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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.