Definitions Expanded to Include Sexual Orientation and Gender Rights (See Appendices for Expanded Definitions)
by
Tathiana Flores Acuña, Ph.D.
(Autumn 2013)
Introduction
Stories of mankind trying to avoid their responsibility for their transgressions have been around since the beginning of civilization. One story that exists as "Genesis" in the Quran, The Torah and The Old Testament is an exemplar. The first human being born, Cain, is also the first murderer. He kills his brother and tries to avoid responsibility by exclaiming, "Am I my brother's keeper?" (Genesis 4:10-4:12) That question has resounded throughout history as murderous criminals continue the attempt to avoid responsibility. In the 19th Century, significant efforts were made by international diplomats and humanitarian leaders, efforts that crystallized in the 20th Century with the creation of the Tribunals of Nuremberg and Tokyo.
Both the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention, 1948) and the principles and provisions of International Humanitarian Law (IHL) have been central in the fight against impunity for hideous crimes. IHL experienced great advancement with the adoption of the Geneva Conventions of 1949 (herinafter, “Geneva Conventions”), which entail a universal character: 194 States are party to the Conventions, 171 are party to Additional Protocol I and, furthermore, 166 are party to Additional Protocol II (ICRC Annual Report, 2011. p. 506).
The states party to the Geneva Conventions and their Additional Protocols of 1977 have accepted the obligation to prevent and halt acts contravening these instruments no matter whether they are committed in an international or non international armed conflict.
Under the Geneva Conventions, Party States undertake “to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches” (Article 49 GCI.1.) foreseen in their provisions. Furthermore, under Article 5 of the Genocide Convention, the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3.
The Republic of the Philippines has been party to the Conventions since October 1952 (See Note 1 appended) and to the Genocide Convention since July 7, 1950, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity since May 15, 1973.
Recognizing the relevance of the implementation of international provisions regarding war crimes, crimes against humanity and genocide at a national level (See Note 2 appended) the Congress of the Philippines approved Republic Act No. 9851 entitled “An Act Defining and Penalizing Crimes against International Humanitarian Law in December 2009. Genocide and Other Crimes against Humanity, Organizing Jurisdiction, Designating Special Courts, and for related purposes” (RA No. 9851, 2009).
The main purpose of this article aims to share two major developments in the Philippine legislation integrated in RA No. 9851 that enlarge both the protection of a person and groups of persons in case of genocide and crimes against humanity. The first major development is the inclusion of two categories to the definition of the crime of genocide. Besides the acts with intent to destroy, in whole or in part, the categories foreseen in the Genocide Convention of “national,” “ethnic,” “racial,” or “religious” groups, RA No. 9851 in its Section 5 (a) now includes the category of “social” group; and, “any other similar stable and permanent groups” as victims of genocide.
The second enlargement in the protection of fundamental rights is the inclusion in Section 6 (h) of RA No. 9851 of the crime of persecution against any identifiable group or collectivity on grounds of their “sexual orientation” as also a crime against humanity.
Origins of the specific Philippine legislation on war crimes, crimes against humanity and genocide: Senate Bill No. 2669 and Republic Act No. 9851
“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 conventions, to 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.”
Since the very beginning of the discussion of the Bill, the potential conflicting situation between International Law and national law was foreseen. In his submission, Senator Gordon argued that because of the gravity of the crimes covered by the Bill and because of its character as special law, the Bill would have precedence over other related or similar Philippine laws on war. Senator Gordon underlined the fact that the intent of the Bill was “to clear any doubt that The Philippines is a humanitarian nation that will punish anyone who violated humanitarian rights with impunity.”
In a very exceptional situation, the Senate Bill was discussed and even approved before the Philippines became a State Party to the Rome Statute of the International Criminal Court. During the discussions at of the Senate, the question of the need to accede to the International Criminal Court (ICC) before the approval of the Bill was raised. On this exceptional matter, Senator Pimentel noted that Senator Madrigal had made an annotation in her signature according to which “she would prefer the ICC to be ratified first before the Senate takes action on the bill.” However, he noted that the ICC had not yet been forwarded to the Senate by the Office of the President, but, to him, this form of neglect by the Office of the President should not stifle the obligation of the Senate to adhere to international agreements that protect humanity against crimes.”
Senate Bill No. 2669 was discussed in numerous sessions between February and May, 2009. The drafted provisions regarding war crimes were the most debated. Nevertheless, Republic Act No. 9851 was adopted on December 11, 2009. One year and a half later Philippines acceded to the Rome Statute of the International Criminal Court (ICC). So, despite all the debates, the Philippines did join the international community before approval by their own Senate was confirmed.
(See Appendices for further definitions.)
Conclusions
The Philippine draft legislation on War Crimes, Crimes against Humanity and Genocide which started as a common project presented by several Senators -Senate Bill No. 2669- is a very laudable initiative. The project, that became RA No. 9851, has several provisions that go beyond the Rome Statute and reflects the latest developments in International Human Rights Law and International Criminal Law.
In the case of the Crime of Genocide, RA No. 9851 includes two new categories of groups protected by the provisions, namely, “social” and “any other similar stable and permanent group”. In including other groups than the four ones provided for originally in The Genocide Convention–national, ethnical, racial or religious–, The Philippines joins a significant number of countries whose criminal law provisions encompass other groups to protect from the Crime of Crimes. The numerus apertus character of the second group allows the incorporation of new categories resulting from developments in International Law.
