WAR

 An armed contention between the public forces of the states or other belligerent
communities, implying the employment of violence among parties as a means of
enforcing their respective demands upon each other (specific action).

 War may exist even without the use of force, as when one 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 (specific status).

Conflict involving the organized use of weapons and physical force by states or other
large-scale groups. Warring parties usually hold territory, which they can win or lose;
and each has a leading person or organization which can surrender, or collapse, thus
ending the war. Wars are usually a series of campaigns between two opposing sides
involving a dispute over sovereignty, territory, resources, religion, or ideology.

Concept/Meaning:

 Jus Ad Bellum/Law of War – when the use of Armed Forces is justifiable,

concerned with the right to imitate war
 Jud Ad Bello/Law of Warfare – conduct of armed conflict, concerned with the
rules that apply during a war
 Traditional definition of war: “state of force between states with suspension of
peaceful relations.” –Alfred Verdross
 Contemporary definition of War  A sustained struggle of a scale and duration
that threatens the existence of the government of a state or an equivalent
juridical person waged between groups of forces that are armed, wear a
distinctive insignia, and are subject to military discipline under a responsible
command.
 NOTE: War may exist even without the use of force, as when one state formally
refuses to be governed by the laws of peace in its relation with another state
even if actual hostilities have not taken place between them.
 The employment of force by one state against another does not necessarily
result in war, and on the other hand, a state of war may be deemed exising
between parties notwithstanding that force was never resorted to in their mutusl
dealings.

Sources of the Laws of War

 Governed by numerous treaties or conventions and by accepted customs

(customary laws of war).

The two (2) leading treaties that are sources of Laws of War at present are the
following:
1. The Charter of the UN
2. The Geneva Conventions and its protocols
Earlier Treaties:
1. The Kellogg-Briand Pact of 1928
2. 1907 Hague Convention IV
- “Respecting the Laws and Customs of War on Land”
Commonly Accepted Sanctions:

a) Protest lodged by one belligerent, usually accompanied of followed by an

appeal to world opinion against the unlawful acts of warfare committed by
other belligerent
b) Reparation for damages caused by the defeated belligerent
c) Punishment of war criminals

THE GENEVA CONVENTIONS

 A series of conventions held over several numbers of years and comprising four
(4) treaties and two (2 protocols) as of today.
 As of 2015, 196 countries had ratified to all four the Geneva Conventions. It is the
foremost humanitarian law of today.

The Convention governed matters such as the:

- protection of civilians in times of war

- treatment of the sick and wounded
- treatment of prisoners of war

A. 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field. (1864)

Distinctive feature:

The principle that sick and wounded have neutral status.

 The immunity from capture and destruction of all establishments for the
treatment of wounded and sick soldiers and their personnel
 The impartial reception and treatment of all combatants
 The protection of civilians providing aid to the wounded
 Recognition of the Red Cross symbol as a means of identifying persons
and equipment covered by the agreement.

RED CROSS

 Jean Henri Dunant (founder)

 Un Souvenir de Solferino in 1862

- An account of the sufferings of wounded soldiers during a battle in

Solferino, Northern Italy in June 1859.
- Advocated the humane treatment of wounded soldiers and the
establishment of an organization that would carr a humanitarian task
- International committee of the Red Cross and Red Crescent Movement (a
red cross on a white ground)

B. 1949 Geneva Convention II for the Amelioration of the Condition of Wounded,

Sick and Shipwrecked Members of Armed Forces at Sea. (1906)

Distinct feature: Covers maritime warfare

 C. 1949 Geneva Convention III Relative to the Treaties of Prisoners of War (1929)

Distinct features:

 Humane treatment, adequate food, no pressure on the prisoners to furnish

information other than the minimum information.
 Official visits to prison camps by representatives
 Applies even if the war is undeclared and to occupations of territories
even without resistance from the occupied territory. Also applies to
members of the militias, not forming part of the armed forces.

D. 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Time

of War.

Distinct features: “outrages upon personal dignity”, deportations, torture, judicial

sentences without due process.

COMBATANTS

1. The members of the armed forces, except those not actively engaged in
combats such as chaplains and medical personnel.
2. The irregular forces provided that:
1. They are commanded by a person responsible for his subordinates
2. They wear a fixed distinctive sign recognizable at a distance
3. They carry arms openly
4. They conduct their operations in accordance with the laws and
customs of war.
3. The inhabitants of unoccupied territory who on approach of the enemy,
spontaneously take up arms to resist the invading troops without having had time
to organize themselves.

