LAW ON WARS

AND
ARMED
CONFLICTS
Prepared by:

Nicolas-Bernal, Eunice G.
Guariña, Rejel A.
Peran, Chiqui E.
OVERVIEW
OVERVIEW
WAR
o The use of violence and force between two or more states to
resolve a matter of dispute.

o Armed contention between the public forces of states or

other belligerent communities, implying the employment of
violence among the parties as a means of enforcing their
respective demands upon each other.

o It also exist even without the use of force as when a state

formally refuses to be governed by the laws of peace in its
relations with another state even if actual hostilities have not
taken place between them.
Just Causes of War
War is outlawed. In only two instances is the use of force
allowed, to wit:
a. In the exercise of the inherent right of self- defense;
and
b. Enforcement action that may be decreed by the
Security Council.

• Right to self-defense (requisites):

a. Presence of an armed attack,
b. The right may be resorted to only upon a clear showing
of a grave or actual danger to the security of the state,
b. The self-defensive measures must be limited by
necessity and kept clearly within it.
Commencement of War
 War commences on:

o the date specified in the declaration or on the date it is

communicated to the enemy; or

o from the moment of the first act of force committed by

one state with the intent of making war or committed
without such intent but considered by the other state
as constituting war.
Effects of the Outbreak of War
1. The laws of peace cease to regulate the relations of the
belligerent and are superseded by the laws of war.
2. Diplomatic and consular relations between the
belligerents are terminated and their respective
representatives are allowed to return to their own
countries.
3. Treaties of a political nature are automatically cancelled,
but those which are precisely intended to operate during
war are activated.
4. Enemy’s public property found in the territory of the
other belligerent at the outbreak of hostilities is subject
to confiscation.
Termination of War
1. Cessation of hostilities.
2. Conclusion of a negotiated treaty of peace.
3. Defeat of one of the belligerents followed by a dictated
treaty of peace.

Aftermath of War
o Principle of uti possidetis – property or territory in the
possession of the respective belligerents upon the
termination of the war is retained by them.
o Status quo ante – calls for the complete restoration to
their former owners of property or territory that may have
changed hands during the hostilities.
LAW OF WAR
o A part of international law dealing with the inception,
conduct, and termination of warfare. Its aim is to limit the
suffering caused to combatants and, more particularly, to
those who may be described as the victims of war—that
is, noncombatant civilians and those no longer able to
take part in hostilities.

o Thus, the wounded, the sick, the shipwrecked, and

prisoners of war also require protection by law.
Roots of International Law of War
Law by treaty
o Treaties prohibiting brutal acts in battle had been
negotiated between states.
o Developed a uniform practice among states that
considered themselves civilized to avoid such conduct.
o In order for such norms to develop, there had to come
into existence a belief shared by a number of
independent states that some limits should be placed
on the methods and means of war among themselves
—especially if wars were to be fought between
Christian states.
Roots of International Law of War
Law by custom
o Found in the actual practice of states and in the belief
(called opinio juris: “opinion of the law”) that that practice is
in conformity with international law.
o Although a particular state is not a party to a certain treaty,
it is nevertheless bound by the principle of customary
international law codified in that treaty.
o Some areas of the laws of war are not covered by treaty
provisions, making it necessary to turn to other sources of
international law. However, it may be that a particular point
has never arisen before. In this case the Martens Clause,
which first appeared in one of the 1899 Hague
Conventions.
Roots of International Law of War
o Martens Clause
Originally formed part of the Hague
Convention II with respect to the Laws and
Customs of War on Land in 1899.
One of the preambular paragraphs of the
Hague Conventions IV which provides that in
cases not covered by the rules of law, “the
inhabitants and belligerents remain under the
protection and the rule of the principles of law of
nations, as they result from the usages
established by civilized peoples, from the laws of
humanity and the dictates of the public
conscience.”
NEUTRALITY IN WAR
Neutrality is the legal status arising from the abstention of
a state from all participation in a war between other states,
the maintenance of an attitude of impartiality toward
the belligerents, and the recognition by the belligerents of
this abstention and impartiality.

