Tuguegarao City, Cagayan. Atty. MICHAEL JHON M. TAMAYAO manages this blog. Contact: email@example.com.
As to its mens rea, genocide is the “intent to destroy in part or in whole a national, ethinic, racial or religious group.” Absent the mens rea requirement, the person is not liable of genocide.
Under International Law, the national, ethinic, racial or religious groups are “protected groups.” They are the object of attack in the crime of genocide. The ICC Charter limits genocide to these four groups to stigmatize it. Genocide is so horrendous and odious that it is limited only to these groups.
In R.A. 9851, the Congress added “social or any other similar stable and permanent group” in the list. This does not apply, however, in International Tribunals.
With the above in mind, does the killing of Ilocanos because they did not vote for you, constitute genocide? The answer would be negative. It is not genocide because the mens rea is not meant. More so, if the act does not produce “extermination” or killing of a substantial number of the group, then it is not genocide. It need not also be committed during war, since genocide is not a war crime.
The group of priests does not constitute a religious group. Rather, the group is considered under R.A. 9851 as a stable or permanent group, and as such it is a protected group in our Jurisdiction.
Among the predicate acts of genocide are: (1) killing members of the protected group; (2) serious bodily or mental harm; (3) inflicting destructive conditions; (4) prevention of birth; and (5) forcible transfer of children. Some acts here are present in Crimes against Humanity. Mens rea requirement distinguishes them from the latter.
But can a single perpetrator commit genocide? Theoretically, it may be. However, in Jelisic, it is enunciated that genocide is so horrendous that it must, to live up to its odiousness, be a concerted act. Thus, although “individuals” are prosecuted, tried and convicted, their criminal culpability must be connected to the communal culpability of a group which perpetuated genocide.
The Darfur Experience further speaks of the subjective approach in genocide. Even if the attacker and the victims seem to belong to the same ethnic group, if the perpetrator subjectively perceives the victim as another group, then it is still genocide. However, the subjective approach must also be complemented by some objective basis in fact. “Why do you consider them as another group?”
b. Crime against Humanity
Crime against Humanity (CAH) is essentially an assault on the personal dignity in the form of humiliation and degradation. It is particularly condemnable because it constitutes an attack against humanity; it downgrades the worth of a human person. Its commission involves a necessary party of a systematic or widespread attack or atrocities against a population, which need not be a protected group. To determine whether or not it is CAH, it is crucial to ask: Is the act of an indicted person a part of a governmental/organized action/policy? If yes, then it is a crime against humanity.
By systematic the attack must be of some degree of organization and planning; not spontaneous. There must be some medium of planning or organization. By widespread the act is a result of the cumulative effect of numerous inhumane acts (for example, a series of enforced disappearances). It may also be a result of a singular, massive act of extraordinary violence (such as, bombing of masses).
CAH comes from International Human Rights Law.
Now, can a single offense constitute CAH? Yes, provided that it is part of a repetitious act resembling the singular act. Torturing residents of a barangay, for example, is a CAH when committed alongside other acts like pillaging, raiding, kidnapping, and physical violence. Torturing is an instance of a repetition of similar acts that degrade the human dignity. In addition, if the single act of torture evinces a plan or policy of violence worked out by the State or an organized group, it is likewise a reason to consider it as CAH. The act is in pursuance of a plan or policy.
CAH may be perpetuated during a war, armed conflict, or even in times of peace. The victims therefore may either be civilians or those who don’t take part in armed-conflict.
In the Blaskic Case (ICT), it is enough that the accused knows that there is a systematic attack. He need not know the details.
c. War Crimes
War crimes are violations of International Humanitarian Law, but not its converse. Not all violations of IHL constitute war crimes.
The Key Principles of War Crimes are:
(1) Spare the non-combatant. Non-combatants are to be spared from various forms of harm. Civilians, the wounded, POWs, those who don’t participate in war, children in orphanages are noncombatants.
(2) Principle of Distinction. Distinction must be made between military objectives and civilian population. A legitimate attack is effected against camps, command centers, military personnel, or carrier, but not against schools, churches, or mosques.
(3) Principle of Proportionality. In attacking military objectives, combatants must make measures in avoiding or minimizing collateral civilian damage and refrain from attack that will cause excessive damage. This nonetheless accepts that sometimes there will be an unavoidable collateral damage.
(4) Principle of Humanity. There must be restrictions in the means and methods of warfare. Even in war, the means and methods should not cause excessive suffering.
There is no war crime if there is no armed conflict. By armed conflict there is a state to state conflict involving military forces, and there is some degree of intensity present so as to exclude minor incidents and internal disturbances. There are five possible instances of Armed Conflict: (1) Application of force between armed forces; (2) Invasion even without resistance; (3) Aerial bombing/bombardment; (4) Unauthorized border crossing by armed forces; and (5) period of occupation.