IHL Key Concepts and Philippine Context

What is International Humanitarian Law (IHL)?

• Also known as the law of armed conflict or law of war; aimed at governing the conduct of hostilities and protecting people who are not participating or are no longer participating in fighting, as well as those who are wounded or detained.
• Core purpose: regulate weapons and methods of warfare to protect human dignity and mitigate suffering in war.
• In the CHR context, educating about IHL fosters a culture of accountability and integrity in the security sector; knowledge is power for protection and respect for rights.
• Lay terms: IHL = rules of war; it is distinct from general human rights law but interacts with it during armed conflict.

Quote and framing

• Quote from attorney Yavgar Perre (expert in subject matter):
  • From the book on the "genetic seeds of warfare": over the past 3,400 years, humans have been at peace for only 268 of them.
  • Mathematical note: $3400 \,\text{years}, \quad 268 \,\text{years at peace}$
• Core question: Is there a law governing armed conflict? Yes: International Humanitarian Law (IHL), today also called the Law of Armed Conflict.

What is IHL? Key definitions and goals

• IHL defines the rules that regulate how wars are fought and protect people who are not or no longer participating in hostilities.
• Protected groups and persons include:
  • Civilians and other non-participants
  • Combatants who have ceased to take part (e.g., wounded, sick, or not directly taking part in hostilities)
  • Medical personnel and aid workers; humanitarian symbols and protections
• IHL regulates the means and methods of warfare to protect human dignity and mitigate suffering.

Classifications of armed conflicts

• IHL applies during armed conflicts; two main types:
  • International Armed Conflicts (IAC): between two or more states (state versus state).
  • Non-International Armed Conflicts (NIAC): within a single country, involving governmental forces and non-state armed groups, or protracted violence between organized groups.
• Internal disturbances and tensions fall short of armed conflict, but may escalate to IHL applicability if violence becomes protracted and intense.
• Proportion of global conflicts that are international: $80\%$ (as noted in the slides).

IHL vs. IHRL: scope and interplay

• IHL applies at all times in armed conflict; governs conduct of hostilities and protection in war.
• International Human Rights Law (IHRL) applies at all times, in peace and during armed conflict, though some rights may be limited by the state of emergency or necessity during conflict.
• Both bodies hold parties (states and non-state actors) accountable for violations.
• When internal disturbances escalate to armed conflict, domestic law handles law and order, but IHL protections for civilians may still apply alongside human rights protections.

Distinction, proportionality, and precautions: core IHL principles

• Distinction: parties must distinguish between fighters and civilians; attacks must target military objectives only.
  • Distinguish civilians from combatants; status can change if a civilian directly participates in hostilities (e.g., a 14-year-old holding a live grenade while attacking).
  • If a civilian directly participates in hostilities, they may become a legitimate military target for that period.
• Proportionality: the anticipated military gain must be balanced against expected civilian harm; excessive civilian damage relative to military objective is prohibited.
• Precautions: parties must take feasible precautions to minimize civilian harm, including during planning, choosing means and methods, and warning civilians when possible.
• These principles are particularly challenged in urban warfare where civilians, civilian objects (hospitals, power grids), and critical infrastructure are at risk.

Weapons, means, and methods of warfare under IHL

• IHL aims to regulate and limit the means and methods of warfare; not a blanket ban on all weapons, but a framework for their use.
• Examples discussed:
  • Explosive submunitions (cluster munitions): banned or prohibited in many contexts due to indiscriminate effects; often 10–15% of submunitions fail to explode, posing long-term danger to civilians.
  • Claimed reason for prohibition: long-term risks to civilians, post-conflict recovery, farming, and displaced populations.
  • Poisonous gas (chemical weapons): historic example from Auschwitz illustrates why weapons that cannot distinguish between civilians and combatants are prohibited; chemical weapons are judged by the criterion of distinguishability.
  • Nuclear weapons: not explicitly banned outright by IHL due to sovereignty, security and political considerations; however, proliferation and disarmament efforts (e.g., UN-led discussions) seek to regulate or reduce their impact; no universal total ban achieved yet.
• IHL does not completely ban nuclear weapons; it regulates means and methods and acknowledges political realities and treaty dynamics (e.g., discussions under the UN).