Neutrals in a war are those who take no part in it, but

remain the common friends of the belligerents, favoring the
arms of neither to the detriment of the others.The nationals
of a State which is not taking part in the war are considered
as neutrals.
 NEUTRALITY IN WAR
RELATIONS OF BELLIGERENT STATES AND NEUTRAL
STATES:
1. A neutral state has the right and duty to abstain from taking
part in the hostilities and from giving assistance to either
belligerent;
2. To prevent its territory and other resources from being used
in the conduct of hostilities by the belligerents;
3. To acquiesce in certain restriction and limitations that the
belligerents may find necessary to impose, especially in
connection with international commerce;
4. The belligerents, on the other hand, are bound to respect
the status of the neutral state, avoiding any act that will
directly or indirectly involve it in their conflict, and to submit
to any lawful measures it may take to maintain or protect its
neutrality.
 NEUTRALITY IN WAR
General Rule: War activities by or on behalf of any of the
belligerents may not be undertaken in the territory of the
neutral state without infringement of its neutrality. Neutral
territory is inviolable.
Exceptions:
1. Passage of sick and wounded troops is allowed through a
neutral state provided personnel and materials of war are
not also carried;
2. Persons bound for enlistment in the belligerent armies
may cross the neutral frontiers if they do so individually or
separately and not as a body;
3. The neutral state itself may give refuge to troops from the
belligerent forces but must intern them as far as possible,
at a distance from the theater of war;
 NEUTRALITY IN WAR

4. Escaped prisoners of war need not be detained by the

neutral state but must be assigned a place of residence if
they are allowed to remain;
5. Warships belonging to belligerents may enter neutral
ports, harbors and roadsteads only in cases of
unseaworthiness, lack of fuel or provisions, or stress of
weather. The vessel must leave as soon as it has been re-
provisioned; it can take only so much fuel or supplies as it
will need until it reaches the nearest of its own parts.
 NEUTRALITY IN WAR
6. Repairs should be permitted so long as they are not
intended to increase the fighting force of the vessel.
Neutral states are free to allow their nationals to deal, in
their private capacity, with any of the belligerents.
International law considers the relationship [in the
absence of special rules imposing upon the neutral state
the duty of intervening in the transaction] as strictly
between the individual and the belligerent states and
whatever hardships may be suffered by its nationals as a
result thereof must, as a rule, be acquiesced in the neutral
state.
NEUTRALITY IN WAR
Belligerent warships and aircraft have the right to visit and
search neutral merchant vessels on the high seas for the
purpose of determining whether they are in any way
connected with the hostilities. These vessels may be
captured as prize if:
a. they are liable engaged in hostile activities;
b. if they resist visit and search; or
c. if there is reasonable suspicion that they are liable to
confiscation.
Categories of Armed Conflict
1. International Armed Conflict.
According to the Geneva Conventions of 1949, common
article 2 states that “all cases of declared war or of any
armed conflict that may arise between two or more high
contracting parties, even if the state of war is not
recognized, the convention shall also apply to all cases of
partial or total occupation of the territory of a high
contracting party even if the said occupation meets with no
armed resistance”
This means that the occurrence of international armed
conflict is clear, that is, it would be a conflict between the
legal armed forces of two different states. A good example
woul be the North Korean-South Korean war of 1950.
Categories of Armed Conflict
2. Internationalized Armed Conflict

