Ref: TG ASA 35/2012.088

H.E. BENIGNO SIMEON AQUINO II IPresident, Republic of the PhilippinesMalacaiiang Palace, ManilaPhilippines

22 December 2012

Dear Mr President,

AMNESTYINTERNATI0NAL

AMNESTY ItITERNATIDNAl INTERNATIONALSECRETARIATPeter Benenson House, 1Easton Street,London WCIX ODW, United KingdomT: +44 (0)20 7413 5500 F: +44(0)20 7956 1157E: amnestyis@amnesty.org W: www.amnesty.org

BUlLDING ON THE ANTI-ENFORCED D1SAPPEARANCE ACT AND SIGNING THE INTERNATIONAL CONVENTION FOR THE PROTECTIONOF ALL PERSONS FROM ENFORCED D1SAPPEARANCE

Amnesty Internat ional welcomes your promulgat ion of the "Act defining and penalizing enforced orinvoluntary disappearance" as an important move forward in the struggle against enforceddisappearance in the Philippines, where hundreds of cases remain unresolved.

The Act, which makes enforced disappearance criminal under national law, contains a number ofpositive provisions, such as: the broad definition of victim, the prohibition of secret detention, the non-applicab ility of amnesty to t hose suspected of crim inal responsibility, the inadmissibility of a superiororders defence, the non-derogability of the right not to be subjected to enforced disappearance, therequirement of a periodically updated registry of all persons in all detent ion centres, and compensation ,restitution and rehabilitation for victims and their fami lies.

However, the Anti-Enforced Disappearance Act falls short of internat ional law and standards. AmnestyInternat ional calls on Philippine authorities to amend the Act, or, where possible, address the followingomissions in its Implementing Rules and Regulations, so bringing the Act further in line withinternational law and standards:

• The Act contains no provision crim inalizing enforced disappearance committed by persons orgroups acting without the authorizat ion, support or acquiescence of the state. The Philippineshas already made enforced disappearance committed by any person a criminal offence, whencommitted as part of a widespread or systematic attack against any civi lian population, throughthe Philippine Act on Crimes Against International Humanitarian Law, Genocide, and OtherCrimes Against Humanity . Therefore, the exclusion of non-state agents as able to commitrandom or isolated acts of enforced disappearance - that is to say, when enforceddisappearance does not amount to a crime against humanity - should be amended accordingly.

• The provision contained in Section 14 regarding "command responsibility" appears to beIimited just to the "immediate commanding officer" in the military or the "immediate seniorofficial" in the police . Under internationallaw (see, for example, article 6 of the InternationalConvention on the Protection of all Persons from Enforced Disappearance), any superior - notonly an immediate one - who knew, or disregarded information which clearly indicates that hisor her subordinates were committing or about to commit a crime of enforced disappearance,may be found criminally responsible . Section 10 of the Philippine Act on Crimes againstInternational Humanitarian Law, Genocide, and Other Crimes against Humanity, on thecontrary, does not contain such a rest riction on superiors, either with regard to genocide,crimes against humanity or war crimes.

CompanyRegislralion: 01606776 Regislered in England and Wales

• The lack of a provision vesting jur isdiction in the Philippines' courts for enforceddisappearance committed abroad is also a matter of concern. The Philippines should take thenecessary measures to establish its competence to exercise jurisdict ion over the offence ofenforced disappearance, not only when the offence is commi tted in any ter ritory under itsjurisdict ion, but also when the alleged offender or the disappeared person is a Philippinenatio nal; or when the alleged offe nder (regardless of his or her nationality) is present in anyterritory under th e Phil ippines j urisdict ion, unless it extradites or surrenders him or her toanother state or surrenders him or her t o an internati onal crim inal tribunal. Section 17 of thePhilippine Act on Crimes against International Humanitarian Law, Genocide, and Other Crimesagainst Humanity contains a braad provision on ju risdict ion, which is absent under t he Ant i-Enforced Disappearance Act.

• Section 22 permits some forms of statutory Iimitations - when the victim surfaces alive.Amnesty International is of t he view that enforced disappearance, as a crime underinternationa l law, in all cases, should never be subjected to statute of Iimitat ions.

• Although the Ant i-Enforced Disappearance Act provides in Section 26 for reparation to someextent , other forms of reparation are not encompassed in the Act, such as satisfact ion andguarantees of non-repeti tion, as provided in the UN Basic Principles and Guide lines on theRight to a Remedy and Reparat ion for Victims of Gross Violations of Internati onal HumanRights Law and Serious Violations of Internat ional Humani tarian Law. Amnesty Internationalrecommends the authori ties to amend the Act so as provide for all forms of reparation .

Another important means of now help ing to ensure that domestic legislat ion on enforceddisappearances in the Phil ipp ines compl ies with inte rnat ional law and standards is for t he Phi lippinesto promptly ratify t he International Conventio n for the Protection of All Persons from EnforcedDisappearance, without any reservation or declaration amounting to a reservati on, and implement itsprovisions into nat lonal law. ' The competence of the Convention 's t reaty body, the Committee onEnforced Disappearances, to receive and consider communicat ions from victims 01' the ir relat ives, orother states part ies, should also be recognized. Amnesty Internat ional therefore urges you, Mr.President, to now sign the Convention, t hereby paving the way towards rat if icati on, and furtherdemonstrati ng your government's commitment to ending enforced disappearance in the country.

Furthe rmore, Amnesty Internat ional recommends that the Philippines extend an invitation to th e UNWorking Group on Enforced and Involuntary Disappearances.

Amnesty International acknowledges that the Anti -Enforced Disappearance Act is a milestone in thePhilippines after over two decades of carnpaigning against enforced disappearances. The organizationhopes that th e government's effective implementati on of th is law, with the above-mentionedamendments , and ratificat ion of the Internat ional Convent ion for th e Protect ion of All Persons framEnforced Disappearance, wil l great ly cont ribute to the elim inat ion of enforced disappearance in thePhil ipp ines. .

:/y~sincerely,

'-~ ~~For Salil ShettySecretary General

1 When implement ing the International Convention into nationallaw, the Philippines should bear in mind the AmnestyInternational Checklist for Effective Implementation of the International Convention for the Protection of All Persons fromEnforced Disappearance, November 2011, AI Index: 10 R 511006/2011 ,(http://www.amnestv.org/esllibrary/info/lOR5 1/006/2011/en).

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