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R.A.
No. 9851 – breakthrough law for IHL enforcement in the Philippines By Atty. Soliman M. Santos, Jr.
Co-Founder/Convenor, Civil Society Initiatives
for International Humanitarian Law (CSI-IHL)
Quezon City, Philippines, 8 January 2010
Republic Act No. 9851, the new “Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity” signed into law on 11 December 2009, is a breakthrough law
for the enforcement of international humanitarian law (IHL) as well as
human rights in the Philippines. For the first time here, a
national statute defines and penalizes “the most serious crimes of
concern to the international community as a whole” – namely, war
crimes, genocide, and crimes against humanity. This could be even
more significant than R.A. No. 9745, the “Anti-Torture Act of 2009”
signed into law about a month earlier on 10 November 2009. To the
credit of the 14th Congress and of the Arroyo administration, they have
delivered this significant one-two punch for human rights and IHL, and
possibly a few more good punch combinations, during the “last round” of
this Congress and administration before bowing out in mid-2010.
But credit is also due to the various human rights and IHL advocates in
civil society and in government who have worked long and hard for these
and related legislation as well as administrative measures.
This
new law will enable the Philippines to prosecute the international
crimes itself, contribute to an effective international criminal
justice regime, strengthen its national criminal justice system, and
generally bring its national law into conformity with international
standards as well as up-to-date with important developments in
international law. It can no longer be said that the Philippines
is “unable” to prosecute war crimes, genocide, and crimes against
humanity for the simple reason that there is no Philippine law defining
and penalizing these serious international crimes as such. Such
inability could even justify the “complementary” (i.e. secondary)
jurisdiction of the International Criminal Court (ICC) over such
crimes. It has been said that “Criminal legislation is the most
appropriate and effective means of dealing with all serious violations
of IHL.” But, as we shall explain further below, R.A. No. 9851 is
a special law, not an amendment to the Revised Penal Code, because this
law is not simply criminal law but also international criminal law,
international humanitarian law and international human rights
law. In practical terms, something like the “Maguindanao
Massacre” can now be prosecuted as a crime against humanity rather than
as a common crime of multiple murder.
R.A. No. 9851 also comes
at a time when it can provide some teeth to a new effort for a civilian
protection component in the context of the peace process, particularly
between the Government of the Republic of the Philippines (GRP) and the
Moro Islamic Liberation Front (MILF). As a law which enforces
both human rights and IHL, it can also co-relate on a parallel basis
with the Comprehensive Agreement on Respect for Human Rights and
International Humanitarian Law (CARHRIHL) between the GRP and the
National Democratic Front of the Philippines, with more reason as there
has been no standing ceasefire between them and as their Joint
Monitoring Committee (JMC) mechanism has been perennially
stalemated. The fact that R.A. No. 9851 is heavily informed by
human rights and IHL, even if it is still a national law, could make
those major rebel groups look at or treat it somewhat differently from
the usual repressive laws and decrees of the state that they rail
against. On another level, R.A. No. 9851 might also contribute to
the proper balance between peace and justice, which should not be an
either-or proposition.
Key Features and War Crimes
The most important features of R.A. No. 9851 might be outlined as
follows:
Ø Defining and penalizing war crimes, genocide, and other crimes against humanity.
Ø
Applicability to all individual perpetrators, whether state agents or
non-state actors (unlike the Anti-Torture Act which is limited to
state-agent perpetrators).
Ø Applying certain
international criminal law principles of irrelevance of official
capacity (for immunities), responsibility of superiors (i.e. command
responsibility), unlawful superior orders, and non-prescription, among
others.
Ø Instituting a form of universal jurisdiction, albeit qualified.
Ø Providing for international standards for protection of victims and witnesses, as well as reparations to the former.
Ø Express applicability of international law, including of specific international treaties.
Ø
Providing for the designation of special courts, prosecutors and
investigators, and their effective training in human rights, IHL and
international criminal law.
