of the irregular forces. If captured, they are not entitled to the status of prisoners of war.
Mercenaries – considered as NPC
Those who, having been recruited in another country, from military forces for “personal gain,” are not covered by protection.
Spies – A soldier employing false pretenses or
acts through clandestine means to gather information from the enemy. A soldier not wearing uniform during hostilities runs the risk of being treated as a spy and not entitled to prisoner of war status. When caught, they are not to be regarded as prisoners of war. Military Scouts are not spies.
4) Levee en masse
Takes place when the population spontaneously rises in mass to resist the invader. They enjoy privileges due to armed forces.
NOTE: Only RF, IF and Levee may be treated as
prisoners of war under Protocol I of 1977. See this reviewer’s section on POW.
Restrictions on weapons
Prohibited weapons:
1) explosive bullets 2) use of dum-dum bullets
3) employment of projectiles whose only object is diffusion of asphyxiating, poisonous, or other gases, and all analogous liquids, materials or devices
4) the use of bacteriological methods of warfare.
5) The laying of “contact” mines 6) Explosives from balloons
3 Protocols on Restrictions
Protocol I on Fragmentation Weapons Protocol II on Treacherous Weapons Protocol III on Incendiary Weapons
Other Questionable weapons
1) Fuel explosive weapons that kill by air shock waves
2) Flame blast munitions that combine fuel air explosive effect with radiation in chemical fireball munitions;
3) Laser weapons which cause burns and blindness
4) Infrasound devices that cause damage to the central nervous system.
LIMITATION ON TARGETS OF ATTACK
Only military targets are subject to attack by the armed forces of a belligerent as a basic rule of warfare. Likewise, certain places and objectives are not subject to attack, such as:
1) Neutralized areas or zones – these are zones in the theater of operations established by special agreement between the belligerents for treatment of the wounded and civilians. EX: Aland Islands, the Spitzbergen, the Magellan Straits, the Suez Canal and Panama Canal.
2) Open towns – also known as “non defended locality.” A place free of combatants. 3) Cultural property and places of worship 4) Civil defense – includes personnel, buildings
and assets, clearly indicated by a blue triangle on an orange background distinctive sign.
5) Dangerous installations – dams, dikes, or nuclear electric plants.
6) Civilians and persons hors de combat – persons hors de combat are those who are either wounded or, for other reasons, have permanently joined the civilian population. 7) Parachutists – those who bail out from
aircrafts in distress. Must only be treated as POW.
8) Hospitals, hospital ships and medical units – a clear marking or a Red Cross to show their status.
9) Food supplies and crops
FORBIDDEN METHODS
No Quarter – such orders implying that no
survivors are to be left after an attack.
Starvation
Reprisals – are not reprisals as a form of self-
help, instead, belligerent reprisals are of a completely different type. These are acts of vengeance by a belligerent directed against groups of civilians or POWs in retaliation of or response to an attack by other civilians against the belligerent.
Perfidy on treachery – this includes:
a) Improper use of white flag
b) Feigning surrender or pretending to have been wounded or to have a civilian status
c) Using the uniform of the enemy d) Claiming neutral status
e) Falsely flying the Red Cross flag f) Making hospitals, churches and the
like as shield from attack. g) Area bombing
Notes:
PRISONERS OF WAR (POW)
The following persons captured must be treated as POW:
1) members of the armed forces, as well as members of militias or volunteer corps forming part of such armed forces;
2) members of other militias or volunteer groups, including those of organized resistance movements, subject to compliance with certain conditions;
3) members of regular armed forces professing allegiance to a government or an authority not recognized by the capturing State; 4) various categories of persons accompanying
an army unit, such as civilian members of military aircraft crew, war correspondents, etc., provided they are authorized to be with the army or unit;
5) members of the crew of merchant vessels and civilian aircraft who do not benefit by more favorable treatment under any other provisions of internal law;
6) members of the population of non-occupied territory who take up arms as a levee en masse against an invading army.
Q: What are the core crimes in IHL?
A: The core crimes in IHL are genocide, crimes
against humanity, war crimes and aggression. These core crimes are specified in the Statues of the ICC (or the Rome Statute for an ICC) which describes them as the most serious crimes of concern to the international community as a whole. These crimes are within the jurisdiction of the ICC.
NOTE: Although the Philippines has signed but not yet ratified the Rome Statute establishing the ICC, the ICC Statute’s and definitions of the core crimes are authoritative statements for us since they are practically lifted from customary international law sources and from the Geneva Conventions of 1949 and other treaties to which we are parties. (IHL: A Field Guide to the Basics, The 2007 Metrobank Lecture on International Law, 22 Nov. 2007 by Associate Justice Adolfo S. Azcuna)
1949 Geneva Convention III
The rules of POW applies to prisoners of war who are captured in a properly declared war or any other kind of “armed conflict,” even if any of the combatant powers do not recognize the existence of a state of war and even though these conflicts are “not of an international character.”
Q: Is guerilla warfare recognized under International Law and may a captured guerilla demand treatment afforded a prisoner of war under the 1949 Geneva Convention? Explain. A: Yes. Under Article 4 of the 1949 Geneva
Convention on Prisoners of War, guerilla warfare, which consists in hostilities conducted in territory occupied by the enemy by armed bodies of men
who do not form part of an organized army, is recognized. Guerillas are entitled to be treated as prisoners of war provided they fulfill the following conditions:
1) They are commanded by a person
responsible for his subordinates;
2) They have a fixed distinctive emblem
recognizable at a distance;
3) They carry arms openly; and
4) They conduct their operations in
accordance with the laws and custom of war. (1982 Bar)
When POW should be returned
Upon cessation of war or hostilities. However, POWs facing criminal trial may be detained until the termination of the proceedings or punishment.
When is a Territory Deemed Under Military Occupation?
Territory is deemed to be occupied when it is placed as a matter of fact under the authority of the hostile army.
TAN SE CHIANG v. DIRECTOR OF POSTS
Belligerent occupation becomes an accomplished fact the moment the government of the invaded territory is rendered incapable of publicly exercising its authority and the invader is in a position to substitute and has substituted his own authority for that of the legitimate government of the occupied territory.
NOTE: Belligerent occupation is different from
Military occupation.
Rights & Duties of a Belligerent Occupant
to continue orderly government to exercise control over the occupied
territory and its inhabitants.
NOTE: The belligerent occupant cannot compel
the inhabitants to swear allegiance to him.
CO KIM CHAN V. VALDEZ TAN KEH
75 Phil 371
His rights over the occupied territory are merely that of administration; hence he cannot, while the war continues, annex the territory or set it up as an independent State.
Q: Can the belligerent occupant impose and collect taxes or contributions?
A: YES. Under the Hague Regulations, the
occupant is empowered to collect taxes, dues and tolls, as far as possible in accordance with “the rules of assessment and incidence in force,” and he is bound to defray the “expenses of administration” out of the proceeds.