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On Aug. 12, 1949, the international community ratified the Geneva Conventions, also known as the International Humanitarian Law (IHL), establishing the rules and guidelines during armed conflict. The bombing of Hiroshima and Nagasaki, Japan on Aug. 6 and 9, 1945, respectively, was among the compelling reasons.

The Philippines dedicates the month of August as IHL Month, with every 12th of the month marked as IHL Day. It is to remind everyone of the necessity of complying with rules even during armed conflict situations. This year’s theme is “IHL: Guide to Humanitarian Advancement of Peace,” underscoring the obligation of state and non-state actors. The Philippines, having experienced the horrors of international wars, and confronted with decades-long internal armed conflict, is a strong advocate of IHL. Several pieces of legislation were passed that serve as powerful building blocks of an IHL regime.

The “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity,” (Republic Act 9851) or the IHL Act, was signed on Dec. 11, 2009, codifying universally accepted rules so that they can be made fully effective and better enforced in the country.

On May 7, 2013, Republic Act No. 10530 was passed, defining the use and protection of the Red Cross, Red Crescent, and Red Crystal emblems as symbols of protection over the wounded and those caring for them. Parties to the conflict are prohibited from attacking anything or anyone that displays these emblems.

Another significant piece of legislation is Republic Act 11188, the law that provides for the special protection of Children in Situations of Armed Conflict (CSAC). It was signed on Jan. 10, 2019.

In 2017, the Philippines also signed the Treaty on the Prohibition of Nuclear Weapons (TPNW), joining other states in honoring the memory of the hundreds of thousands of nuclear bomb victims, and echoing the call to “never again” experience such horror.

Non-state armed groups similarly expressed commitment to IHL. On April 10, 1998, the Comprehensive Agreement on Respect for Human Rights and IHL (CARHRIHL) was signed by the Philippine Government and the National Democratic Front-Communist Party of the Philippines, binding the New People’s Army (NPA) to the tenets of human rights and IHL. The Moro Islamic Liberation Front (MILF) has also shown its commitment to IHL principles — on April 7, 2002, it presented its deed of commitment to totally ban the use of anti-personnel mines, and in 2009, it signed an action plan with the UN to end the recruitment of children under the age of 18.

Despite the existence of clear policies and commitments, IHL is still repeatedly violated. Non-international armed conflict like what is present in the Philippines pose a lot of challenges in IHL implementation.

Non-state armed groups, especially those not engaged in peace processes, have breached IHL principles with the following actions: hostage taking, attacking civilian objects and communities, recruiting children into the armed group or its support-system, killing or wounding a person that no longer has means of defense, physical mutilation of adversaries, attacking cultural objects and places of worship, and using schools to recruit members.

State forces (military and police) are more careful in observing IHL because of established legal oversight and monitoring mechanisms within their respective institutions and in civilian agencies like the Ombudsman, Commission on Human Rights, Congress, the Courts, and civil society groups. Nevertheless, the military and police are still accused of IHL violations, the most common of which would be engaging armed rebel groups in civilian communities, campaigning in schools, and using schools as evacuation areas for internally displaced people, thereby hampering children’s education.

Having the military deal with internal armed threat groups would always create problematic situations, since the people whom the military is supposed to serve and protect are also their potential enemy. The military’s operational intent is always the immediate and swift neutralization of the adversary. In an internal armed conflict, however, who determines the acceptable amount of force (or military necessity) to deal with the enemy? If the “enemy” hides in civilian communities, how many civilian casualties are “acceptable”? Moreover, the CAFGU (Citizen Armed Forces Geographical Units), while under the supervision of the military, is not covered by the principle of command responsibility. While cases can be filed in the court of law for violations committed by CAFGU members, this will not necessarily extract accountability from state forces.

Also, while legal policies are in place, customary or time-honored practices are also applied in Muslim communities and indigenous people’s (IP) communities. Legal laws and customary laws are sometimes incompatible. It’s a challenge to manage such grey areas, especially when parties involved are at odds on which policy to adopt. Similarly, the application of human rights policies, applied in peace time, and IHL policies, applied in armed conflict situations, can also pose confusion on the ground, i.e., when is a situation considered as “armed conflict” and hence, necessitates IHL application; and when is a situation a normal/ peaceful situation and hence, necessitates rights-based law enforcement?

IHL prohibits the armed forces from putting civilians in harm’s way; but in an internal armed conflict, the battle grounds are often in areas near to, or in actual civilian communities. Hence, both state forces and armed threat groups are guilty of IHL violations.

Seventy-four years after the ratification of IHL, the danger of another interstate world war is unlikely. Instead, many countries, including the Philippines, are grappling with concerns regarding terrorism. With the recent passage of the Anti-Terrorism Act of 2020 (Republic Act 11479), many groups expressed fear that under the overarching agenda of counterterrorism, the law might be used to impose draconian measures. It is therefore important to keep a watchful eye on the law’s implementation, to ensure that it remains faithful to the principles of IHL.

 

Jennifer S. Oreta is the director of the Leong Institute for Global and Area Studies of the Ateneo de Manila University.

joreta@ateneo.edu