Ø No requirement of implementing rules and regulations (unlike the Anti-Torture Act)
War
crimes [Section 4] are serious violations of IHL or the laws and
customs applicable in armed conflicts. These conflicts include
armed hostilities between government military and police forces, on one
hand, and rebel groups, on the other hand, as well as those between
rebel groups, as has been experienced in the Philippines during the
past four decades. In R.A. No. 9851, war crimes or “crimes
against IHL” are clustered into three categories, as follows:
a)
In case of an international armed conflict (i.e. between or among
states), grave breaches of the four Geneva Conventions of 12 August
1949, listing nine (9) acts committed against protected persons or
property, as defined.
b) In
case of a non-international armed conflict, serious violations of
common Article 3 of the same Geneva Conventions, listing four (4) acts
committed against persons taking no active part in
hostilities.
c)
Other serious violations of the laws and customs applicable in armed
conflict, within the established framework of international law (but
may be said to be applicable to both international and
non-international armed conflicts, unless otherwise specified), listing
twenty-five (25) acts, inc. two (2) specific to international armed
conflict.
The minimum standard is that provided by the second
category of war crimes, i.e. any of the following acts committed
against persons taking no active part in hostilities:
(1) Violence to
life and person, in particular, willful killings of all kinds,
mutilation, cruel treatment and torture;
(2) Committing outrages
upon personal dignity, in particular humiliating and degrading
treatment;
(3) Taking of hostages;
(4) The passing of
sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
Some
of these same or similar acts – like willful killing (which is
consistently used in R.A. No. 9851 rather than murder), physical
mutilation, inhuman treatment, torture, committing outrages upon
personal dignity, in particular humiliating and degrading treatment,
taking of hostages, and deprivation of the rights of fair and regular
trial – are also listed under the first and/or third categories of war
crimes. But the latter categories also list a greater number of
distinct acts which constitute war crimes. Both the latter
categories list forcible transfer of population, and ordering the
displacement of the civilian population (which is relevant to internal
displacement), as war crimes. The third category has an expanded
list of sexual offenses, namely rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence, as war crimes. Incidentally, acts of
willful killing, forcible transfer of population, torture, and the same
sexual offenses also appear later in R.A. No. 9851 as part of other
crimes against humanity.
Going back to the third
category of war crimes in R.A. No. 9851, we find that using children
(persons under 18 years of age) to participate actively in hostilities
is a war crime. But when it comes to recruiting children into
armed forces or groups, there is a discrepancy between the cut-off ages
for government and dissident armed forces – 15 vs. 18 years of age,
respectively. In other words, government armed forces
cannot recruit children under 15 years of age (thus, 15-17 year-olds,
legally still children, can be recruited), while dissident armed forces
cannot recruit children under 18 years of age (thus, legally no
children can be recruited); otherwise, such respective recruitment is a
war crime. This appears to be a violation of the convention or
tradition of reciprocity, as well as the customary IHL rule that
children (not qualified as to whether under 15 or 18 years of age) must
not be recruited into armed forces or armed groups (these must refer to
state and non-state armed forces/groups, respectively). It also
makes for a strange legal situation where rebel groups are held to a
higher standard than government armed forces – by a national law that
will be definitely harder to enforce with rebel groups outside the fold
of the law than with government armed forces who are official agents of
the law. There may be also a constitutional issue here of equal
protection of the law for children, whether recruited by government or
dissident armed forces.
Basically, war crimes are serious
violations of the protection that should be accorded to civilians or
non-combatants during armed conflict, as well as serious violations of
the established limitations on the methods and means of warfare, for
the benefit also of the combatants. Thus, under the third
category of war crimes in R.A. No. 9851, we find these listed, among
others:
n Intentionally directing attacks against the
civilian population as such or against individual civilians not taking
direct part in hostilities.
n Intentionally directing
attacks against civilian objects, that is, objects which are not
military objectives. (For example, houses, schools, churches,
mosques, farms, cell sites, power transmission towers, public transport
and other civilian infrastructure.)
n Launching an
attack in the knowledge that such attack will cause incidental loss of
life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment
which would be clearly excessive in relation to the concrete and direct
military advantage anticipated.
