Public International Law: Chapter XV - The Law of War (International Humanitarian Law)

The Law of War (International Humanitarian Law)

International Humanitarian Law. 

• What used to be known as the Laws of War now come under what is called International Humanitarian Law.
• It provides for instances when the use of armed force is justifiable (jus ad be Hum); and 
• It regulates the conduct of armed conflict (jus in bello). 
• Hyde, writing in 1922, said: 
• “It always lies within the power of a State ... to gain political or other advantages over another, not merely by the employment of force, but also by direct recourse to war.”
• Early international law did not consider as illegal a war admittedly waged for such purposes. 
• It rejected, to that extent, the distinction between just and unjust wars. 
• War was in law a natural function of the State and a prerogative of its uncontrolled sovereignty. 
• There were early attempts to outlaw war such as in the:
1. Hague Convention II (1907)
2. Covenant of the League of Nations (1919),
• Kellog-Briand Pact for the Renunciation of War (1928). 
• But these did not prevent the horrors of World War II. 
• It was after World War II that a more effective law on preventing war was formulated.
• Article 2(4) of the UN Charter says: 
• “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.” 
• In effect, this provision outlaws war. 
• The paradox, however, is that side by side with the prohibition of armed conflict is the proliferation of laws of war. 
• Three facts can explain the paradox: 
1. first, those who resort to the use of arms do not give up until they have achieved victory;
2. second, given the first fact, humanitarian considerations dictate the need for rules which curtail violence beyond what is necessary to achieve a state’s goal;
3. third, 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. From the middle of the last century the law on the area developed as a result of the pioneering effort of Henry Dunant who had been appalled by the brutality of the battle of Solferino.
• His book “A Memory of Solferino” inspired the creation of the International Red Cross in 1863 and his ideas found their way into the 1864 Geneva Convention.

The Hague Law. 

• Early laws of war were customary. At present the laws are largely conventional. 
• In 1899, twenty-six countries met at The Hague and promulgated Conventions and Declaration. 
• More conferences were held in 1907. 
• The principles adopted in these conferences constitute that part of the law of armed conflict still known as the Law of the Hague governing land and naval warfare. 
• Principles governing the conduct of air warfare were to follow later. 

The Geneva Conventions of 1949. 

• One of the most significant developments in the law of armed conflicts was the adoption in 1949 of four Geneva “Red Cross” Conventions governing: 
• I — Wounded and Sick in the Field; 
• II — Wounded, Sick and Shipwrecked at Sea; 
• III — Prisoners of War; 
• IV — Civilians. 
• The Convention on civilians is completely new and is the result of the experience of civilians in occupied territory during World War II. 
• The essence of the Geneva conventions is that persons not actively engaged in warfare should be treated humanely. 
• The rules apply to any international armed conflict, whether a declared war or not. 

Customary and Conventional Law. 

• Much of what is embodied in the Hague and Geneva Conventions are customary law. 
• Thus, non-parties to the Convention are covered by the customary law of armed conflict. 
• It has in fact become common practice, when one of the parties to the conflict is not a party to the conventions, for such party to make a declaration that it will abide by the terms of the Convention. 
• Japan, for instance, did just that at the outbreak of the Pacific War.

Commencement and Termination of Hostilities.

• Under the Hague Convention III, for an armed conflict to be considered a war in a legal sense, the hostilities should be preceded by a declaration of war or an ultimatum with a fixed limit. 
• Since 1939, however, most armed conflicts have commenced without a declaration or ultimatum. 
• With the exception of the attack on Poland, Germany’s attack on other states was done without benefit of declaration. 
• So was Japan’s attack on Pearl harbor. 
• Thus, 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 lodged elsewhere, that is, in the executive power which holds the sword of the nation.
• The executive power, when necessary, may make war even in the absence of a declaration of war.
•  In the words of the American Supreme Court, war being a question of actualities, “the President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.
• For that matter, as far as the UN Charter is concerned, there is no provision requiring a declaration of war or an ultimatum. 
• Normally, however, the victims of the attack respond with a declaration of war.
• The commencement of hostilities result in the severance of all normal relations. 
• Political and economic treaties are terminated. 
• However, treaties of a humanitarian character remain in force.
• 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.
• The laws of armed conflict remain in effect until the conflict is terminated. 
• There is some conflict as to when armed conflict actually ends. 
• But the clearest method of termination is by means of a peace treaty. 
• Nevertheless, even in the absence of a peace treaty, once the combatant states have made a declaration that hostilities have come to an end, the armed forces are bound by such declaration.
• Armistice, however, which is an agreement to suspend hostilities, whether local or general, does not end the conflict. 
• But it puts an end to active fighting in accordance with the terms of the agreement.