 Can occur when a war occurs between two

different factions fighting internally but supported
by two different states
 Example would be the conflict in the Democratic
Republic of Congo in 1998 when the forces from
Rwanda, Angola, Zimbabwe, and Uganda
intervened to support various groups in the DRC
Categories of Armed Conflict
3. Non-International Armed Conflict
- According to Common Article 3 of the Geneva Convention,
non-international armed conflicts are those that are non-
international in nature occurring in on e of the High contracting
parties. This means that one of the parties is nongovernmental in
nature. However, common article 3 also states that it does not
apply to other forms of violence such as riots, isolated and sporadic
acts of violence.
For a situation to be classified as a non-international armed
conflict, it has to achieve two variables:
a. The hostilities have to reach a certain minimum level of
certainty; and,
b. There has to be a level of organization of the parties
LAW OF ARMED CONFLICT
o A branch of international law, the law that States have
agreed to accept as binding upon them in their dealings
with other States. As well as governing relationships
between States, international law applies to the conduct
of hostilities within a State.
o It governs relations between States during armed
conflicts; it also applies to fighting within the State; it is
intended to reduce as much as possible the suffering,
loss and damage caused by war; it places obligations on
persons in the States involved, primarily members of the
armed forces; it is not designed to impede military
efficiency in any way.
Components of Law of Armed Conflicts
1. Customary international law
o The law of armed conflict is based on our customs and
traditions and our experience of armed conflict throughout
the ages. A good example is the universal ban on poisoning
as a form of warfare, which dates back to ancient times
when, for example, the military on both sides would issue
orders not to poison wells, as much for their benefit as for
that of the civilian population – they might need the water
one day. Over the years, these customs, traditions and
experiences have developed into “hard law”, namely
customary international law and treaty law. Both are legally
binding.
o Customary international law results from the general
and consistent practice applied by States out of a sense of
legal obligation.
Components of Law of Armed Conflicts
2. Treaty Law
 The treaty law is based on:
o Geneva law
This branch of the law is aimed at protecting
the victims of a conflict who are in the power of the
adversary – civilians, or you, too, if you have been
wounded or taken prisoner of war (POW). The four
1949 Geneva Conventions are aimed at exactly those
situations. They protect the wounded and sick on land
and at sea, prisoners of war and civilians.
Components of Law of Armed Conflicts
o Geneva law
It comprises the four Geneva Conventions
drawn up in 1949 (and which supplemented the
earlier Conventions of 1864, 1906 and 1929).
a. The First Geneva Convention protects the
wounded and sick on land;
b. The Second Geneva Convention protects the
wounded, sick and shipwrecked at sea;
c. The Third Geneva Convention deals with the
status and treatment of prisoners of war; and
d. The Fourth Geneva Convention protects
civilians in times of war.
 Components of Law of Armed Conflicts
o Hague law
Its aim is to lay down rules for the conduct of
operations, on how the fighting is to be carried out, by
stating, for example, what you can attack and how
you should attack it. It gives rules which limit the
destructive effects of combat exceeding what is really
necessary to achieve the military aim or mission.
It deals with the practical military aspects of the conduct of
hostilities. Hague law covers in particular:
a. the rights and duties of the belligerents in their conduct
of operations;
b. the limitations and prohibitions in the choice of methods
and means of warfare;
c. the rules regarding occupation and neutrality.
Parties to Armed Conflicts
Combatants
o include anyone engaging in hostilities in an armed
conflict on behalf of a party to the conflict. This can be
a status- or conduct-based designation. These
persons are lawful targets unless out of combat or
hors de combat, e.g., wounded, sick, or taken
prisoner.
o Excludes medical personnel and chaplain.
o Combatants may be referred to as lawful or privileged
if they meet the following requirements:
a. under responsible command;
b. wear a fixed distinctive sign recognizable at a
distance;
c. carry arms openly; and
d. abide by the laws of war.
Parties to Armed Conflicts
Non-combatants
Those who enjoy or are entitled to protection
under the Geneva Conventions of 1949.
o These persons are categorized as:
Wounded, sick and shipwrecked (1st and 2nd
Geneva Conventions), Prisoners of war (3rd
Convention), Civilians (4th Convention), categorized
as follows for purposes of protection:
a. Civilians who are victims of conflict in
countries involved (4th Geneva Convention)
b. Civilians in territories of the enemy
c. Civilians in occupied territories
d. Civilian internees
 Basic Principles of the Law of Armed Conflict
1. Military Necessity
o Principle which justifies those measures not forbidden
by international law which are indispensable for
securing the complete submission of the enemy as
soon as possible.
o Limits those measures not forbidden by international
law to legitimate military objectives whose
engagement offers a definite military advantage