In terms of serious
violations of the limitations of the methods (i.e. tactics) of warfare,
the third category of war crimes in R.A. No. 9851 lists the following,
among others:
n Killing, wounding or capturing an adversary by resort to perfidy (i.e. treachery or betrayal of confidence).
n Declaring that no quarter will be given (e.g. taking no survivors).
n
Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including
willfully impeding relief supplies as provided for under the Geneva
Conventions and their Additional Protocols.
In terms of
serious violations of the limitations of the means (i.e. weapons) of
warfare, the third category of war crimes in R.A. No. 9851 has this
indicative and non-exhaustive short list of prohibited means of warfare:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all analogous liquids, materials or
devices;
(iii) Bullets which expand or flatten easily in the human body, such as bullets with a hard
envelope which do not entirely cover the core or are pierced with incisions; and
(iv) Weapons, projectiles and material and methods of warfare which are of a nature to
cause
superfluous injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of armed conflict.
Unlike
the first three items in this short list, the fourth and last item does
not mention specific weapons and, for that matter, methods of warfare,
but instead provides certain criteria about the weapons and methods the
employment of which would constitute a war crime. For example,
the criterion of “inherently indiscriminate” could be applied, among
others, to victim-activated anti-personnel landmines, which are
themselves totally banned under the 1997 Ottawa Treaty.
Genocide and “Other Crimes Against Humanity”
Genocide
[Sec. 5] under R.A. No. 9851 means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnic,
racial, religious, social or any similar stable and permanent group as
such:
(1) Killing members of the group;
(2) Causing serious bodily or mental harm to members of the
group;
(3) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in
whole or in part;
(4) Imposing measures intended to prevent births within the
group;
(5) Forcibly transferring children of the group to another
group.
In the Philippine historical context of recent
decades, genocide was an issue raised by the Moro National Liberation
Front (MNLF) against the Marcos dictatorship. There is now in
R.A. No. 9851 national legal basis to prosecute this issue as a
crime. What remains to be established then is the factual basis,
if any, for a case of genocide committed against the Bangsamoro.
“Other
crimes against humanity” [Sec. 6] under R.A. No. 9851 means any of the
following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of
population;
(e)
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence
of comparable gravity;
(h) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural,
religious, gender, sexual orientation or other grounds that are
universally recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any crime
defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid;
(k) Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to
mental or physical health.
Actually, this is more or less
the established international legal definition of crimes against
humanity, but R.A. No. 9851 uses the terminology “other crimes against
humanity.” We can only surmise for now that Congress must have
considered the preceding war crimes and genocide as also being “crimes
against humanity” in a loose or generic sense. But crimes against
humanity constitute a specific concept developed in customary
international law, unlike war crimes and genocide that were largely
developed through treaty international law (e.g. the 1907 Hague and
1949 Geneva Conventions, and the 1948 Genocide Convention).
The key concept in crimes against humanity is the qualification “as
part of a widespread or systematic attack directed against any civilian
population.” In other words, it is not just the above-enumerated
acts but such acts “as part of a widespread or systematic attack
directed against any civilian population.”
An “attack
directed against any civilian population” is defined [Sec. 3(e)] under
R.A. No. 9851 as “a course of conduct involving the multiple commission
of acts referred to in Section 6 of this Act against any civilian
population, pursuant to or in furtherance of a State or organizational
policy to commit such attack.” Note “multiple commission of acts
referred to” and “pursuant to or in furtherance of a State or
organizational policy.” The latter clearly indicates that this
could be perpetrated by a non-state armed group. And the attack
must be “widespread or [NOT and] systematic” to make this a crime
against humanity. As already indicated early on above, something
like the “Maguindanao Massacre” -- involving multiple willful killing
as part of a systematic pre-planned attack directed by Ampatuan clan
leaders (who were also public officials) against a group of civilians
led by rival Mangudadatu clan members – can be characterized as a crime
against humanity.
Crimes against humanity, the legal definition
of which is well-established and generally accepted, would actually
also be a good fall back (repeat, just fall back) in the absence of a
well-established and generally accepted legal definition of
terrorism. The Philippines now has its first anti-terrorism law
in R.A. No. 9372, the so-called “Human Security Act of 2007,” but its
definition of terrorism is questionable, as it is in fact being
currently questioned in a constitutionality suit before the Supreme
Court. One Senator had asked, however, that this anti-terrorism
law be applied to the “Maguindanao Massacre.” R.A. No. 9851
itself, which defines and penalizes “other crimes against humanity,”
cannot be applied to the “Maguindanao Massacre” which occurred before
this new law has taken
effect.
