BEGINNING OF THE RED CROSS

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International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law covers two areas: the protection of those who are not, or no longer, taking part in fighting; and restrictions on the means of warfare – in particular weapons – and the methods of warfare, such as military tactics.

International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter.

International humanitarian law distinguishes between international and non-international armed conflict. International armed conflicts are those in which at least two States are involved. Non-international armed 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.

International humanitarian law 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.

International humanitarian law protects those who do not take part in the fighting, such as civilians and medical and religious military personnel. It also protects those who have ceased to take part, such as wounded, shipwrecked and sick fighters, persons deprived of liberty due to armed conflict, as well as Red Cross and Red Crescent personnel.

These categories of person are entitled to respect for their lives and for their physical and mental integrity. They also enjoy legal guarantees. They must be protected and treated humanely in all circumstances, with no adverse distinction.

International humanitarian law requires parties to distinguish between fighters and civilians, and also between civilian objects and military targets. Civilians and their property must be spared from attacks.

Under international humanitarian law, it is forbidden to kill or wound an enemy who surrenders or is unable to fight; the sick and wounded must be collected and cared for by the party in whose power they find themselves. Medical personnel, supplies, hospitals and ambulances must all be protected.

International humanitarian law prohibits all means and methods of warfare which: a) 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; b) cause superfluous injury or unnecessary suffering; c) cause severe or long-term damage to the environment.

Humanitarian law has therefore banned the use of many weapons, including exploding bullets, chemical and biological weapons, blinding laser weapons and anti-personnel mines.

There are also rules governing the conditions of detention for detainees/internees and the way in which civilians are to be treated when under the authority of an adverse party. This includes the provision of food, shelter and medical care, and the right to exchange messages with their families.

International humanitarian law is rooted in the rules of ancient civilizations and religions – warfare has always been subject to certain principles and customs.

Universal codification of international humanitarian law began in the nineteenth century. Since then, States have agreed to a series of practical rules, based on the bitter experience of modern warfare. These rules strike a careful balance between humanitarian concerns and the military requirements of States.

As the international community has grown, an increasing number of States have contributed to the development of those rules. A major part of international humanitarian law is contained in the four Geneva Conventions of 1949. All 194 States are party to the Geneva Conventions, making them universal. In the two decades that followed the adoption of the Geneva Conventions, the world witnessed an increase in the number of non-international armed conflicts and wars of national liberation. In response, two Protocols additional to the four 1949 Geneva Conventions were adopted in 1977. They strengthen the protection afforded victims of international (Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are fought. Protocol II was the first-ever international treaty devoted exclusively to situations of non-international armed conflict. In 2005, a third Additional Protocol was adopted creating an additional emblem, the red crystal, which has the same international status as the red cross and red crescent emblems.

IHL has expanded considerably as the character and impact of war have evolved over the years. The 1980s and 90s saw other international treaties come into force, banning certain conventional weapons, such as antipersonnel landmines, as well as chemical weapons. In 2008, more than 100 States signed up to an historic treaty against the use of cluster munitions.

Many provisions of international humanitarian law are now accepted as customary law – that is, as general rules by which all States are bound.

International armed conflicts are those in which at least two States 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 armed 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 and Customary IHL applicable in non-international armed conflicts.

International humanitarian law 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.

While the characteristics of armed conflicts are constantly changing (e.g. armed groups acting across borders, asymmetric warfare), the Geneva Conventions and their Protocols remain relevant as non-international armed conflicts, situations of occupation, and even some “traditional” inter-State, international, armed conflicts, are taking place.

This slide is optional – if necessary to explain the importance of the Common Article 3:

The Geneva Conventions only apply to international armed conflicts, with the exception of Article 3 common to all four Conventions, which also covers non-international armed conflicts. The adoption of this article in 1949 was a breakthrough since previous IHL treaties had only covered situations of wars between States. As most of today's wars are non-international armed conflicts, Article 3 remains vitally important because it sets a baseline for the protection of people who are not or no longer fighting, to which all sides – State and non-State parties to conflict – must abide.

This slide is optional – if necessary to explain the difference between IHL and HR Law:

• It is 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, IHL only applies in times of armed conflict, whereas human rights law applies at all times.

• Secondly, human rights law and humanitarian law traditionally bind different entities – while it is clear that IHL binds parties to the conflict (and expressed in terms of obligations of these parties), be it state authorities or non-state actors such as rebel groups, this question is far more controversial in human rights law. Traditionally, human rights, expressed as individual entitlements, has been understood to bind only states. It will have to be seen how the law evolves in this regard (some, for example, say that non-state actors such as rebel groups may be made accountable under human rights law if they have attained become a de-facto government, and therefore, be already acting as the instrument of the State).

