

3. Prohibition of Starvation as a Method of Warfare:

   • Starvation of civilians as a method of warfare is prohibited. IHL requires that humanitarian aid be allowed to reach civilian populations in need, even in conflict zones.

4. Sieges and Blockades:

   • Sieges and blockades are permissible under IHL, but the rules of distinction and proportionality apply. Civilians must be allowed to leave besieged areas, and relief operations must be permitted.

Enforcement and Accountability

The enforcement of IHL is a major concern, and various mechanisms have been established to ensure accountability for violations. These include:

1. Grave Breaches:

   • IHL identifies certain acts as “grave breaches,” which are serious violations of the Geneva Conventions and Additional Protocol I. Grave breaches include willful killing, torture, and taking hostages. States are required to investigate and prosecute individuals responsible for grave breaches.

2. War Crimes:

   • War crimes include grave breaches of the Geneva Conventions and other serious violations of IHL, such as targeting civilians, using prohibited weapons, and committing sexual violence. War crimes can be prosecuted domestically or at the international level, including by the International Criminal Court (ICC).

3. International Criminal Court (ICC):

   • The ICC, established under the Rome Statute, has jurisdiction to prosecute individuals for war crimes, genocide, crimes against humanity, and the crime of aggression. The ICC is a court of last resort, acting only when national courts are unwilling or unable to prosecute offenders.

4. Universal Jurisdiction:

   • Under the principle of universal jurisdiction, states have the obligation or right to prosecute individuals for serious violations of IHL, regardless of where the crime was committed or the nationality of the perpetrator or victim.

5. National Courts:

   • States are required under IHL to enact national laws that implement their obligations under IHL, including provisions for the prosecution of war crimes. Many countries have incorporated IHL into their domestic legal systems to enable the prosecution of war criminals.

IHL in the Philippine Context

The Philippines, as a party to the Geneva Conventions and its Additional Protocols, is bound by the provisions of IHL. The Philippines also has relevant domestic laws that implement IHL, such as:

1. Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity):

   • This law provides for the prosecution of individuals responsible for war crimes, genocide, and crimes against humanity under the principle of complementarity with the ICC. It incorporates into Philippine law key provisions of the Geneva Conventions, Additional Protocols, and the Rome Statute of the ICC.

2. Executive Order No. 134 (National IHL Committee):

   • This executive order established the National Committee on International Humanitarian Law, which ensures the Philippines' compliance with IHL and coordinates IHL-related activities with international and domestic organizations.

3. Armed Forces of the Philippines (AFP) Code of Conduct:

   • The AFP adheres to the principles of IHL through its Code of Conduct and various operational guidelines that emphasize the protection of civilians, humanitarian law, and human rights.

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In conclusion, International Humanitarian Law plays a crucial role in regulating armed conflict, protecting non-combatants, and limiting the methods and means of warfare. Its enforcement through both international mechanisms like the ICC and domestic laws like the Philippines’ RA 9851 ensures accountability for violations. While its challenges persist, IHL remains an essential framework for promoting humanity even in times of war.