Thank you, Chair.
The Philippines has the honor to share the following views on Cluster 3 (Articles 6, 7, 8, 9, and 10 of the Draft Articles.
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- On Draft Article 6 on ‘Criminalization under national law’
With respect to Draft Article 6, the torture and genocide conventions, to which the Philippines is party to, contain parallel provisions. Article 6 sets out the various measures to make sure all crimes against humanity are prosecuted and accommodates diversity in approaches in national legal systems.
As crimes against humanity already constitutes an offence under Philippine criminal law, we support working on the basis of the current language of Draft Article 6(1) which mandates states to take necessary measures to ensure that crimes against humanity are criminalized under national law.
In relation to Draft Article 6(2), our national law specifically states that a person shall be criminally liable as a principal and penalized if he/she, inter alia: (1) commits such a crime; (2) orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; and (3) in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose, with such contribution being intentional and shall be made with the aim of further criminal activity or purpose or made in the knowledge of the intention of the group.1
On Draft Article 6(3) as our law advances the concept of the responsibility of superiors, we could also work on the basis of this text. However, we would propose the insertion of element of ‘effective control’ in this regard, such that superiors shall be criminally responsible for such crimes committed by their subordinates under their effective command and control, or effective control or authority, as the case may be, as result of their failure to exercise control over such subordinates. This would be premised on the fact that the superior either knew or, owing to circumstances, should have known that the subordinates were committing or about to commit such crimes, or that the superior failed to take all necessary and reasonable measures to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.2
This delegation could also support the text of Draft Article 6(4) as the principle has basis in our national law, which states that the fact that a crime defined and penalized under the said law has been committed by a person pursuant to an order of a government or superior, whether military or civilian, shall not relieve that person of criminal responsibility. Orders to commit ‘other crimes against humanity’ are, by default, manifestly unlawful, in our jurisdiction.3
We could also work on the basis of Draft Article 6(5) as our national law mandates that ‘the law applies equally to all persons without distinction based on official capacity,’ However, it would be useful to point out that there are immunities or special procedural rules that may attach to official capacity from suit during tenure shall not necessarily bar any court from exercising jurisdiction over such a person. Further, immunities that may attach to official capacity of a person under international law may also impose some limitations.4
Under our national law, the crimes penalized therein, including other crimes against humanity, genocide and war crimes, their prosecution, and the execution of sentences, shall not be subject to any prescription. Thus, we could support Draft Article 6(6) which states that the offences under the said draft article are not subject to the statute of limitations.5
We could support the current Draft Article 6(7) as our national law provides for appropriate penalties that take into account the grave nature of the offences under the said article. In general, a person guilty of committing crimes against humanity shall suffer the penalty of reclusion temporal in its medium to maximum period and a fine.6
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- On Draft Article 7 on ‘Establishment of national jurisdiction’ in relation to Article 10
Subject to further consideration, we are looking constructively at Draft Article 7. Under our national law, the Philippines shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of, inter alia, other crimes against humanity, regardless of where the crime is committed, provided, any of the following conditions is met: (1) the accused is our citizen; (2) the accused, regardless of citizenship or residence, is present in the Philippines; and (3) the accused has committed the said crime against a Filipino citizen.
In relation to Draft Article 10, in the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under our law 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.
On Article 10, the article could take into account how a state may deal with multiple requests in relation to extradition or surrender of a person.
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- On Draft Article 8 on ‘Investigation’
On investigation, the Philippines supports the retention of the current text of Draft Article 8 which mandates states to ensure that its competent authorities proceed to investigation whenever there is reasonable ground to believe that acts constituting crimes against humanity have been committed in any territory under its jurisdiction. The International Law Commission commentary indicates that this covers serious, effective, and unbiased investigation that can be done also through a variety of modes.
Finally, our delegation reserves the right to revisit Draft Article 6(8), on the topic of liability of legal persons for the offences; and on Draft Article 9 on ‘Preliminary measures when the alleged offender is present.’
Thank you. END
1 Section 8. Republic Act 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and other Crimes Against Humanity’
2 Section 10, RA 9851
3 Section 12, RA 9851
4 Section 9, RA 9851
5 Section 11, RA 9851
6Section7,RA9851