Comprehensive Notes on International Humanitarian Law (IHL) and Related Topics

International Humanitarian Law (IHL) and the Law of Armed Conflict (LOAC)

  • IHL as a core component of military education: provides understanding of human rights related law to empower protection and respect for rights of every individual.
  • Purpose: create a culture of accountability and integrity within the security sector; backbone of protecting every citizen's rights in future service.
  • A guiding quote (attribution to Attorney Yavgar Perre): of the last ~3,400 years, humans have been entirely at peace for only about 268 years. This underscores the need for law governing armed conflict.

What is IHL and when does it apply?

  • International humanitarian law (IHL), also known as the law of armed conflict (LOAC), is the body of rules that limits the effects of armed conflict.
  • IHL protects those not or no longer participating in hostilities, including:
    • Civilians directly taking part in hostilities and those no longer taking part (e.g., wounded or sick).
    • Combatants who have ceased to take part in fighting.
  • IHL regulates the means and methods of warfare to protect human dignity and mitigate suffering.
  • IHL aims to balance military necessity with humanitarian concerns; it does not condone war but seeks to limit its harm.

Core questions from the discussion

  • Is there a law that governs armed conflict? Yes: IHL.
  • What happens when there are questions about legitimacy of war? The rules still apply; they are binding in armed conflict and protect civilians and those no longer participating.
  • Is IHL the same as human rights law? IHL operates in all times of armed conflict; IHRL applies in peace and during armed conflict, but IHL remains active during hostilities.
  • Do both parties to a conflict have to abide by IHL? Yes; both states and non-state actors are bound and accountable for breaches.
  • Does IHL distinguish between international and non-international armed conflicts? Yes, with two main types:
    • International armed conflicts (IAC): between states (e.g., Russia–Ukraine ongoing scenario mentioned).
    • Non-international armed conflicts (NIAC): within a single state involving government forces and non-state armed groups (e.g., internal disturbances, protracted armed violence).
  • How are NIAC criteria defined? Internal disturbances and tensions, violence at various stages, and a protracted level of armed violence.

History and evolution of IHL

  • Sulferino (Solferino) incident (1859): Henri Dunant witnessed the battle in Northern Italy; the wounded could not be cared for due to overwhelmed medical services.
  • Dunant’s response: organized neutral aid for wounded soldiers; this inspired the idea of neutral, independent relief for wounded, regardless of side.
  • A Memory of Solferino (1862): Dunant’s book proposing neutral relief bodies.
  • International Committee of the Red Cross (ICRC): founded by Dunant and four others (1863/1864) to protect wounded in war and to promote humanitarian protection.
  • Geneva Conference (1864): adoption of the first Geneva Convention for Neutral Help and Protection for Wounded Soldiers; established relief societies and neutral care.
  • Post-war development: subsequent Geneva Conventions expanded protections for wounded, sick, shipwrecked, prisoners of war, and civilians.
  • Emblems of humanity: to protect medical personnel and facilities during armed conflict (Red Cross, Red Crescent, later Red Crystal).
    • 1864: Red Cross emblem adopted.
    • 1929: Red Crescent recognized (non-Christian symbol for Muslim countries).
    • 2005: Red Crystal added as an additional neutral emblem (e.g., for Israel context, per transcript).
  • The ICRC acts as a reference and watchdog for IHL, guiding states and non-state actors; it does not prosecute crimes but supports implementation.
  • Modern era: additional Geneva Conventions post-World Wars plus Additional Protocols I and II improving protection for civilians and combatants; Hague Conventions; Ottawa Treaty (Mine Ban) and other treaties addressing means and methods of warfare.
  • IHL sources include: Geneva Conventions (main text and Additional Protocols), Hague Conventions, and other treaties restricting means and methods of warfare (including disarmament-related instruments).
  • Domestic incorporation: many states domesticate IHL, e.g., Philippines’ legal framework (see below).

