LAST WEEK, my column article was about the genocide case which took place during the Bosnian War in the early ‘90s. The perpetrator was Ratko Mladic who had the command over the Bosnian Serb forces.
In the Philippines, they say we also have the same scenario though no conviction yet against the supervising or superior authority. However, it should be noted that on Nov. 23, 2009 a massacre happened in Maguindanao province and was considered the worst in recent Philippine history.
The level of brutality in that massacre exceeded the violence that happened in the region. The issue focused on the Ampatuan family and its forces. Thus, on its legal framework, command responsibility was integrated into the Philippine law through Republic Act (RA) No. 9851.
Additionally, the doctrine of command responsibility was also incorporated in Executive Order No. 226 in 1995 that supervising or superior authority can be held administratively accountable for neglect of duty.
According to the Supreme Court, command responsibility is a form of criminal complicity in crimes against international humanitarian law, genocide and other crimes. Moreover, it is “properly a form of criminal complicity, and thus, a substantive rule that points to criminal or administrative liability.”
RA No. 9851 is one of our laws that are International Humanitarian Law-related (IHL) and it is also called the “Philippine Act on Crimes Against International Humanitarian Law, Genocide and other Crimes Against Humanity.”
Considering this law and the current situation of the Philippines on the “war on drugs,” the question that may arise is: “Can the President be held liable under RA No. 9851?” Yes.
Under Section 10 of the said law, a “superior shall be criminally responsible as a 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.”
This happens when 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 when the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Section 18 provides that the Regional Trial Court has original and exclusive jurisdiction over crimes punishable under RA 9851. The Supreme Court has the power to designate special courts to try such cases.
Other agencies that can designate prosecutors and investigators are the Commission on Human Rights (CHR), the Department of Justice (DOJ), the Philippine National Police (PNP) or other concerned law enforcement.
The executive department has the burden to carry out the investigation and prosecution of these crimes against humanity.
But it should be noted that the International Criminal Court (ICC) Pre-trial Chamber has already requested to investigate the alleged crimes against humanity in the context of the “war on drugs” in the Philippines.
Will the government cooperate and carry out the investigation and prosecution?/PN
