HOUSE F REPROSENT ATIVES

SEVENTEENTH CONGRESS OF THE REPUBLIC
OF THE PHILIPPINES. )
First Regular Session

HOUSE OF REPRESENTATIVES

HB.No_ 2834 |

Introduced by Representative Herminio Harry L. Roque J.

EXPLANATORY NOTE

Acting on the Constitutional principle that the Philippines renounces war as an

instrument of national policy and adopts generally accepted principles of international
law as part of the law of the land, the Philippines has made strides in strengthening its
commitment and adherence to international humanitarian law.

Republic Act 9851, the “Philippine Act on Crimes Against International

Humanitarian Law, Genocide, and Other Crimes Against Humanity” was enacted on 11
December 2009. The law defined war crimes, crimes against humanity and genocide as
being criminal. Furthermore, it codified the applicability of the exercise of universal
jurisdiction for these crimes.

When Republic Act No. 9851 (the Philippine Act on Crimes Against International

Humanitarian Law, Genocide, and other Crimes Against Humanity) was signed on
December 11, 2009, the Philippines was already a signatory of but had yet to ratify the
Rome Statute of the International Criminal Court (ICC). While the definitions of these
crimes under RA 9851 were very similarly worded as in the Rome Statute, there are
nevertheless variations in their definitions, which could change the elements, the
coverage (i.e. the people affected) or the scope, whether exclusively applicable either to
international or non-international armed conflict, or both.

Upon the Philippines’ ratification of the Rome Statute on 30 August 2011, it became

obligatory on the part of the Philippines to adopt the terms and principles of the said
instrument, among which is the complementary role of the International Criminal Court
to the national criminal jurisdiction. For the complementary role of the ICC to apply, the
definitions of these crimes under the Rome Statute and national laws must be the same ~
a requirement not currently met by RA 9851. This amendatory bill aims to address this
gap by means of the following:

I. Revising the definitions of the (i) crime of genocide, (ii) crimes against
humanity and (iii) war crimes to follow strictly their definitions in the Rome
Statute of the ICC;


2. Deleting specific acts identified by RA 9851 as falling under any of the above
crimes but were not identified as such under the Rome Statute. Some of the
deleted acts were the following:

a. Section 4. War Crimes. a. (9) Unjustifiable delay in the repatriation of
prisoners of war or other protected persons.

b. Section 4. War Crimes. c. (6) Launching an attack against works or
installations containing dangerous forces in the knowledge that such
attack will cause excessive loss of life, injury to civilian or damage to
civilian objects, and causing death or serious injury to body or health.

c. Section 4. War Crimes. c. (16) Ordering the displacement of the
civilian population for reasons related to the conflict, unless the
security of the civilians involved or imperative military reasons so
demand.

3. Integrating the Elements of Crimes (as approved by members of the Assembly
of States Parties of the ICC) to assist in the interpretation and application of
the crimes;

4. Following the Rome Statute in enumerating distinctly the war crimes
committed in international and non-international armed conflicts (as opposed
to RA 9851 where no express distinction was made); and

5. Providing for the complementary and cooperation clauses to guide in the
actual prosecution of the enumerated crimes.

At this time where we are engaged in what is slowly revealing itself as an all-out
“war” against drug syndicates, we must refine the metes and bounds of the State’s
monopoly on the use of force against its own people. Hence, the passage of this law is

strongly urged."

HARRY L. ROQUE JR.

*This bill is an output of the Technical Working Group of the International Criminal Court (ICC)
implementation project of the Institute of International Legal Studies of the U.P. Law Center. The working,
‘group was composed of members and experts from the following agencies: the Institute of International
Legal Studies-UP Law Center, the U.P. College of Law; the Department of Justice; the Department of
Foreign Affairs; the Office of the Solicitor General; the Coalition of the Intemational Criminal Court
(CICC-Asia); the Commission on Human Rights, the Department of National Defense, and the Philippine
Coalition for the International Criminal Court (PCICC).



