human rights based intelligence operations guidebook ver5

Human Rights-Based Intelligence OperationsRules of BehavioR foR MilitaRy intelligence PeRsonnel

G u I d e B O O k

ARMed FORCeS OF THe PHILIPPINeSCamp General emilio Aguinaldo, Quezon City

Philippines

Copyright © 2011

Published by The Office of the Deputy Chief of Staff for Intelligence, J2ISAFP Compound, Camp General Emilio Aguinaldo, Quezon City

This publication should be cited as HR-BIO (2011)

All Rights Reserved

A C k N O W L e d G M e N T

The Project Management Team owes its deepest gratitude to God Almighty, for the strength and wisdom He bestowed in the completion of this guidebook.

This publication would not have been possible without the guidance and help of several individuals who, in one way or another, contributed and extended their wisdom and insights in the preparation and completion of this guidebook. We would like to recognize the Officers, Enlisted Personnel and Civilian Personnel of the Office of the Deputy Chief of Staff for Intelligence, J2, under the leadership of MGen Francisco N CRuZ Jr AFP, who conceptualized this noble project as part of J2’s human rights advocacy.

We also acknowledge the significant contributions of the Commission on Human Rights under Chairperson Loretta Ann P ROSALeS; the International Committee of the Red Cross through Atty. evecar CRuZ; and the AFP Human Rights Office headed by Col domingo J TuTAAN Jr for their invaluable assistance.

We likewise extend our utmost gratitude to the Honorable Secretary of National Defense Voltaire T GAZMIN, AFP Chief of Staff LtGen eduardo SL OBAN Jr, AFP Vice Chief of Staff LtGen Reynaldo B MAPAGu and The Deputy Chief of Staff, AFP MGen Anthony J ALCANTARA for their unwavering support to this shared endeavor. Our special thanks to our families and friends for the unconditional love, support and understanding.

The Project Management Team

Human Rights - BasedIntelligence Operations

Guidebook

THe SOLdIeR’S RuLe

Be a disciplined soldier.Disobedience of the laws of war dishonors your army and yourself and causes unnecessary

suffering; far from weakening the enemy’s will to fight, it often strengthens it.

Fight only enemy combatants and attack only military objectives.Destroy no more than your mission requires. Do not fight enemies who are “out of combat”

or who surrender. Disarm them and hand them over to your superior.

Collect and care for the wounded and sick, be they friend or foe.Treat all civilians and all enemies in your power with humanity. Prisoners of war must be

treated humanely and are bound to give only information about their identity. No physical

or mental torture of prisoners of war is permitted. Do not take hostages.

Abstain from all acts of vengeance.Respect all persons and objects bearing the emblem of the Red Cross, Red Crescent, Red

Lion-and-Sun, the white flag of truce or emblems designating cultural property. Respect

other people’s property. Looting is prohibited.

Endeavor to prevent any breach of the above rules.Report any violation to your superior. Any breach of laws is punishable.

Human Rights - BasedIntelligence Operations

Guidebook

2011

OFFICE OF THE DEPUTY CHIEF OF STAFF FOR INTELLIGENCEARMED FORCES OF THE PHILIPPINES

Camp General Emilio Aguinaldo, Quezon CityPhilippines

Republic of the Philippines Commission on Human Rights Office of the Chairperson

M e S S A G e

On behalf of the Commission on Human Rights (CHR), I would like to congratulate the Armed Forces of the Philippines, through the Office of the Deputy Chief of Staff for Intelligence, J2 for coming up with this manual entitled Human Rights-Based Intelligence Operations Guidebook (Rules of Behavior for Military Intelligence Personnel).

This Guidebook is timely and relevant amid reports of human rights violations attributed to the military. It serves to reaffirm the AFP’s commitment to anchor security and intelligence operations on a firm human rights framework. Intelligence work is a fundamental component of military operations. Information, after all, is power. Human rights is needed to ensure that the process and outcome of such vital operations do not exceed the limits set by our democratic and republican system. Human rights secure the rule of law even as the rule of law guarantees the enjoyment of human rights by all and in all circumstances. The Commission lauds the Department of National Defense and the AFP Intelligence Community for this noble endeavor and looks forward to a more dynamic collaborative relationship with the State Security Sector as we continue to chart the way for a just, humane and prosperous Philippine society.

