The Philippine Act of Crimes Against International
Humanitarian Law, Genocide and Other Crimes Against
Humanity Signed into law on December 11, 2009
The first national statute to define the most serious
crimes of concern to the international community as a whole namely, war crimes, genocide and crimes against humanity.
R.A. 9851 takes many of the obligations found in
international treaties and transforms them into domestic law. 1. Prosecute the international crimes itself; 2. Contribute to an effective international criminal justice regime; 3. Strengthen its national criminal justice system; and generally 4. Bring its national law into conformity with international standards as well as up-to-date with important developments in international law. Defining and penalizing war crimes, genocide, and other crimes against humanity;
Applicability to all individual perpetrators, whether
state agents or non-state actors;
Applying certain international criminal law principles
of irrelevance of official capacity, responsibility of superiors, unlawful superior orders, and non- prescription among others; Instituting a form of universal jurisdiction, albeit qualified; In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.(sec 17)
Providing for international standards for protection of
victims and witnesses, as well as reparations to the former;
Express applicability of international law, including
specific international treaties; Providing for the designation of special courts, prosecutors and investigators, and their effective training in human rights, IHL and international criminal law;
No requirement of Implementing rules and
regulations This law is not simply criminal law but also International Criminal Law, International Humanitarian Law and International Human Rights Law.
RA9851- a Special Law NOT an amendment to the
Revised Penal Code These 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. 1. In case of INTERNATIONAL ARMED CONFLICT
2.In case of NON-INTERNATIONAL ARMED
CONFLICT
3. Other serious violations of the laws and customs
applicable in armed conflict 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 carrying out executions
without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. 1. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.
Intentionally directing attacks against civilian objects, that
is, objects which are not military objectives.
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 wide-spread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct military advantage anticipated. Killing, wounding or capturing of adversary by resort to perfidy (treachery or betrayal of confidence)
Declaring that no quarter will be given
Intentionally using civilians as method of warfare by
depriving them of objects indispensable to their survival, including willfully impeding relief supplies Poison or poisoned weapons;
Asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
Bullets which expand or flatten easily in human body;
DUM DUM Bullets
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. GENOCIDE - Committed with intent to destroy, in whole or in part, a NATIONAL, ETHNIC, RACIAL, RELIGIOUS, SOCIAL OR ANY SIMILAR STABLE AND PERMANENT GROUPS OTHER CRIMES AGAINST HUMANITY committed as part of a WIDESPREAD or SYSTEMATIC ATTACK directed against any civilian population, WITH KNOWLEDGE OF THE ATTACK. Constitute a specific concept developed in customary international law, unlike war crimes and genocide that were largely developed through treaty international law.
The legal definition of which is well-established and
generally accepted, would also be a good fall back, in the absence of a well-established and generally accepted definition of terrorism. Crimes against humanity and genocide have no nexus with armed conflict, unlike war crimes which have that concept.
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, these crimes may be framed and addressed by IHL; and when committed during peace time, by International Human Rights Law. For war crimes, genocide and other crimes against humanity, the perpetrators may be held accountable for these serious international crimes are NOT LIMITED to state agents and may include non-state actors.
Liability is based on individual responsibility of
natural, not juridical persons. Official capacity as head of State or government, a member of a government or parliament, an elected representative or government official shall in no case exempt a person from criminal responsibility under this Act.
Immunities or 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 jurisdiction over such a person. A superior shall be criminally responsible as principal 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: 1. 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
2. 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. The Regional Trial Courts shall have original and exclusive jurisdiction over international crimes under this Act. The Supreme Court shall designate special courts to try cases involving crimes punishable under this Act. For these cases, the CHR, the DOJ, the PNP or other concerned law enforcement agencies shall designate prosecutors and investigators to investigate as the case may be.
Judges, Prosecutors and investigators designated for the
purpose shall receive effective training in human rights, international humanitarian law and international criminal law. Ra 9851 provides the main penalty of imprisonment of Reclusion Temporal in its medium to maximum period (14 years, 8 months to 20 years) and a fine ranging from P100,000 to P500,000. IHL will only be respected if three conditions are met: (1) fighters receive clear orders to obey IHL; (2) the society in general supports the rules of IHL; and (3) those who break the rules are punished.
Direct participation on hostilities. Distinctions
between those who directly took part on fighting and who do not became blurred. . In situations of armed conflict, there is thus no legal significance in describing acts of violence against civilians as terrorist because these would already constitute war crimes. But IHL does not apply when terrorist acts are perpetrated, or persons suspected of terrorism are detained, outside an armed conflict
The use of cutting-edge technologies in war. (i.e. Cyber
warfare) A clear orientation and instructions to fighters (.i.e. soldiers) must be manifested. These valiant men must understand and adhere want is meant by the law. Orders must be clear. Furthermore, society must also be informed about the nature of the law. The people, especially the civilians must be fully aware and support the rules of IHL. Four areas were identified that should be strengthened: the protection of persons deprived of liberty in non- international armed conflicts, internally displaced persons, the natural environment, and enforcement of IHL and reparations. The government must make efforts though an expert consultative process to clarify this concept of direct participation in hostilities so that the principle of distinction is not unduly eroded. There should be a clear manifestation as to the provisions about armed conflict and acts of terrorism. There might be an overlapping issue about the Human Security Act and the IHL. In the case of cyber warfare, an attack may come from distant and diverse sources or may even use the territory of states which are not parties to the conflict. It is fundamental to call into question the definition of an attack if no kinetic force is involved.