PUBLIC INTERNATIONAL LAW – ATTY.

ROWELL ILAGAN
CHAPTER 15 | THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)

On the assumption that wars can always occur, there arose the  It includes:
need to formulate laws that can humanize the conduct of war. - all cases of declared war;
- any other armed conflict which may
The Law of War, which is procedural in nature, defines the arise between two or more States
relation between belligerent States which had resorted to force which are party to the Conventions,
to maintain disputed claims and their relations with neutral even if the State of war is not
States. recognized by one of them; and
- all cases of partial or total
WAR ARMED CONFLICT
occupation of the territory of a State
Contention between two or Exists whenever there is a
more States, through their resort to armed force Party, even if said occupation meets
armed forces, for the between States or protracted with no armed resistance.
purposes of overpowering armed violence between  Governed by the Geneva Conventions and
each other and imposing governmental authorities Additional Protocol I
such conditions of peace as and organized armed groups
the victor pleases. or between such groups 2. NON-INTERNATIONAL ARMED CONFLICTS
within a State.  Restricted to the territory of a single state
- International Humanitarian Law (IHL) is a set of  Involves either regular armed forces fighting
rules which seek, for humanitarian reasons, to limit groups of armed dissidents, or armed groups
the effects of armed conflict. It protects persons who fighting each other.
are not or ae no longer participating in the hostilities  Governed by the common Article 3 to the
and restricts the means and methods of warfare. IHL four Geneva Conventions as well as by the
forms today a universal body of law. Additional Protocol II.
 The following criteria are assessed as test for
- Universal Codification of IHL began in the 19 th determining existence of internal armed
century. Since then, States have agreed to a series of conflict as distinguished from banditry/
practical rules, based on the bitter experience of unorganized and short-lived insurrections or
modern warfare. These rules strike a careful balance terrorist activities
between humanitarian concerns and the military a. Intensity of conflict – seriousness
requirements of States. of attacks, spread of clashes over
territory and over a period of time,
- IHL deals with jus in Bello (justice in war), not with increase of no. of government forces
jus ad Bellum (justice of war). The legality of the war and mobilization and distribution of
or the justification for the commencement of the weapons among both parties,
hostilities is irrelevant to IHL. whether conflict has attracted
attention of U.N Security Council
SOURCES OF IHL b. Organization of the Parties –
1. The four Geneva Conventions of 1949; existence of headquarter,
2. Additional Protocols of 1977 relating to the protection designated zones of operation, and
of victims of armed conflicts; ability to procure, transport and
3. The 1954 Convention for the Protection of of Cultural distribute arms
Property in the Event of Armed Conflict, plus its two WHO ARE BOUND BY IHL
protocols;
4. The 1972 Biological Weapons Convention; 1. All actors to an armed conflict in international
5. The 1980 Conventional Weapons Convention and its conflicts, it binds all actors to an armed conflict; and
five protocols; 2. All actors to an armed conflict in internal conflicts, it
6. The 1993 Chemical Weapons Convention the 1997 binds the government, as well as the groups fighting
Ottawa Weapons Convention on anti-personal mines; against it or among themselves.
and
7. The 2000 Optional Protocol to the Convention on the NOTE: Individuals may be held criminally responsible for
Rights of the Child on the involvement of children in “grave breaches” of the Geneva Convention and of
armed conflict. Additional Protocol I, and for other serious violations
of the laws and customs of war (war crimes). IHL
KINDS OF ARMED CONFLICTS GOVERNED BY IHL establishes universal jurisdiction over
persons suspected of having committed all
1. INTERNATIONAL ARMED CONFLICTS such acts.

The rules of IHL applies to both the aggressor

International Humanitarian Law (IHL)
and the victim States. There is no adverse
distinction based on the nature or origin of the armed
 at least two (2) States are involved. conflict or on the causes espoused by or attributed to
 the Parties to the conflict (Preamble of Additional
Protocol I to the Geneva Conventions of 1949).

The rules of the IHL also applies to the UN

Forces taking part in enforcement measures
called by the Security Council. Application of
IHL is dependent on the fact of hostilities occurring;
there is no material difference between hostilities
conducted by or on behalf of the UN and any other
hostilities.

IHL vs. International Human Rights Law

Complementary bodies of law
Seek to protect individual from arbitrary action and abuse;
safeguard fundamental rights of the individual
Specialized body of human Comprehensive insofar as
rights law, fine tuned for they cover almost all aspects
times of armed conflict of life
Takes into account the to be applied to all persons
special circumstances of and respected in all
warfare; may not be circumstances, except in
abrogated under any emergency cases whee
circumstances. derogation from rights is
allowed

- The Hague Conventions of 1899 and 1907 were

The Hague Law

the first multilateral treaties that addressed the

conduct of warfare.

- 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.

- Although their contents have largely been superseded

by other treaties, the Hague Conventions of 1899 and
1907 continue to stand as symbols of the need for
restrictions on war and the desirability of avoiding it
altogether.
- The essence of the Geneva Conventions is that
persons not actively engaged in warfare should be

The Geneva Convention of 1949

Customary and Conventional Law
treated humanely. The rules apply to any
international armed conflict, whether a declared war
or not

Methods of Warfare: Jus in Bello

Basic Rules Governing Armed
Conflicts