4. The officers and crew of merchant vessels who forcibly resist attack.

WAR CRIMES

 Violation of laws of war, whether committed by a State, its civilian population or

its military forces

2 CATEGORIES OF WAR CRIMES

1. CRIMES AGAINST PEACE

2. CRIMES AGAINST HUMANITY

CRIMES AGAINST PEACE

 Includes the planning, preparation, or initiation or waging of a war of aggression

in violation of international treaties.
 It also includes the participation in a common plan or conspiracy for the
accomplishment of a war of agression
CRIMES AGAINST HUMANITY

 Includes the killing of civilians, killing of defenseless soldiers, attacks on non-

military targets, ill-treatment of prisoners of war, use of outlawed weapons and
indiscriminate bombing
BELLIGERENT OCCUPATION

 The occupation of enemy territory while the actual hostilities are still going on.
 This is distinguished from MILITARY CONTROL which means the occupation of
enemy territory after the surrender of the enemy.

EFFECTS OF HOSTILE MILITARY OCCUPATION

 Upon Sovereignty
- although it gives to invading belligerent force the right to exercise control for the
period of occupation, it does not transfer sovereignty over the place.
 Upon Allegiance of the People
- as the State has not been able to protect its citizens, its claim upon their allegiance
is suspended.
- the people of the conquered place who submit to the conqueror and remain non-
combatants, owe a temporary and qualified allegiance to the occupying power.
 Upon Political Laws
- Political Laws are suspended.
- The political connection between the people of such territory and the State to
which they belong is not entirely severed, but is interrupted or suspended so long as the
occupation continues.
 Upon the Civil Laws
- Possessing all the powers of a de facto government, the belligerent occupant can
suspend the old laws and promulgate new ones and make such changes in the old as
he may see fit, but he is enjoined to respect, unless absolutely prevented by the
circumstances prevailing in the occupied territory.

NON-HOSTILE RELATIONS BETWEEN BELLLIGERENTS

 During hostilities or war between belligerents, the belligerents may undertake

non-hostile or non-aggressive activities with each other.

 These are sometimes called COMMERCIAL BELLI.

NON-HOSTILE ACTIVITIES

1. SAFE CONDUCT
- is a form of pass issued by a commanding officer in a region, authorizing an enemy
to travel or goods to be carried under specified conditions as to time and place in that
region.

2. PASSPORT
- is a general permission issued by competent government authorities of a belligerent
to persons authorizing them to travel in the area belonging to or occupied by said
belligerent.

3. SAFEGUARD
- is a protection granted either to persons or property within the limits of the
command and consist either in a written order or a guard of soldiers.

4. CARTELS
- these are agreements between belligerents for the purpose of regulating
intercourse not otherwise permitted in time of war, particularly the exchange and
treatment of prisoners.

5. Flag of Truce
- it is a white flag used as a signal to indicate that a belligerent wishes to
communicate with the enemy. The communication usually has for its object
negotiating openly and directly with the enemy.
6. PARLEMENTAIRE
- He is the agent representing the belligerent sending the flag of truce.

PRIZE COURT

- Is a court constituted in accordance with municipal law organized by a

belligerent for the purpose of passing upon the validity of maritime captures.
- It may be established by the belligerent in its own state, in occupied territory or in
the territory of an ally.
-
RIGHT OF ANGARY
 This means the right to seize the means of communication and transport in port
at the outbreak of war, subject to restoration and compensation at the end of
the war.

ELEMENTS OF ANGARY

1. There must be an urgent need of the property seized of war.

2. The property must be within the jurisdiction of the belligerent seizing
3. Compensation must be paid the owner.

Outlawry of War

 The Charter of United Nations is categorically committed to the outlawry of war

as provided in Art. 2(4) “All members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the purpose
of the United Nations.”

The UN Charter specifies four exceptions to its general prohibition against fighting
international wars:

1. Actions undertaken or authorized by the UN

2. Self-Defense
3. Fighting a “non-international” or civil war
4. The use of armed force against “any state which during the Second
World War was an enemy (i.e. Germany, Italy, and Japan of any
signatory to the present Charter.”  Caveat: only applied to the
immediate postwar period and can no longer be used

A state claiming Self-defense must show three things: (Caroline Case)

 A necessity of self-defense  action taken must be in response to some

provocation and thusly justified
 May only be exercised after “an armed attack occurs” (Art. 51, UN Charter)
 The right to use self-defense in anticipation of another state’s attack has been
claimed by some states.

