RULES OF INTERNATIONAL HUMANITARIAN LAW (IHL) APPLICABLE TO NON-INTERNATIONAL ARMED CONFLICTS,

AND VIOLATIONS THEREOF*

[*Adapted and summarized from various sources, primarily the ICRC online course on IHL in non-international armed conflict]
IMPORTANT PRELIMINARY NOTES:
These rules are complementary to, and are applied in conjunction with, applicable rules of international human rights
law and domestic law.
Take note that the Philippines was not yet a State Party to Additional Protocol II, the Rome Statute, and many of the
weapons treaties during the time of Martial Law. Thus, it is not advisable to cite most of the specific
provisions given here as legal basis in the resos. If the argument is grounded on an IHL violation, it should be
phrased as contrary to applicable rules of international humanitarian law, in accordance with customary rules of
international humanitarian law or similar formulations. (FOR PARALEGALS: It is important to understand that much of
IHL is soft law. Unlike in national/domestic law, in the case of a civil law jurisdiction like the Philippines, it is not
always possible to point to a specific treaty provision article, section, paragraph, etc. that serves as the legal basis
for a particular argument. However, the upside of this is that while a particular treaty may not [yet] be legally binding
upon a party to the conflict [at least at the time that the violation was committed], the rule in question may constitute
a customary norm of international law. Custom is a primary source of international law, along with treaties and general
principles of law -- which, under the incorporation clause in the Constitution, are deemed part of the law of the land.
This is why, in several instances, I have referred to the principles behind these rules rather than to specific treaty
provisions it is the spirit of IHL that is important.)
A pending question is whether the State bears responsibility in cases of IHL violations where the
perpetrators are unidentified (e.g. if civilians are killed when caught in the crossfire, and it was not possible to
determine who fired the shots that killed them). The decision in these cases is left to the discretion of the Board
Members in each Division, perhaps after the case has undergone investigation (where appropriate). However, the ff.
are some general considerations that may be taken into account in determining whether or not the State bears
responsibility in such cases:
Each State Party to the Geneva Conventions is under an obligation not only to respect the rules of
IHL, but also to ensure respect for such rules (e.g. this has even been applied to argue that members of an
international military coalition are obliged not only to ensure compliance with IHL among their own forces, but
also among the troops of their fellow coalition member countries).
 States have an obligation, under customary law (as later embodied in the Rome Statute), to
investigate and prosecute serious violations of IHL (aut dedere et judicare). For specific violations,
failure to do so is an element that contributes to State agents culpability (e.g. in cases of enforced
disappearance under RA 10353, where failure to investigate and report on the whereabouts of the missing
person, coupled with denial of culpability, renders public officers liable).

Persons protected Applicable rules + prohibited acts Legal basis

1. All persons taking no The ff. acts shall be prohibited at all times: Article 3, common to the
active part in a. Violence to life and person, in particular murder of all 4 Geneva Conventions
hostilities kinds, mutilation, cruel treatment, and torture (hereafter, Common
2. Persons rendered hors b. Taking of hostages Article 3) + customary IHL
de combat, i.e.: c. Outrages upon personal dignity, in particular humiliating
a) Those who have and degrading treatment
laid down their d. Passing of sentences and carrying out executions without
arms/surrendered previous judgement pronounced by a regularly
(includes use of constituted court, affording all judicial guarantees which
white flag) are recognized as indispensable by civilized peoples
b) Wounded and sick
combatants Other prohibited acts: Protocol II of 1977,
c) Captured/detained a. Violence to physical or mental wellbeing of persons, or Additional to the Geneva
combatants any form of corporal punishment Conventions (hereafter,
b. Collective punishments Additional Protocol II), Art.
c. Acts of violence against the civilian population, the 4(2)(a)-(h) + customary
primary aim of which is to spread terror IHL norms embodied in
d. Rape
Art. 8(2) of the Rome
e. Enforced prostitution
Statute
f. Any form of indecent assault or other forms of sexual
violence (including forced pregnancy and enforced
sterilization)
g. Pillage
 h. Threats to commit any of the foregoing acts

EQUAL TREATMENT IS MANDATORY: In applying such protection,

no adverse distinction shall be made based on race, colour, Common Article 3
religion or faith, sex, birth or wealth, or any other similar
criteria.

It is prohibited for a commander of any fighting force to order Additional Protocol II, Art.
that there will be no survivors (no quarter will be given). 4(1)
Use of protected persons as human shields is prohibited.
Wounded, sick, and The wounded and sick shall be collected and cared for. They Common Article 3
shipwrecked persons must be treated humanely, and protected against ill-treatment.

They should receive the appropriate medical assistance Additional Protocol II, Art.
required by their condition, regardless of which side they 7
fought on. The only allowable ground for discrimination is
medical i.e. based on the needs and severity of the
illness/wound.

