International Humanitarian Law - Atty. Mercado (July 2016)

BASIC CONCEPTS AND
PRINCIPLES IN INTERNATIONAL
HUMANITARIAN LAW
Moot Court Training
Polytechnic University of the Philippines
College of Law
July 2016
By: Atty. Ronald Crisanto P. Mercado
WHAT IS INTERNATIONAL
HUMANITARIAN LAW?
It is a set of rules which seek, for humanitarian reasons, to limit
the effects of armed conflicts.

It protects persons who are not or are no longer participating in
the hostilities and restricts the means and methods of warfare.
It
defines
the
conduct
and
responsibilities
ofbelligerentnations,neutral nations, and individuals engaged
in warfare, in relation to each other and toprotected persons. It
is designed to balance humanitarian concerns andmilitary
necessity, and subjects warfare to the rule of law by limiting its
destructive effect and mitigating human suffering.
the law of war, the law of the armed conflict,
Jus in Bello (regulates the conducts of parties in hostilities)as
opposed to Jus Ad Bellum (conditions when States may resort
to war)
Basic Concepts and Principles in International

Humanitarian Law
Atty. Ronald Crisanto P. Mercado
WHAT IS INTERNATIONAL
HUMANITARIAN LAW?
IHL is a compromise between principles of humanity and of
military necessity.
While the principle of military necessity permits only that
degree and kind of force required to achieve the legitimate

purpose of a conflict, the principle of humanity forbids the
infliction of all suffering, injury or destruction not necessary
for achieving the legitimate purpose of a conflict.

Humanitarian Law
HISTORICAL
BACKGROUND
The cornerstone of IHL is the Geneva Conventions.
The first was signed by 16 countries in 1864.
The initiative for the first convention came from five
citizens of Geneva. One of them, Henry Dunant,

had, by chance, witnessed the battle of Solferino in
1859. He was appalled by the lack of help for the
wounded and organized local residents to come to
their aid.

Humanitarian Law
HISTORICAL
BACKGROUND
It was at this time, too, that a neutral protective
sign for those helping the victims of conflict was

adopted.

Humanitarian Law
HISTORICAL
BACKGROUND
The Geneva Convention was extended, in 1906
and 1929 so as to improve the conditions of

sick and wounded soldiers in the field and to
define new rules on the protection of prisoners
of war.
In 1899 and 1907, the Hague Conventions,
mainly aimed at regulating the conduct of

warfare, were also adopted.

Humanitarian Law
WHERE IS IHL TO BE
A major part of IHL is contained in the four
FOUND?
Geneva
Conventions of 1949:
I-Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in Armed Forces in
the Field
II-Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members
of the Armed Forces at Sea
III-Geneva Convention relative to the Treatment of
Prisoners of War
IV-Geneva Convention relative to the Protection of
Civilian Persons in Time of War.

Humanitarian Law
WHERE IS IHL TO BE
The Conventions have been developed and supplemented by three further
FOUND?
agreements:
Protocol I (1977): Protocol additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims of International Armed
Conflicts. As of January 12, 2007, it had been ratified by 167 countries.
Protocol II (1977): Protocol additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-international
Armed Conflicts. As of January 12, 2007, it had been ratified by 163
countries.
Protocol III (2005): Protocol additional to the Geneva Conventions of 12
August 1949, and relating to the Adoption of Additional Distinctive Emblem.
As of June 2007, it had been ratified by 17 countries and signed but not yet
ratified by an additional 68 countries.

Humanitarian Law
WHERE IS IHL TO BE
FOUND?
Other agreements prohibit the use of certain weapons
and military tactics and protect certain categories of
people and goods. These agreements include:
1. The 1954 Convention for the Protection of Cultural Property
in the Event of Armed Conflict, plus its two protocols.
2. The 1972 Biological Weapons Convention.
3. The 1980 Conventional Weapons Convention and its five
protocols.
4. The 1993 Chemical Weapons Convention;
5. The 1997 Ottawa Convention on anti-personnel mines;
6. The 2000 Optional Convention to the Convention on the
Rights of the Child on the involvement of children in the armed
conflict.

Humanitarian Law
WHEN DOES IHL APPLY?