LOReTTA ANN P. ROSALeS Chairperson

Republic of the Philippinesdepartment of National defense

Office of the Secretary

M e S S A G e

Winning the peace and securing the country mean more than protecting the people and the State. These also mean giving primacy to Human Rights (HR), the International Humanitarian Law (IHL) and the Rule of Law (RoL). Being the defender of the people, the AFP must uphold human rights and adhere to the IHL and the RoL at all times.

I therefore find the publication of this “human Rights-Based intelligence operations guidebook (Rules of Behavior)” auspicious and in line with the implementation of the new AFP internal Peace and security Plan “Bayanihan.”

This Guidebook will help deepen the commitment and awareness of the soldiers to promote and protect human rights which, in turn, will contribute immensely to win the campaign against insurgency and terrorism.

Military intelligence operations are deemed vital in ensuring national security. In the performance of this mission, Rules of Behavior are absolutely necessary. These Rules should be strictly adhered to and upheld by all elements, personnel and units involved in intelligence operations. I congratulate the Office of the Deputy Chief of Staff for Intelligence, J2 for coming up with this easy-to-read, concise and informative guide to our intelligence personnel in the furtherance of their duties. This will certainly go a long way in transforming the intelligence community into a more professional, highly-capable and human rights-based organization.

VOLTAIRe T GAZMIN Secretary

M e S S A G e

The constitutional mandate of the Armed Forces of the Philippines is to protect the people and the State which entails the preservation and promotion of human rights. In carrying out this constitutional mandate, it is the responsibility of each and every military personnel to be adept in putting principles of human rights into practice. Through a people-centered strategy and the whole-of-nation approach, this is a feat that the AFP continuously strives for in order to win the peace.

With the rapid advancement of communications technology, the application of human rights principles in intelligence operations has never been more crucial in pursuing the overall goal of winning the peace. Modern technology has enabled the AFP to gather critical and timely intelligence in aid of decision-making in national security matters and in support to law-enforcement operations. However, this capability, if unrestrained, can encroach on these rights instead of protecting them. Other circumstances that would require intelligence personnel to weigh the need to accomplish a mission and to resort to the use of force may also arise. Thus, it is of utmost importance that human rights principles and international humanitarian law and the adherence to the rule of law are placed at the center of intelligence operations.

The crafting of this “human Rights-Based intelligence operations guidebook (Rules of Behavior for Military intelligence Personnel)” is certainly a laudable achievement. It stems from the recognition that human rights are inherent in the practice of intelligence operations.

I would like to commend the Office of the Deputy Chief of Staff for Intelligence, J2 for spearheading the publication of the Guidebook which highlights essential principles that every intelligence personnel must understand during intelligence operations. These rules of behavior do not only enhance the capability of intelligence personnel in protecting the people but also serve as a guide in preventing the commission of human rights violations.

eduARdO SL OBAN JR General AFP

Chief of Staff Armed Forces of the Philippines Camp General Emilio Aguinaldo, Quezon City

M e S S A G e

This “Human Rights-Based Intelligence Operations Guidebook (Rules of Behavior for Military Intelligence Personnel)” provides the general rule in carrying out intelligence operations highlighting our solemn duty to adhere to the basic principles of human rights and the International Humanitarian Law (IHL).

The publication of this guidebook is a modest contribution of the office of the Deputy chief of staff for intelligence, J2 in implementing the new thrust of the afP to institutionalize human rights protection in all its policies, programs and operations. in the words of our chief of staff, general oban…“Rather than simply thinking of what our operations would do to insurgents’ military capabilities, we also consider the effect of our operations on the lives of the people. as protectors of the people, we must ensure that we do not endanger them. We must, at all times, give utmost respect to human rights, adhere to the international humanitarian law, and follow the Rule of law.” I therefore enjoin the personnel of the Intelligence Community to read and learn by heart the contents of this guidebook, bearing in mind that professional soldiers are not only guardians of our people and our country, but also peace and human rights advocates.