It is also clear that crimes against humanity and
genocide have no nexus (connection) with armed conflict, unlike war
crimes which have that context. Crimes against humanity and
genocide, as with terrorism, can be committed during peace time, as
well as during war time. When committed during war time, those
three crimes can to some extent be framed and addressed by IHL; and
when committed during peace time, by international human rights
law. In fine, therefore, R.A. No. 9851 is a law for enforcement
not only of IHL but also of human rights (even though, during its bill
stage, it was popularly referred to as the “IHL Bill”).
Torture and Enforced Disappearance, Perpetrators and Penalties
It will be noted that the specific act of torture is mentioned under
war crimes and “other crimes against humanity” in R.A. No. 9851, while
the specific act of enforced or involuntary disappearance of persons is
mentioned under “other crimes against humanity” therein. Both
acts are defined in this new law. Here “torture” is defined [Sec.
3(s)] as “the intentional infliction of severe pain or suffering,
whether physical, mental, or psychological, upon a person in the
custody or under the control of the accused.” Quite
significantly, unlike the definition of torture in the likewise new but
slightly older R.A. No. 9745 (“Anti-Torture Act of 2009”), there are no
qualifications as to perpetrator (“inflicted by or at the instigation
of or with the consent or acquiescence of a person in authority or
agent of a person in authority”) and as to purpose (“for such purposes
as obtaining from him/her or a third person information or a
confession; punishing him/her for an act he/she or a third person has
committed or is suspected of having committed; or intimidating or
coercing him/her or a third person; or for any reason based on
discrimination of any kind”). Clearly, the definition of
“torture” in R.A. No. 9851 is of much wider application (inc. to
non-state actors) that that in R.A. No. 9745.
Surely, this is a less than ideal situation of two Philippine statutes
having two different definitions of torture, even if these are applied
to two different situations: torture per se (apply R.A. No. 9745
and its definition) and torture as part of war crimes or “other crimes
against humanity” (apply R.A. No. 9851 and its definition).
Eventually, those definitions will have to be harmonized one way or the
other. The “root cause” of this discrepancy lies in the
definition models used by R.A. No. 9745 and by R.A. No. 9851,
respectively, namely the different definitions of torture in the 1984
Convention Against Torture and in the 1998 Rome Statute of the ICC.
This
kind of discrepancy could be “replayed” when it comes to still another
new human rights and IHL-related law, that on enforced
disappearance. In R.A. No. 9851, “enforced or involuntary
disappearance of persons” is defined [Sec. 3(g)] as “the arrest,
detention or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization,
followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the
intention of removing them from the protection of the law for a
prolonged period of time.” Note “State or a political
organization,” with the latter clearly indicating that this could be
perpetrated by a non-state armed group. This was modeled on the
definition of “enforced disappearance of persons” in the
aforesaid Rome Statute.
The pending bills in Congress for an
“Anti-Enforced or Involuntary Disappearance Act,” however, invariably
carry the qualification “committed by government authorities or by
persons or groups of persons acting with the authorization, support or
acquiescence of such person in authority” – in short, state agents.
This is modeled on the definition of “enforced disappearance” in the
2006 International Convention for the Protection of all Persons from
Enforced Disappearance. It remains to be seen how an
“Anti-Enforced or Involuntary Disappearance Act” will take final shape
in its definition of the crime, given the already existing definition
in R.A. No. 9851.
It is clear that, for war crimes, genocide and
“other crimes against humanity” under R.A. No. 9851, the perpetrators
who may be held accountable for these serious international crimes are
not limited to state agents and may include non-state actors – which is
in accordance with the factual reality. Of course, liability is
based on individual criminal responsibility [Sec. 8] of natural, not
juridical, persons. But as we shall discuss shortly, there is
also a form of command responsibility [Sec. 10]. We had also
noted above the role of “State or organizational policy” when it comes
to “other crimes against humanity” and of “a State or a political
organization” when it comes to enforced or involuntary disappearance of
persons as part of “other crimes against humanity.” In other
words, there are also individual leaders or commanders, whether state
or non-state, who would be responsible for certain policies or
decisions that result in these crimes.
