WAR There is no unanimity among writers on international law as to the meaning or concept of war, some saying that it is a specific

action while others say that it is merely a specific status. Viewed in the first sense, war may be defined as an armed contention between the public forces of states or other belligerent communities, implying the employment of force between the parties for the purpose of imposing their respective demands upon each other. In the latter sense, 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. It has already been observed that the employment of force by one state against another does not necessarily result in war, e.g., in the case of reprisals like a pacific blockade. On the other hand, it may be remembered that when several Latin-American countries declared war against Germany during World War II, a state of war was deemed existing between the parties notwithstanding that force was not resorted to in their mutual dealings. Kelsen suggests that like any fact to which international law attaches certain consequences, the fact war must be ascertained by competent authorities. As long as no objective authority is established, it is for the states concerned to ascertain the existence of the fact war in the international sense.

OUTLAWRY OF WAR War was originally regarded as a legitimate means of compulsion, provided, according to some writers, that it was a reaction to an international delict, i.e., it was a just war or bellum justum. However, abhorrence of the widespread suffering it has caused has inspired many attempts to suppress it, notably in recent times the Covenant of the League of Nations, the Kellog-Briand Pact of 1928, otherwise known as the General Treaty for the Renunciation of War, and the Charter of the United Nations. The first two agreements were not very effective because they allowed war under certain conditions. But the U.N. Charter is more categorical in its outlawry of war. Thus, its preamble begins with a declaration that the United Nations is determined to save succeeding generations from the scourge of war which twice in our lifetime has brought untold sorrow to mankind. Toward this end, all members are called upon to abstain from the use of force in the solution of international problems and see to it that even non-members comply with the obligation of pacific settlement of international disputes.

In what instances only is the use of force allowed under the United Nations Charter? Only in two instances, to wit: (1) In the exercise by a state of its inherent right of self-defense under the conditions prescribed in Article 51. (2) In the pursuance of the enforcement action that may be decreed by the Security Council under Article 42. LAWS OF WAR 1) The Declaration of Paris of 1856, concerning warfare at sea. 2) The Hague convention of 1899, concerning the use of expanding bullets and asphyxiating gases. 3) The Hague Conventions of 1907, concerning the opening of hostilities; the laws and customs of land warfare; conversion of merchant ships into warships; the laying of automatic submarine contact mines; naval bombardment in times of war; the exercise of the right of capture in naval war; the discharge of projectiles from balloons; the adaption to maritime warfare of the Geneva Convention of 1864 relative to the treatment of the wounded in land warfare; the rights and duties of neutrals in land warfare; and the rights and duties of neutrals in naval warfare. 4) The Geneva Convention of 1925, concerning the use of asphyxiating, poisonous and other gases and of bacteriological methods of warfare. 5) The Geneva Convention of 1929, concerning the treatment of the sick and wounded and prisoners of war. 6) The Declaration of London of 1936, concerning the use of submarines against merchant vessels. 7) The Geneva Convention of 1949, concerning the amelioration of the sick and wounded on land; the amelioration of the sick and wounded, and of shipwrecked members of the armed forces at sea; the treatment of prisoners of war; and the protection of civilian persons in war. 8) The Nuclear Nonproliferation Treaty.

How are these agreements enforced? The commonly accepted sanctions of laws of war are the following:

1) Protest lodged by one belligerent, usually accompanied or followed by an appeal to world opinion, against the unlawful acts of war committed by the other belligerent. 2) Reparation for damages caused by the defeated belligerent. 3) Punishment of war criminals. *Reprisals are often mentioned as a fourth sanction, but it is doubtful if they can be justified under the United Nations Charter as they are essentially unlawful acts taken by one state for the also illegal acts of the other belligerent

COMMENCEMENT OF WAR The Hague Convention of 1907 relative to the Opening of Hostilities provides that hostilities must not commence without a previous and explicit warning, in the form either of a reasoned declaration of war or an ultimatum with conditional declaration. War is supposed to commence on the date specified in the declaration or on the date it is communicated to the enemy. However, this formality has not always been observed, e.g., the surprise attack on Pearl Harbor by the Japanese in 1941, which started their war with the United States. In such cases, the rule is that war is supposed to commence on the date of the first act of force by one state committed with intent of making war or committed without such intent but considered by the other state as constituting war. Thus, war may start: a) with a declaration of war; b) with the rejection of an ultimatum; or c) with the commission of an act of force regarded by at least one of the parties as an act of war.