It applies only to armed conflict.
It does not cover internal tensions or
disturbances such as isolated acts of

violence.
The law applies only once a conflict has
begun, and then equally to all sides

regardless of who started the fighting.
10

Humanitarian Law

IHL
distinguishes between international and noninternational armed conflict. International armed

conflicts
are those in which at least two
states/international organization are involved. They are
subject to a wide range of rules, including those set out
in the four Geneva Conventions and Additional Protocol
I. Non-international conflicts are those restricted to
the territory of a single State, involving either regular
armed forces fighting groups of armed dissidents, or
armed groups fighting each other. A more limited range
of rules apply to internal armed conflicts and are laid
down in Article 3 common to the four Geneva
Conventions as well as in Additional Protocol II.
11

Humanitarian Law
Common Article 3
Persons taking no active part in the hostilities shall in all
circumstances be treated humanely, without any adverse

distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria.
The following acts are prohibited:
Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture.

Taking hostages
Outrages upon personal dignity, humiliating and degrading
treatment,
Passing of sentences and the carrying out of executions without
previous judgments.
The wounded and the sick shall be collected and cared for.
12

Humanitarian Law
MAIN RULES APPLICABLE

IAC
Four Geneva
Conventions
Additional Protocol
I
Customary IHL for
IAC
13

Humanitarian Law
NIAC
Common Article 3
Additional Protocol
2
Customary IHL for
NIAC
Internal Disturbances and

Tensions
Such as riots and isolated and sporadic acts of
violence
Are characterized by acts that disrupt public
order without amounting to armed conflict,

because the level of violence is not sufficiently
high or because the persons resorting to
violence are not organized as an armed group.
Governed by human rights law and domestic
legislation.
14

Humanitarian Law

It is also important to differentiate between
international humanitarian law and human
rights law. While some of their rules are
similar, these two bodies of law have
developed separately and are contained in
different treaties. In particular, human rights
law-unlike
international
law-applies
in
peacetime, and many of its provisions may be
suspended during an armed conflict.
In case of conflict, lex specialis v. lex generalis
(e.g. interment, as deprivation of liberty)
15

Humanitarian Law
WHAT DOES IHL COVER?

the protection of those
who are not, or no longer,
taking part in fighting.
restrictions on the means
of warfare-in particular
weapons-and
the
methods of warfare, such
as military tactics.
16

Humanitarian Law
WHAT DOES IHL COVE

IHL prohibits all means and methods of warfare
which:
fail to discriminate between those taking part in the
fighting and those, such as civilians, who are not, the

purpose being to protect the civilian population,
individual civilians and civilian property.
Cause superfluous injury or unnecessary suffering;
Cause
severe or long-term damage to the
environment.
17

Humanitarian Law
WHAT ARE THE BASIC RULES

OF IHL?
Personshors
de
combat(outside
of
combat), and those not taking part in
hostilities, shall be protected and treated
humanely.
It is forbidden to kill or injure an enemy
combatant whosurrenders, or who ishors
de combat.
18

Humanitarian Law

OF IHL?
The wounded and the sick shall be
cared for and protected by the

party to the conflict which has
them in its power. The emblem of
the "Red Cross," or of the "Red
Crescent," shall be required to be
respected as the sign of protection.
Captured combatants and civilians
must be protected against acts of
violence and reprisals. They shall
have the right to correspond with
their families and to receive relief.
19

Humanitarian Law

OF IHL?
No-one shall be subjected to torture,
corporal punishment, or cruel or

degrading treatment.
Parties to a conflict, and members of
their armed forces, do not have an
unlimited choice of methods and
means of warfare.
Parties to a conflict shall at all times
distinguish
between
the
civilian
population and combatants. Attacks
shall be directed solely against
military objectives.
20

Humanitarian Law
Well-known examples of such rules include the
prohibition
attackingdoctorsorambulancesdisplaying
ared cross.
on
It is also prohibited to fire at a person or vehicle
bearing a white flag, since that, being considered

the flag of truce, indicates an intent to surrender
or a desire to communicate. In either case, the
persons protected by the Red Cross or the white
flag are expected to maintain neutrality, and may
not engage in warlike acts themselves;
Engaging in war activities under a white flag or a
red cross is itself a violation of the laws of war.
21

Humanitarian Law
PRINCIPLES UNDER
CONVENTIONS I AND II, AND
ADDITIONAL
I
Convention II isPROTOCOL
identical with Convention
I.
The main difference between the two is that

the second concerns the wounded, the sick
and shipwrecked members of armed forces
at sea, while the first relates to the wounded
and sick in armed forces in the field.
22

Humanitarian Law
PRINCIPLES UNDER
ADDITIONAL
PROTOCOL
I
The terms wounded
and sick
mean
military or civilian persons in need of
medical care and who refrain from any act
of hostility.
The term shipwrecked means military or
civilian persons in a perilous situation at
sea or on any other waters following a
misfortune which has befallen them or and
who refrain from any act of hostility.
23

Humanitarian Law
PRINCIPLES UNDER
Protection, treatment and care.
CONVENTIONS
I AND II, AND
All wounded, sick and
shipwrecked, to whichever
ADDITIONAL
PROTOCOL
I
Party
they belong, shall be respected and protected.

