International Humanitarian Law and National Security

Copyright © 2010 by Chester B Cabalza. All Rights Reserved.

Originally published online at NDCP website

In observance of this year’s International Humanitarian Law Day celebrated every 12th month of August, the Department of National Defense (DND) and the National Defense College of the Philippines (NDCP) conducted a forum on “Promoting National Security through the Implementation of IHL: Challenges and Prospects” on August 24, 2010 at the NDCP Auditorium, Camp Emilio Aguinaldo, Quezon City.

The forum aims to clarify various issues surrounding the implementation of the IHL and the recently passed Republic Act 9851, otherwise known as “An Act Defining and Penalizing Crimes against International Humanitarian Law, Genocide and Other Crimes against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes” by: (1) looking into status of its implementation; (2) understanding the impediments to the effective implementation of IHL and RA 9851; and (c) exploring avenues or measures to promote national security through an effective IHL implementation.

A number of participants from various government agencies, non-government agencies, and military and security sectors attended the said forum. Seven distinguished speakers and reactor led by BGen Cesar Garcia AFP (Ret), National Security Adviser, set the tone of the forum by stating that, “the principle and practice of International Humanitarian Law should be in the web of our policies and strategies on National Security.” Hon Loreta Ann Rosales, Co-Chairperson, Philippine Coalition for the International Criminal Court and incoming CHR Chairperson, deemed that, “tensions exist between state preservation and the rights and freedoms of individuals, especially when national security is equated with the security of leaders at the expense of the rights of individuals and the common good.” Atty. Herminio Harry Roque Jr, Professor, U.P. College of Law, discussed the salient provisions of RA 9851 that, “criminalizes war crimes and serious violations of IHL in international and non-international armed conflicts targeting protected individuals and infrastructures.” Atty. Charmaine Enerva, Legal Adviser, International Committee of the Red Cross, noted that, “IHL requires parties to distinguish between fighters and civilians, and also between civilian objects and military targets.”

Other keynote speakers include Ms Anna Elzy Ofreneo, Director, Human Rights Education and Research, Commission on Human Rights, who brought some challenges and issues and stressed that, “there is lack of education and information on IHL and there is a need for integration of IHL in the education system.” Col. Benedicto Jose (MNSA) PA, Provost Marshal, Philippine Army, reiterated the Army reminder on Human Rights that, “as a soldier, we should be conscious of the fact that even with all our might and firepower, we may win the wars that we fight, but if we do not have reverence to the intrinsic rights of men, then we can never win the peace.” Col. Rolando Jungco, PAF, GSC, Deputy, AFP Civil Relations Service as reactor, summed up all that discussions highlighting the Philippine President’s and the National Security Policy’s thrust that, “the National Security Policy must focus on four elements, which are: Governance, Delivery of Basic Services, Economic Reconstruction and Sustainable Development, and Security Sector Reform.”

The International Humanitarian Law (IHL) 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. Universal codification of international humanitarian law began in the 19th 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, according to the International Committee of the Red Cross (ICRC).

IHL is a customary international law in nature. Customary international laws are practices that have come to be accepted as binding by the mere fact of persistent usage over a long period of time. These are general and consistent practice of states followed from a sense of legal obligation. Said customs consists of two elements, namely: state practice and opinion juris. In the Philippines, the Doctrine of Incorporation prevails where rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. Such is recognized in Sec. 2, Art. II, 1987 Constitution, which “adopts the generally accepted principles of international law as part of the law of the land.”

Hence, IHL concerns international armed conflicts between countries and non-international armed conflicts that take place within one country. IHL applies to all parties to a conflict regardless of who started it and regardless of formal declarations on the existence of an armed conflict. It requires parties to distinguish between fighters and civilians that prohibits attacks on civilians and prohibits indiscriminate attacks and the use of weapons that do not distinguish; requires care for wounded and sick and protects medical personnel; it aims to promote dignity of those affected by armed conflict; and prohibits or limits the use of weapons that are particularly cruel. Therefore, even wars have limits.