Report_1st-group (1).pdf

INTERNATIONAL HUMANITARIAN LAW

Reporters: Savaris, Sedigo, Tero, Tuarez , Valdez , Padura

Assignment of Topics and Tasks • Definition of IHL :Ms. Claudine Dawn Sedigo • International Human Rights Law vs International Humanitarian Law : Ms. Lerca Guipe Valdez • Application of IHL/ Provisions and Principles protecting Civilians : Ms. Benex Jane Savaris • Fundamentals and Principles of IHL : Ms. Venus Mae Aubry Tuarez

Other tasks: • Team Report Consolidator, PowerPoint Design and Quiz Facilitator: Ms. Vanessa Claire Tero-Pleña • Hand-Outs Distribution – Ms. Danielle Edenor Roque Padura

What is IHL? International Humanitarian Law It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. .

Also known as the law of the war or the law of armed conflict.

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict.

Is IHL part of International Law? Yes, it is part of International Law. It is the body of rules governing relations between states. It is contained in agreements between States – treaties or conventions – in customary rules which consist of state practise considered by them as legally binding and in general principles.

Why is it important to know & obey it?

AVP

Where does IHL apply? IHL applies to Armed Conflicts. It DOES NOT regulate whether a State may actually use force;

It DOES NOT cover internal tensions or disturbances such as isolated acts of violence. The IHL applies only once a conflict had begun, and then equally to all sides regardless of who started the fighting.

International Humanitarian Law is founded when? •

4 Geneva Conventions of 1949

•

The Additional Protocols of 1977 relating to the protection of victims of armed conflicts.

Other Agreements prohibit the use of certain weapons and military tactics and protect certain categories of people and goods. The agreements include: • • • • • •

1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, plus its two protocols; The 1972 Biological Weapons Convention; 1980 Conventional Weapons Convention and its five protocols The 1993 Chemical Weapons Convention The 1997 Ottawa Convention on anti-personnel mines; The 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

International Human Rights Law VS International Humanitarian Law DIFFERENCES AS TO

IHL

IHRL

Applicability

In times of armed conflict

Applies at ALL TIMES

Who is bound?

All actors to an armed conflict

Are individuals also bound?

Establishes universal jurisdiction over persons suspected of having committed GRAVE BREACHES of Geneva Conventions and ADDITIONAL PROTOCOL 1 Persons who do not, or are no longer taking part in hostilities.

Governments in their relations with individuals GENERALLY, NO.

Who is protected

XPN: International crimes which are subject to UNIVERSAL JURISDICTION Applies to all persons.

International Human Rights Law vs International Humanitarian Law DIFFERENCE S AS TO System of implementation

*DISTINCT FEATURE

IHL

IHRL

AT NATIONAL LEVEL: Lies with the states

AT NATIONAL LEVEL: Lies with the states

AT AN INTERNATIONAL LEVEL: ICRC -

AT AN INTERNATIONAL LEVEL: bodies established either by the United Nations Charter or by the main IHRL treaties. AT A REGIONAL LEVEL The work of regional human rights courts and commissions established under the main regional human rights treaties in Europe, the Americas and Africa  They examine the violations of IHL

Does Philippines adhere to IHL? Yes, The Philippines, as a Contracting Party to the Four Geneva Conventions of 12 August 1949, subscribes to the basic principle of disinterested humanitarian aid to all victims of war and armed conflict without discrimination, and accepts direct responsibility for the application of IHL when involved in an armed conflict. Annually since 1999, the DND and the Department of Foreign Affairs co-chair a government inter-agency ad hoc committee to formulate and implement activities to commemorate the IHL Day on 12 August and the whole month of August as IHL month.

Does Philippines adhere to IHRL? Yes, the Philippines had been conscientious in complying with its obligations under international treaties with regards to the enactment of relevant municipal laws designed to ensure domestic compliance -many of these domestic laws adopt the language and wording used in the international conventions, if only to emphasize the country’s commitment to follow international standards.

Sources of Human Rights Jurisprudence in the Philippines: Philippine Constitution Legislative enactments Supreme Court Rules, Rulings and Orders & Executive Issuances

Does Philippines adhere to IHRL? Philippine Jurisprudence on Human Rights include: 1. The Philippine Constitution – Bill of Rights 2. Rights of the Child 1. RA 9344 – Juvenile Justice and Welfare Act of 2006 2. RA 7610 – Law Against Child abuse 3. RA 9231 – Elimination of the Words Forms of Child Labor 4. RA 9775 – Law Against Child Pornography 5. RA 8044 – Youth in Nation-Building Act 6. RA 6972 – Act Establishing Day Care Center in Every Barangay 7. PD 603 – The Child and Youth Welfare Code 3. Rights of women 1. RA 9262 – Anti-Violence Against Women and their Children 2. RA 10364 – The Expanded Anti-Trafficking in Persons Act of 2012 3. RA 9710 – Magna Carta of Women 4. RA 7877 – Law Against Sexual Harassment 5. ACT 4112 – Women Suffrage Act 6. PD 633 as amended – Creating the National Commission on the Role of Filipino Women 7. EO 273 – Philippine Plan for Gender Responsive Development

Does Philippines adhere to IHRL?