Key principles of IHL

  • Distinction: parties must distinguish between combatants and civilians; civilian objects must not be targeted; combatants must be distinguished from non-combatants.
  • Proportionality: force used in attack must be proportionate to the concrete military objective and not cause excessive civilian damage relative to the anticipated military gain.
  • Precautions: all feasible precautions must be taken to minimize harm to civilians and civilian objects; civilian harm should be avoided or mitigated.
  • Protection of medical personnel and facilities: medical units, personnel, and humanitarian workers must be protected and allowed to operate without obstruction.
  • Prohibition of attacks on civilians and civilian objects; prohibition of indiscriminate attacks and weapons that fail to distinguish (e.g., certain indiscriminate weapons).
  • Dignity and humane treatment: detainees, wounded, and sick must be treated humanely; torture and ill-treatment are prohibited.

- Limitation on means and methods of warfare: certain weapons and methods are restricted or prohibited because of their indiscriminate or excessive harm potential.

Weapons and weapons-related issues under IHL

  • Cluster munitions: scattering submunitions that cause harm across large areas; prohibited due to high casualty rates among civilians (e.g., 10–15% of submunitions fail to explode, leaving unexploded ordnance and long-term danger to civilians).
  • Nuclear weapons: IHL regulates means and methods, but does not outright ban nuclear weapons; sovereignty, national security, and political factors complicate disarmament; discussions at the UN and various treaties (nuclear disarmament and non-proliferation) continue.
  • Chemical weapons: historical examples (e.g., gas chambers) illustrate weapons that must be avoided when they fail distinguishability and targetability; chemical weapons are generally prohibited under various treaties and customary law.
  • Urban warfare: defense of civilians in densely populated urban areas is particularly challenging; precaution and proportionality are stressed due to high risk to civilian life.

IHL and human rights law (HRLaw)

  • IHL applies in times of armed conflict to regulate conduct of hostilities and protect dignity; HRLaw applies at all times (peacetime and wartime) and protects rights of individuals regardless of conflict status.
  • In some situations (e.g., escalation to armed conflict or involvement of non-state armed groups), IHL protections can apply alongside applicable human rights law, ensuring civilians’ rights continue to be protected.
  • Accountability: IHL holds all parties liable (states and non-state actors) for violations; human rights law also imposes duties on duty-bearers and ensures remedies and accountability for violations.

National and regional implementation (Philippines context)

  • Constitutional basis: Article II, Section 2 of the 1987 Philippine Constitution states that generally accepted principles of international law form part of the law of the land.
  • Domestic legislation: Republic Act No. 9851 (RA 9851), enacted in December 2009, penalizes crimes against IHL, genocide, and crimes against humanity.
    • RA 9851 emphasizes individual criminal responsibility and incorporates the concept of superior (command) responsibility.
    • Section 10: Command and superior responsibility; a commander may be criminally liable as a principal for crimes committed by subordinates if the commander ordered, planned, or tolerated the crimes or failed to take necessary actions to prevent them.
    • Penalties: crimes under RA 9851 carry various penalties; typical ranges cited include reclusion temporal and fines (e.g., ₱100,000 to ₱500,000; ₱500,000 to ₱1,000,000 for more serious offenses).
  • Role of international bodies: the International Committee of the Red Cross (ICRC) provides technical support to legislators and acts as a reference on IHL; CHR (Commission on Human Rights) is described as a watchdog in armed conflicts but does not prosecute crimes under RA 9851.
  • Practical significance for soldiers and security personnel: emphasis on obedience to IHL, protection of civilians, and accountability for violations.

Roles of organizations and emblematic protections

  • ICRC: central in promoting IHL, assisting in humanitarian protection, and advising on implementation; not responsible for prosecuting crimes.
  • CHR: domestic watchdog for rights and humanitarian concerns in armed conflict contexts.
  • Emblems of humanity (neutral symbols) and their purpose:
    • Red Cross (1864); represents medical and humanitarian protection.
    • Red Crescent (1929); alternative neutral emblem used by Muslim countries.
    • Red Crystal (2005); additional neutral emblem; used in some contexts (e.g., Israel discussions noted in transcript).
  • Emblem scope: protection covers medical personnel, ambulances, hospitals, and those deprived of liberty due to armed conflict; attacking medical personnel and facilities is prohibited.

