LAW OF ARMED CONFLICT
(INTERNATIONAL HUMANITARIAN LAW)
1
MAJOR JAKE J LOPEZ JAGS
Command Judge Advocate
Naval Education, Training & Doctrine Command
Professional Background:
▪ ATTORNEY AND COUNSELOR-AT-LAW
(2010 Bar Exam, First Taker);
▪ Civilian Gov't Employee (CS Eligible, RA 1080);
▪ former Professor (undergraduate level).
Career Highlights:
▪ OTJAG, GHQ, AFP: Legal Officer (Claims Div, Mil
Justice Div, Mil Affairs Div); Chief Admin; GAD
Officer; Budget Officer;
▪ OTPMG, GHQ, AFP: Legal Officer;
▪ Membership in DND-TWG on CBAP;
▪ Membership in various GHQ-AFP Boards and TWG;
▪ OAJA, HPA: Asst Chief, Mil Justice Br; GAD Officer;
▪ OTNJA, HPN: Legal Officer;
▪ NETDC, PN: CJA; Legal Secretary, OESPA; LOAC
Action Officer; former ACPM;
▪ NIF-Zambales: Legal Officer; LOAC Action Officer.
MAJOR JAKE J LOPEZ JAGS
Command Judge Advocate
Naval Education, Training & Doctrine Command
Relevant Trainings:
▪ IHL Training of Trainers, ICRC, 08 March 2022;
▪ Executive Seminar on HR and IHL, US Defense Institute of
Intl Legal Studies, 14 Jun 2019;
▪ Operational Law Training of Trainers, Fried-Stifftung Institute,
06 Sep 2016;
▪ IHL for AFP Legal Officers, ICRC, 15 Nov 2016;
▪ Capacity Bldg and Institutional Planning, AFPHRO, 12 Oct
2019;
▪ Community-Based Dialogue Session for HR Protection for
Northern Luzon, 01 Jun 2018.
1. Be concerned with classroom tidiness.
2. Please silence your mobile phones.
3. Mini-group discussions are fine, but it is best to
address your queries to the lecturer.
4. AUDIENCE PARTICIPATION IS HIGHLY
ENCOURAGED.
5. Questions are welcome anytime, subject to
one-mouth rule.
LEARNING OBJECTIVES
UNDER
KNOW STAND
REALIZE APPLY
SCOPE OF PRESENTATION
1. IHL under IL
a. Basic Concepts
b. Common Article 3, GCs
c. Principles
2. IHL under PH Law
a. RA 9851 (PH IHL Law)
b. AFP Pledge of Affirmation Of Commitment &
Support For IHL.
I.
INTERNATIONAL
HUMANITARIAN LAW
Under
INTERNATIONAL LAW
PRELIMINARIES
1. What is war?
2. How relevant is the study of IHL today?
3. Percentage of peace in recorded history?
4. Causes of war?
CAUSES OF ARMED CONFLICTS
1. Control over resources: power, space, wealth,
property, recognition, spoils
2. Values: religion, ideology, politics, morals
3. Preferences and sensitivities: styles, tastes,
culture, tradition
4. Data: struggle over facts, information,
knowledge or lack of it
5. Structures: systems, set-ups, policies
6. Relationships: clashes of personalities, women
▪ refers to the body of rules
governing relations
between States and other
international persons.
▪ is a set of rules which
seek, for humanitarian
reasons, to limit the
effects of armed conflict.
▪ comprises those rules of
international law which
establish MINIMUM
EVEN WARS HAVE standards of humanity
that must be respected in
LIMITS. any situation of armed
conflict.
INTERNATIONAL HUMANITARIAN LAW
Other nomenclatures
▪ Law of Arms
▪ Law of War (jus in bello);
▪ Laws and Customs of War;
▪ Law of Armed Conflict;
▪ Human Rights Law of Armed Conflict.