FRANCISCO N CRuZ JR MGen AFP

Office of the deputy Chief of Staff for Intelligence, J2

Armed Forces of the Philippines

The Soldier’s Rule

Messages

Foreword

Introduction 1

Chapter 1

Human Rights and International

Humanitarian Law 3

1.1 Bill of Rights 4

1.2 Universal Declaration of Human Rights 6

1.3 International Humanitarian Law (IHL) 9

Chapter 2

Adherence to Human Rights

and International Humanitarian Law 15

2.1 Accountability in Human Rights Violations: 16

Command Responsibility

2.2 Human Rights and International 19

Humanitarian Law in the Peace Process

2.3 List of Legal Remedies in Cases of 23

Enforced Disappearances and

Extra-Judicial Killings

Table of Contents

Table of ContentsChapter 3

Human Rights in Intelligence Operations 25

3.1 Guiding Principles in 26

Intelligence Operations

3.2 Rules of Behavior in Support 28

to Law Enforcement Operations

3.3 Rules of Behavior in Information 33

Collection and Investigation

3.4 Guidelines on Handling of Person 37

Arrested and Under Custodial

Investigation

3.5 Guidelines on the Use of Firearms 38

3.6 Guidelines on Children Involved 39

in Armed Conflict

References

Through the years, the AFP Intelligence Community (AFPIC) has strived to become a highly capable, dynamic and unified military institution committed to excellence in providing timely, accurate and relevant intelligence at all levels of Command for the accomplishment of the AFP Mission. In pursuit of this goal, the AFPIC recognizes the need to gain the trust and support of our people, for Intelligence is in itself ‘about people and the study of people’. It is imperative for them to know that military intelligence personnel, in the performance of their inherent tasks, are governed by rules and procedures that would ensure the protection of human rights and civil liberties. The Office of the Deputy Chief of Staff for Intelligence J2 is publishing this “Human Rights-Based Intelligence Operations Guidebook (Rules of Behavior for Military Intelligence Personnel)” with this objective in mind, to broaden the public’s understanding of our mission and challenges, and to help us become better and stronger partners committed to serve and defend our country. Designed to further harmonize all intelligence operations with the principles of human rights and International Humanitarian Law (IHL), this Guidebook is one of the contributions of the AFPIC to the Internal Peace and Security Plan (IPSP) “Bayanihan” of the AFP and to the Security Sector Reform Agenda of the Commander-in-Chief, President Benigno S Aquino III. The essential characteristics of this Guidebook can be best expressed by the acronym: AFPCAReS

Intr

oduc

tion

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AFPCAReS

Adherence to International Humanitarian Law and the Rule of LawThe AFPIC strictly adheres to the Constitution and the principles of the International Humanitarian Law.

Focused in the Conduct of Intelligence OperationsIntelligence operations shall be conducted only against known military targets and armed insurgents. Focused operations can save resources, reduce collateral damage and produce greater results. Indiscriminate operations are prohibited.

People-CenteredThe welfare of the people is the primordial consideration in every military operation. People-centered security strategy promotes trust and confidence and builds partnership with all stakeholders for a common goal towards peace and progress.

Command Responsibility Intelligence as a command responsibility dictates that a commander is duty-bound to closely monitor, supervise, coordinate and control the overall activities of his subordinates to ensure that intelligence operations are carried out within the legal framework.

Advocating the AFP IPSP “Bayanihan”The guidebook advocates the concepts laid down by the AFP IPSP 2011 as part of the strategic approach in initiating reforms.

Respect for Human RightsRespect for human rights in every aspect of intelligence operations is the main thrust of the AFPIC. Transforming the intelligence personnel into a human rights advocate will aid in “Winning the Peace.”