As for penalties [Sec. 7]
for war crimes, genocide and “other crimes against humanity,” R.A. No.
9851 provides the main penalty of imprisonment of reclusion temporal in
its medium to maximum period (i.e.14 years, 8 months to 20 years) and a
fine ranging from Php 100,000 to Php 500,000. The court shall
also impose the corresponding accessory penalties under the Revised
Penal Code, especially where the offender is a public officer. In
this way, a slightly heavier burden is imposed on state agents, which
is justifiable by their bounden duty to uphold, if not enforce, the
law. While international law like the Geneva Conventions and the
Genocide Convention may already define those serious international
crimes, it is generally still the national criminal law and
jurisdiction which provides for and imposes the penalties (one
exception is the Rome Statute precisely because it sets up its own
ICC). The imposition of penal sanctions is among the few
non-self-executing clauses of the main IHL and human rights treaties,
thus necessitating domestic penal legislation.
Official Capacity, Command Responsibility, Unlawful Orders, Non-Prescription
On
the irrelevance of official capacity [Sec. 9] as far as war crimes,
genocide, and “other crimes against humanity” are concerned, R.A. No.
9851 provides, among others, that “official capacity as a head of state
or government, a member of a government or parliament, an elected
representative or a government official shall in no case exempt a
person from criminal responsibility under this Act.” Also,
“Immunities or special procedural rules that may attach to the official
capacity of a person under Philippine law other than the established
constitutional immunity from suit of the Philippine President during
his/her tenure, shall not bar the court from exercising its
jurisdiction over such a person.” This is one particular matter
where a Philippine constitutional standard was made an exception to the
higher international criminal law standard of non-immunity of heads of
state or government for these serious international crimes.
R.A.
No. 9851 quite significantly provides for command responsibility as an
operative principle of criminal liability for the first time on the
level of a national statute through a provision on responsibility of
superiors [Sec. 10], thus: “a superior shall be criminally responsible
as a principle for such crimes committed by subordinates under his/her
effective command and control, or effective authority and control as
the case may be, as a result of his/her failure to properly exercise
control over such subordinates, where:
(a) The superior either
knew or, owing to the circumstances at the time, should have known that
the subordinates were committing or about to commit such crimes; and
(b)
The superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.”
While the context of this provision refers to
war crimes, genocide, and “other crimes against humanity” under R.A.
No. 9851, this sets a statutory precedent for its extension to the
cases of other serious crimes like torture, enforced disappearances,
and extrajudicial killings in the corresponding special laws, if any,
on such crimes. This Philippine statutory codification of the
doctrine of command responsibility, we might say, is only fitting
because the roots of the doctrine are usually traced to the 1946 ruling
in the Yamashita case for atrocities committed by the Japanese armed
forces in the Philippines during the Second World War, albeit the
relevant ruling is the one by the U.S., not the Philippine, Supreme
Court.
The historical development or evolution of the
doctrine was extensively discussed in the 2007 Melo Commission Report
on extrajudicial killings, which recommended a special law for strict
chain-of-command responsibility for police and military forces and
other government officials with respect to such killings and other
offenses committed by personnel under their command, control or
authority. The 2007 National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances convened by the Supreme Court
recommended the enactment of a law to address the lack of understanding
of the doctrine of command responsibility. The 2007 Alston Mission
Report on extrajudicial killings in the Philippines specifically
recommended that “The necessary measures should be taken to ensure that
the principle of command responsibility, as it is understood in
international law, is a basis for criminal liability within the
domestic legal order.” R.A. No. 9851 is thus a major step forward
in acting on these several related recommendations.
In its
provision on orders from a superior [Sec. 12], R.A. No. 9851clarifies
that “orders to commit genocide or other crimes against humanity are
manifestly unlawful.” In customary IHL, every combatant has in
fact a duty to disobey a manifestly unlawful order. So, this
could also extend to war crimes, and not just the aforesaid two serious
international crimes. In R.A. No. 9851’s provision on
non-prescription [Sec. 11], “The crimes defined and penalized under
this Act, their prosecution, and the execution of sentences imposed on
their account, shall not be subject to any prescription.” This is
already well-established for war crimes in customary IHL.