Elements of Military Necessity

a. a military requirement to undertake a certain
measure,
b. not forbidden by the laws of war.
 Basic Principles of the Law of Armed Conflict
2. Principle of Discrimination or Distinction
o Sometimes referred to as the “grandfather of all
principles,” as it forms the foundation for much of the
Geneva Tradition of the law of armed conflict.
o The essence of the principle is that military attacks
should be directed at combatants and military targets,
and not civilians or civilian property.
o 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.
 Basic Principles of the Law of Armed Conflict
3. Principle of Proportionality
o 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” violates the principle of
proportionality.
o “The key factor in determining if a target is a lawful
military object is whether the desired effect to be
rendered on the target offers a definite military
advantage in the prevailing circumstances without
excessive collateral damage.
 Basic Principles of the Law of Armed Conflict
3. Principle of Unnecessary Suffering or Humanity
o Principle of superfluous injury or humanity
o Requires military forces to avoid inflicting gratuitous
violence on the enemy. It arose originally from
humanitarian concerns over the sufferings of wounded
soldiers, and was codified as a weapons limitation: “It is
especially forbidden . . . to employ arms, projectiles or
material calculated to cause unnecessary suffering.”
o Operates to prohibit certain weapons, and to restrict the
use of others; For example, there are treaty bans
prohibiting the use of laser weapons, biological weapons,
chemical weapons and anti-personnel landmines There
are treaty restrictions on the use of anti-personnel land
mines  (for states not bound by the treaty banning their
use outright), anti-vehicle mines, explosive remnants of
war and fragmentation weapons.
Methods of Warfare
 Permissible method of warfare:
 Ruses of war
o Ruses of war are acts intended to mislead an adversary or
induce him to act recklessly but they infringe no rule of
international humanitarian law and are
not perfidious because they do not invite the confidence of
an adversary with respect to protection under that law.

o Examples of ruses of war are:

a. camouflage (natural, paints, nets, smoke);
b. displays (decoys, feints);
c. simulations and mock operations; and
d. dissemination of false information.
 Methods of Warfare
Prohibited methods of warfare include:
 Perfidy
o Acts inviting the confidence of an adversary to lead him
to believe he is entitled to, or is obliged to grant,
protection under the rules of international humanitarian
law applicable in armed conflict, with intent to betray
that confidence, constitute perfidy.

o The following acts are examples of perfidy:

a. feigning an intent to negotiate under a flag of truce;
b. feigning surrender;
c. feigning incapacitation by wounds or sickness;
d. feigning civilian or non-combatant status;
 Methods of Warfare
feigning protective status by the use of signs, emblems
or uniforms of the United Nations or of a neutral or other
State not party to the conflict;
making improper use of the emblem of the red cross, red
crescent or red crystal.