EFFECTS OF THE OUTBREAK OF WAR 1) The laws of peace cease to regulate the relations of the belligerents and are superseded by the laws of war. Third states are governed by the laws of neutrality in their dealing with the belligerents. 2) Diplomatic and consular relations between the belligerents are terminated, and their respective representatives are allowed to return to their own countries.

3) Treaties of a political nature, such as treaties of alliance, are automatically canceled, but those which are precisely intended to operate during war, such as one regulating the conduct of hostilities, are activated. Multipartite treaties concerning technical or administrative matters, like postal conventions, are merely suspended between the belligerents. 4) Enemy public property found in the territory of the other belligerent at the outbreak of the hostilities is, with certain exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return or reimbursement after the war in accordance with the treaty of peace.

How is the enemy character of individuals determined? Individuals are impressed with enemy character under: a) the nationality test, if they are nationals of the other belligerent, wherever they may be; b) the domiciliary test, if they are domiciled aliens in the territory of the other belligerent, on the theory that they contribute to its economic resources; and c) the activities test, if, being foreigners, they nevertheless participate in the hostilities in facor of the other belligerent.

How it the enemy character of corporations determined? Corporations are considered enemies if a majority or a substantial portion of their capital stock is in the hands of enemy nationals who consequently exercise control over them of if they have been incorporated in the territory or under the laws of the other belligerent.

Who are combatants? Combatants are those who engage directly or indirectly in the hostilities. The following are considered combatants: 1) The regular members of the armed forces, whether pertaining to the army, navy or air force, except those not actively engaged in combat duty, such as chaplains and medical personnel. 2) The irregular forces, such as the fancs tireurs, provided that: a) they are commanded by a person responsible for his subordinates; b) they wear a fixed, distinctive sign recognizable at a distance; c) they carry arms openly; and d) 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 the time to organize themselves, provided only that they carry arms openly and observe the laws and customs of war. These are known as levies en masse. 4) The officers and crew of merchant vessels who forcibly resist attack.

RIGHTS OF COMBATANTS AND NON-COMBATANTS WHEN CAPTURED When captured, combatants are entitled to treatment as prisoner of war, which include inter alia the rights to be accorded the proper respect commensurate with their rank, to adequate food and clothing, to safe and sanitary quarters, to medical assistance, to refuse to give military information or render military service against their own state and to communicate with their family. Non-combatants do not enjoy the same rights as combatants when captured, but they nevertheless are protected from inhumane treatment under the Geneva Convention of 1948 relative to the Treatment of Civilian Persons in Time of War. THREE BASIC PRINCIPLES ON THE RULES OF WARFARE 1. The principle of military necessity. Under this principle, the belligerents may, subject to the other two principles, employ any amount and kind of force to compel the complete submission of the enemy with the least possible loss of lives, time and money. It was this principle that was invoked to justify the bombing of Hiroshima and Nagasaki, the argument being that more lives would have been lost if this drastic measure had not been taken and an American invasion o f Japan had instead been attempted. Such other measures as sieges, blockades, bombardments and devastation of property, which may involve direct hardships on the non-combatants within the area, are undertaken under this principle.

2. The principle of humanity - This principle prohibits the use of any measure that is not absolutely necessary for the purposes of the war, such as the poisoning of wells and weapons, the employment of dum-dum or expanding bullets and asphyxiating gases, the destruction of works of art and property devoted to religious and humanitarian purposes, the bombarding of undefended places, and attack on hospital ships. When an enemy vessel is sunk, the other belligerent must see to the safety of the person on board. Pillage is prohibited. The wounded and sick

must be humanely treated without distinction of nationality by the belligerent in whose power they are. The rule that a combatant who surrenders may not be killed and the agreements relating to the treatment of prisoners of war also come under this principle.