Universal Jurisdiction, Protection of Victims and Witnesses
Also significant in R.A. No. 9851, though of a perhaps lesser degree
than the statutory codification of the command responsibility doctrine,
is the provision on jurisdiction [Sec. 17] which might be characterized
as a qualified universal jurisdiction. On one hand, the State
shall exercise jurisdiction over war crimes, genocide, and “other
crimes against humanity” regardless of where the crime is
committed. On the other hand, there has to be a nexus to the
Philippines, whereby the accused is a Filipino citizen, or is present
in the Philippines, or has committed the crime against a Filipino
citizen. But the second condition, whereby the accused is present
in the Philippines, brings this quite close to full universal
jurisdiction. Such an accused could be a foreigner who has
committed the crime against another foreigner and has done so outside
the Philippines, but who has come to be present in the Philippines –
the State can then exercise jurisdiction over him.
Universal
jurisdiction is actually explained in R.A. No. 9851’s Declaration of
Principles and State Policies [Sec. 2(e)]: “The most serious crimes of
concern to the international community as a whole must not go
unpunished and their effective prosecution must be ensured by taking
measures at the national level, in order to put an end to impunity for
the perpetrators of these crimes and thus contribute to the prevention
of such crimes, it being the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes.” The idea is to allow for “justice without borders” so
that there are “no safe havens” for war criminals and the like.
Also
in R.A. No. 9851’s Declaration of Principles and State Policies [Sec.
2(f)], we find this adherence to universal human rights: “The
State shall guarantee persons suspected or accused of grave crimes
under international law all rights necessary to ensure that their
trials will be fair and prompt in strict accordance with national and
international law and standards for fair trials. It shall also
protect victims, witnesses and their families, and provide appropriate
redress to victims and their families. It shall ensure that the
legal systems in place provide accessible and gender-sensitive avenues
of redress for victims of armed conflict.” This policy
declaration most clearly indicates that R.A. No. 9851 is definitely
informed by human rights and not just by IHL. And we deal here
with the human rights of the accused, the victims and the
witnesses. Noteworthy is the policy of gender-sensitive avenues
of redress.
We see these human rights principles
operationalized in the provisions on protection of victims and
witnesses [Sec. 13] and on reparations to victims [Sec. 14]. For
example, take these provisions:
n As an exception
to the general principle of public hearings, the court may, to protect
the victims and witnesses or an accused, conduct any part of the
proceedings in camera or allow the presentation of evidence by
electronic or other special means. In particular, such measures
shall be implemented in the case of a victim of sexual violence or a
child who is a victim or is a witness, unless otherwise ordered by the
court, having regard to all the circumstances, particularly the views
of the victim or witness.
n Where the personal
interests of the victims are affected, the court shall permit their
views and concerns to be presented and considered at stages of the
proceedings determined to be appropriate by the court in a manner which
is not prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial. Such views and concerns
may be presented by the legal representatives of the victims where the
courts considers it appropriate in accordance with the established
rules of procedure and evidence.
Applicability of International Law
R.A. No. 9851 provides that in its application and interpretation,
Philippine courts shall be guided by the following international law
sources [Sec. 15]:
(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III;
(c)
The 1954 Hague Convention for the Protection of Cultural Property in
the Event of Armed Conflict, its First Protocol and its 1999 Second
Protocol;
(d) The 1989 Convention on the Rights of the
Child and its 2000 Optional Protocol on the Involvement of
Children in Armed Conflict;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h)
Other relevant international treaties and conventions ratified or
acceded to by the Republic of the Philippines; and
(i)
Teachings of the most highly qualified publicists and authoritative
commentaries on the foregoing sources as subsidiary means for the
determination of rules of international law.
No other
Philippine statute has shown this much adherence to international
law. Certainly not the Philippine anti-terrorism law R.A. No.