BACKGROUND
1. Battle of Solferino and San Martino (24 Jun 1859)
2. Jean-Henri Dunant, “Un Souvenir de Solferino” (1862); “A
Memory of Solferino” (1939)
3. Dunant, International Committee for Aid to the Wounded (soon
to be renamed the ICRC)
4. Lieber Code (Lincoln, 24 Apr 1863)
5. Geneva Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field, 1864
6. Brussels Declaration, 1874 (never adopted by all major
nations)
7. First Hague Convention, 1899
8. Second Hague Convention, 1907
9. Third Hague Convention (supposedly by 1915, did not happen)
10.WW1, 28 Jul 1914-11 Nov 1918
11.WW2, 01 Sep 1939-02 Sep 1945
SOURCES OF IHL
1. Primary Sources
a. GCs 1949, (I)-(IV), & its APs 1-3
b. Treaties/ Conventions
c. CIL (Customary Int Law)
d. GPL (Gen Principles of Law)
2. Secondary Sources
a. Jurisprudence (decisions of intl courts/
tribunals)
b. Treatise (writings of eminent publicists)
NATURE OF IHL
• Applies in times of IAC;
• Regulates the conduct of armed conflicts (jus in
bello);
• Defines the conduct and responsibilities of
belligerent nations, neutral nations and
individuals engaged in warfare, in relation to
each other and to protected persons;
• Serious violations of IHL are considered war
crimes;
• IHL do not prevent combatants from fighting.
SELF-DEFENSE
BASIC FEATURES OF IHL:
• The Geneva Conventions are mandatory for all nations.
Many provisions of IHL are now accepted as customary
law (i.e., as general rules by which all States are
bound);
• IHL are the minimum standards to be followed;
• IHL determines the rights and duties of belligerents in
the conduct of operations and limit the choice of means
of doing harm;
• Application of IHL do not affect the status of the parties.
WHO ARE BOUND BY THE GCs?
▪ Only States may become party to intl treaties;
Almost all the world’s States are party to the
GCs.
▪ However, all parties to an armed conflict
(whether States or non-State actors) are bound
by IHL.
▪ Formal declaration of war is not required.
THE 4 GENEVA CONVENTIONs (1949):
▪ GC I: For the Wounded and the Sick in Armed Forces in
the Field;
▪ GC II: For the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea;
▪ GC III: Treatment of Prisoners of War;
▪ GC IV: Protection of Civilian Persons in Time of War.
ADDT’L PROTOCOLS TO THE GCS (1977):
▪ AP I: Relating to the Protection of Victims of IAC.
▪ AP II: Relating to the Protection of Victims of NIAC.
▪ AP III: Adaption of an Addt’l Distinctive Emblem (2005)
Leading Institutions to Enforce IHL:
• United Nations;
• International Committee of the Red Cross
(ICRC);
• Intl Courts.
TYPES OF CONFLICT
INTERNAL TENSION
IAC NIAC OR DISTURBANCES
• at least 2 States are • those restricted to • level of violence has
involved. the territory of a not yet reached an
single State intensity qualifying
• subject to a wide (involving either the situation as an
range of rules, regular armed armed conflict.
including those set forces fighting
out in the 4 GCs groups of armed
and 3 APs. dissidents, or armed
groups fighting each
other).
WHEN DOES IHL APPLY?
• During armed conflict (IAC, NIAC);
• Does not cover internal tension or disturbances
(such as isolated acts of violence);
• Applies only once a conflict has begun;
• Equally to all sides regardless of who started the
fighting.
PRINCIPLES OF IHL:
1. Distinction;
2. Proportionality;
3. Precaution.
COMMON ART 3, GCs 1949
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, color, 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:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) 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 endeavor 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.
PRINCIPLE OF
DISTINCTION
PRINCIPLE OF DISTINCTION:
“In order to ensure respect for and protection of
the civilian population and civilian objects, the
Parties to the conflict shall at all times distinguish
between the civilian population and combatants
and between civilian objects and military objectives
and accordingly shall direct their operations only
against military objectives.”