3. The principle of chivalry - The principle of chivalry is the basis of such rules as those that require the belligerents to give proper warning before launching a bombardment or prohibit the use of perfidy in the conduct of the hostilities. Ruses and strategems are allowed provided they do not involve the employment of treacherous methods, like the illegal use of Red Cross emblems to throw the enemy off-guard prior to an attack. In this connection, false flags are not allowed in lad warfare but war vessels may sail under a flag not their own, subject only to the requirement that they haul it down and hoist their own flag before attacking. Espionage is not prohibited under international law notwithstanding that it involves some deception.

What is a spy? An individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. What are scouts? Soldiers not in disguise who have penetrated in to the zone of operations of a hostile army to obtain information are not considered spies but scouts. Under what law may a spy be punished? A spy is subject to the municipal law of the hostile party, except that, under the Hague Convention, a spy taken in the act cannot be punished without previous trial. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war and incurs no responsibility for his previous acts of espionage.

Distinction between theater of war and region of war The theater of war is the place where hostilities are actually conducted, as distinguished from the region of war, where the belligerents may lawfully engage each other. This would comprise their own territories and the high seas, excluding only neutral territories.

BELLIGERENT OCCUPATION It is an incident of war which occurs when the territory of one belligerent is placed under the authority and control of the invading forces of the other belligerent.

When is territory deemed occupied? Territory is deemed occupied when it is actually placed under the authority of the hostile army. The occupation is limited to the area where such authority has been established and can be effectively exercised. It is not necessary that every square foot of the territory be actually occupied. It is sufficient that the occupying army can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district.

What is the effect of belligerent occupation on the sovereignty of the legitimate government? Belligerent occupation does not result in transfer or suspension of the sovereignty of the legitimate government. Only the exercise of sovereignty, and not sovereignty itself, is transferred to the belligerent occupant.

What is the basic obligation of the administration of the occupied territory?

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The belligerent occupant is required to restore and insure public order and safety, while respecting, unless absolutely prevented, the laws in force of the country. This is particularly true with regard to family honor and rights, the lives of person, private property and religious convictions and practices.

Is the belligerent government prohibited from introducing its own laws in the occupied territory? No. Whenever necessary, the belligerent occupant may promulgate new laws, political and non-political, provided they do not contravene the generally accepted principles of international law. May the belligerent occupant make financial impositions on the people of the occupied territory? The belligerent occupant may exact from the populace contributions over and above the regular taxes for the needs of the occupying army or the administration of the occupied territory. It may also, for valuable consideration, make requisitions of things or nonmilitary services for the needs of the occupying army.

May the belligerent occupant issue new military currency? Yes, provided that the purpose is not to debase the economy of the country. In Haw Pia v. china Banking Corporation, our Supreme Court upheld the validity of the payment made by the debtor in Japanese military notes during the occupation to settle a loan extended to her in Philippine currency before the outbreak of the Pacific war. May the belligerent occupant confiscate private property? No, but those susceptible of military use may be seized, subject to restoration or compensation when peace is made. The property of municipalities and of institutions devoted to religion, charity and education, and the arts and sciences even when State-owned, shall be treated as private property, and their destruction is expressly forbidden.

What is the power of the belligerent occupant over movable public property? It may only take possession of case, funds and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and generally all movable property belonging to the State which may be used for military operations.

What is the power of the belligerent occupant over immovable public property? It shall be regarded only as an administrator or usufructuary of public buildings, real estate, forest, agricultural estates belonging to the hostile State and situated in the occupied territory. This rule was applied by our Supreme Court in Banaag vs. Singson Encarnacion, G.R. No. 493, April 9, 1949, where a lease for five years granted by the occupation government in 1942 over certain municipal fisheries was deemed automatically cancelled upon the re-establishment of the Commonwealth government in 1914.

RIGHT OF POSTLIMINIUM According to Vattel, it is the right by which persons or things taken by the enemy are restored to the former state on coming actually into the power of the nation to which they belong. In its present broadened concept, the just postliminium also signifies the reinstatement of the authority of the displaced government once control of the enemy is lost over the territory affected. Thus, upon the end of a belligerent occupation, the laws of the re-established government are revived and all the illegal acts of the belligerent occupant, as well as its lawful acts of a political character, are invalidated.