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SEVENTEENTH CONGRESS OF THE REPUBLIC +)
OF THE PHILIPPINI )

First Regular Session )

HOU Se oF Seng g on

Introduced by Representative Harry L, Roque Jr.

AN ACT AMENDING REPUBLIC ACT NO. 9851 “AN ACT DEFINING AND
PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORG ANIZIN
JURISDICTION, DESIGNATING SPECIAL COURTS, AND FOR RELATED
PURPOSE:

Be it enacted by the Senate and the House of Representatives of the Philippines in
Congress assembled:

CHAPTER I
NERAL PROVISIONS

SECTION 1. Short Title, — This Act shall be known as the “IHL Amendatory Act”

CHAPTER IL
AMENDMENT OF DEFINITION OF TERMS,

SECTION 2. Section 3 (a) of Republic Act No. 9851 is hereby amended to read as

follows

“(@) “Apartheid” means inhumane acts of a character similar to those referred to in
section 6, committed in the context of an institutionalized regime of systematic
oppression and domination by one racial group over any other racial group or

groups and committed with the intention of maintaining that regime;”

SECTION 3. Section 3 (b) of Republic Act No. 9851 is hereby amended to read as

follows’


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“(b) “Arbitrary deportation or forcible transfer of population’ means forced
displacement of the persons concerned by expulsion or other coercive acts
from the area in which they are lawfully present, without grounds permitted

under international law,”

SECTION 4. Section 3 (g) of Republic Act No. 9851 is hereby amended to read as
follows:

(g) "Enforced or involuntary disappearance

of persons" means the arrest,
detention or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give information on the [ate or
whereabouts of those persons, with the intention of removing them from the

protection of the law for a prolonged period of times”

SECTION 5. Section 3 (j) of Republic Act No. 9851 is hereby amended to read as

follows:

“(j) "Forced pregnancy” means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any’
population or carrying out other grave violations of intemational law. This
definition shall not in any way be interpreted as affecting national laws

relating to pregnancy.”

SECTION 6. Section 3 (s) of Republic Act No. 9851 is hereby amended to read as

follows:

“(s) "Torture" means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the

accused; except that torture shall not include pain or suffering arising only

from, inherent in or incidental to, lawful sanctior

CHAPTER IIT
AMENDMENT OF CRIMES AGAINST INERNATIONAL HUMANITARIAN LAW,
GENOCIDE AND O11 RIMES AGAINST HUMANITY,



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SECTION 7. Section 4 (a) of Republic Act No. 9851 is hereby amended to read as

follows

“Section 4,

War Crimes. — For the purpose of this Act, "war crimes” or “crimes

against International Humanitarian Law” means:

"(a)

In case of international armed conflict, grave breaches of the Geneva

Conventions of 12 August 1949, namely, any of the following acts against

persons or property protected under provisions of the relevant Geneva

Convention

“i
"Gi)
"Gii)

"iv)

“w)

“vi)

"(wii)
"(wiii)

Willful killing,
Torture or inhuman treatment, including biological experiments;
Willfully causing great suffering or serious injury to body or health;
Extensive destruction and appropriation of property not justified by
military necessity and carried out unlawfully and wantonly;

Willfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;

Unlawful arbitrary deportation or transfer or forcible transfer or
population or unlawful confinement,

Taking of hostages, and

Compelling a prisoner a prisoner of war or other protected person to

serve in the forces of a hostile power.

SECTION 8. Section 4 (b) of Republic Act No. 9851 is hereby amended to read as

follows:

"(b)

In case of an armed conflict not of an international character, serious

violations of common Article 3 to the four (4) Geneva Conventions of 12

August 1949, namely, any of the following acts committed against persons

taking no active part in the hostilities, including member of the armed forces

who have laid down their arms and those placed hors de combat by sickness,

wounds, detention or any other cause;


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"o
"di
"Gii)
"Gv)
SECTION 9.
follows:
"(©

Violence to life and person, in particular, in particular murder of all
kinds, mutilation, cruel treatment and torture;

Committing outrages upon personal dignity, in particular, humiliating
and degrading treatment,

‘Taking of hostages; and

The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court
affording all judicial guarantees which are generally recognized as

indispensable

Section 4 (c) of Republic Act No, 9851 is hereby amended to read as

Other serious violations of the laws and customs applicable in armed conflicts

not of an international character, within the established framework of

international law, namely, any of the following acts.