They shall be treated humanely and shall receive to the
fullest possible extent and with the least possible delay, the
medical care and attention required by their condition.
There shall be no distinction between them on any other
grounds. Women shall be treated with all the particular
consideration due to their sex.
Wounded, sick and shipwrecked who are captured become
prisoners of war. Until their recovery of disembarkation,
they will benefit from the provisions of the Conventions.
24

Humanitarian Law
PRINCIPLES UNDER
Search for the wounded, dead and missing.
The general principle governing this is the right of families to know
ADDITIONAL
the fate of their relatives. PROTOCOL I
At all times, and particularly after an engagement, Parties to a
conflict must immediately take all possible measures to search for

and collect the wounded, sick and shipwrecked, to protect them
against pillage and ill-treatment and ensure their adequate care, as
well as to search for the dead and prevent their being despoiled.
Parties to a conflict must ensure that burial, cremation or burial at
sea of the dead, carried out individually as far as circumstances
permit, is preceded by a careful and, if possible, medical examination
of the bodies with a view to confirming death, establishing identity
and making possible a report.
25

Humanitarian Law
PRINCIPLES UNDER
CONVENTIONS
AND II, AND
Recording and forwarding of I
information.
ADDITIONAL
I particulars
Parties to a conflict PROTOCOL
must record all available
which could help to identify the wounded, sick and dead who
have fallen into their hands: the Power on which they depend
or nationality, regimental number, surname and first name,
date of birth, date and place of capture and the nature of
actions taken with regard to the individuals concerned, etc.
This information is to be forwarded as soon as possible to
the Information Bureau provided for in Convention III for
transmission to the adverse Party, particularly through the
intermediary of the Central Tracing Agency of the
International Committee of the Red Cross (CTA).
26
PRINCIPLES UNDER
Role of the civilian population
and relief organizations;
role
ADDITIONAL
PROTOCOL
I
of neutral ships.
The civilian Population must respect the wounded, sick and
shipwrecked, even if they belong to the adverse Party, and

shall commit no act of violence against them. The civilian
population and relief organizations, such as National Red
Cross and Red Crescent Societies, will be authorized, even
in invaded or occupied regions, to collect and care for the
wounded, sick and ship wrecked, even if they are enemy
parachutists or guerillas. Nobody may be harassed,
prosecuted or convicted for such humanitarian action.
27

Humanitarian Law
PRINCIPLES UNDER
CONVENTIONS
I AND II, AND
Medical units.
ADDITIONAL
PROTOCOL
I the Conventions
Military or civilian medical
units are protected by
and the Protocol. Such units comprise all buildings or fixed
installations (hospitals and other similar units, blood transfusion
and preventive medicine centres, medical depots and stores) and
mobile units (quarantine stations, tents, open air installations,
vehicles assigned to medical purposes).
It is however specified that the protection to which these medical
units are entitled may cease if they are used to commit acts
harmful to the enemy (for example, sheltering unwounded soldiers
or installing a military observation post). Protection may only cease,
however, after a warning has been given, setting a reasonable time
limit, and after such warning has remained unheeded.
28

Humanitarian Law
PRINCIPLES UNDER
CONVENTIONS
I AND II, AND
Medical personnel.
ADDITIONAL
I to the conflict,
Medical and religious PROTOCOL
personnel of the Parties
whether military or civilian, shall be respected and protected.
Such personnel (doctors, nurses, stretcher-bearers, etc.)
should be assigned, either on a permanent or temporary
basis, exclusively to medical purposes or to the administration
and operation of medical units or medical transport facilities
(administrators, drivers, cooks, etc.). Religious personnel
comprise military or civilian persons, such as chaplains, who
are exclusively engaged in the work of their ministry. Medical
and religious personnel benefit from special protection and are
designated as "protected personnel".
29