Practical examples and scenarios discussed

  • Combatant vs civilian distinction exercise: students identify whether individuals in various images are combatants or civilians based on uniform, equipment, location, and behavior.
    • Combatants typically wear military-style clothing or BDUs; civilians wear civilian clothes or do not engage in hostilities.
    • Non-state armed groups may appear in civilian attire or mixed scenarios; the distinction remains essential but challenging.
  • Distinguishing civilians who participate in hostilities: a 14-year-old holding a live grenade and running toward enemies becomes a legitimate military target because they are directly participating in hostilities; this illustrates the proportionality and distinction principles.
  • Proportionality and collateral damage: examples where civilian structures or populations in urban settings can be affected; necessary to weigh military advantage against civilian harm.
  • Precautions in urban warfare: ensuring feasible steps are taken to minimize harm to civilians and infrastructure; acknowledges the complexity of protecting civilians in cities with high population density.

Ethical, philosophical, and practical implications

  • The existence of IHL does not fully prevent war; rather, it sets rules to mitigate suffering, promote dialogue, and encourage peaceful dispute resolution.
  • Legal and ethical tensions: some argue IHL may appear too late or insufficient to prevent harm; nonetheless, it provides a framework for accountability and humanitarian protection.
  • The broader aim of IHL and HRLaw: preserve human dignity during conflict and facilitate post-conflict recovery and reconciliation.
  • The evolving nature of warfare (e.g., autonomous weapons) raises questions about whether advanced systems can reliably distinguish between civilian targets and combatants; emphasizes the ongoing need to align weaponry with IHL principles.

Key terms and summaries for quick recall

  • IHL / LOAC: Rules governing conduct in armed conflict and protection of persons not participating in hostilities.
  • IAC vs NIAC: International armed conflicts (between states) vs non-international armed conflicts (within a state, involving state and non-state armed groups).
  • Distinction: Civilian protection; targets are combatants only when actively participating in hostilities.
  • Proportionality: Military advantage must not be outweighed by civilian harm.
  • Precautions: Take feasible steps to minimize civilian harm; protect civilian infrastructure and non-combatants.
  • Emblems: Red Cross, Red Crescent, Red Crystal—neutral symbols of protection for humanitarian actors and medical services.
  • RA 9851: Philippine law penalizing IHL violations; establishes individual and superior responsibility; penalties include reclusion temporal and fines.
  • Constitutional supports: Philippine Constitution (Art II, Sec 2) integrates international law into domestic law.
  • Roles: ICRC as humanitarian guard; CHR as rights watchdog in armed conflicts; national authorities implement and prosecute IHL violations via RA 9851.
  • Nuclear weapons: Not outright banned by IHL; subject to political, security, and treaty-based efforts toward disarmament; complete prohibition remains complex.

Possible exam-style prompts to practice

  • Define IHL and distinguish it from general human rights law. Explain its main purpose and how it limits warfare.
  • Describe the two main types of armed conflicts and the criteria for NIAC, including what constitutes a protracted armed violence.
  • Summarize the historical development of IHL from Solferino to the Geneva Conventions and the emblem system (Red Cross, Red Crescent, Red Crystal).
  • Explain the principles of distinction, proportionality, and precautions with concrete examples from the lecture (including urban warfare scenarios).
  • Discuss how IHL is implemented in the Philippines, including constitutional basis and the role of RA 9851 and its penalties.
  • Reflect on the ethical implications of IHL: does regulating war legitimize it? What are the humanitarian goals behind IHL?

Closing note from the lecturer

  • The evolution of IHL reflects a humanitarian impulse to limit brutality while recognizing the political and security complexities of nations.
  • The ultimate aim is to preserve human dignity in times of war and to enable societies to live together again after conflict.
  • Questions for further reflection and discussion can be directed to CHR or the CHR/PH Human Rights Institute pages for clarifications and case consultations.