“The provocation must have been instant, overwhelming, leaving no choice of means,
and no moment for deliberation. A state claiming a right to self-defense must respond
promptly to an armed attack.” (The Entebbe Incident)
“The action taken must be proportionate to the seriousness of the circumstances: it
must be limited by that necessity and kept clearly within it. The principal of
proportionality was succinctly defined in a 1927 report presented to the League of
Nations: Legitimate defense implies the adoption of measures proportionate to the
seriousness of the attack and justified by the seriousness of the danger.” (The Falkland
Islands War)

Collective Self-Defense  States may collectively defend themselves

Requirements of one state to come to the aid of another:

1. The state being helped must be entitled to defend itself

2. The state in need of assistance must seek help: another state may not give
help or intervene on its own initiative

Rules governing Civil Wars:

General Rule: Foreign states are forbidden from aiding the insurgents in a civil war
(Exception: once the established government begins receiving outside aid, third parties
may intervene on behalf of the insurgents.)
Traditional Corollary rule: Foreign states may intervene on behalf of an established
government
Modern Practice: Foreign states will not intervene on behalf of either side.

Laws of War

 There were 7 Laws of War mentioned in the book of Cruz, however, there is an
addition to that which is Nuclear Nonproliferation Treaty  a landmark
international treaty whose objective is to prevent the spread of nuclear weapons
and weapons technology, to promote cooperation in the peaceful uses of
nuclear energy and to further the goal of achieving nuclear disarmament and
general and complete disarmament.

 A branch of International Humanitarian Law, also called the International Law of

Armed Conflict.

The law of warfare today:

1. Outlaws various objectives, methods, and means of fighting

2. Seeks to protect the innocent and wounded
3. Seeks to punish violators

On the issue of Unlawful Objectives:

General Rule: Military Objectives are proper targets of an armed attack; civilians and
civilian property are not
Caveat: There is no sharp dividing line between these two categories, and injuries to
civilians and civilian property may be justified on the grounds of unavoidability or
military necessity

Illegitimate Targets – targets which may not be attacked or destroyed, but which may
be captured or seized, including: Civilians, Military personnel hors de combat
(disabled), Parliamentaries and other messengers authorized to negotiate with an
enemy, Parachutists other than airborne troops, Civil defense personnel, Hospitals
hospital ships and medical units, Merchant ships and vessels, Civilian food supplies and
crops, Cultural property, Religious places, Highly dangerous installations (nuclear power
plant)

Unlawful Methods of attacking an enemy:

1. An order that “no quarter” will be given to an enemy population (that everyone
will be massacred).
2. Starvation of a civilian population
3. Perfidy, including the feigning of:
- An intent to negotiate under a flag of truce or surrender
- Being wounded or sick
- Having a non-combatant status
- Having a protected status by the use of signs emblems, and uniforms
of UN or of a neutral state
- Treachery, including the use of civilians as shields
4. Illegal Weapons – weapons that cause unnecessary suffering or superfluous injury
are illegal
Factors to determine: Humanity (unnecessary suffering should be
avoided) and Proportionally (weapons are lawful so long as the
foreseeable injury and suffering they may produce are not
disproportionate to the necessary military use of the weapon.
5. Indiscriminate Weapons – weapons that cannot, because of their design or
function, be directed with any degree of certainty at military objectives.
(Poisons, Biological weapons, Chemical weapons, Environmental modification
weapons, Offensive mines and booby traps)
6. Nuclear Weapons
To determine if nuclear weapon violates existing Int’l rules of law, one looks at:
- Its size and the way in which it is used
7. Superfluous weapons – weapons designed simply to increase the injury suffered
by individuals (Explosive projectiles weighing less than 400 grams, Dum-dum
bullets)

Special Case: Incendiary weapons (flame throwers, grenades containing incendiary

substance) are presently illegal only when used in attacks on: Civilians or Civilian
Property, Military Targets located within a concentration of civilians or civilian
property

Humanitarian Rules – rules that provide for the protection of non-combatants and
disabled or captured combatants.