Humanitarian Law
PRINCIPLES UNDER
Emblem and signals. (PROTECTIVEIUSE
AND INDICATIVE
USE)
CONVENTIONS
AND
II, AND
The sign of the red cross or
red crescent must be displayed
ADDITIONAL
PROTOCOL
I on the flags,
buildings, installations and mobile formations of medical units, on their

means of transport, as well as on armlets, clothes and headgear of medical
and religious personnel. It will be as large as the circumstances require.
An important regulation: the distinctive emblem of the Convention and
the Protocol may be displayed only on medical units and by medical
personnel protected by the Convention and the Protocol, and only with the
consent of the competent authority. Strict observance of this rule is
essential to respect the Convention the Protocol.
The use of the emblem or the designation "red cross" or "Geneva cross",
or any sign or designation constituting an imitation, shall be prohibited at
all times; the necessary measures will be taken to prevent and repress any
abuse of these distinctive signs. The perfidious use of the emblem of the
red cross (and other protective signs or signals) is a grave breach.
30

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
Status of prisoner
of war. I
ADDITIONAL
PROTOCOL
The general principle is that any
member of the armed forces of a

Party to a conflict is a combatant
and any combatant captured by
the adverse Party is a prisoner of
war.
31

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
Status of prisoner of war.
ADDITIONAL PROTOCOL I
To avoid uncertainty and prevent any
arbitrary measures at the time of capture, the
Protocol specifies that any person taking part
in hostilities and captured is presumed to be
a prisoner of war and is treated as a prisoner
of war, even in case of doubt as to his status.
In the latter case, the question will be decided
by a tribunal at a later date.
32

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
ADDITIONAL
I
Status of prisonerPROTOCOL
of war.
Spies and mercenaries are not entitled to
the status of prisoner of war. Children
under the age of fifteen shall not be
recruited into the armed forces.
33

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
ADDITIONAL
PROTOCOL
I
Rules relating to the
conduct of combatants.
The
fundamental principle forming

the basis of these rules is that the right
of the Parties to the conflict to choose
methods or means of warfare is not
unlimited.
34

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
III, AND
Rules relating to the conduct of combatants.
It is prohibited to employ weapons, projectiles
and methods and materials of warfare of a

nature to cause superfluous injury, particularly
those which are intended to cause, or can be
expected to cause widespread, long-term and
severe damage to the natural environment.
Neither may the presence of civilian persons be
used to render certain points or areas immune
from military operation.
35

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
Rules relating to the conduct of combatants.
It is prohibited to kill, injure or capture an adversary by resort to
perfidy. Acts inviting the confidence of an adversary to lead him

to believe that he is entitled to receive, or is obliged to accord
protection under the rules of international law applicable in
armed conflict, with intent to betray that confidence, shall
constitute perfidy. The recognized emblems (the white flag, the
emblem of cultural property, other recognized protective signs)
and in particular the sign of the red cross or red crescent must
not be used improperly. The use of the national insignia of
States not Parties to the conflict is forbidden. The national
insignia of the adverse Party must not be used during attacks or
in order to shield, favour, protect or impede military operations.
36

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
Rules relating to the
conduct of combatants.
ADDITIONAL
PROTOCOL
I
The enemy who is hors de combat, or who has
surrendered, or who shows his intention to

surrender, or who has parachuted from an aircraft in
distress, shall not be made the object of attack. If the
capturing Party is unable to evacuate its prisoners
from the fighting zone, it must release them and take
all feasible precautions to ensure their safety.
37

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
III, AND
Protection and Treatment
Prisoners of war must at all times be treated humanely and
that subject to any privileged treatment on account of rank, sex,

state of health, age or professional qualifications, all prisoners of
war shall be treated alike.
The Protocol specifies that no prisoner may be subjected to
physical mutilation or to medical and scientific experiments of
any nature whatever, which are not justified by the medical
treatment of the prisoner concerned and which are not in his
interest.
It nevertheless allows for exceptions in the case of donations of
blood for transfusion or of skin for grafting, provided that these
are voluntary.
38

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
ADDITIONAL
PROTOCOL I
Prisoners of war may be interned only in premises
located on land and affording every guarantee of

hygiene and wholesomeness.
No prisoner of war may at any time be sent to or
detained in an area where he may be exposed to the
fire of the combat zone, nor may his presence be used
to render certain points or areas immune from
military operations.
39

Humanitarian Law
PRINCIPLES UNDER
CONVENTION III, AND
ADDITIONAL
PROTOCOL I
Prisoners without the recognized status of
prisoner of war are at all times entitled to the
fundamental guarantees, such as guarantees
of judicial procedure.
40

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
III, AND
Sanctions
The Convention specifies
that prisoners of war shall
ADDITIONAL
PROTOCOL
I be subject to
the laws, regulations and orders in force in the armed forces of the
Detaining Power.
Disciplinary sanctions may only be ordered by the camp
commander or an officer appointed by him, and in no case by a
prisoner of war. Moreover, certain concessions are granted to
prisoners undergoing disciplinary punishment: permission to
take exercise and to be in the open air for at least two hours daily,
permission to read and write, as well as to send and receive
letters.
Finally, in no case shall disciplinary punishments be inhuman,
brutal or dangerous to the health of prisoners of war and the
duration of any single punishment shall never exceed thirty days.
41