Engaging StakeholdersHuman rights advocacy involves engaging stakeholders to promote reforms and foster partnership. The AFP treats the Non-Governmental Organizations, Civil Society Organizations and other sectors of the community as “collaborators for peace.”

Security Sector ReformIn compliance with the Commander-in-Chief ’s national agenda for Security Sector Reform (SSR), the AFPIC will initiate reforms by including the principles of human rights in every intelligence operations. Intelligence personnel should adhere to the principles of HR, IHL and Revised Penal

Code with primary consideration on the rule of law.

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CHAPTER 1Human Rights &

International Humanitarian Law

3

The Armed Forces of the Philippines, in the performance of its duty as the protector of the people, must at all times, guarantee the protection and preservation of human rights. Hence, intelligence personnel must be familiar with the following provisions in the Bill of Rights:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable.

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any

proceeding.

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances.

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

1.1 Bill of Rights

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Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible as evidence against him.

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

Section 17. No person shall be compelled to be a witness against himself.

Section 18. No person shall be detained solely by reason of his political beliefs and aspirations.

Section 19. The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

“Human rights are needed to ensure that the process and outcome of such vital operations do not exceed the limits set by democratic and republican

system. When it comes to state activities that affect the freedoms every person is entitled to have, human rights serve to trump all other considerations. As a system of rules having the force of law by virtue of our constitutional framework, human rights should inform the behavior of each intelligence personnel.”

— Loretta Ann Rosales Chairperson Commission on Human Rights

human Rights-Based intelligence operations

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The experiences during World War II led to the adoption by the united Nations General Assembly of the universal declaration of Human Rights (udHR) on december 10, 1948.

The document laid the expression of rights to which all human beings are inherently entitled and ensures that the States, in the exercise of their sovereign power, will not commit human rights atrocities resembling those that proliferated during the Second World War.

The Universal Declaration of Human Rights as adopted by all member- states of the United Nations for the protection and preservation of human rights is recognized as an obligation of all states, including the Philippines.

The UDHR serves as the foundation for a new international order that embraces the protection and preservation of fundamental rights of human beings without discrimination to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

1.2 Universal Declaration of Human Rights

Eleanor Roosevelt regarded the Universal Declaration of Human Rights as her greatest accomplishment.

“Where, after all, do universal human rights begin? in small places, close to home - so close and so small that they cannot be seen on any maps of the world. yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or of-fice where he works. such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.”

- eleanor Roosevelt Chairperson, uN Commission on HR (Adoption of universal declaration of Human Rights by the General Assembly of united Nations, december 10, 1948)

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Rights that belong to and are entitled to all human beings by virtue of their inherent dignity and without distinction of any kind or race, color, sex, language, religion, political belief, national or social origin, property, birth or status. Human rights cannot be taken away from an individual.

The respect for human rights covers all aspects of a person whether it is his civil, political, economic and cultural rights. Each category is interrelated and interdependent as the fulfillment of one’s human rights requires the fulfillment of others.

All individuals are equal as human beings and by virtue of their inherent dignity. No one should be subject to discrimination on grounds such as race, color, sex, ethnicity, age, language, religion and others.

Human rights enable and empower individuals to effectively contribute to the society and simultaneously realize their maximum potential in a society in which human rights are respected. The fulfillment of human rights requires the participation and contribution of individuals in the society.

The State and other duty-bearers are responsible for protecting and preserving human rights. In fulfillment of this duty, the State is answerable for the observance of human rights and must comply with standards, laws and policies.

Fundamental Principles of the udHR

Universality & Inalienability

Indivisibility & Interdependence

Equality & Non-Discrimination

Empowerment & Participation

Accountability & Rule of Law


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The Human Rights-Based Intelligence Operations Guidebook is a direct application of the inherent rights embraced in the Universal Declaration of Human Rights. Thus, in the performance of assigned tasks, intelligence personnel must be conversant with the rights that are entitled to each human being. Pertinent rights are enumerated in the following (UDHR, 1948):

1. All human beings are born free and equal in dignity and rights.

2. Everyone is entitled to rights and freedoms without distinction of any kind, such as race, color, sex, language, religion, political affiliation or opinion, national or social origin, property, birth or any other status.

