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Republic Act No.

9851
The Philippine Act of Crimes Against International
Humanitarian Law, Genocide and Other Crimes
Against Humanity

A breakthrough law for IHL enforcement


in the Philippines
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.

This new law will enable the


Philippines to:
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.

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

Salient Features:
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;
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

WAR CRIMES
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.

RA No. 9851 clustered "crimes against


IHL" into three categories, as follows:
1.

In case
CONFLICT

of

INTERNATIONAL

ARMED

2. In case of NON-INTERNATIONAL ARMED

CONFLICT
3. Other serious violations of the laws and

customs applicable in 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 carrying out

executions without previous judgment


pronounced by a regularly constituted court,
affording all judicial guarantees which are
generally recognized as indispensable.

Recruitment of children (child


warriors) as war crime
Discrepancy

between the cut-off ages for


government and dissident armed forces
15y.o. vs. 18 y.o., respectively.
Constitutional issue may arise as to the equal

protection of the law for children, whether recruited


by the government or dissident armed forces.

The third category of war crimes


lists among others the following
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.

Serious violations of the limitations


of the methods of warfare:
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

Short list of prohibited means of


warfare:
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;
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 and Other Crimes Against


Humanity
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.

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.
The

legal definition of which is wellestablished 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.

RA 9851 vs. RA 9745


Torture:
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.
NO QUALIFICATION as to perpetrator and as to

purpose.

Who are Accountable?


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
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.

COMMAND RESPONSIBILITY
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.

Section 17 provides a provision on Jurisdiction

which may be characterized as a QUALIFIED


UNIVERSAL JURISDICTION
Universal Jurisdiction is actually explained in

RA No. 9851s Declaration of Principles and


State Policies.

SPECIAL COURTS, PROSECUTORS,


INVESTIGATORS AND TRAINING
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.

PENALTIES
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.

THANK YOU