Protocol I 

• Protocol I to the 1949 Geneva Convention created a new category of international armed conflict. 
• It includes within the definition of international armed conflict armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. 
• Those engaged in such a conflict receive combatant status and are entitled to combatant rights and duties. 
• For instance, when captured, they are not to be treated as ordinary criminals but as prisoners of war.

Methods of Warfare: Jus in Bello. 

• The purpose of the laws on armed conflict is well expressed by the nineteenth century Declaration of St. Petersburg which said: 
• The progress of civilization should have the effect of alleviating as much as possible the calamities of war: the only legitimate object which states should endeavour to accomplish during war is to weaken the military forces of the enemy; for this purpose it is sufficient to disable the greatest possible number of men; this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; the employment of such arms would, therefore, be contrary to the laws of humanity. 
• Thus, it is that 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. 
• This is also expressed in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ 1996):
• The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non- combatants; states much never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants; its is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, states do not have unlimited freedom of choice of means in the weapons they use. 
• The International Commission of the Red Cross published three statements which sum up the basic rules governing armed conflicts:
1. The Soldier’s Rules
2. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts
3. Non-International Armed Conflicts 
• A. General Rules
• B. Prohibitions and Restrictions on the Use of Certain Weapons

 I. The Soldier’s Rules

1. Be a disciplined soldier. Disobedience of the laws of war dishonours your army and yourself and causes unnecessary suffering; far from weakening the enemy’s to fight, it often strengthens it. 
2. Fight only enemy combatants and attack only military objectives. 
3. Destroy no more than your mission requires. 
4. Do not fight enemies who are ‘out of combat’ [hors de combat] or surrender. Disarm them and hand them over to your superior.
5. Collect and care for the wounded and sick, be they friend or foe.
6. Treat all civilians and all enemies in your power with humanity. 
7. Prisoners of war must be treated humanely and are bound to give only information about their identity. No physical or mental torture of prisoners of war is permitted. 
8. Do not take hostages.
9. Abstain from all acts of vengeance.
10. Respect all persons objects bearing the emblem of the red cross, red crescent, red lion and sun, the white flag of truce or emblems designating cultural property. 
11. Respect other people’s property. Looting is prohibited. 
12. Endeavour to prevent any breach of the above rules. Report any violation to your superior. Any breach of the law of war is punishable.

II. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts

1. 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. They shall in all circumstances be protected and treated humanely without any adverse distinctions. 
2. It is forbidden to kill or injure an enemy who surrenders or is hors de combat. 
3. The wounded and sick shall be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and equipment. The emblem of the red cross or the red crescent is the sign of such protection and must be protected.
4.  Captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the rights to correspond with their families and receive relief. 
5. Everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be responsible for an act he has not committed. No one shall be subjected to physical and mental torture, corporal punishment or cruel or degrading treatment.
6. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
7. Parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Neither the civilian population as such nor civilian persons shall be the object of attack. Attacks shall be directed only against military objectives.

