Sponsorship Speech of Senator Richard J. Gordon On the
International Humanitarian Law Bill
Penalizing Crimes Against IHL: Ending Impunity

Mr. President and distinguished colleagues:

Throughout the centuries, millions of children, women and men all over the world have been victims of unimaginable atrocities of armed conflict. Philippine history is not spared from such atrocities, beginning from the wars we have experienced during our occupation by the Spanish, Japanese and the Americans, and throughout the course of our recent history as a newly independent nation struggling with internal armed conflicts.

The atrocities arising from the disintegration of the former Yugoslavia shocked the conscience of the international community not just as to their character but also as to the lack of preparedness of national courts to prosecute violations of the laws of armed conflict or international humanitarian law.

International humanitarian law (IHL) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. As part of international law, the sources of IHL include customary international law and treaties.

IHL treaties that had been considered part of customary international law in the Philippines as early as the 1950's are the 1907 Hague Conventions on the Rules of Warfare and the 1949 Geneva Conventions on the protection of war victims. (Kuroda vs. Jalandoni)

The 1949 Geneva Conventions had been subsequently ratified in 1952. Several other IHL treaties have been ratified by the Philippines such as the:

1. 1948 Genocide Convention (ratified on July 7, 1950)

2. 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (ratified on May 15, 1973)

3. 1977 Second Protocol Additional to the Geneva Conventions relating to the protection of victims of non-international armed conflict (ratified on December 11, 1986)

4. 2005 Third Protocol Additional to the Geneva Conventions relating to the adoption of an additional distinctive emblem (ratified on August 22, 2006)

5. 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (ratified on August 26, 2003): and

6. various conventions governing the use, restriction or prohibition of weapons such as poisonous gas (ratified on June 8, 1973), biological weapons (ratified May 21, 1973), chemical weapons, certain conventional weapons and anti-personnel landmines (ratified on February 15, 2000).

Other treaties which the Philippines has signed but not yet ratified are the 1998 Rome Statute on the International Criminal Court, 1977 First Protocol Additional to the Geneva Conventions relating to the protection of victims of international armed conflict, and the 1954 Hague Convention for the Protection of Cultural Property and its 1999 Second Protocol, the last three instruments still pending before the Senate Committee on Foreign Relations. While these treaties have yet to be ratified, this does not bar our sovereign Congress from adopting certain provisions thereof.

In the Declaration of Principles and State Policies found in our Constitution, it is stated that the Philippines adopts the generally-accepted principles of international law as part of the law of the land. Nevertheless there is a need to codify these crimes within the domestic legal system to fully comply with Philippine obligations under various treaties and convention, keep pace with developments in the definition of international criminal law, and more importantly, to ensure that those who commit war crimes, genocide, and crimes against humanity are not afforded impunity for their acts.

Mr. President, I thus seek the immediate approval of Senate Bill 2669 that will define and penalize crimes against international humanitarian law (IHL) and other serious international crimes. The Bill consolidates SBN 1446 this representation has filed, SBN 583 by Senator Jinggoy Estrada, SBN 1861 by Senator Miriam Defensor Santiago, SBN 1542 by Senator Juan Miguel Zubiri, and SBN 2589 by Senator Manny Villar. The counterpart bills in the Lower House include HBN 1748 by Representative Roilo Golez, HBN 2591 by Representative Simeon Datumanong and HBN 3002 by Representative Rufus Rodriguez. They were also deliberated upon by the Committees of Justice and Human Rights in November 2008 and a technical working group that has been formed started meeting last week, January 29, 2009.

CRIMES DEFINED AND PUNISHED

The core of Senate Bill 2669 seeks to define three international crimes, namely war crimes or serious violations of international humanitarian law, genocide and crimes against humanity, and to impose a severe penalty of imprisonment for a specified number of years within a range of 15-40 years depending on the gravity of the crime committed.