History and evolution of IHL

• Origins trace back to Henri Dunant and the Battle of Solferino (1859): Dunant witnessed mass suffering and helped establish neutral care for wounded soldiers.
• Dunant published A Memory of Solferino (1862) and proposed neutral, independent relief societies to protect and care for the wounded regardless of side.
• Formation of the International Committee of the Red Cross (ICRC) by Dunant and others; 1863 establishment of ICRC; 1864 Geneva Convention for neutral humanitarian aid and protection of the wounded.
• The Geneva Conventions expanded to protect wounded, sick, or shipwrecked sailors, prisoners of war, and civilians affected by war; the ICRC serves as a humanitarian watchdog.
• Henry Dunant was the first recipient of the Nobel Prize in 1901 for his work.
• Emblems and symbols for humanitarian protection:
  • 1864: Adoption of the Red Cross emblem (neutral, non-religious symbol).
  • 1929: Adoption of the Red Crystal emblem as an additional neutral symbol; 1929 also highlighted the neutrality of emblems.
  • The Red Crescent is used by many Muslim-majority countries; the emblems aim to avoid confusion and ensure protection.
• Evolution of sources: The Geneva Conventions remain central; Additional Protocols I and II strengthen protections for civilians and combatants in various conflict situations.
• Other related treaties: Hague Convention, Ottawa Treaty (ban on ant-personnel landmines), and attempts to regulate means and methods of warfare more broadly.
• Foundational documents: Universal Declaration of Human Rights (UDHR) as the mother document of human rights; Geneva Conventions as a primary source of IHL; Additional Protocols as modern enhancements.
• National implementations in various states (example Philippines): constitutional incorporation of international law into domestic law; national legislation to punish IHL violations (see RA 9851).

IHL and Philippine law and policy context

• 1987 Philippine Constitution, Article II, Section 2: generally accepted principles of international law are part of the law of the land; allows for ratified treaty norms to have domestic effect.
• Republic Act No. 9851 (2009) – Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity: establishes penalties for IHL violations and crimes including genocide, war crimes, and crimes against humanity.
  • Provisions include individual criminal responsibility and command (superior) responsibility:
  • A commander may be criminally responsible as a principal for crimes committed by subordinates under their command if they failed to take necessary actions.
  • This applies to both state forces and non-state armed groups.
  • Sanctions (as cited in the slides):
  • RTC (Regional Trial Courts) – Reclusion temporal; fines ranging from ₱100,000 to ₱500,000; and higher ranges up to ₱1,000,000 for more serious offenses (as described in the transcript).
  • The law provides for individual criminal responsibility and imposes penalties for violations, including serious bodily harm or rape, per the cited ranges.
• The International Committee of the Red Cross (ICRC) serves as a reference and technical support for IHL in the legislature, but does not prosecute under RA 9851.
• The Commission on Human Rights (CHR) functions as an armed-conflict watchdog and reference point rather than a prosecuting body under RA 9851.
• Practical note: Philippine law aligns with international law by incorporating IHL norms and providing national penalties for violations.