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
IV, AND
Fundamental principle
and basic rules
The fundamental principle on which the law of armed conflicts
is based is expressed as follows: In any armed conflict, the right

of the Parties to the conflict to choose methods or means of
warfare is not unlimited. Two basic rules follow from this
principle. The first prohibits the use of weapons, projectiles and
material and methods of warfare of a nature to cause
unnecessary injury. The second, in order to ensure respect and
protection for the civilian population and civilian property,
obliges the Parties to the conflict to distinguish at all times
between the civilian population and combatants, as well as
between civilian property and military objectives and to direct
their operations only against military objectives.
42

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
IV,and
AND
Definition of civilians
civilian property.
ADDITIONAL
PROTOCOL
I
Any Person not belonging to the armed forces is considered as a
civilian and the same applies in case of doubt as to his status.

The civilian population comprises all persons who are civilians.
Civilian property is anything which is not a military objective,
i.e. which by its nature, location, purpose or use does not
effectively contribute to military action and whose total or partial
destruction, capture or neutralization would not offer a definite
military advantage in the circumstances ruling at the time. Thus,
military equipment, a road of strategic importance, a supply
column on its way to the army, a civilian building evacuated and
reoccupied by combatants are military objectives. In case of
doubt, a property which is normally assigned to civilian use
should be considered as civilian and must not be attacked.
43
PRINCIPLES UNDER
Protection of civilianIV,
persons
and property
CONVENTION
AND
The prohibition of attacks
on civilian persons and
ADDITIONAL
PROTOCOL
I civilian property
includes all acts of violence, whether committed in offence or defence.

Attacks or threats of violence intended to terrorize the civilian
Population are also prohibited.
The prohibition includes attacks launched indiscriminately. In
particular these are attacks which are not directed or which cannot be
directed, because of the methods or means of combat employed, at a
military objective. Also considered as indiscriminate are attacks
which treat as a single military objective a number of clearly
separated and distinct military objectives located in a town, village or
other area containing a similar concentration of civilians or civilian
property. The same applies to attacks which cause incidental civilian
losses and damage excessive in relation to the concrete and direct
military advantage anticipated.
44
PRINCIPLES UNDER
CONVENTION IV, AND
Protection of civilian persons and property
The Protocol forbids starving civilian populations. Objects
indispensable to the survival of civilian populations, such as

foodstuffs, agricultural areas, crops, livestock, drinking water
installations and supplies and irrigation works must neither be
attacked, destroyed, removed nor rendered useless. A belligerent
may depart from this rule only on its own territory and only if
imperative military necessities require it to do so.
The environment itself must be protected against widespread,
long-term and severe damage. Methods or means of warfare
likely to cause such damage and thereby jeopardize the health
or survival of the population are forbidden.
45

Humanitarian Law
PRINCIPLES UNDER
CONVENTION
AND
Protection of civilianIV,
persons
and property
ADDITIONAL
PROTOCOL
I
Children must be the object of special respect and must
be
protected against any form of indecent assault. They must receive
the care and aid they require, whether because of their age or for
any other reason. All practicable measures must be taken to
prevent children under the age of 15 from taking a direct part in
the hostilities and, if they have become orphaned or separated
from their families as a result of the war, to ensure that they are
not left to their own resources and that their maintenance, the
exercise of their religion and their education are facilitated in all
circumstances.
46

Humanitarian Law
PRINCIPLES UNDER
CONVENTION IV, AND
Protection of civilian
persons and property
ADDITIONAL
PROTOCOL
I
No physical or moral coercion may be used against protected
persons, in particular to obtain information from them, or from

third parties, and that the High Contracting Parties specifically
agree that each of them is prohibited from taking any action of a
nature to cause either physical suffering or extermination of the
protected persons in their hands. This prohibition applies not
only to murder, torture, corporal punishment, mutilation and
medical or scientific experiments not necessitated by the
medical treatment of a protected person, but also to any other
form of brutality by civilian or military agents.
47

Humanitarian Law
MAIN IHL RULES GOVERNING

HOSTILITIES
RULES OF DISTINCTION: distinguish at all times between

civilian persons and objects on the one hand, and combatants
and military objectives on the other.
RULES OF PROPORTIONALITY: it is prohibited to launch an
attack that is ikely to cause incidental loss of civilian life, injury
to civilians and or damage to civilian objects that would be
excessive to the concrete and direct military advantage.
RULE ON PRECAUTIONS: the party conducting an attack must
do everything feasible to verify that the targets are military
objectives.
48

