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M. International humanitarian law

1. Categories of armed conflicts

“International humanitarian law is 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. International humanitarian law is also known as the law of war or the law of armed conflict.” (International Committee of the Red Cross, Advisory Service on International Humanitarian Law dated July 2004, What is International Humanitarian Law, https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf)

“Armed conflict” – means any use of force or armed violence between States or a protracted armed violence between governmental authorities and organized armed groups or between such groups within that State: Provided, That such force or armed violence gives rise, or may give rise, to a situation to which the Geneva Conventions of 12 August 1949, including their common Article 3, apply. (Section 3[c], R.A. 9851, Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.)

Armed conflict may be international, that is, between two (2) or more States, including belligerent occupation; or non-international, that is, between governmental authorities and organized armed groups or between such groups within a state. It does not cover internal disturbances or tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (Ibid.)

“Armed forces” – means all organized armed forces, groups and units that belong to a party to an armed conflict which are under a command responsible to that party for the conduct of its subordinates. Such armed forces shall be subject to an internal disciplinary system which enforces compliance with International Humanitarian Law. (Section 3[d], Ibid.)

“Perfidy” – means acts which invite the confidence of an adversary to lead him/her to believe he/she is entitled to, or is obliged to accord, protection under the rules of International Humanitarian Law, with the intent to betray that confidence, including but not limited to:

1) feigning an intent to negotiate under a flag of truce;

2) feigning surrender;

3) feigning incapacitation by wounds or sickness;

4) feigning civilian or noncombatant status; and

5) feigning protective status by use of signs, emblems or uniforms of the United Nations or of a neutral or other State not party to the conflict. (Section 3[o], Ibid.)

“Persecution” – means the international and severe deprivation of fundamental rights contrary to international law by reason of identity of the group or collectivity. (Section 3[p], Ibid.)

“Torture” – means the intentional infliction of severe pain or suffering, whether physical, mental, or psychological, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. (Section 3[s], Ibid.)

a. International armed conflicts

“An international armed conflict occurs when one or more States have recourse to armed force against another State, regardless of the reasons or the intensity of this confrontation. No formal declaration of war or recognition of the situation is required. The existence of an international armed conflict, and as a consequence, the possibility to apply International Humanitarian Law to this situation, depends on what actually happens on the ground. It is based on factual conditions. Apart from regular, inter-state armed conflicts, Additional Protocol I extends the definition of international armed conflicts to include armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes in the exercise of their right to self-determination (Wars of national liberation).” (Casebook, International Committee eof the Red Cross, National Liberation Wars, https://casebook.icrc.org/glossary/national-liberation-wars)

b. Internal or non-internal armed conflict

“Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. 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.” (ICRC, Advisory Service on International Humanitarian Law dated July 2004, What is International Humanitarian Law, supra.)

“A non-international (or ‘internal’) armed conflict refers to a situation of violence involving protracted armed confrontations between government forces and one or more organized armed groups, or between such groups themselves, arising on the territory of a State.” (Kathleen Lawand, International Committee of the Red Cross, https://www.icrc.org/en/doc/resources/documents/interview/2012/12-10-niac-non-international-armed-conflict.htm)

“In contrast to an international armed conflict, which opposes the armed forces of States, in a non-international armed conflict at least one of the two opposing sides is a non-State armed group.” (Ibid.)

1) The 2 criteria

“IHL requires that two criteria be met for there to be a non-international armed conflict: the armed groups involved must show a minimum degree of organization and the armed confrontations must reach a minimum level of intensity.” (Ibid.)

c. War of national liberation

“Wars of national liberation were formerly classed by international law as civil wars but are now regarded as international armed conflict and therefore regulated as such by international humanitarian law. They are armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination.” (Casebook, International Committee eof the Red Cross, supra.)

2. Core international obligations of States

a. COVERAGE

International humanitarian law covers two areas:

1) The protection of those who are not, or no longer, taking part in fighting; and,

2) Restrictions on the means of warfare – in particular weapons – and the methods of warfare, such as military tactics. (ICRC, Advisory Service on International Humanitarian Law dated July 2004, What is International Humanitarian Law, supra.)