Terror
o A forbidden method of warfare whose primary purpose
is to spread terror among the civilian population.
Indiscriminate bombardment is one of the principal
methods of terror.
Methods of Warfare
• Starvation
o Deliberately depriving civilian persons of food. It is,
for example, prohibited to attack, destroy, remove or
render useless objects indispensable to the survival
of the civilian population, such as foods, agricultural
areas for the production of foods, crops, livestock,
drinking water installations and supplies and
irrigation works, etc., for the specific purpose of
denying them their sustenance value to the civilian
population or to the adverse party, in order to starve
civilians, cause them to move away, or for any other
motive.
 Methods of Warfare
Reprisals against non-military objectives
o It is intended to put pressure on the enemy in order to
obtain the enemy's compliance with international
humanitarian law. Reprisals are only allowed under very
strict conditions and there is a trend towards outlawing
reprisals in international humanitarian law.
o Reprisals against wounded, sick or shipwrecked
persons, medical or religious personnel, transports and
material, prisoners of war, the civilian population and
civilian persons, cultural property, objects indispensable
to the survival of the civilian population, the
natural environment, works and installations containing
dangerous forces and the buildings and material used
for the protection of the civilian population are always
prohibited.
 Methods of Warfare
Indiscriminate attacks
o An attack of a nature to strike military objectives
and civilians or civilian objects without discrimination,
i.e. an attack which:
a. is not directed at a specific military objective (or
person); employs a method or means of
warfare which cannot be directed at a specific
military objective (or person); or
b. employs a method or means of combat the effects
of which cannot be limited as required by
international humanitarian law.
Methods of Warfare
o Indiscriminate attacks are prohibited and include:
a. an attack by bombardment, by any means or
method 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 similar concentration of civilians or
civilian objects;
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
tangible and direct military advantage anticipated.
 Methods of Warfare
 Damage to the natural environment
o It is prohibited to use methods or means of
warfare which are intended or may be expected to
cause widespread, long-term and severe damage to the
natural environment and thereby to prejudice the health
or survival of the population. Attacks against the natural
environment by way of reprisals are also prohibited.

 Ordering that there shall be no survivors

 Taking advantage of the presence of the civilian population

or population movements to promote the conduct of
hostilities
 Methods of Warfare
 Works and installations containing dangerous forces
o Those whose attack may cause the release of
dangerous forces and consequent severe losses among
the civilian population. They are mainly dams, dykes
and nuclear electrical generating stations. They may not
be attacked, even where they are military objectives, if
such attack may cause the release of dangerous forces
and consequent losses among the civilian population.
This special protection against attack ceases in certain
specified circumstances. Reprisals against them are
prohibited. Works and installations containing
dangerous forces must always bear the appropriate
distinctive sign.
 Methods of Warfare
 Pillage
o Those systematic and violent appropriation of movable
public or private property belonging to the enemy State,
to civilians, wounded, sick or shipwrecked persons, or to
prisoners of war. Pillage is a war crime. When
movable property belonging to civilians, wounded,
sick or shipwrecked persons, prisoners of war or
the dead on the battlefield is removed by non-violent
means, the term “spoliation” is sometimes used.
Spoliation is prohibited.
 Methods of Warfare
 Taking hostages
o Hostages are persons who, irrespective of their status,
have been detained under circumstances in which death
or injury to themselves or those close to them, or
continued unlawful detention is threatened, in order to
compel a third party to do or to abstain from doing any
act in exchange for the release or safety of the hostage
or others threatened. Carrying out, or threatening to
carry out, an act of hostage-taking is prohibited under
international humanitarian law and constitutes a grave
breach in international armed conflicts and a war
crime in non-international armed conflicts.
INTERNATIONAL CRIMINAL COURT
o The International Criminal Court (ICC or ICCt) is
an intergovernmental organization and international
tribunal that sits in The Hague, Netherlands. The ICC is the
first and only permanent international court
with jurisdiction to prosecute individuals for the international
crimes of genocide, crimes against humanity, war
crimes and the crime of aggression. It is intended to
complement existing national judicial systems, and it may,
therefore, exercise its jurisdiction only when national courts
are unwilling or unable to prosecute criminals. The ICC
lacks universal territorial jurisdiction and may only
investigate and prosecute crimes committed within member
states, crimes committed by nationals of member states, or
crimes in situations referred to the Court by the United
Nations Security Council.
INTERNATIONAL CRIMINAL COURT
o The ICC began operations on 1 July 2002, upon the entry
into force of the Rome Statute, a multilateral treaty that
serves as the court's foundational and governing
document. States which become party to the Rome
Statute become members of the ICC, serving on the
Assembly of States Parties, which administers the court.
As of December 2020, there are 123 ICC member states;
42 states have neither signed nor become parties to the
Rome Statute.
INTERNATIONAL CRIMINAL COURT
o The ICC has four principal organs:
a. the Presidency,
b. the Chambers,
c. the Office of the Prosecutor and
d. the Registry.
INTERNATIONAL CRIMINAL COURT
o Presidency

