When a fighter from the Moro Islamic Liberation Front beheads a soldier or a civilian, or resorts to cutting off ears and other body parts, he will be subject to an obligation of all states to investigate, prosecute and punish him for a serious breach of International Humanitarian Law. In like manner, a soldier from the Armed Forces of the Philippines who targets a civilian or causes the dislocation of civilian populations as a result of an armed conflict is equally liable for prosecution for serious violation of IHL.
This fact alone—criminal prosecution for all those who will breach the law—is why this body of law has been adhered to by all states as being binding on them on a non-derogable manner. Human rights law, on the other hand, is a system of minimum standards by which states must treat individuals found in their territory. Unlike IHL, it is subject to derogations in times of national emergencies. Despots will even argue, albeit erroneously, that human rights is subject to cultural relativity.
IHL is that branch of public international law that seeks to limit human suffering in times of armed conflicts. It does so by according protection to non-combatants such as civilians, prisoners of wars, humanitarian and religious workers. Additionally, it seeks to protect non-combatants by limiting the means and methods that combatants and fighters may resort to in times of hostilities. Thus, any method that does not distinguish between civilians and combatants, and weapons that cause superfluous injuries and unnecessary suffering, are declared illegal by the law.
Of late, an interesting issue that has arisen is whether acts of modern-day terrorism are covered by IHL. George W. Bush argued that the war against terror is legal tabula rasa and hence, not governed by IHL. This is why when he apprehended 600 or so allegedly fighting side by side with the Taliban in Afghanistan, he condemned these men to indefinite incarceration in Guantanamo Bay, Cuba as “enemy combatants”. In three major decisions of the Supreme Court, the Bush assumption that IHL was irrelevant in the war against terror was effectively debunked. In Hamdie, a petition for the issuance of the privilege of the writ of habeas corpus, the US Supreme Court ruled that it is precisely IHL that provides the legal basis for the US President to detain the Guantanamo detainees. The court then partially granted the petition and ordered the District Court of Washington DC to determine whether the detainees are entitled to prisoner-of-war status and if they are, they would have the right to be immediately released upon cessation of hostilities.
In the second and third cases of Hamdan and Boumedien, respectively, the Court invalidated the creation of the Guantanamo Bay military tribunals created initially by an executive order and subsequently by law. Purportedly in compliance with the decision of the court in Hamdie, these tribunals were given jurisdiction to determine whether the detainees are entitled to POW status. Given, however, the very limited mandate of these tribunals, Bush argued that the detainees were not entitled to all the rights accorded other individuals facing similar military tribunals in the US. Specifically, because these detainees were considered “terrorists”, Bush deprived them access to evidence submitted against them on the ground that these information are “classified’ by reason of national security.
In the later decisions in Hamdan and Boumedien, the US Court expressly ruled that these tribunals were contrary to IHL, specifically, common article 3 of the Geneva Convention which prohibits the impositions of sentences without prior judicial determination that complies with minimum standards recognized by civilized nations. The Court in these decisions reiterated in clear and unequivocal language that the war against terror, where there is in fact an armed conflict, is governed by IHL. Despite the Court’s refusal to qualify the war against terror as either international or internal in character, the US Supreme Court nonetheless emphasized that Common Article Three should be complied with as a minimum regardless of the actual nature of the armed conflict.
Closer to home, today is the first International Humanitarian Law Day when the country finally has an IHL law that implements our earlier treaty obligation under the Geneva Conventions to criminalize grave breaches of IHL. Republic Act 9851 criminalizes not only grave breaches and serious violations of IHL, but also criminalizes the further crimes of genocide, crimes against humanity, torture, and enforced disappearances. It also now provides for grave penalties for these crimes, which includes life imprisonment and fines of up to one million pesos.
The new law also codifies customary norms, which in the past was applicable to us as “generally accepted principles of international law”. Today, the law expressly provides that even the President cannot invoke immunity from suit when he or she is sued for violation of the law. There can be no doubt furthermore, that the prosecutions for these international crimes are no longer subject to prescription. The law also provides that the criminal prosecution of these crimes is basis for the exercise of universal jurisdiction, or that our courts can hear and decide cases involving violations of the law regardless of where the crime was in fact committed. This new law also codifies our previous jurisprudence that a military commander or a sitting president may be criminally liable for breach of the law committed by subordinates under their control if they failed to prevent the commission of the listed crimes, and if they fail furthermore to investigate, prosecute and punish the perpetrators thereof.
It is hoped that these developments in the United States and the passage of the new law will add further protection to non-combatants in times of armed conflicts. While IHL is of critical relevance to the Philippines because of the three internal armed conflicts raging in our territory, it is still hoped that the law will cease to be relevant to us. This will only happen if all these armed conflicts become a thing of the past.
The Civil Society Initiatives for IHL invites the public to the IHL Day Commemoration today, 9 a.m. at the Technoportal Conference Room in Ayala Technohub, Quezon City.
The IHL Day event has two parts: 1) A Forum with the Bakwits: Internal Displacement and Updates on Mindanao; and 2) a film screening of “The Reckoning”, which presents the development of IHL.