4. 5.

6.

8. Pres. Proc. 1172 0 Campaign to End Violence against Women 9. RA 6955 – Act Against Mail Order Brides Rights of Lesbian, Gay, Bisexual, and Transgender Persons (LGBT) • Ang Ladlad vs. COMELEC, April 8, 2010 Rights of Senior Citizes • RA 7432 – Senior Citizens Act • RA 7876 – Senior Citizen Center Act • RA 9974 – Expanded Senior Citizen Act Rights of Disabled Persons • BP 344 – An act to Enable the Mobility of Disabled Persons • RA 7277 – Magna Carta of Disabled Persons • RA 9442 – Law Amending the Magna Carta of Disabled Persons • RA 10070- Act requiring the creation of persons with Disability Affairs Office (PDAO) by local government units • DILG MC 2009-37 – On issuance of identification cards and purchase booklets for PWDs • DILG MC 2009-29 – On community-based programs for children with disability • Adm. No. 35 – Directing departments, bureaus, agencies and educational institutions to conduct activities during the annual observance of the National Disability Prevention and Rehabilitation Week

Does Philippines adhere to IHRL? 7. Rights of Workers and Laborers • PD 442- as amended –Labor Code of the Philippines incorporating the New Labor Relations Law • RA 8024 – Migrant Workers Act • RA 10022 – Law Amending the Migrant Workers Act • RA 8187 – Paternity Leave Act 8. Right to Social Security • RA 9262, amending RA 1161 – The Social Security Law • RA 8291 – The Government Service Insurance System Act 9. Right to Health • RA 7875 – National Health Insurance Act • Pres. Proc. 46 – Child and Mother Immunization Project 10. Right to a healthy environment • Oposa vs. Factoran , July 30, 1993 11. Right to Privacy • SC A.M. No. 08-1-16 SC – The Rule on Habeas Data • RA 9995 – Anti-Photo and video Voyeurism Act • RA 10173 – Data Privacy Act of 2012

Does Philippines adhere to IHRL? 12. Right to life, liberty and security • The Anti-Enforced or Involuntary Disappearance Act of 2012 • RA 9745 – Anti-Torture Act • The Rule on the Writ of Amparo • Admin. Order 181- Investigation and Prosecution of Political and Media Killings • Admin. Order 197 – Enforced Disappearances and Killings 13. Remedies of unjustly arrested and /or detained persons • RA 7309 – Law Creating the Board of Claims • Rule 102, Rules of Court – The rule on Habeas Corpus • Rule 9439 – Law Against Hospital Detention • RA 10368 – Human Rights Victims Reparation and Recognition Act of 2013 14. Rights of accused, victims, and witnesses of crimes • RA 8505 – Rape Victims Assistance Act • RA 6981 – Witness Protection Act • RA 9999 – Free Legal Assistance Act • RA 9346 – Law Abolishing Death Penalty • Bill of Rights, Philippine Constitution • Rule 115, Revised Rules of Court

Does Philippines adhere to IHRL? 15. Other Human Rights violations penalized • Act 3815 – Revised Penal Code of the Philippines 16. Human Rights Mechanisms • EO 163 – Creating the Commission on Human Rights • RA 9201 – National Human Rights Consciousness Week • PD 443 – On Delivery of Social Services

Fundamentals and Principles of International Humanitarian Law Jean-Jacques Rousseau, 1762

“War is in no way a relationship of man with man but a relationship between States, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers... Since the object of war is to destroy the enemy State, it is legitimate to kill the latter's defenders as long as they are carrying arms; but as soon as they lay them down and surrender, they cease to be enemies or agents of the enemy, and again become mere men, and it is no longer legitimate to take their lives.”

Fundamentals and Principles of International Humanitarian Law Martens Clause as it first appeared in the 1989 Hague Convention, which states that:

The clause took its name from a declaration read by Friedrich Martens,[2] the Russian delegate at the Hague Peace Conferences of 1899.

" Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. "

Fundamentals and Principles of International Humanitarian Law

(The principles of humanity " and " the dictates of the public conscience”)

1.

The distinction between civilians and combatants

2.

The prohibition to attack those hors de combat

3.

The prohibition to inflict unnecessary suffering,

4.