"a

"Gi

“Gii)

"ivy

"w)

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, object
which are not military objectives;"

Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of the
Geneva Conventions in conformity with intemational law:
Intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a humanitarian assistance or peacekeeping
mission in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;

Intentionally launching an attack in the knowledge that such attack will

cause incidental Io

f life or injury to civilians or damage to civilian
objects or widespread, long-term and severe damage to the natural
environment which would be clearly excessive in relation to the

concrete and direct overall military advantage anticipated;

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"(vi)

“(ii)

"(ix)

"@xi)

"(xii)

"(xiii)

"(iv)

"(xv)

"(xvi)

Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives,

Killing or wounding a combatant who, having laid down his/her arms
or no longer having means of defense, has surrendered at discretion;
Making improper use of a flag of truce, of the flag or the military
insignia and uniform of the enemy or of the United Nations, as well as
of the distinctive emblems of the Geneva Conventions, resulting in
death, serious personal injury;

Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,
provided they are not military objectives,

Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any kind
which are neither justified by the medical, dental or hospital treatment
of the person concemed nor carried out in his/her interest, and which
cause death to or seriously endanger the health of such person or
persons,

Killing or wounding treacherously individuals belonging to the hostile
nation or army,

Declaring that no quarter will be given;

Destroying or seizing the enemy's property unless such destruction or
seizure is imperatively demanded by the necessities of war;

Pillaging a town or place, even when taken by assault;

Ordering the displacement of the civilian population for reasons related
to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;

‘The Transferring, directly or indirectly, by the occupying power of
parts of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied

territory within or outside this territory,

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"(xvii) Committing outrages upon personal dignity, in particular, humiliating
and degrading treatments;

"(xviii)Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence
also constituting a grave breach of the Geneva Conventions;

"(xix) Utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military
operations,

"(xx)_ Intentionally using starvation of civilians as a method of warfare by

depriving them of objects indispensable to their survival, including

willfully impeding relief supplies as provided for under the Geneva

Conventions;

Compelling the nationals of the hostile party to take part in the

operations of war directed against their own country, even if they were

in the belligerent's service before the commencement of the war,

"(xxii) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;

*(xxiii) Committing any of the following acts

"1) — “Conscripting, or enlisting or recruiting children under the age

of fifteen (

years into the national armed forces:
"2) — *Conscripting, enlisting or recruiting children under the age of
eighteen (18) years into an armed force or group other than the

national armed forces; and

°3) “Using children under the age of eighteen (18) years, or using

them to participate actively in hostilities.
"(xxiv) Employing the following means:

1) “Poison or poisoned weapons;
2) “Asphyxiating, poisonous or other gases, and all analogous

liquids, materials or devices;


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"3) “Bullets which expand or flatten easily in the human body,
such as bullets with hard envelopes which clo not entirely cover
the core or are pierced with incisions, and

"4) “Weapons, projectiles and material and methods of warfare
which are of the nature to cause superfluous injury or
unnecessary suffering or which are inherently indiseriminate in

violation of the intemational law of armed conflict.'

SECTION 10. Section 4 of Republic Act No. 9851 is hereby amended to include a

new subsection (d) to read as follows

“@)

Other serious violations of the laws and cus

not

joms applicable in armed conflicts

of an international character within the established framework of

international law, namely, any of the following acts:

"oO

Intentionally directing attacks against the civilian population as such or

against individual civilians not taking direct part in hostilitis

"(ii) Intentionally directing attacks against buildings, material, medical

units and transport, and personnel using the distinctive emblems of the
Geneva Conventions in conformity with intemational law;

"(ii) Intentionally directing attacks against personnel, installations, material,

“(iv

units or vehicles involved in a humanitarian as

stance or peacekeeping
mission in accordance with the Charter of the United Nations, as long
as they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict,

) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments,
hospitals and places where the sick and wounded are collected,

provided they are not military objectives;

"(v)__ Pillaging a town or place, even when taken by assault;

The elements of war crime of employing projectiles and material and methods of warfare will have to
be drafted once weapons, projectiles or material or methods of warfare have been included in an annex
to the Rome Statute of the International Criminal Court,

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“wi

"(vii)

"(viii)

"(ix)
"®)
"(xi)

"(xii)

Committing rape, sexual slavery, enforced prostitution, forced
pregnaney, as defined in article 7, paragraph 2 (f) of the Rome Statute,
enforced sterilization, and any other form of sexual violence also
constituting a serious violation of article 3 common to the four Geneva
Conventions;

Conseripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in
hostilities;

Ordering the displacement of the civilian population for reasons related
to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;

Killing or wounding treacherously a combatant adversary;

Declaring that no quarter will be given;

Subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments
of any kind which are neither justified by the medical, dental or
hospital treatment of the person concemed nor carried out in his or her
interest, and which cause death to or seriously endanger the health of
such person or persons; and

Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of

the conflict,

SECTION 11. Section 5 of Republic Act No. 9851 is hereby amended to read as

follows:

‘ction S. Genocide, — For the purpose of this Act,

‘genocide" means any of the

following acts committed, in whole or in part, a national, ethnical, racial or religious

group, as such

a)
"(by
"©

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;

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"(d)__ Imposing measures intended to prevent births within the group; and
*(@)  Forcibly transferring children of the group to another group

“Any person found guilty of committing any of the acts specified in this section shall
suffer the penalty provided under Section 7 of Republic Act No. 9851.”

SECTION 12. Section 6 of Republic Act No. 9851 is hereby amended to read as

follows,

ection 6, Crimes Against Humanity, — For the purpose of this act, "other crimes

against humanity" means any of the following acts when committed as part of a

widespread or systematic attack directed against any civilian population, with

knowledge of the attack

"(@) Murder,

"(b) Extermination;

"(c)_Enslavement

"(d) Arbitrary deportation or forcible transfer of population;

"(e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law,

“Torture:

"(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;

"(h) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious, gender, sexual orientation or other grounds
that are universally recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any crime defined in
this Act,

"(Enforced or involuntary disappearance of persons;

"@) Apartheid, and

"(k) Other inhumane acts of a similar character intentionally causing great

suffering, or serious injury to body or to mental or physical health

SECTION 13. Elements of Crimes.


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(a) The Elements of Crimes of the Rome Statute of the International Criminal
Court is hereby adopted and shall assist in the application and interpretation of
the crimes defined and enumerated in Republic Act No. 9851, as amended by
this Act.

(b) The Elements of Crimes of the Rome Statute of the International Criminal
Court is hereby integrated as Annex 1 hereof.

(© Any amendment to the Elements of Crimes of the Rome Statute of the

International Criminal Court shall be adopted accordingly.

CHAPTER IV.
FINAL PROVISIONS,

SECTION 14. Repealing Clause. — All laws, presidential decrees and issuances,
executive orders, rules and regulations or parts thereof inconsistent with the provisions of this
Act are hereby repealed or modified accordingly. However, the provisions of this Act are
without prejudice to the jurisdiction of the domestic courts in the prosecution of acts that may

otherwise fall under their exclusive jurisdiction pursuant to existing laws.

SECTION 15. Separability Clause. — If, for any reason or reasons, any part ot
provision of this Act shall be held to be unconstitutional or invalid, other parts or provisions

hereof which are not affected thereby shall continue to be in full force and effect.

SECTION 16. Suppletory Application of existing rules and Regulations. — tn the
absence of any applicable provision in this Act, the pertinent provisions in the Revised Rules
of Court of the Philippines, decrees, issuances, rules and regulations may, in the interest of
expeditious justice and whenever practicable and convenient, be applied in a suppletory

character and effect,

SECTION 17. Effectivity. — This Act shall take effect fifteen (15) days after its
complete publication in the Official Gazette or in two (2) newspapers of general circulation.

Approved,

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