• Although both IHL and human rights strive to protect the lives, health and dignity of individuals. For example, the two bodies of law aim to protect human life, prohibit torture or cruel treatment, prescribe basic rights for persons subject to a criminal justice process, prohibit discrimination, comprise provisions for the protection of women and children, regulate aspects of the right to food and health. However, their norms regulating the use of lethal force are different.

Under human rights, no one can be intentionally deprived on his or her life save in the execution of a sentence rendered with due process of law or, if the use of lethal force is absolutely necessary, in defence from unlawful violence or for law enforcement purposes.

Under IHL, the use of lethal force against the armed forces of the adverse party is allowed under the principle of military necessity, although subject to the requirement of proportionality with regard to the injury or death likely to be incidentally caused to civilians.

Hence, under IHL, a soldier can direct an attack against combatants/fighters using lethal force during military operations, while under human rights law, a law enforcement officer may only use lethal force, for instance in action for the purpose of quelling a riot or insurrection, if absolutely necessary.

• Another important distinction is that while most human rights are derogable in times of public emergencies with few exceptions (Article 4, ICCPR; Article 15 ECHR; Article 27 ACHR), IHL is non derogable, exactly because it was crafted especially for a public emergency as armed conflict;

• Lastly, human rights law has far more advanced procedural safeguards for the protection of individual rights than humanitarian law, particularly in respect of the right to an individual remedy, to an independent and impartial investigation and to individual reparation. While not entirely transferable, due to the nature of each body of law, this could in the future have an influence on humanitarian law (for example, the IHL bill, now pending in Congress, will subject IHL violations to the same procedural safeguards as that of human rights at the national level).

Recap of the presentation:

The Geneva Conventions have today been accepted by every country on the planet. These Conventions and their three additional protocols contain a vast array of provisions. Essentially, however, all their different articles are variations on just a few fundamental rules:

Civilians taking no direct part in the hostilities must be spared by the belligerents at all costs. Under no circumstances may they be targeted.

Sparing the wounded and sick – whether civilian or military, whatever side they belong to – is obligatory. Sparing the lives of victims isn't enough – first-aiders, ambulance staff and hospitals must also be protected.

The distinctive red cross and red crescent emblems and, more recently, the red crystal exist to safeguard medical activities.

Making sure that no harm comes to people who are detained is an essential principle of the Geneva Conventions. Captured combatants and civilians in the hands of the enemy are entitled to respect for their lives and dignity. They must be protected from all forms of violence, especially torture.

Ever wars have limits: in war, you can't do whatever you please. Humanitarian law bans the use of weapons that are indiscriminate or cause excessive suffering.

Valid and crucial norms: it is important to make all those engaged in armed conflict aware of their responsibilities. These parties naturally include States, but also other entities. The rules of war apply to everyone – there are no exceptions. If humanitarian law is to be respected, then every State must incorporate its content into its own law and military doctrine. Neutral and independent, the ICRC has a mandate from the international community to promote compliance with humanitarian law.

Fighting impunity: The law has to punish those who violate it. Without penalties for non-compliance, how can humanitarian law be effective? A person suspected of having committed or ordered grave breaches of the Geneva Conventions can, whatever his nationality, be prosecuted either by the national courts of any country or by the an international court.

In December 2009, the Philippines adopted the Republic Act 9851, penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity.

Being a party to the four Geneva Conventions, the Philippines has a legally binding commitment to adopt national measures of implementation, specifically national legislation for the punishment of serious violations of IHL. While the Geneva Conventions outline prohibited acts, national legislation supplies the details, such as the penalties for violations of IHL and legal procedures for prosecution.

It is important to underscore that although it is the state which is the party to the Geneva Conventions, only individuals can be criminally responsible for serious violations of international humanitarian law that they commit or order to be committed.

The Republic Act 9851 is an important milestone in the national implementation of IHL in the Philippines. The Act provides comprehensive protection for both civilians and combatants, and ensures that those who violate the law are appropriately sanctioned.

According to the law, the Regional Trial Courts in the Philippines have jurisdiction to try violations.

However, for the law to be applied, judges, prosecutors and investigators should receive appropriate training, which is the responsibility of the government of the Philippines.

As with other measures aiming at implementation of IHL at the national level, the ICRC provided technical and legal support in the drafting of the RA 9851. Due to its neutral and impartial humanitarian mandate, the ICRC may not be engaged in any way in the prosecution or investigation of crimes under this law.