The principle of necessity, and

5.

The principle of proportionality

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

The influence of this declaration on international humanitarian law were elucidated in the Japanese case Ryuichi Shimoda et al. v. The State (1963): Ruling: The aerial bombardment with atomic bombs of the cities of Hiroshima and Nagasaki was an illegal act of hostilities according to the rules of international law. It must be regarded as indiscriminate aerial bombardment of undefended cities, even if it were directed at military objectives only, inasmuch as it resulted in damage comparable to that caused by indiscriminate bombardment. Nevertheless, the claimant as an individual was not entitled to claim damages on the plane of international law, nor was he able, as a result of the doctrine of sovereign immunity, to pursue a claim on the plane of municipal law. In these circumstances, the plaintiffs had no rights to lose as a result of the waiver contained in Article 19 (a) of the Treaty of Peace with Japan.

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

In relation to International Armed Conflict: “International law of war is not formulated simply on the basis of humanitarian feelings. It has as its basis both considerations of military necessity and effectiveness and humanitarian considerations, and is formulated on a balance of these two factors. “ Example: St. Petersburg Declaration of 1868 prohibiting the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances. Reason for the prohibition: Such projectiles are small and just powerful enough to kill or wound only one man, and as an ordinary bullet will do for this purpose, there is no overriding need for using these inhuman weapons. On the other hand, the use of a certain weapon, great as its inhuman result may be, need not be prohibited by international law if it has a great military effect.[3]

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

St. Petersburg Declaration---1868 “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy”.

The nations represented were AustriaHungary, Bavaria, Belgium, Denmark, France, United Kingdom (representing the British Empire), Greece, Italy, the Netherlands, Portugal, Prussia, the North German Confederation (i.e., Greater Prussia), Russia, SwedenNorway, Switzerland, the Ottoman Empire, and Württemberg.[1] The United States, not considered a major power at the time, was not invited and took no part in the convention. Brazil ratified the agreement in 1869, as did Estonia in 1991.[2]

Upon the invitation of the Russian diplomat and statesman Prince Alexander Gorchakov, for the purpose of considering the existing rules of war, a conference of delegates met at Saint Petersburg, Russian Empire, in December 1868.

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

The Hague Regulations- Article 25--- prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended” The principle is now codified in Articles 48, 51(2) and 52(2) of Additional Protocol I, to which no reservations have been made, According to Additional Protocol I, “attacks” means “acts of violence against the adversary, whether in offence or in defence”.

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

The prohibition on directing attacks against civilians is also laid down in Protocol II, Amended Protocol II and Protocol III to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personnel landmines.

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

In addition, under the Statute of the International Criminal Court, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” constitutes a war crime in international armed conflicts.

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

In its advisory opinion in the Nuclear Weapons case, the Court stated that the principle of distinction was one of the “cardinal principles” of international humanitarian law and one of the “intransgressible

customary law”.

principles

of

international

Fundamentals and Principles of International Humanitarian Law

The distinction between civilians and combatants

Protocol III to the Convention on Certain Conventional Weapons--- which has been made applicable in noninternational armed conflicts pursuant to an amendment of Article 1 of the Convention adopted by consensus in 2001.

The Plan of Action for the years 2000–2003, adopted by the 27th International Conference of the Red Cross and Red

Crescent in 1999, requires that all parties to an armed conflict respect “the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities.

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

Additional Protocol I Article 41(1) of the 1977 Additional Protocol I provides: “A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.” Additional Protocol I Under Article 85(3)(e) of the 1977 Additional Protocol I, “making a person the object of attack in the knowledge that he is hors de combat” is a grave breach of

the Protocol.

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat Who are they?

-enemy personnel who are “out of combat”

Wounded and sick

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

Who are they?

Prisoners of War

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat Who are they?

Parachutists of disabled aircraft

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat Who are they?

Medical Personnel

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

Soldier Manual The Soldier’s Rules of the Philippines

(1989) instructs: “Do not fight enemies who are ‘out of combat’ … Disarm them and hand them over to your superior.” Philippines

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

Soldier Manual The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) states in its glossary:

Enemy “hors de combat” – enemy who is out of combat. A person who is recognized or who, in the circumstances, is no longer able to participate in combat, shall not be attacked (e.g. surrendering, wounded, dead, shipwrecked in water, descending by parachute from an aircraft in distress).

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat Some instruments adopting the prohibition:

Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia

Paragraph 6 of the 1991 Memorandum of Understanding on the Application of

IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that hostilities be conducted in accordance with Article 41 of the 1977 Additional

Protocol I.