 Consists of three judges (the President and two Vice-

Presidents) elected by an absolute majority of the 18 judges of
the Court for a maximum of two three-year terms

 Responsible for the administration of the Court, with the

exception of the Office of the Prosecutor. It represents the
Court to the outside world an d helps with the organization of
the work of the judges. The Presidency is also responsible for
carrying out other tasks, such as ensuring the enforcement of
sentences imposed by the Court
INTERNATIONAL CRIMINAL COURT
o Chambers
 The 18 Judges, including the Judges of the Presidency, are assigned to
the Court’s three judicial divisions:
 Pre-Trial Division
 Composed of not less than 6 Judges
 Trial Division
 Composed of not less than 6 Judges
 Appeals Division
 Composed of 5 Judges

 The aforementioned are assigned to the following Chambers:

 Pre-Trial Chambers – each composed of 1 or 3 Judges
 Trial Chambers – each composed of 3 Judges
 Appeals Chamber – composed of 5 Judges of the Appeals Division
(the President of the Court and four other Judges)
INTERNATIONAL CRIMINAL COURT
o Chambers, their Roles

 Pre-Trial Chambers

 Resolve all issues which arise before the trial phase begins
 Essentially to supervise how the Office of the Prosecutor carries out
its investigatory and prosecutorial activities, to guarantee the rights of
the suspects, victims and witnesses during the investigatory phase,
and to ensure the integrity of the proceedings
 Decide whether or not to issue warrants of arrest or summonses to
appear at the Request of the Office of the Prosecutor and whether or
not to confirm the charges against a person suspected of a crime
 Decide on the admissibility of situations and cases and on the
participation of victims at the pre-trial stage
INTERNATIONAL CRIMINAL COURT
o Chambers, their Roles

 Trial Chambers

 Ensure that trials are fair and expeditious and are conducted with full
respect for the rights of the accused and due regard for the protection
of the victims and the witnesses

 Rules on the participation of victims at the trial stage

INTERNATIONAL CRIMINAL COURT
o Chambers, their Roles

 Appeals Chamber

 Uphold, reverse or amend the decision appealed from, including

judgments and sentencing decisions, and may even order a new trial
before a different Trial Chamber
 May Revise a final judgment of conviction or sentence
INTERNATIONAL TERRORISM
o There is no current agreement regarding of a universal
legal definition of the term, there has been some debate
regarding the possible existence of an, at least partial,
customary definition of terrorism.
o In 2005, a definition of "transnational terrorism" has
existed within customary international law:
INTERNATIONAL TERRORISM
o This customary rule requires the following three key
elements:
a. the perpetration of a criminal act (such as murder,
kidnapping, hostage-taking, arson, and so on), or
threatening such an act;
b. the intent to spread fear among the population (which
would generally entail the creation of public danger)
or directly or indirectly coerce a national or
international authority to take some action, or to
refrain from taking it;
c. when the act involves a transnational element.
(Interlocutory Decision, 2011, para. 85).
INTERNATIONAL TERRORISM
o IHL does not apply to incidents of terrorism or terrorist
acts:
o An individual terrorist or a terrorist group CANNOT qualify
as a PARTY to an armed conflict. Terrorism may consist
of individual criminal acts and thus incidents of terrorism
may be considered under Article 1 (2) of Additional
Protocol II as “situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of
violence and other acts of similar nature,” which does not
constitute armed conflicts.