[AP1, A48]
PRINCIPLE OF DISTINCTION:
• Persons;
• Properties;
• Means of warfare (weapons and how they may
be used;
• War methods (how hostilities are conduct).
DISTINCTION AMONG PERSONS:
Relief personnel
(surrendered, sick, shipwrecked, in distress;
PDL: civilian internees, detained - NIAC)
WHAT IF A CIVILIAN
PARTICIPATES IN THE
HOSTILITIES?
(DPH)
Civilians lose protection from direct
attack for such time as they
"directly participate in
hostilities".
Art 51(3) AP I;
Art 13(3) AP II.
PRISONERS OF WAR
• IAC (GC3);
• Combatants in the power of the EN;
• Status: from captive to repatriation;
• Purpose: To remove them from fighting;
• Characterization: Not Criminals;
• POW Centers;
• Released after the cessation of hostilities;
• State Responsibility.
CONDITIONS (Arts 21-48, GC 3)
• Entitled to respect for their lives, moral and physical integrity. They
shall in all circumstances treated humanely without any adverse
distinction;
• Forbidden to kill or injure;
• The wounded and sick shall be collected and cared for. Protection
also covers medical personnel, establishments, transports and
equipment;
• Protected against all acts to violence and reprisals;
• Labor paid, and is not mil in character;
• Right to correspond with their families and to receive relief;
• Entitled to benefit from fundamental judicial guarantees. Not to be
held responsible for an act which he has not committed. Not to be
subjected to physical or mental torture, corporal punishment or cruel
or degrading treatment.
CREDIBLE THREAT TEST
• POWs, surrenderees, sick, wounded
• Persons in distress
• Women, pregnant, elders and minors
PROTECTED OBJECTS:
▪ Civilian Objects
▪ Natural Environment
▪ Protective Emblems
▪ Infrastructures containing dangerous substances;
▪ Medical equipment including the means of transport;
▪ Cultural properties (see also: UNESCO acclaimed sites);
▪ Religious buildings;
▪ Historical monuments, archaeological sites, and
museums;
▪ Archives and libraries;
▪ Cemeteries;
▪ Cities/ Zones under special protection
CIVILIAN OBJECTS:
GR: Respect civilian properties
Except:
Those which gives advantage to the enemy.
(A question of attaining a valid military
objective.)
NATURAL ENVIRONMENT:
GR: Must be protected at all times.
Except:
Those which gives advantage to the enemy.
Exemption:
Vital to human survival.
RESTRICTIONS ON WEAPONS AND TACTICS
• Fails to discriminate between combatants and
protected persons/properties;
• Cause superfluous injury or unnecessary
suffering;
• Cause serving of long-term damage to the
environment.
DISTINCTION AMONG WAR METHODS:
➢Protection of properties necessary to the survival of the
civilian population;
▪ Starvation;
▪ Poisoning;
▪ Plundering/ Pillage;
▪ Scorched (burn) land; and
▪ Retaliations.
➢Perfidy : employing unlawful tactics in order to take
advantage against the enemy
➢Fighting without protecting behind civilian –
▪ Hostages;
▪ Human shields.
DISTINCTION AMONG WAR
METHODS:
➢Fighting without discrediting the
emblem –
▪ IMITATION (use of sign, which, by its
shape and/color, may cause
confusion with the color);
▪ MISUSE (use of the emblem by
bodies or persons not entitled to do
so (pharmacist, private doctors,
NGO’s, or individuals), or if the
person normally authorized to use
the emblem fail to do so in
accordance with the rules);
▪ PERFIDY (use of the emblem in
order to take advantage against the
enemy).
PERSONS UNDER THE PROTECTED EMBLEMS
ARE NON-COMBATANTS
Provided:
▪ The use of emblem is legal; and
▪ Authorized to accomplish the mission.