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

Agreement on the Application of IHL between the Parties to the Conflict in

Bosnia and Herzegovina

Paragraph 2.5 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that hostilities be conducted in accordance with Article 41 of the 1977 Additional Protocol I.

Fundamentals and Principles of International Humanitarian Law

Prohibition to attack those hors de combat

ILC Draft Code of Crimes against the Peace and Security of Mankind

(1996)

Pursuant to Article 20(b)(iv) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “making a person the object of attack in

the knowledge that he is hors de combat” is a war crime.

Fundamentals and Principles of International Humanitarian Law

Prohibition to inflict unnecessary suffering

International Commission of the Red Cross“Parties to a conflict and members of their armed forces do not have unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.”

Interpretation: The prohibition of means of warfare which are of a

nature to cause superfluous injury or unnecessary suffering refers to the effect of a weapon on combatants.

Fundamentals and Principles of International Humanitarian Law

Prohibition to inflict unnecessary suffering The rule requires that a balance be struck between military necessity, on the one hand, and the expected injury or suffering inflicted on a person, on the other hand, and that

excessive injury or suffering, i.e., that which is out of proportion to the military advantage

sought, therefore violates the rule. A relevant factor in establishing whether a weapon would cause superfluous injury or unnecessary suffering is the inevitability of serious permanent disability.

Fundamentals and Principles of International Humanitarian Law

Prohibition to inflict unnecessary suffering

it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. States do not have unlimited freedom of choice of means in the weapons they use.

Fundamentals and Principles of International Humanitarian Law

The Principle of Proportionality

Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive

in relation to the concrete and direct military advantage anticipated, is prohibited.

Fundamentals and Principles of International Humanitarian Law

The Principle of Proportionality

Instruments: Under the Statute of the International Criminal Court, “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” constitutes a war crime in international armed conflicts In its advisory opinion, the Court (ICJ) acknowledged the applicability of the principle of proportionality, stating that “respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality. (Nuclear Weapons Case)

Fundamentals and Principles of International Humanitarian Law

The Principle of Necessity

A. The “principle of military necessity” permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by international humanitarian law. In the case of an armed conflict the only legitimate military purpose is to weaken the military capacity of the other parties to the conflict.

Fundamentals and Principles of International Humanitarian Law

The Principle of Necessity B. “Military objectives” are limited to those objects which: by their nature, location, purpose or use make an effective contribution to military action, and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage .

Rules of War

What is the ICRC? • International Committee of the Red Cross • Established in 1863, the ICRC operates worldwide, helping people affected by conflict and armed violence and promoting the laws that protect victims of war. An independent and neutral organization, its mandate stems essentially from the Geneva Conventions of 1949. The ICRC is based in Geneva, Switzerland, and employ some 16,000 people in more than 80 countries. The ICRC is funded mainly by voluntary donations from governments and from National Red Cross and Red Crescent Societies.

What is the Mandate & Mission of the ICRC? • The work of the ICRC is based on the Geneva Conventions of 1949, their Additional Protocols, its Statutes those of the International Red Cross and Red Crescent Movement and the resolutions of the International Conferences of the Red Cross and Red Crescent. The ICRC is an independent, neutral organization ensuring humanitarian protection and assistance for victims of war and armed violence. It takes action in response to emergencies and promotes respect for international humanitarian law and its implementation in national law.

ICRC’s Mission Statement • The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. • The ICRC also endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles.

• Established in 1863, the ICRC is at the origin of the Geneva Conventions and the International Red Cross and Red Crescent Movement. It directs and coordinates the international activities conducted by the Movement in armed conflicts and other situations of violence.

Questions???

Quiz (25 pts) Part 1 Identification. IHL vs. IHRL

1. This law is applicable during times of armed conflict. 2. This is bounds governments in their relations with individuals. 3. This establishes universal jurisdiction over persons having suspected of having committed grave breaches of Geneva Convention. 4. This law applies to all persons . 5. Its system of implementation involved bodies established either by the United Nations Charter or by its main treaties.

6. He is a Genevan philosopher and writer/composer who said ““War is in no way a relationship of man with man but a relationship between States, in which individuals are enemies only by accident; not as men, nor even as citizens, but as soldiers... 7. He is the Russian delegate at the Hague Peace Conference in 1899 who read the declaration " Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

8. What he delivered was ________________. 9. It is a declaration prohibiting the use of projectiles under 400 grammes which are either explosive or charged with combustible or inflammable substances. 10. This declaration was made possible through the initiative of a Russian diplomat and Statesman for the purpose of considering the existing Rules of War.

Quiz Part 2 Essay & Enumeration

1. What is IHL, where, when and how does it apply? 5 pts. 2. Who are protected under the IHL Rules of War? 5 pts 3. Enumerate the five principles of IHL . 5 pts.