III. Non-International Armed Conflicts 

A. General Rules

1. The obligation to distinguish between combatants and civilians is a general rule applicable in non-international armed conflicts. It prohibits indiscriminate attacks. 
2. The prohibition of attacks against the civilian population as such or against individual civilians is a general rule applicable in non-international conflicts. Acts of violence in tended primarily to spread terror among the civilian population are also prohibited.
3. The probation of superfluous injury or unnecessary suffering is a general rule applicable in non-international conflicts. It prohibits, in particular, the use of means of warfare which uselessly aggravate the sufferings of disabled men or render their death inevitable.
4. The prohibition to kill, injure or capture an adversary by resort to perfidy is a general rule applicable in non-international armed conflicts; in a non-international armed conflict, acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord protection under the rules of international law applicable in non-international armed conflicts, with intent to betray that confidence, shall constitute perfidy. 
5. The obligation to respect and protect medical and religious personnel and medical units and transports in the conduct of military operations is a general rule applicable in non-international armed conflicts.
6. The general rule prohibiting attacks against the civilian population implies, as a corollary, the prohibition of attacks on dwellings and other installations which are used only by the civilian population. 
7. The general rule prohibiting attacks upon the civilian population implies, as a corollary, the prohibition to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population. 
8. The general rule to distinguish between combatants and civilians and the prohibition of attacks against the civilian population as such or against individual civilians implies, in order to be effective, that all feasible precautions have to be taken to avoid injury, loss or damage to the civilian population.

B. Prohibitions and Restrictions on the Use of Certain Weapons

1. The customary rule prohibiting the use of chemical weapons, such as those containing asphyxiating or vesicant agents, and the use of bacteriological (bacterial) weapons is applicable in non-international armed conflicts.
2. The customary rule prohibiting bullets which expand or flatten easily in the human body, such as Dum-Dum bullets, is applicable in non-international armed conflicts.
3. The customary rule prohibiting the use of poison as a means of warfare is applicable in non-international armed conflicts.
4. In application of the general rules listed in section A above, especially those on the distinction between combatants and civilians and on the immunity of the civilian population, mines, booby-traps and other devices within the meaning of Protocol II to the 1980 Convention on conventional weapons may not be directed against the civilian population as such or against individual civilians, nor used indiscriminately. 
• The prohibition of booby-traps listed in Article 6 of the Protocol extends to their use in non-international armed conflicts, in application of the general rules on the distinction between combatants and civilians, the immunity of the civilian population, the prohibition of superfluous injury or unnecessary suffering, and the prohibition of perfidy. 
• To ensure the protection of the civilian population referred to in the previous paragraphs, precaution must be taken to protect it from attacks in the form of mines, booby-traps and other devices. 
5. In application of the general rules listed in section A above, especially those on the distinction between combatants and civilians and on the immunity of the civilian population, incendiary weapons may not be directed against the civilian population as such, against individual civilians or civilian objects, nor used indiscriminately.

Neutrality.

• In a conflict among various powers, there are always some who prefer to stay out of the fray. 
• They adopt an attitude of impartiality towards the belligerents. 
• Such an attitude must be recognized by belligerents and creates both rights and duties in the neutral states. 
• The decision to adopt or not to adopt a neutral stance is not governed by international law.
• It is a dictated by politics. 
• For that reason, there is no special mode of assertion required. 
• Belligerents must respect the rights of neutral states. 
• For their part, neutrals must not engage in activities which interfere with the activities of the belligerents. 
•  The detailed rules concerning the rights and duties of neutrals and belligerents are found in Hague Convention V, 1907.

Non-international conflicts.

Civil wars

• Civil wars or rebellion do not violate international law. 
• Article 2(4) of the Charter does not apply to internal conflicts. 
• Outside help for governments experiencing rebellion is generally considered legitimate provided requested by the government. 
• However, there is no total clarity in this matter especially in situations were the rebels may be on the verge of gaining victory. 
• Aid to rebels is contrary to international law. 
• The 1970 Declaration on Principles of international law says that “no state shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another state, or interfere in civil strife in another state.” 

Common Article 3 

• Traditionally, international law on armed conflict does not apply to internal conflicts such as civil wars or rebellions. 
• In 1949, however, it was decided that minimum humanitarian protection should also be promulgated to cover internal conflict. 
• For this reason, each of the four Geneva Conventions contains a common Article 3 which says: 

Art. 3. 

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
• To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
1. violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
2. taking of hostages;
3. outrages upon personal dignity, in particular humiliating and degrading treatment; 
4. the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. 
• The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. 
• The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

• The last sentence means that the application does not convert the conflict into an international one and therefore does not preclude the possibility that any participant in the conflict may be prosecuted for treason. 

