EN BANC
G.R.
No. 183871
Promulgated:
February 18, 2010
x
---------------------------------------------------------------------------------------x
SEPARATE OPINION
CARPIO MORALES, J.:
I
concur with the ponencia in all
respects, except its treatment of the doctrine of command responsibility.
The
ponencia’s ambivalence on the
applicability of the doctrine of command responsibility overlooks its general
acceptance in public international law, which warrants its incorporation into
Philippine law via the incorporation clause of
the Constitution.
Under Article II, Section 2 of the
Constitution, the
The
most authoritative enumeration of the sources of international law, Article 38
of the Statute of the International Court of Justice (ICJ Statute),[2] does
not specifically include “generally accepted principles of international
law.” To be sure, it is not quite the
same as the “general principles of law” recognized under Article 38(1)(c) of
the ICJ Statute. Renowned publicist Ian
Brownlie suggested, however, that “general principles of international law” may
refer to rules of customary law, to general principles of law as in Article
38(1)(c), or to logical propositions resulting from judicial reasoning on the
basis of existing international law and municipal analogies.[3]
Indeed,
judicial reasoning has
been the bedrock of Philippine jurisprudence
on the determination of generally accepted
principles of international law and consequent
application of the incorporation clause.
In Kuroda v. Jalandoni,[4] the Court held that while the
In
The
Court thus subsumes within the rubric of “generally accepted principles of
international law” both “international custom” and “general principles of law,”
two distinct sources of international law recognized by the ICJ Statute.
Respecting
the doctrine of command responsibility, a careful scrutiny of its origin and
development shows that it is a widely accepted general principle of law if not,
also, an international custom.
The doctrine of command
responsibility traces its roots to the laws of war and armed combat espoused by
ancient civilizations. In a 1439
declaration of Charles VII of
[T]he King orders each captain or lieutenant be held responsible for the abuses, ills, and offences committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according to these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offence, as if he has committed it x x x .[6] (underscoring supplied.)
The first treaty codification of the
doctrine of command responsibility was in the Hague Convention IV of 1907.[7] A provision therein held belligerent nations
responsible for the acts of their armed forces,[8]
prefiguring the modern precept of holding superiors accountable for the crimes
of subordinates if they fail in their duties of control, which is
anchored firmly in customary international law.[9]
The development of the command responsibility
doctrine is largely attributable to the cases related to World War II and
subsequent events.
One prominent case is the German High Command Case[10]
tried by the Nuremberg Tribunal, wherein German officers were indicted for
atrocities allegedly committed in the European war. Among the accused was General Wilhelm Von
Leeb, who was charged with implementing Hitler’s Commissar and Barbarossa
Orders, which respectively directed the murder of Russian political officers
and maltreatment of Russian civilians.
Rejecting the thesis that a superior is automatically responsible for
atrocities perpetrated by his subordinates, the tribunal acquitted Von
Leeb. It acknowledged, however, that a
superior’s negligence may provide a
proper basis for his accountability even absent direct participation in the
commission of the crimes. Thus:
[C]riminality does not attach to
every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly
traceable to him or where his failure to properly supervise his subordinates
constitutes criminal negligence on his part. (underscoring supplied.)
In In re Yamashita,[11]
the issue was framed in this wise:
The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. (emphasis, underscoring and italics supplied.)
Resolving the issue in the
affirmative, the Court found General Tomoyuki Yamashita guilty of failing to control the members of his
command who committed war crimes, even without any direct evidence of
instruction or knowledge on his part.
The post-World War II formulation of
the doctrine of command responsibility then came in Protocol I of 1977,
Additional Protocol to the Geneva Conventions[12]
of 1949, Article 86 of which provides:
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information that should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.[13] (emphasis, underscoring and italics supplied.)
The doctrine of command
responsibility has since been invariably applied by ad hoc tribunals created by the United Nations for the prosecution
of international crimes, and it remains codified in the statutes of all major
international tribunals.[14]
From
the foregoing, it is abundantly clear that there is a long-standing adherence
by the international community to the doctrine of command responsibility,
which makes it a general principle of law recognized by civilized nations. As such, it should be incorporated into
Philippine law as a generally accepted principle of international law.
While
the exact formulation of the doctrine of command responsibility varies in
different international legal instruments, the variance is more apparent than
real. The Court should take judicial
notice of the core element that permeates these formulations – a commander’s negligence in preventing or repressing
his subordinates’ commission of the crime, or in bringing them to justice
thereafter. Such judicial notice is but
a necessary consequence of the application of the incorporation clause vis-à-vis
the rule on mandatory judicial notice of international law.[15]
That
proceedings under the Rule on the Writ of Amparo
do not determine criminal, civil or administrative liability should not
abate the applicability of the doctrine of command responsibility. Taking Secretary
of National Defense v. Manalo[16] and Razon
v. Tagitis[17] in proper context, they do not preclude the application of the doctrine of command
responsibility to Amparo cases.