9372 which, instead of making reference to the 12 international
anti-terrorism conventions as it should have, makes reference to 12
Revised Penal Code provisions and special laws. Unlike R.A. No.
9851 having a section on Applicability of International Law, what R.A.
No. 9372 has is a section on Applicability of the Revised Penal Code –
a 1932 domestic law which is basically an extension of the Spanish
Penal Code of 1870, being applied to post-9/11, 2001 terrorism!
Aside
from the above-said treaties mentioned as “sources” for R.A. No. 9851,
its provisions actually have sources from these other treaties not
mentioned: the Hague Conventions and Regulations of 1899 and
1907, the1968 Convention on the Non-Applicability of Statutory
Limitations to War Crimes, the 1994 Convention on the Safety of United
Nations and Associated Personnel, the 1899 Hague Declaration (IV,3)
concerning Expanding Bullets, the 1925 Geneva Gas Protocol, the 1976
Convention on the Prohibition of Military or any Other Hostile Use of
Environmental Modification Techniques, the 1993 Chemical Weapons
Convention, the1945 Nuremberg Charter, the 1945 Tokyo Tribunal Charter,
the 1993 Statute of the International Criminal Tribunal for the former
Yugoslavia, the1994 Statute of the International Criminal Tribunal for
Rwanda, and the 1998 Rome Statute of the ICC.
And among
the various major treaty sources of R.A. No. 9851, several have
actually not yet been ratified by the Philippines: the 1954 Hague
Convention for the Protection of Cultural Property, the 1977 Additional
Protocol I of the 1949 Geneva Conventions, and the 1998 Rome
Statute. Their not yet being ratified rightly did not bar the
sovereign Philippine Congress, in the exercise of its plenary
legislative power, from adopting some of their provisions into the
national criminal law. Indeed, it has been said, “When these
offenses are separately defined in national criminal law, the
independence of this definition of international law can permit the
repression of a breach of one of the treaties (e.g. Additional Protocol
I), even if the treaty has not been ratified by the prosecuting
State.” Ratification has another function, which is to bind the
Philippines with a particular international treaty regime, in terms of
both obligations and benefits. And so, because the Philippines
has not yet ratified the Rome Statute, it is not yet part of the ICC
system.
But the above-indicated sources are not only
treaty international law but also “the rules and principles of
customary international law.” R.A. No. 9851’s Declaration of
Principles and State Policies [Sec. 2(a) & (d)] lays the basis for
this in two particular semi-repetitive paragraphs:
n
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part
of the law of the land and adheres to a policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
n
The state adopts the generally accepted principles of international law
principles, including the Hague Conventions of 1907, the Geneva
Conventions on the protection of victims of war and international
humanitarian law, as part of the law of our nation.
This
latter paragraph is actually a restatement of the 1949 Philippine
Supreme Court ruling in the Kuroda case of another Japanese war
criminal in the Philippines that “the rules and regulations of the
Hague and Geneva conventions form part of and are wholly based on the
generally accepted principles of international law… Such rules
and principles, therefore, form part of the law of our nation even if
the Philippines was not a signatory to the conventions embodying
them.”
In other words, as far as the primary IHL treaties like the Hague and
Geneva Conventions are concerned, the rules and regulations therein are
already deemed incorporated into Philippine law. Therefore,
in a sense, R.A. No. 9851 merely “re-legislated” these rules and
regulations for clarity and updating, and also because the treaties
themselves require domestic penal legislation. It consolidated
those principles, rules and regulations in one comprehensive law in so
far as the domestic penal aspect of serious international crimes is
concerned.
In fine, R.A. No. 9851 is a marriage of national criminal law and
aspects of international law. The result is a different framework
from pure or ordinary criminal law. This different framework is
justified by the difference between common crimes and serious
international crimes – just as different diseases require different
medical treatment.
Special Courts, Prosecutors, Investigators, and Training
Under
R.A. No. 9851 [Sec. 18], the Regional Trial Courts shall have original
and exclusive jurisdiction over the international crimes punishable
under this Act. The Supreme Court shall designate special courts
to try cases involving crimes punishable under this Act. For
these cases, the Commission on Human Rights, the Department of Justice,
the Philippine National Police or other concerned law enforcement
agencies shall designate prosecutors and investigators to investigate
as the case may be. Just as significant, the State shall ensure
that judges, prosecutors and investigators, especially those designated
for purposes of this Act, receive effective training in human rights,
international humanitarian law and international criminal law.