The other provision studied in the above article regards the enlargement of the definition of Crimes against Humanity by RA No. 9851, vis-à-vis amongst others, the Rome Statute. The inclusion of “gender” by the Statute as a category in the Crime of Persecution as a Crime against Humanity already reflects the concern of the international community in prosecuting numerous crimes related directly to gender. The inclusion of “sexual orientation” as one of the grounds for persecution sanctioned in Section 6 of RA No. 9851 reflects undoubtedly the progression of the protection of vulnerable groups under International Law of Human Rights.
Hopefully these new categories of crimes will never need to be prosecuted. Nevertheless, the determination of the legislators in proposing these norms is evident: through a pioneering law set new international standards in the protection and sanction of all these hideous crimes they hope to prevent any future heinous acts against the rights of human persons.
Notes
Note 1 (See: Status of IHL and other related treaties, http://www.icrc.org/ihl. The Philippines ratified the 1977 Second Protocol Additional to the Geneva Conventions relating to the protection of victims of non-international armed conflict on December 11, 1986ñ the 2005 Third Protocol Additional to the Geneva Conventions relating to the adoption of an additional distinctive emblem on August 22, 2006; the 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict on August 26, 2003; and Various conventions governing the use, restriction or prohibition of weapons such as poisonous gas (ratified on June8, 1973), biological weapons (ratified May 21, 1973), chemical weapons, certain conventional weapons and anti-personnel landmines (ratified on February 15, 2000).
Note 2 (A highly illustrative example is the statement made by Rep. Tañada at the moment of the final approval by the Senate: “Armed conflict is evident in our country today. We have the longest running communist insurgency in Asia. Muslim secessionist movement in Southern Philippines is also of similar, if not more, urgent concern. Both armed conflicts have taken their toll not only of the combatants from each side but more unfortunately, on the civilians caught in the crossfire. Both armed conflicts have become compelling reasons for our country to have a law that will protect civilians in an armed conflict,” see Congressional Record, Plenary Proceedings of the Fourteenth Congress, Third Regular Session, House of Representatives, August 18, 2009, Vol.1, No. 9, p.10.
Note 3 (See Republic of the Philippines, Congress of the Philippines, Fourteenth Congress, Third Regular Session, December 10, 2009 [hereinafter RA No. 9851].)
References
Genocide Convention (1948). Convention on the Prevention and
Punishment of the Crime of Genocide [hereinafter Genocide Convention], adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948, Source:http://www.oas.org/dil/1948_Convention_on_the_Prevention_and_Punishment_of_the_Crime_of_Genocide.pdf
ICRC Annual Report (2011). Source:
http://www.icrc.org/eng/assets/files/annual-report/current/icrc-annual-report-map-conven-a3.pdf (last consultation June 8, 2013).
RA No. 9851 (2009). Republic of the Philippines, Congress of the
Philippines, Fourteenth Congress, Third Regular Session, December 10, 2009
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About the Author:
Dr. Tathiana Flores Acuna is a former judge in Costa Rica, she worked as Trust Fund Liaison Officer at the International Criminal Court in The Hague, as Regional Legal Adviser for the International Committee of the Red Cross and the Inter-American Court of Human Rights. Currently, Dr. Flores Acuna is working as United Nations consultant in the field of International Humanitarian Law at the Commission on Human Rights of the Philippines. She recently traveled through Vietnam and Cambodia studying the atrocities of the Khmer Rouge and the Vietnam War.
International Consultant. Ph.D. in International Humanitarian Law, European University Institute, Florence, Italy. MSc. International humanitarian Law, University of Seville, Spain. Dr. Flores Acuña worked as Trust Fund Liaison Officer at the International Criminal Court and as Regional Legal Adviser of the International Committee of the Red Cross. In 2012, Dr. Flores Acuña worked in the Philippines at the Commission on Human Rights of the Philippines, with the United Nations Development Program on a Project of Rule of Law and International Humanitarian Law, specifically on Republic Act No. 9851.
How to cite the above article in APA format: Flores Acuna, Tathiana (2013). The Definitions of Genocide and
About the Artist:  Peter Gentenaar writes: My interest in paper started while working as a printmaker, when my engravings had such deep relief, that commercial paper could not fill it. I decided to make my own paper and was helped by Jo Persoon at the Royal Dutch Paper Factory, KNP. He taught me about beaters for making paper pulp and vacuum systems to suck water out of pulp, to make paper. The laboratory beater I used was unable to process long fibers, so I built a beater of my own design. A paper sheet is thin and strong and, reinforced with very thin ribs of bamboo, can be compared to a leaf. By beating pulp a long time, an extraordinary play of forces occurs during the drying process of my paper sculpture. The paper shrinks considerably, up to 40%, and the force of this puts the non-shrinking bamboo framework under stress, just as a leaf when it dries. My sculptures start as totally 2-dimensional, colored sheets of pulp laying on my vacuum-table. The forms in my work are caused by pulp drying and shrinking in unison. The simplicity of the material, which is the carrier, the color, the texture and the form, in one, makes working with it wonderful and direct. To bring paper art to the public and to be inspired by fellow paper artists, I instigated the Holland Paper Biennial in Museum Rijswijk and CODA, Apeldoorn. With friends, Pat and I have published seven books with the first seven Biennials. To learn more about this fascinating artwork or to reach the artist, Peter can be reached through his website at the following URL: http://www.gentenaar-torley.nl/index.php/peter-gentenaar [Art for this article entitled, Party Paper, 320 cm long and 110 wide, material linen and bamboo.] |