Humanitarian Law
PROTECTION TO CULTURAL
PROPERTY
Refers to any movable or immovable property dedicated to

religion, art, science, education and charitable purposes or
historic monuments.
Can be recognized by the emblem of the blue-and-white shield.
Obligation to respect: special care must be taken in military
operations to avoid damage to cultural property unless they are
turned into military objectives
Obligation to protect: all seizure of or destruction or willful
damage done to cultural property is prohibited.
49

Humanitarian Law
PROPERTY
The waiver of imperative military necessity

may be invoked only when and for as long as:
(1)The cultural property in question, has, by
its function, been made into a military

objective;
(2)There is no feasible alternative for obtaining
military advantage similar to that offered by
attacking that objective.
50

Humanitarian Law
PROPERTY
Legal Basis:
1907 Hague Regulations

1954 Hague Convention on the Protection of
Cultural Property in the Event of Armed
Conflict and its Protocols
Additional Protocols of 1977
51

Humanitarian Law
THE 1998 STATUTE OF THE

INTERNATIONAL CRIMINAL
COURT
HISTORICAL BACKGROUND
The United Nations has been considering the establishment of a
permanent international criminal court since its creation. After
years of negotiations, a Diplomatic Conference was held from 15
June to 17 July 1998 in Rome which finalized and adopted the
Statute for the International Criminal Court. The Statute was
finally adopted by a vote where 120 were in favor, 7 against and
21 abstained.
It was adopted at a diplomatic conference in Rome on 17 July
1998 and it entered into force on 1 July 2002.
As of 1 May 2013,122 statesare party to the statute. Among
other
things,
the
statute
establishes
the
court's
functions,jurisdictionandstructure.
53

Humanitarian Law
JURISDICTION:
The Rome Statute established four core
54
international crimes:genocide,crimes against

humanity,war crimesand thecrime of
aggression. Those crimes "shall not be subject to
anystatute of limitations.
Under the Rome Statute, the ICC can only
investigate and prosecute the four core
international crimes in situations where states are
"unable" or "unwilling" to do so themselves.
The Court may exercise its jurisdiction, if the State
on the territory of which the act or omission
occurred or the State of nationality of the suspect
is Concepts
Partyandto
theinStatute
Basic
Principles
International or has accepted the
Humanitarian Law
jurisdiction
of the Court.
Atty.
Ronald Crisanto P. Mercado
SELECTED PROVISIONS ON
WAR CRIMES (ART. 8 OF THE
STATUTE)
War crime of starvation as a

method of warfare [Article 8 (2)
(b) (xxv)]
Elements
1. The perpetrator deprived civilians of objects
indispensable to their survival.
2. The perpetrator intended to starve civilians as
a method of warfare.
3. The conduct took place in the context of and
was associated with an international
armed conflict.
4. The perpetrator was aware of factual
circumstances that established the existence of
an armed conflict.
56

Humanitarian Law
RELATE TO ARTICLE 54 OF ADDITIONAL

PROTOCOL I
1. Starvation of civilians as a method of warfare is

prohibited.
2. It is prohibited to attack, destroy, remove or render
useless objects indispensable to the survival of the
civilian population, such as foodstuffs, agricultural
areas for the production of foodstuffs, crops, livestock,
drinking water installations and supplies and irrigation
works, for the specific purpose of denying them for
their sustenance value to the civilian population or
to the adverse Party, whatever the motive, whether in
order to starve out civilians, to cause them to move
away, or for any other motive.
57

Humanitarian Law

PROTOCOL I
3. The prohibitions in paragraph 2 shall not apply to such of

the objects covered by it as are used by an adverse Party:
(a) as sustenance solely for the members of its armed forces;
or
(b) if not as sustenance, then in direct support of military
action, provided, however, that in no event shall actions
against these objects be taken which may be expected to
leave the civilian population with such inadequate food or
water as to cause its starvation or force its movement.
(MILITARY OBJECTIVES)
58

Humanitarian Law

PROTOCOL I
4. These objects shall not be made the object of
reprisals.
5. In recognition of the vital requirements of any
Party to the conflict in the defence of its national
territory against invasion, derogation from the
prohibitions contained in paragraph 2 may be made
by a Party to the conflict within such territory
under its own control where required by imperative
military necessity.
(SCORCHED EARTH POLICY)
59