Practical implications, cases, and scenarios

• Civilian protection in practice:
  • Civilians and civilian objects must be spared from direct attack; medical facilities, personnel, and patients must be protected.
  • Attacks on medical facilities or personnel, including Red Cross/Red Crescent facilities and personnel, are prohibited.
• Distinctive markings and protection:
  • Emblems (Red Cross, Red Crescent, Red Crystal) indicate protection; these emblems are neutral and non-religious.
  • Attacks on emblems or on medical teams are violations of IHL.
• Combatants and protected persons:
  • Combatants have protection from direct attack when they conform to IHL; wounded or captured combatants must be cared for by opposing parties.
  • Civilians must be protected from direct attacks; if a civilian takes a direct part in hostilities, they may lose protection for the duration of participation.
• Means and methods of warfare:
  • Nuclear weapons regulation is influenced by political and security considerations; complete ban is not universally achieved, but there are ongoing global disarmament efforts.
  • Weapons that fail to distinguish between civilians and military targets (e.g., cluster munitions with high dud rates, chemical weapons) are subject to prohibition or strict limitation under IHL.
• Urban warfare challenges:
  • Distinction and precautions become especially difficult due to dense civilian populations, which increases the risk of collateral damage to civilians and essential infrastructure (hospitals, power, water).
• The humanitarian purpose of IHL:
  • IHL aims to mitigate suffering, protect human dignity, and facilitate post-conflict recovery and reconciliation.
• Future considerations:
  • Advances in weaponry (e.g., autonomous weapons) raise questions about whether machines can consistently distinguish combatants from civilians; essential that any use of technology remains aligned with IHL principles.

Key exercise: applying IHL distinctions (illustrative)

• Exercise focus: distinguishing combatants from civilians in real scenarios; decisions should reflect the principle of distinction and proportionality.
• Example prompts illustrated in class:
  • Picture 1: Combatant in battle dress uniform vs civilian in civilian clothing; identify which are combatants or civilians.
  • Picture 2: Non-state armed group in uniform (e.g., NPA) vs. civilian attire; identify status.
  • Scenario: A person in battle dress laying mines or gathering tactical intelligence while pretending to be a civilian; evaluate status and permissible targeting.
  • 14-year-old with a live grenade: if a civilian takes a direct part in hostilities, they may become a lawful target for that action, but proportionality and precautions still apply.
• Purpose: reinforce careful application of distinction in diverse backgrounds and complex environments; emphasize that civilians lose protection only if they directly participate in hostilities.

Distinction, proportionality, precautions: recap of the core trio

• Distinction between fighter and civilian is the cornerstone of IHL; continuous assessment is required in conflict contexts.
• Proportionality requires balancing military advantage against potential civilian harm; avoids disproportionate harm.
• Precautions require taking all feasible steps to minimize civilian harm, including warnings, evacuation planning, and minimizing collateral damage.
• In densely populated urban warfare, adherence to these principles is especially challenging but essential to protect civilian life and essential services (hospitals, power, water).

Ethical and practical implications

• The purpose of IHL is not to legitimize war, but to moderate it, reduce suffering, and preserve human dignity during conflict.
• The existence of IHL does not imply war is just or fully acceptable; rather, it sets minimum humane standards for conduct in war and accountability for violations.
• The ongoing debate on weapons like autonomous weapons highlights the tension between technological advancement and ethical obligations to protect civilians.

Summary and takeaways

• IHL governs the conduct of war and protects those not actively participating in hostilities, while IHRL protects human dignity at all times (peace and war).
• Core IHL principles: distinction, proportionality, and precautions; and a framework that restricts means and methods of warfare to protect civilians and combatants who are no longer participating.
• IHL applies to both state and non-state actors and to both international and non-international armed conflicts; domestic law may handle non-conflict disturbances, but IHL protections can still apply in practice.
• The Geneva Conventions, their Additional Protocols, and related treaties form the backbone of IHL; the ICRC guides implementation and interpretation, while national laws (e.g., RA 9851 in the Philippines) translate IHL norms into enforceable penalties.
• Emblems such as the Red Cross, Red Crescent, and Red Crystal symbolize protection and must be respected; attacking medical personnel or facilities is a grave violation.
• Practical challenges, especially in urban and asymmetric warfare, require rigorous adherence to distinction, proportionality, and precautionary measures to minimize civilian harm.
• The Philippines integrates IHL into domestic law (Constitution, RA 9851) and relies on ICRC guidance and CHR oversight to promote accountability and compliance.

Additional resources and contact references

• For questions, students can reach out via CHR channels or the Human Rights Institute (PH) to discuss IHL and related topics.
• Ethical reflection: consider how future warfare technologies may impact the ability to comply with IHL and what safeguards are needed to protect civilians.