Illustration of Jus Postiliminium Taxes paid to the occupation government cannot again be collected by the legitimate government upon its restoration, as it was within the competence of the former to collect taxes while the occupation was effective. But a conviction for a crime against the occupying forces, while valid during the occupation, would automatically fall to the ground upon the revival of the lawful government as such conviction is of a political complexion.

Kinds of Non-hostile intercourse between belligerents Among the kinds of non-hostile intercourse are flags of truce, cartels, passports, safe-conduct, safeguards, and licenses to trade.

Flag of truce It is a white flag carried by an individual authorized by one belligerent to enter into communications with the other belligerent. The bearer, or parlementaire, is entiled to inviolability as long as he does not take advantage of his privileged position to commit an act of treachery. However, the hostile party is not obliged to accept a flag of truce.

Cartel A cartel is an agreement to regulate intercourse during war on such matters as postal and telegraphic communication, the reception of flag truce, and the exchange of prisoners. A cartel ship is a vessel sailing under a safe conduct for the purpose of carrying prisoners of war.

PASSPORT It is written permission given by the belligerent government or its authorized representative to an enemy national to travel generally in belligerent territory.

SAFE CONDUCT It is a pass given to enemy nationals or vessels allowing passage between defined points. This is given either by the belligerent government itself or the commander of the area within which it is effective.

SAFEGUARD It is a special protection granted by a commander to any enemy person or property within his command. When it is enforced by a detail of men, they must use extreme measures, if necessary, to fulfill their trust and they themselves are exempt from attack or seizure by the enemy. LICENSE TO TRADE It is a permission given by competent authority to carry on trade despite the state of war. A general license grants to all subjects of the enemy state or to all its own nationals the right to trade in specified places or in specified articles. A special

license grants to a certain person the right to trade in the manner specified in his license. By what agreements may hostilities be suspended between the belligerents? Hostilities may be suspended by a suspension of arms, an armistice, a ceasefire, a truce or a capitulation.

SUSPENSION OF ARMS It is the temporary cessation of hostilities by agreement of the local commanders for such purposes as the gathering of the wounded and the burial of the dead.

Armistice It is 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. For example, a general armistice preceded the termination of World War I.

Cease-fire It is an unconditional stoppage of hostilities by order of an international body like the Security Council for the purpose of employing peaceful means of settling the conflict.

Truce This term is sometimes used interchangeably with armistice but is now understood to refer to a cease-fire with conditions attached.

Capitulation It is the surrender of military troops, forts or districts in accordance with the rules of military honor. (Hague Convention No IV 1907, regulations, Art 35).

Termination of War

(1) By simple cessation of hostilities. (2) By the conclusions of a negotiated treaty of peace. (3) By the defeat of one of the belligerents.

Simple cessation of hostilities as a mode of terminating war War may end in this manner simply because the belligerents are no longer willing to continue fighting. Among the wars that were terminated by voluntary cessation of hostilities are those between Sweded and Poland in 1716, France and Spain in 1720, Spain and its American colonies in 1825, and France and Mexico in 1867. When war ends in this way, property or territory in the possession of the respective belligerents upon the termination of the hostilities are retained by them under the principle of uti possidetis. This is to be distinguished from an agreement for the status quo ante, which calls for the complete restoration to their former owners of property or territory that may have lawfully changed hands during the war, with the exception of prize and booty.

What is negotiated treaty of peace? This is a treaty concluded by the belligerents when neither is able to effect a decisive victory over the other, as was the case with Great Britain and the United States when they entered in to the Treaty of Ghent to the end the war of 1812.

Defeat of one of the belligerents as a mode of terminating war The defeated belligerent may surrender either conditionally or unconditionally. It the former case, a treaty of peace is concluded which makes provision for the conditions specified in the surrender. In the latter case, the victorious belligerent usually issues a unilateral declaration announcing the end of the war, to be followed by a treaty of peace in which the reparation to be made by the vanquished state and the disposition of its territory and property are dictated by the victorious state.