Humanitarian Law
The Office of the High Commissioner of the Human

Rights concluded that stopping electricity sources
may amount to the deprivation of objects
indispensable for survival of civilians. (OHCHR, Report
of the Mapping Exercise Documenting the Most Serious
Violations of Human Rights and IHL Committed within the
Territory of the DRC between March 1993 and June 2003,
2010, par. 330)
60

Humanitarian Law
The intention of using starvation may not be easy to

prove and most armies will not admit this intention.
Proof does not rest solely on the attacker's own
statements, however. Intention may be inferred from
the totality of the circumstances of the military
campaign.
61

Humanitarian Law
War crime of attacking civilians

[Article 8 (2) (b) (i)]
Elements:
1. The perpetrator directed an attack.
2. The object of the attack was a civilian population as
such or individual civilians not taking direct part in
hostilities.
3. The perpetrator intended the civilian population as
such or individual civilians not taking direct part in
hostilities to be the object of the attack.
4. The conduct took place in the context of and was
associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances
that established the existence of an armed conflict.
62

Humanitarian Law

PROTOCOL I
THE 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.
63

Humanitarian Law

PROTOCOL I
1. A civilian is any person who does not belong to one of

the categories of persons referred to in Article 4 A (1),
(2), (3) and (6)of the Third Convention and in Article
43of this Protocol. In case of doubt whether a person is
a civilian, that person shall be considered to be a civilian.
(In Blaki casein 2000, the International Criminal Tribunal
for the Former Yugoslavia defined civilians as persons
who are not, or no longer, members of the armed
forces.)
2. The civilian population comprises all persons who are
civilians.
3. The presence within the civilian population of
individuals who do not come within the definition of
civilians does not deprive the population of its civilian
character.
64

PROTOCOL I
1. The civilian population and individual civilians

shall enjoy general protection against dangers
arising from military operations. To give effect
to this protection, the following rules, which are
additional to other applicable rules of international
law, shall be observed in all circumstances.
2. The civilian population as such, as well as
individual civilians, shall not be the object of
attack. Acts or threats of violence the primary
purpose of which is to spread terror among the
civilian population are prohibited.
65

Humanitarian Law

PROTOCOL I
3. Civilians shall enjoy the protection
afforded by this Section, unless and for
such time as they take a direct part in
hostilities.
A precise definition of the term direct participation
in hostilities does not exist. The Inter-American
Commission on Human Rights has stated that the
term direct participation in hostilities is generally
understood to mean acts which, by their nature or
purpose, are intended to cause actual harm to
enemy personnel andmatriel .
66

Humanitarian Law

PROTOCOL I
In a report on human rights in Colombia, the InterAmerican Commission on Human Rights sought to
distinguish direct from indirect participation:
67
Civilians whose activities merely support the adverse

partys war or military effort or otherwise only
indirectly participate in hostilities cannot on these
grounds alone be considered combatants. This is
because indirect participation, such as selling goods
to one or more of the armed parties, expressing
sympathy for the cause of one of the parties or, even
more clearly, failing to act to prevent an incursion by
one of the armed parties, does not involve acts of
violence which pose an immediate threat of actual
Humanitarian
Law the adverse party.
harm to

PROTOCOL I
The US Naval Handbook states that:
Direct participation in hostilities must be judged on a

case-by-case basis. Combatants in the field must
make an honest determination as to whether a
particular civilian is or is not subject to deliberate
attack based on the persons behavior, location and
attire, and other information available at the time.
When there is a situation of doubt, a careful assessment
has to be made under the conditions and restraints
governing a particular situation as to whether there
are sufficient indications to warrant an attack. One
cannot automatically attack anyone who might appear
dubious.
68

Humanitarian Law

PROTOCOL I
4. Indiscriminate attacks are prohibited.
Indiscriminate attacks are:
(a) those which are not directed at a specific
military objective;
(b) those which employ a method or means of
combat which cannot be directed at a specific
military objective; or
(c) those which employ a method or means of
combat the effects of which cannot be limited as
required by this Protocol; xxx without distinction.
69

Humanitarian Law

PROTOCOL I
5. Among others, the following types of attacks are to

be considered as indiscriminate:
(a) an attack by bombardment by any methods or
means which treats as a single military objective a
number of clearly separated and distinct military
objectives located in a city, town, village or other
area containing a similar concentration of civilians or
civilian objects; and
(b) 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.
xxx
70
War crime of excessive incidental

death, injury or damage [Article 8
(2) (b) (iv)]
Elements
1. The perpetrator launched an attack.
2. The attack was such that it would cause

incidental death or injury to civilians or damage
to civilian objects or widespread, long-term
and severe damage to the natural
environment and that such death, injury or
damage would be of such an extent as to be
clearly excessive in relation to the concrete
and direct overall military advantage anticipated.
71