Protocol II

• The first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict is the 1977 Protocol II to the 1949 Geneva Conventions. 
• It “develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application.” 
• A non-international armed conflict covered by this expanded guarantee is defined in Article I. They are armed conflicts — 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. 
• Article I further adds that the “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.” 
• This is true even if the armed forces of the territory may have been called upon to suppress the disorder.
• It will thus be seen that Protocol II sets down requirements for what it calls “material field of application.” 
1. the armed dissidents must be under responsible command; 
2. 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.” 
• The Protocol thus sets a very high threshold for applicability, higher than the threshold for the applicability of Protocol I which does not require control over territory. 
• For this reason, in the conflict between the Philippine government and the National Democratic Front, the Philippine government has been able to maintain consistently that the NDF and its New People’s Army have not crossed this threshold and that therefore what applies to them is Common Article 3.

International Terrorism.

• There is no crime named terrorism in Philippine statute books, although some acts which are considered terroristic are independently punished by the Revised Penal Code. 
• Read: Anti-Terrorism Act of 2020
• The U.S. has its municipal Anti- Terrorism Law (International Crime Control Act of 1998) and the UK has the Terrorism Act of 2000. 
• In the British law, what come under the Terrorism Act are 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. 
• The taking of hostages, indiscriminate killings or destruction of property for the enumerated purposes come under the law.
•  But these can also be prosecuted as individual crimes in domestic law.
• In international law, part of the problem in criminalizing terrorism is the difficulty in defining the prohibited act.
•  A draft of an International Convention for the Suppression of the Financing of Terrorism adopted by the General Assembly of the United Nations on December 9, 1999 makes an attempt at a definition. 
• It says: Any person commits an offense [of terrorism] within the meaning of this Convention if that person, by any means, unlawfully and intentionally, does an act intended to cause (a) death or serious bodily injury to any person, or (b) serious damage to a State or Government facility with the intent to cause extensive destruction of such a place, facility or system, or where such destruction results or is likely to result in major economic loss, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act. 
• Can it be said, however, that even now terrorism is already a crime against humanity covered by universal jurisdiction? 
• The attack on the World Trade Center on September 11, 2001, was characterized as a crime against humanity by the French jurist and Minister of Justice, Robert Badinter, and likewise by Kofi Annan of the UN Secretariat and by Mary Robinson, the UN High Commissioner on Human Rights. 
• They were followed in this by a number of distinguished jurists like Alain Pellet of Le Monde and the British lawyer G. Robinson. What led them to arrive at this conclusion was the atrocious character exhibited by the act: its magnitude, its gravity, the targeting of civilians seen as part of a well-planned operation. A time may come when other states will follow in characterizing the act as a crime against humanity. 
• But it would be necessary to determine what the specific conditions should be for considering an act as one against humanity. 
• Obviously not every act of terrorism would have the magnitude and gravity of the September 11 attack. 
• The importance of the characterization of the September 11 attack as a crime against humanity is that it led to what seems to be a development in the  international law of self-defense. 
• Under traditional international law as now embodied in the UN Charter, self-defense is a legitimate response to an armed attack by a state.
• But the magnitude of the attack of September 11 was such that it persuaded the Security Council and the North Atlantic Treaty Organization to issue resolutions which in effect justified resort to Art. 51 of the UN Charter on collective self-defense without waiting for action by the Security Council.
• A NATO press release agreed that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. 
• Thus the action of the various states which have joined the coalition against the forces of Bin Laden has assimilated the terrorist attack on the WTC to an attack by a state sufficient to trigger resort to collective self-defense. 
• If this means a development in the international law on self defense, it would still be necessary to deal with some problems that need clarification. For one, of what magnitude should the attack be to merit assimilation with an attack by a state? 
• This is relevant for determining whether the activities, for instance, of the Abu Sayyaf, even if internationally connected, are of a magnitude to qualify as an “armed attack” under the terms of the Mutual Defense Treaty between the Philippines and the United States.
• Moreover, as one writer put it with regard to fighting terrorism, “Problems arise with regard to the target of self defense, its timing, its duration, and the admissible means.”
• The issue of target necessarily brings in the issue of sovereignty because presumably the targets would be found in some state territory. Furthermore, at what point would justifiable self-defense end? 
• In traditional wars, this is more easily determined. Not so in the fight against terrorism. Finally, one would have to ask what means are justifiable. 
• These questions are central to the conflict between Israel and Hamas of Palestine.