Thus,
this new law can and should be a catalyst for the infusion of more
international law (and thus more cosmopolitan and less parochial)
consciousness among Filipino lawyers and law students through the
law curriculum and continuing legal education. This can be
considered part of a broader educational and consciousness-building
effort on IHL and human rights which is crucial for their
implementation and enforcement, in conjunction with criminal
prosecution.
Though penal sanctions are indispensable to
ensure respect for IHL and human rights, such sanctions are
insufficient in themselves to put an end to acts contrary to IHL and
human rights. These norms need to be placed within a suitable
regulatory framework which will lay down the behavior complying with or
prohibited by IHL and human rights. In sum, the Philippines
through R.A. No. 9851 may be said to be availing of the best that has
been created by humanity in terms of international law to prevent and
punish the worst acts of inhumanity.
Some Final Remarks
Two paragraphs in R.A. No. 9851’s Declaration of Principles and State
Policies must be commented on, as we round out this preliminary
discussion of this new breakthrough law. The first one [Sec.
2(c)] is a rather strange formulation: “It shall be the
responsibility of the State and all other sectors concerned to resolve
armed conflict in order to promote the goal of ‘Children as Zones of
Peace’.” First of all, the mention of a policy to “resolve armed
conflict” and “Children as Zones of Peace” is good because this
indicates a peace orientation. However, the resolution of armed
conflict is for much more than “in order to promote the goal of
‘Children as Zones of Peace’.” The concept of peace zones in the
Philippines was in fact devised in the context of, and as a buffer
against, ongoing or continuing armed conflict. The resolution of
this conflict itself, and the subsequent building of peace, would then
in fact presumably obviate the need for peace zones, including the
concept of “Children as Zones of Peace.” At the same time, while
resolving the armed conflict and achieving a peace settlement would
remove the context or occasion for war crimes, peace time could still
witness genocide and crimes against humanity.
The second
paragraph [Sec. 2(g)] provides that “The State recognizes that the
application of the provisions of this Act shall not affect the legal
status of the parties to a conflict, nor give an implied recognition of
the status of belligerency.” There is no issue with the first
concept of non-effect on the legal status of the parties to a conflict,
as this is well-established in IHL. The issue is with the second
concept of status of belligerency (SOB) which is an obsolete or
outmoded concept in modern international law, a concept that has in
fact been superceded by IHL. Lingering notions of SOB on both
sides of the GRP-NDFP armed conflict have in fact continued to be a
major problem that has bedeviled their more-off-than-on peace
process. By mentioning the term SOB in a national statute, this
could only reinforce the NDFP’s obsession with, and the GRP’s
corresponding paranoia about, this concept. What is already obsolete
internationally is instead somehow being renewed nationally. This
perhaps shows that, notwithstanding the international law application
breakthroughs with R.A. No. 9851, the Philippines still has more
updating to do in international law consciousness.
The true
test of R.A. No. 9851 is of course in the practice of adherence,
implementation and enforcement. This starts with an appreciation
of its breakthrough nature and features for the enforcement of IHL and
human rights. And for effective implementation, unlike the
Anti-Torture Act R.A. No. 9745, the newer R.A. No. 9851 need not wait
for implementing rules and regulations. Let the practice begin
now na, if we have to say it this way, rather than a “tigerish” just do
it, these days.
--------------------------------
SOLIMAN
M. SANTOS, JR. is a Bicolano/Filipino human rights and IHL lawyer,
legislative consultant and legal scholar who prepared all three drafts
(2002, 2006) of the “IHL Bill” which became R.A. No. 9851. He is
a co-founder/convenor of the Civil Society Initiatives for
International Humanitarian Law (CSI-IHL), and Coordinator of the
Philippine Campaign to Ban Landmines (PCBL).
Contact details: Telefax (+632)7252153, Mob. (+63920)2903602, Email: gavroche23@gmail.com
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