Manalo was actually emphatic on the
importance of the right to security of person and its contemporary
signification as a guarantee of protection of one’s rights by the
government. It further stated that
protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or
enforced disappearances, or threats thereof, and/or their families, and
bringing offenders to the bar of justice.[18]
Tagitis, on the other hand, cannot be more
categorical on the application, at least in principle, of the doctrine of
command responsibility:
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis. (emphasis and underscoring supplied.)
Neither
does Republic Act No. 9851[19]
emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity." Obviously, it should, as it did, only treat of superior responsibility
as a ground for criminal
responsibility for the crimes covered.[20] Such limited treatment, however, is merely in
keeping with the statute’s purpose and not intended to rule out the application
of the doctrine of command responsibility to other appropriate cases.
Indeed,
one can imagine the innumerable dangers of insulating high-ranking military and
police officers from the coverage of reliefs available under the Rule on the
Writ of Amparo. The explicit adoption of the doctrine of
command responsibility in the present case will only bring Manalo and Tagitis to
their logical conclusion.
In
fine, I submit that the Court should take this opportunity to state what the
law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and
enforced disappearances or threats thereof.
While there is a genuine dearth of
evidence to hold respondents Gen.
Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command
responsibility doctrine, the ponencia’s
hesitant application of the doctrine itself is replete with implications
abhorrent to the rationale behind the Rule on the Writ of Amparo.
CONCHITA CARPIO MORALES
Associate
Justice
[1] 4 Record of the Constitutional Commission 772 (1986). The Commission unanimously voted in favor of the provision, with no abstentions.
[2] The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice accepted as law;
(c) general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Statute of the International Court of Justice, Art. 38(1).
[3] Ian
Brownlie, Principles of Public International Law Sixth Edition 18 (2003).
[4] 83 Phil. 171, 178 (1949).
[5] G.R. No. 128845,
[6] Text culled from Theodor Meron, Henry’s Wars and Shakespeare’s Laws 149 N.40, Article 19 (Eng. Tr. 1993); Louis Guillaume De Vilevault & Louis Brequigny, Ordonnances Des Rois De France De La Troisieme Race XIII, 306 (1782).
[7] Respecting the Laws and Customs of
War on Land,
[8]
[9] Vide Prosecutor v.
Mucic, International Criminal Tribunal for the Former Yugoslavia (Appeals
Chamber), judgment of
[10] United Nations War Crimes Commission, XII Law Reports of Trials of War Criminals 1, 76 (1948).
[11] 327
[12] The Geneva Conventions consist of
four treaties concluded in
First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first adopted in 1864, last revised in 1949)
Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1949, successor to the 1907 Hague Convention X)
Third Geneva Convention relative to the Treatment of Prisoners of War (first adopted in 1929, last revised in 1949)
Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (first adopted in 1949, based on parts of the 1907 Hague Convention IV).
[13] Protocol I Additional to the Geneva Conventions of August 12, 1949 and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.
[14] Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), Annex, Article 7(3); Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), Annex, Article 6(3); Statute of the Special Court for Sierra Leone, Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, Annex, Article 6(3); Statute of the Khmer Rouge Tribunal, Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Article 29; Rome Statute of the International Criminal Court, circulated as document A/CONF. 183/9 of July 17, 1998 and corrected by process-verbaux of November 10, 1998, July 12, 1999, November 30, 1999, May 8, 2000, January 17, 2001 and January 16, 2002, Article 28; Statute of the Special Tribunal for Lebanon, UN Doc. S/RES/1757 (2007), Article 3(2).
[15] Section 1, Rule 129 of the Rules of Court provides in relevant part:
Section 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of . . . the law of nations . . .
[16] G.R. No. 180906,
[17] G.R. No. 182498,
[18] Supra note 16 at 57.
[19] An Act Defining and Penalizing Crimes Against
International Humanitarian Law, Genocide and Other Crimes Against Humanity,
Organizing Jurisdiction, Designating Special Courts, and for Related Purposes;
signed into law on December 11, 2009.
[20] Section 10. Responsibility of Superiors.
- In addition to other grounds of criminal responsibility for crimes defined
and penalized under this Act, 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, where:
(a) That 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;
(b) That 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.