Humanitarian Law
War crime of excessive incidental

death, injury or damage [Article 8
(2) (b) (iv)]
3. The perpetrator knew that the attack would cause
incidental death or injury to civilians or damage to
civilian objects or widespread, long-term and severe
damage to the natural environment and that such
death, injury or damage would be of such an extent
as to be clearly excessive in relation to the concrete
and direct overall military advantage anticipated.
4. The conduct took place in the context of and was
associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances
that established the existence of an armed conflict.
72

Humanitarian Law
PRINCIPLE OF DISTINCTION
The rule that it is prohibited to attack
any part of the natural environment
unless it is a military objective is
based on the general requirement
that a distinction be made between
military objectives and civilian
objects.
73

Humanitarian Law
PRINCIPLE OF PROPORTIONALITY
Practice shows a general acceptance of
the principle that incidental damage
affecting the natural environment must
not be excessive in relation to the
military advantage anticipated from an
attack on a military objective. This is
set forth in the Guidelines on the
Protection of the Environment in Times
of Armed Conflict.
74

Humanitarian Law
RELATE TO ARTICLE 35 (3) OF ADDITIONAL

PROTOCOL I
xxx
3. It is prohibited to employ methods or
means of warfare which are intended, or
may be expected, to cause widespread,
long-term and severe damage to the
natural environment.
xxx
75

Humanitarian Law
76

Humanitarian Law
Sources
Geneva Conventions and Additional Protocols
The Hague Convention
International Humanitarian Law, Answer to your Questions. Available at
http://www.redcross.org/images/MEDIA_CustomProductCatalog/m22303661_IH
L-FAQ.pdf
International Humanitarian Law and the Law on Armed Conflict. Available at
http://cdn.peaceopstraining.org/course_promos/international_humanitarian_la
w/international_humanitarian_law_english.pdf
What is International Law?, Advisory Service on International Law. Available at
https://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf
ICRC Website
ICC Website
77

Humanitarian Law

International Humanitarian Law - Atty. Mercado (July 2016)

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BASIC CONCEPTS AND

It is a set of rules which seek, for humanitarian reasons, to limit

the effects of armed conflicts.

Basic Concepts and Principles in International

While the principle of military necessity permits only that

degree and kind of force required to achieve the legitimate

Basic Concepts and Principles in International

citizens of Geneva. One of them, Henry Dunant,

Basic Concepts and Principles in International

sign for those helping the victims of conflict was

Basic Concepts and Principles in International

The Geneva Convention was extended, in 1906

and 1929 so as to improve the conditions of

In 1899 and 1907, the Hague Conventions,

mainly aimed at regulating the conduct of

Basic Concepts and Principles in International

I-Geneva Convention for the Amelioration of the

Basic Concepts and Principles in International

Protocol I (1977): Protocol additional to the Geneva Conventions of 12

Basic Concepts and Principles in International

Basic Concepts and Principles in International

WHEN DOES IHL APPLY?

disturbances such as isolated acts of

begun, and then equally to all sides

Basic Concepts and Principles in International

WHEN DOES IHL APPLY?

distinguishes between international and noninternational armed conflict. International armed

Basic Concepts and Principles in International

circumstances be treated humanely, without any adverse

mutilation, cruel treatment and torture.

Basic Concepts and Principles in International

MAIN RULES APPLICABLE

Basic Concepts and Principles in International

Internal Disturbances and

order without amounting to armed conflict,

Basic Concepts and Principles in International

WHEN DOES IHL APPLY?

Basic Concepts and Principles in International

WHAT DOES IHL COVER?

restrictions on the means

Basic Concepts and Principles in International

WHAT DOES IHL COVE

fail to discriminate between those taking part in the

fighting and those, such as civilians, who are not, the

Basic Concepts and Principles in International

WHAT ARE THE BASIC RULES

Basic Concepts and Principles in International

WHAT ARE THE BASIC RULES

The wounded and the sick shall be

cared for and protected by the

Basic Concepts and Principles in International

WHAT ARE THE BASIC RULES

No-one shall be subjected to torture,

corporal punishment, or cruel or

Basic Concepts and Principles in International

Well-known examples of such rules include the

It is also prohibited to fire at a person or vehicle

bearing a white flag, since that, being considered

red cross is itself a violation of the laws of war.