1) Protection

“International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick combatants, and prisoners of war.” (Ibid.)

2) Restriction

International humanitarian law prohibits all means and methods of warfare which:

1) Fail to discriminate between those taking part in the fighting and those, such as civilians, who are not, the purpose being to protect the civilian population, individual civilians and civilian property;

2) Cause superfluous injury or unnecessary suffering;

3) Cause severe or long-term damage to the environment. (Ibid.)

“Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines. (Ibid.)

b. WAR CRIMES

1) War crimes

“War crimes” or “crimes against Interntional Human Humanitarian Law” means:

a) International armed conflict

In case of an international armed conflict , grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under provisions of the relevant Geneva Convention:

1) Willful killing;

2) Torture or inhuman treatment, including biological experiments;

3) Willfully causing great suffering, or serious injury to body or health;

4) Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly;

5) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

6) Arbitrary deportation or forcible transfer of population or unlawful confinement;

7) Taking of hostages;

8) Compelling a prisoner a prisoner of war or other protected person to serve in the forces of a hostile power; and

9) Unjustifiable delay in the repatriation of prisoners of war or other protected persons. (Section 4[a], R.A. 9851)

b) Non-international armed conflict

In case of a non-international armed conflict, serious violations of common Article 3 to the four (4) Geneva Conventions of 12 August 1949, namely , any of the following acts committed against persons taking no active part in the hostilities, including member of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause;

1) Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

2) Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;

3) Taking of hostages; and

4) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. (Section 4[bs], Ibid.)

c) Other serious violations of the laws and customs applicable in armed conflict

Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, namely:

1) Internationally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

2) Intentionally directing attacks against civilian objects, that is, object which are not military objectives;

3) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with intentional law;

4) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as ling as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

5) Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;

6) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and causing death or serious injury to body or health .

7) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;

8) Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at discretion;

9) Making improper use of a flag of truce, of the flag or the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions or other protective signs under International Humanitarian Law, resulting in death, serious personal injury or capture;

10) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. In case of doubt whether such building or place has been used to make an effective contribution to military action, it shall be presumed not to be so used;

11) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons;

12) Killing, wounding or capturing an adversary by resort to perfidy;

13) Declaring that no quarter will be given;

14) Destroying or seizing the enemy’s property unless such destruction or seizure is imperatively demanded by the necessities of war;

15) Pillaging a town or place, even when taken by assault;

16) Ordering the displacements of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

17) Transferring, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

18) Commiting outrages upon personal dignity, in particular, humiliating and degrading treatments;

19) Commiting rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions or a serious violation of common Article 3 to the Geneva Convensions;

20) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;

21) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indespensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions and their Additional Protocols;

22) In an international armed conflict, compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war;

23) In an international armed conflict, declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;

24) Commiting any of the following acts:

(i) Conscripting, enlisting or recruiting children under the age of fifteen (15) years into the national armed forces;

(ii) Conscripting, enlisting or recruiting children under the age of eighteen (18) years into an armed force or group other than the national armed forces; and

(iii) Using children under the age of eighteen (18) years to participate actively in hostilities; and

25) Employing means of warfare which are prohibited under international law, such as:

(i) Poison or poisoned weapons;

(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(iii) Bullets which expand or flatten easily in the human body, such as bullets with hard envelopes which do not entirely cover the core or are pierced with incisions; and

(iv) Weapons, projectiles and material and methods of warfare which are of the nature to cause superfluous injury or unecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. (Section 4[c], Ibid.)

2) Genocide

“Genocide” – means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group as such:

1) Killing members of the group;

2) Causing serious bodily or mental harm to members of the group;

3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4) Imposing measures intended to prevent births within the group; and

5) Forcibly transferring children of the group to another group. (Section 5[a], Ibid.)