3. Everyone has the right to life, liberty and security of person.

4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

6. Everyone has the right to be recognized everywhere as a person before the law.

7. All are equal before the law and are entitled without any discrimination to equal protection of the law.

8. Everyone has the right to an effective remedy by the competent national court for acts violating the fundamental rights granted him by the Constitution or by the law.

9. No one shall be subjected to arbitrary arrest, detention or exile.

10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial court in the determination of his rights and obligations and of any criminal charge against him.

11. Everyone charged with a penal offense has the right to be presumed innocent until proven guilty.

12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

13. Everyone has the right to freedom of movement and residence within the borders of each state.

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Fundamental Principles of International Humanitarian Law

1. Principle of distinction

Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives and, accordingly, shall direct their operations only against military objectives.

2. Principle of Proportionality

The actual damage that is caused by attacking a military target must not be larger than the calculated military advantage.

3. Principle of Military Necessity

The only legitimate objective, which states should endeavor to accomplish during war, is to weaken the military forces of the enemy; that for this purpose, it is sufficient to disable the greatest possible number of men. (http://www.icrc.org)

Implementation of International Humanitarian Law

The 1949 Geneva Conventions and their Additional Protocols are international treaties which serve as the core of international humanitarian law, a part of the body of international law that governs the behavior of states during warfare and internal armed conflict. However, treaties of IHL, to be universally accepted must be formally adopted by a State through ratification or accession. After which, a State must then enact a national legislation and take practical measures in order for the rules to be fully effective.

The Philippines ratified the Geneva Conventions of 1949 on October 6, 1952 and signed the following Additional Protocols on December 12, 1977: Protocol I which applies to the protection of victims of international armed conflicts and Protocol II which deals with the protection of victims of non-international armed conflicts. On December 11, 1986, the Philippines ratified Protocol II.

1.3 International Humanitarian Law

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The Philippine government enacted Republic Act 9851, otherwise known as the “Philippine Act on Crimes Against International Humanitarian Law and Genocide and Other Crimes Against Humanity,” which mandates both state and non-state armed groups to observe international humanitarian law standards, giving victims of war crimes, genocide, and crimes against humanity legal remedy. The salient provisions of Republic Act 9851 are as follows:

1. International law as part of the domestic law

The Philippines adopts the generally accepted principles of international law as part of the law of the country, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law. (Section 2d, RA 9851)

2. universal jurisdiction of the crime

The law provides that Philippine Regional Trial Courts (RTC) shall have the original and exclusive jurisdiction over persons who commit international crimes punishable under this law, whether military or civilian, suspected or accused of the crimes defined and penalized under this law. (Section 17, Chapter VIII, RA 9851)

3. Non-prescription of the offense

The crimes defined and penalized under this

law, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription. (Section 11, Chapter 5, RA 9851)

4. Liability of non-state actors

The law lays down the rules which are applicable to both State and non-State actors. Hence, CNN, MILF, MNLF, ASG and other armed threat groups in the country may also be held individually criminally liable for grave breaches of the Geneva Conventions and of Additional Protocol I, and for other serious violations of IHL in non-international armed conflicts.

5. War crimes or crimes against IHL

In case of a non-international armed conflict, “war crimes” are any of the following acts committed against persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

a. Violence to life and person, in particular, willful killings, mutilation, cruel treatment and torture;

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

c. Taking of hostages; and,

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d. The meting out of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.