The search for the wounded and sick must be done without
delay whenever circumstances permit, and particularly after Additional Protocol II, Art.
every engagement (i.e. military operation or armed encounter). 8
Children Children under 15 must NOT be recruited into the fighting Additional Protocol II, Art.
forces of any group nor allowed to take part in the hostilities. 3(a)-(e) + Convention on
If, despite this rule, they do participate in the hostilities and are the Rights of the Child +
captured, they remain fully protected under the law (see customary IHL and human
above). rights law

Where necessary, measures should be taken to temporarily Customary international

remove children out of conflict areas into safer places within law
the same country (see general rules on protection of civilians),
with their parents/guardians consent whenever possible. They
 should be accompanied by persons who are responsible for
their safety and well-being.
All appropriate steps must be taken to facilitate the reunion of
families who have been temporarily separated.
The civilian population in The civilian population as such (as a whole) and individual Additional Protocol II, Art.
general civilians must NOT be made the object of an attack. [The term 13
attack applies to all phases of combat: offense, defence,
siege, maneuvers, etc.]

Advanced warning must be given prior to an attack. PRINCIPLE OF

PRECAUTION (customary
Starvation of civilians as a method of combat is prohibited. IHL, as embodied in the
It is prohibited to attack, destroy, remove, or render useless for Geneva Conventions)
that purpose, objects considered indispensable to the survival Additional Protocol II, Art.
of the civilian population, such as: foodstuffs, agricultural 14
areas, livestock, drinking water installations, irrigation works,
and similar objects.

It is prohibited to attack:
1. Works or installations containing dangerous forces (e.g.
dams, power plants, nuclear facilities, etc.)
2. Cultural objects (e.g. monuments, historical landmarks) Additional Protocol II, Art.
and places of worship (e.g. mosques, churches); it is also 15
prohibited to use these in support of military operations.
Additional Protocol II, Art.
As a general rule, FORCED MOVEMENT OF CIVILIANS IS 16 and Hague Convention
PROHIBITED: Civilians must not be displaced unless it is for on Cultural Property, Art.
their own security or for reasons of imperative military 19
necessity. In case such involuntary movement/evacuation is
ordered, all possible measures must be taken to ensure that Additional Protocol II, Art.
the new location has satisfactory facilities/arrangements for 17
their shelter, hygiene, safety, and nutrition. The military

Members of opposition
groups (e.g. rebel forces) attacked, and only during the time of their
and civilians taking part in
armed hostilities
commander should provide assistance (e.g. transport) to help
them move, ensure their safety (e.g. by providing armed
escorts), and ensure that they are able to return to their
villages as soon as the situation stabilizes.
It is also prohibited to compel civilians to leave their own
territory for reasons connected with the conflict.
Collective punishments (e.g. detaining all members of an
ethnic group) and reprisals (e.g. killing/taking as hostages
suspected members of an opposition group in retaliation for
deaths of ones own troops in an armed encounter) are
prohibited
Only those taking a direct part in hostilities may be Common Article 3 +
Additional Protocol II, Art.
participation. 13(3)
They must, at all times, be distinguished from those who are
not taking part in the hostilities, who are fully protected from
attack.
Treacherously killing or wounding a combatant adversary is
prohibited. Customary IHL (as
embodied in the
Examples of activities during which opposition fighters are provisions of the Geneva
considered to be taking a direct part in hostilities INCLUDE, BUT Conventions)
ARE NOT LIMITED TO, the ff:
a. Attacking a government military position
b. Laying an ambush against government forces
c. Caught transporting arms and ammunition (e.g. at a
road block/checkpoint)
d. Caught in an opposition base, fighting to defend their
position
e. Snipers engaging government forces PRINCIPLE OF
PROPORTIONALITY
RULES ON CONDUCT OF HOSTILITIES
It is prohibited to launch an attack that may be expected to (customary IHL, as
cause incidental loss of civilian life, injury to civilians, damage embodied in the Geneva
to civilian objects, or a combination of these, which would be Conventions)
excessive in relation to the concrete and direct military
advantage anticipated. PRINCIPLES OF
DISTINCTION &
Timing and direction of attack, choice of weapons, etc. must be MILITARY NECESSITY
chosen to minimize unnecessary damage and destruction. The (customary IHL, as
commander must cancel or suspend an attack if it becomes embodied in the Geneva
apparent that: Conventions)
1. The intended target is not a military objective;
2. The intended target is especially protected under IHL; OR
3. The attack would cause disproportionate collateral
damage.
Given a choice of different targets with the same tactical
advantage, a commander must choose the one that will cause
the fewest civilian casualties and least damage. Various weapons-related
treaties (Hague
In general, it is prohibited to use weapons that: Conventions +
a. Cause unnecessary injury or superfluous suffering subsequent treaties
b. Are indiscriminate by nature (i.e. cannot be precisely dealing with specific types
targeted to distinguish between civilian objects and of weapons), in relation to
legitimate military objectives) the PRINCIPLE OF
*Examples of explicitly prohibited weapons (NOT an exhaustive LIMITATION of means
list): and methods of
a. chemical weapons (including riot-control agents, e.g. warfare
tear gas is prohibited to be used in combat)
b. biological weapons
c. poison or poisoned weapons
d. bullets that explode in the human body
e. expanding bullets
f. weapons primarily designed to injure by non-detectable
fragments
 g. blinding laser weapons
h. anti-personnel landmines
i. other types of landmines (e.g. anti-vehicle mines) IF
used indiscriminately and minefields are not mapped
j. incendiary weapons (i.e. those using fire) IF there is no
clear separation between civilians and the opposing
forces
k. booby-trap devices IF placed on protected objects and/or
used in circumstances in which civilians or other
protected persons are likely to be killed or injured
Persons deprived of their They must receive food, water, and adequate safeguards for Additional Protocol II, Art.
liberty [for reasons health and hygiene. They are allowed to receive relief, 5(1) (a)-(e)
connected with the armed individually and/or collectively, from humanitarian
conflict], including organizations.
captured/detained They must be allowed to practice their religion and, upon their
combatants and civilian request, to receive spiritual assistance from those performing
internees religious functions.
If made to work, they must benefit from the same working
conditions and safeguards as the local civilian population.
They are entitled to send and receive letters and cards, subject
to any restriction in quantity as considered necessary by the Additional Protocol II, Art.
detaining authority. 5(2) (a)-(e)