PRINCIPLE OF
PROPORTIONALITY
PRINCIPLE OF PROPORTIONALITY:
“Loss of life and damage to
property incidental to attacks must not be
excessive in relation to the concrete and
direct military advantage expected to be
gained.”
[US Army Field Manual FM27-10:
Law of Land Warfare]
PROPORTIONALITY
• Requires that the use of force be limited in
intensity, duration, and magnitude to what is
reasonably required to counter the attack or
threat of attack;
• CD must be incidental (i.e., outside of the
military target);
• Proportionality is not a requirement if the target
is purely military;
• Equality of forces?
LEGITIMATE?
A B
MA > CD = LEGIT
LEGITIMATE?
PRINCIPLE OF
PRECAUTION
PRINCIPLE OF PRECAUTION:
“CAREFULNESS/PRECISION”
“In the conduct of military operations, constant
care shall be taken to spare the civilian
population, civilians and civilian objects.”
(AP I, Art. 57(1); CIHL, Rule 15)
PRECAUTION:
Obligation to consider all options when making
targeting decisions:
• verify the target;
• time and timing (least civilians);
• weapons used;
• warnings and evacuations for civilian
populations;
• To take distance from protected persons and
objects, as much as possible;
• No use of civilian labour;
• No shooting in doubt;
• Use of safeguarding measures.
II.
INTERNATIONAL
HUMANITARIAN LAW
Under
PHILIPPINE LAW
SEC 2, ART II, 1987 CONSTITUTION
“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.”
Signed into law: 11 Dec 2009
Effective: 2010
AN ACT DEFINING AND PENALIZING CRIMES
AGAINST INTERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND OTHER CRIMES AGAINST
HUMANITY, ORGANIZING JURISDICTION,
DESIGNATING SPECIAL COURTS, AND FOR RELATED
PURPOSES
S1. Short Title. - This Act shall be known as the
"Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes
Against Humanity".
PHIL IHL LAW
AFP PLEDGE OF AFFIRMATION OF COMMITMENT &
SUPPORT FOR IHL
I, ___, an AFP Soldier, do hereby solemnly pledge & reaffirm my
commitment:
THAT, I will strictly adhere to the LOAC or the IHL in the conduct
of mil action;
THAT, I will distinguish at all times, & under all circumstances,
between mil objectives & civilian objects & between combatants &
civilians during combat operations;
THAT, I will apply proportionately the degree & kind of force that
is not excessive but is necessary to defeat my enemy;
THAT, I shall take all reasonable precautions to avoid losses of
civilian lives & damage to civilians;
THAT, I will treat civilians & non-combatants, the wounded, sick
& shipwrecked & any defenseless enemy humanely at all times;
THAT, I will stand up for my obligations as a party to a conflict,
in my role as protector of the Filipino people and the State;
So help me God.
SUMMARY
1. IHL under IL
a. Basic Concepts
b. Common Article 3, GCs
c. Principles
2. IHL under PH Law
a. RA 9851 (PH IHL Law)
b. AFP Pledge of Affirmation Of Commitment &
Support For IHL.
Q
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ACTIVITY
• Individually, answer the following queries (not
more than 2 pages; size A4; 1 inch margin on all
sides; font Arial size 12; single spacing; no
unnecessary markings).
• Submit in PDF NLT 081700H Jan 2023, to your
Course Director. No turn-ins will be accepted,
unless sent to me by the CD;
• Do not use coversheets for any purpose.
• Use the following format in file naming:
NCC04.CODENAME
International Humanitarian Law Date
NCC04:CODENAME
1.
2.
3.
4.
5. ROE Card
SCENARIO: CASE ANALYSIS (100 pts)
1. State the major facts of the case. (20 pts)
2. What is the major issue? (10 pts)
3. How did the American combatants resolved the
issue? (25 pts)
4. Is the resolution correct? Why or why not?
State your basis. (25 pts)
5. Craft an ROE Card for this scenario. (10 pts)
(Following instructions: 10 pts)
END OF PRESENTATION