It shall be unlawful for any person to directly and publicly incite others to commit genocide.

3) Other Crimes Against Humanity

“Other crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

1) Willful killing;

2) Extermination;

3) Enslavement;

4) Arbitrary deportation or forcible transfer of population;

5) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

6) Torture;

7) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

8) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act;

9) Enforced or involuntary disappearance of persons;

10) Apartheid; and

11) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. (Section 6, Ibid.)

3) Individual criminal responsibilities

In addition to existing provisions in Philippine law on principles of criminal responsibility, a person shall be criminally liable as principal for a crime defined and penalized in this Act if he/she:

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

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

3) In any other way contributes to the commission or attempted commission of such a crime by a group of person acting with a common purpose. Such contribution shall be intentional and shall either:

(i) 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 defined in this Act; or (ii) be made in the knowledge of the intention of the group to commit the crime. (Section 8[a], Ibid.)

A person shall be criminally liable as accomplice for facilitating the commission of a crime defined and penalized in this Act if he/she aids, abets or otherwise assists in its commission or attempted commission, including providing the means for its commission. (Section 8[b], Ibid.)

A person shall be criminally liable for a crime defined and penalized in this Act if he/she attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intention. 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 Act for the attempt to commit the same if he/she completely and voluntarily gave up the criminal purpose. (Section 8[c], Ibid.)

a) Irrelevance of Official Capacity

This Act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

1) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

2) Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act, nut only within the bounds established under international law. (Section 9, Ibid.)

b) Responsibility of Superiors

In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

1) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

2) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (Section 10, Ibid.)

c) Non-prescription

The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription. (Section 11, Ibid.)

d) Orders from a Superior

The fact that a crime defined and penalized under this Act has been committed by a person pursuant to an order of a government or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless all of the following elements occur:

1) The person was under a legal obligation to obey orders of the government or the superior in question;

2) The person did not know that the order was unlawful; and

3) The order was not manifestly unlawful. (Section 12, Ibid.)

For the purposes of this section, orders to commit genocide or other crimes against humanity are manifestly unlawful. (Paragraph 2, Section 12, Ibid.)

3. Principles of international humanitarian law

a. Treatment of civilians

“[The sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected.” (ICRC, Advisory Service on International Humanitarian Law dated July 2004, What is International Humanitarian Law, supra.)

“Protect[ed] person” – in an armed conflict means:

1) a person wounded, sick or shipwrecked, whether civilian or military;

2) a prisoner of war or any person deprived of liberty for reasons related to an armed conflict;

3) a civilian or any person not taking a direct part or having ceased to take part in the hostilities in the power of the adverse party;

4) a person who, before the beginning of hostilities, was considered a stateless person or refugee under the relevant international instruments accepted by the parties to the conflict concerned or under the national legislation of the state of refuge or state of residence;

5) a member of the medical personnel assigned exclusively to medical purposes or to the administration of medical units or to the operation of or administration of medical transports; or

6) a member of the religious personnel who is exclusively engaged in the work of their ministry and attached to the armed forces of a party to the conflict, its medical units or medical transports, or non-denominational, noncombatant military personnel carrying out functions similar to religious personnel. (Section 3[q], R.A. 9851)

b. Prisoners of war

“It is forbidden to kill or wound an enemy who surrenders or is unable to fight.” (ICRC, Advisory Service on International Humanitarian Law dated July 2004, What is International Humanitarian Law, supra.)

4. Law of neutrality

Neutrality – is defined as “the legal status arising from the abstention of a state from all participation in a war between other states, the maintenance of an attitude of impartiality toward the belligerents, and the recognition by the belligerents of this abstention and impartiality.” (United Nations, International Day of Neutrality, https://www.un.org/en/observances/neutrality-day)

“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. This status entails specific rights and duties. On the one hand, 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. (International Committee of the Red Cross, Lesson 8, The Law of Armed Conflict, Neutrality, https://www.icrc.org/en/doc/assets/files /other/law8_final.pdf)

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