They are entitled to benefit from medical examinations. Their

physical and mental health and integrity must not be
endangered by any act or omission. They must not be
subjected to any medical procedures that are not indicated by
their state of health and not consistent with generally accepted Additional Protocol II, Art.
medical standards. 5(4)

Upon their release, the authority holding them in custody must

take necessary steps to ensure their security

Persons charged with
criminal offenses related to
the conflict
(similar/equivalent to non-refoulement guarantees in
international armed conflict).
No sentence shall be passed or penalties executed, except Additional Protocol II, Art.
pursuant to a conviction pronounced by a court offering the 6(2)
essential guarantees of independence and impartiality.
Fundamental judicial guarantees should be applied i.e. the
accused must: Additional Protocol II, Art.
a. Be informed of the particulars of the offense charged 6(2) in relation to
b. Be given all the necessary rights and means of defence, applicable national law/s
before and during the trial and general principles of
c. Not be convicted of an offense except on the basis of international law
individual criminal responsibility
d. Not be found guilty of an act which was not an offense at
the time it was committed (ex post facto)
e. Not be given a punishment more severe than that which
was applicable at the time the offense was committed; if,
after the offense was committed, a lighter punishment
was introduced (i.e. the new law is favourable to the
accused), the accused should benefit from it.
f. Be presumed innocent until proven guilty
g. Have the right to be present at the trial
h. Not be compelled to testify against themselves or to
confess guilt (right against self-incrimination)
Convicted persons must be informed of the judicial or other
Additional Protocol II, Art.
remedies (e.g. right to appeal) and the time limits involved.
6(3)
The death penalty must not be pronounced on:
1. Persons who were under 18 years old at the time of the
Additional Protocol II, Art.
offense
6(4)
 2. Pregnant women
3. Mothers of young children
The dead The dead must be collected and decently buried. The bodies Additional Protocol II, Art.
must not be despoiled. [In accordance with common military 8
practice that has ripened into a customary norm of
international law, the bodies must also, as far as practicable,
be identified before burial in order to facilitate registration of
the casualties with the proper civil authorities.]
Medical and religious They must be respected and protected at all times, and must Additional Protocol II, Art.
personnel be given all available assistance in carrying out their duties. 9
They must not be required to carry out duties which are not
compatible with their humanitarian mission.

Medical personnel must not be required to give priority to any

person except on medical grounds. Additional Protocol II, Art.
They must not, under any circumstances, be punished for 10
carrying out medical duties compatible with medical ethics.
They must not be compelled to perform acts contrary to such
ethics (e.g. medical/scientific experiments that endanger the
patient).
They must not be forced to refrain from acts required by said
ethics or by any other applicable rule of IHL.

Medical units and transports (e.g. ambulances) must be

protected at all times and must not be attacked. Additional Protocol II, Art.
Such protection only ceases IF such units/transports are being 11
used for hostile purposes outside their purely humanitarian
function, but adequate warning must still be given before the
attack.

Medics and religious personnel, and buildings and vehicles

used exclusively by them for humanitarian purposes may, at Additional Protocol II, Art.
their option, wear or display the distinctive protective emblem 12
of the red cross or red crescent, subject to the authorization
and supervision of the competent authorities. Improper or
unauthorized use of such emblems is prohibited, and may
constitute an act of perfidy under IHL.