Rules as summarized by the Int’l Committee of the Red Cross:

 Civilians and person de hors de combat are to be treated humanely

 An enemy who surrenders or who is hors de combat may not be killed or
injured
 The wounded and sick are to be collected and cared for
 Medical personnel, establishments, transports must be respected
 Captured combatants and civilians shall be protected against all acts of
violence and reprisals, and they have the right to correspond with their
families and to receive relief
 Everyone is entitled to fundamental judicial guarantees
  No one shall be responsible for an act he has not committed
 No one shall be subjected to physical or mental torture, corporal punishment,
or cruel or degrading treatment
 Parties to a conflict may not employ weapons or methods of warfare of a
nature that cause necessary losses or excessive suffering
 Parties to a conflict shall direct their attacks solely against military objectives.

“The use of Nuclear weapons was not expressly prohibited by international law, but it
felt that the use of a particular weapon was also to be ascertained in light of the
principles of international law applicable to the conduct of warfare, in particular the
prohibition on indiscriminate bombardment of an undefended city and the prohibition
on inflicting unnecessary suffering.” (Shimoda et al. v. The State, Tokto ditrict court, 7
December 1963)

Commencement of War (Cruz)

War may start with:

 A declaration of war
 The rejection of an ultimatum
 The commission of an act of force regarded by at least one of the belligerents as
an act of war

Combatants  those who are engaged directly in the hostilities

Non-combatants  those who do not directly engage directly in the hostilities
Mercenaries  “soldiers of fortune”, are not granted the same privilege as those of
prisoners of war.

SUSPENSION OF HOSTILITIES
1. Suspension of Arms
- temporary cessation of the hostilities by agreement of the local commanders for
such purposes as the gathering of the wounded and burial of dead.

2. Armistice
- the suspension of all hostilities within a certain area (local) or in the entire region of
the war (general) agreed upon by the belligerent governments, usually for the purpose
of arranging the terms of peace.

3. Cease – fire
- an unconditional stoppage of hostilities by order of an international body like the
UN Security Council for the purpose of employing peaceful means of settling
differences between belligerents.

4. TRUCE
- sometimes used interchangeably with armistice but is now regarded as a ceasefire
with conditions attached.

5. CAPITULATION
- surrender of military forces, places or districts in accordance with the rules of military
honor
Postlimium  The right of Postliminy “is that which persons or things taken by the enemy
are restored to the former state on coming actually into the power off the nation ttto
which they belong.” (Leitensdorfer v. Webb, 1NM 34,44).

 Means that property, both real and personal, which when recaptured does not
belong to the recaptor but to the original owner. Thus, when an enemy’s military
occupation comes to an end, the legal state of things previously existing is
deemed to have been in continuous existence during the occupation.
This applies to:
1. Territory
2. Private immovable property
3. And to every kind of property that may not be lawfully seized

Termination of War (Cruz)

War may be terminated by:

- Simple cessation of hostilities

- The conclusion of a negotiated treaty of peace
- By the defeat of one of the belligerents followed by a dictated treaty
of peace
- Annexation of the conquered country

Principle of uti possidetis  property or territory in the possession of the respective

belligerents upon the termination of the war is retained by them

War Crimes  Violations of the rules of warfare.

Who may be tried?  Governments and individuals
Who may try a war criminal?
Theory: Any state
In Practice: Only the victors convene war crime tribunals to try the vanquished

The defense that a defendant was following the orders of a superior:

As to major crimes: not a defense at all, but rather a mitigating circumstance to be
considered in a sentence
Minor offenses: An excuse

EFFECT OF TREATY OF PEACE

1. All hostilities are terminated;
2. The treaty settles the territorial acquisition or losses of each belligerent;
3. Certain treaties are revived;
4. Certain contracts are revived;
5. Belligerents are given immunity for the hostile acts committed;
6. The rights and obligations of neutrality are terminated.

DOCTRINE OF UTI POSSIDETIS

 The properties and territories in the actual possession of either of the belligerents
at the conclusion of war vest in the having possession thereof.

DOCTRINE OF STATUS QUO ANTE BELLUM

 Each of the belligerents is entitled to the property and territory which it had at
the commencement of the war.
Public International Law

Report

Chapter 18

WAR

Submitted by:

Hazel May T. Neri

Godfrey A. Reverente