War crimes or serious violations of international humanitarian law have already been specified in the different IHL treaties, the most important element of which is that the act must have been committed in a situation of armed conflict and against a person not taking part, or no longer taking part in the hostilities. In international armed conflict, they are called grave breaches to the Geneva Conventions and its First Protocol, including willful killing, torture or inhuman treatment and willfully causing great injury. In non-international armed conflict, the criminal acts are listed in Common Article 3 to the four Geneva Conventions, including violence to life and person, outrages upon personal dignity and taking of hostages. Other serious violation violations of the laws and customs applicable in armed conflict, particular in the conduct of hostilities are also enumerated.

In crimes against humanity, the most important element is that the acts are committed as part of a widespread or systematic attack directed against any civilian population. The acts include murder, extermination, enslavement, deportation, enforced disappearance and many others.

With regard to genocide, the primary element is that the act is committed with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The acts here include only killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.

PRINCIPLES OF CRIMINAL RESPONSIBILITY

The bill also introduces into the Philippine penal system principles of criminal responsibility unique to the prosecution of international crimes. These principles include command responsibility, non-prescription of crimes and irrelevance of official capacity. These principles affirm the equality of all persons before the law and the commitment of the State to provide no safe havens for perpetrators of these crimes.

The principle of command responsibility springs from the responsibility of a superior who fails in his duty by doing nothing to prevent a subordinate from committing a violation of IHL. The essence of the mechanism of command responsibility may be summarized as follows:

• it involves a superior, i.e. a person having authority over a subordinate;

• the superior knew or should have known that the crime was being or was going to be committed:

• the superior had the ability to prevent the criminal conduct or put a stop to it; and

• the superior failed to take all necessary and reasonable measures within his power to prevent the criminal conduct or put a stop to it.

Prescription, or the application of a statutory limitation on legal action in the event of an offense, may relate to either of two aspects of legal proceedings. On the one hand, prescription may apply to prosecution. If a certain time has elapsed since a breach was committed, this would mean no public action could be taken, and that no verdict could be reached.

On the other hand, the limitation may apply only to the application of the sentence itself. In this case the fact that a certain amount of time had elapsed would mean the criminal sentence could not be applied. Because the repression of serious violations of IHL is essential to ensuring respect for this branch of law, prescription will not apply, especially in view of the gravity of certain violations that run counter to the interests of the international community as a whole.

Irrelevance Of Official Capacity

While respecting the constitutional principles of Presidential immunity from suit and other international laws on immunities, the provision will enable courts to exercise jurisdiction over persons enjoying immunities or special procedure rules that may be attached to the official capacity of a person (example, former heads of States).

Universal Jurisdiction

Another principle unique to the prosecution of international crimes is the principle of universal jurisdiction. Universal jurisdiction refers to the assertion of jurisdiction over offenses regardless of the place where they were committed or of the nationality of the perpetrator. It is held to apply to a range of offenses whose repression by all States is justified or required, as a matter of international public policy..

Senate Bill 2669 will ensure that the most serious crimes of concern to the international community do not go unpunished, by providing for their effective prosecution at the level of domestic courts. It is envisioned that the extended criminal jurisdiction of the courts to hear and resolve crimes under IHL will finally put an end to the impunity by which perpetrators of these crimes commit their deeds. The State shall guarantee to persons suspected or accused of grave crimes under international law all rights necessary to ensure that their trials shall be fair and proceed promptly, in strict accordance with international law and standards for fair trials.

VICTIMS AND WITNESSES

Under SBN 2669, Philippine courts shall take additional measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.[1] Philippine courts shall be able to provide reparations to victims including restitution, compensation and rehabilitation, depending on the scope and extent of damage, loss and injuries.[2] It shall also protect victims, witnesses and their families against undue harassment and abuse, and provide them appropriate redress as guaranteed under IHL.

CONCLUSION

This year, on the 12th of August 2009, the whole world shall observe the 60th anniversary of the 1949 Geneva Conventions. We should not, however, wait for this day to come in order to be reminded of the horrific and inhumane effects of armed conflicts. In behalf of the Committee on Justice and Human Rights, we appeal for the immediate passage of Senate Bill 2669 as our symbolic gesture of our continuing adherence and strong commitment to IHL. But above symbolisms, our goal is to end impunity and penalize crimes against international humanitarian law.