Other serious violations of the laws and customs applicable in armed conflict, within the established framework of international law, are as follows:

a. Intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities;

b. Intentionally directing attacks against civilian objects which are not military objectives;

c. Intentionally directing attacks against buildings, materials, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions or Additional Protocol III in conformity with international law;

d. Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated;

e. Launching an attack against works or installations containing dangerous

forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, and death or serious injury to body or health;

f. Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives, or making non-defended localities or demilitarized zones the object of attack;

g. Killing or wounding a person in the knowledge that he/she is hors de combat, including a combatant who, having laid down his/her arms or no longer having means of defense, has surrendered at his/her discretion;

h. 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 or other protective signs under international humanitarian law, resulting in death, serious personal injury or capture;

i. 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;

j. Subjecting persons who are in the power of an adverse party, to physical mutilation or to medical or scientific experiments of


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any kind, or to removal of tissue or organs for transplantation, which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his/her interest, and which cause death to or seriously endanger the health of such person or persons; k. Killing, wounding or capturing an adversary by resort to perfidy;

l. Declaring that no quarters will be given;

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

n. 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;

o. Committing outrages upon personal dignity, in particular, humiliating and degrading treatments;

p. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence;

q. Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; and,

r. Committing any of the following acts:

(1)Conscripting, enlisting or recruiting children under the age of fifteen (15) 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 to participate actively in hostilities.

6. Genocide

“Genocide” means any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial, religious, social or any other similar stable and permanent group such as:

a. Killing members of the group;

b. Causing serious bodily or mental harm to members of the group;

c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d. Imposing measures intended to prevent births within the group; and, e. Forcibly transferring children of the

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group to another group.

7. Other Crimes Against Humanity

“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:

a. Willful killing;

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;

f. 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;

i. enforced or involuntary disappearance of persons;

j. 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.

AFP Reaffirmation on the Adherence to Principles of IHL and HR

Further, the department of National defense and department of Interior and Local Government (dNd/dILG) Joint Circular Number 2, -91, Providing Implementing Guidelines re: Presidential Memorandum Order No. 393 dated September 9, 1991, Directing the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) to Reaffirm their Adherence to the Principles of Humanitarian Law and Human Rights in the Conduct of Security/Police Operations, provides for the Rules of Behavior for soldiers during security operations in order to preclude any abuses against innocent civilians and hostile/lawless elements considered out of combat to include those who are wounded, captured or who surrendered and to reduce the destruction that may be inflicted against lives and properties, as follows:

1. Maintain a high level of discipline and strictly adhere to the AFP code of honor, ethics, loyalty, valor and solidarity.


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2. exercise utmost restraint and caution in the use of armed force to implement policies. When the use of armed force is inevitable, strict controls must be exercised to ensure that only reasonable force necessary for mission accomplishment shall be taken and shall be directed only against hostile elements, not against civilians or non-combatants.

3. Treat suspects and enemies who are out of combat (e.g. wounded, surrendered/captured) humanely and with respect and shall, at the earliest time possible, turn them over to higher echelons of command/office for proper disposition.

4.Inhibit from unnecessary military actions that could cause destruction to private and public properties. If, in the course of legitimate security operations, private properties are damaged, measures shall be undertaken whenever practicable,

utilizing available unit’s manpower and equipment to repair the damage caused as a matter of AFP Civic Action Policy.

5. Respect all persons and objects bearing the emblem of the Red Cross, White Flag of Truce or emblems designating cultural property.

Furthermore, GHQ directive to the Commanders of Major Services, unified Commands and AFPWSSus dated August 9, 2007 explicitly provides that the AFP never has a policy and activity to inflict terror to the people but committed to sow just and lasting state of peace that will pave way to the development of communities around the country. With this commitment, the AFP will follow the standing rules of engagement, ensure the protection of human rights and adhere to the international humanitarian law under all circumstances.

“We must understand the role of human rights as empowering of individuals and communities. By protecting these rights, we can help prevent the many conflicts based on poverty, discrimination and exclusion (social, economic and political) that continue to plague humanity and destroy decades of development efforts. The vicious circle of human

rights violations that lead to conflicts, which in turn, lead to more violations must be broken. i believe we can break it only by ensuring respect for all human rights.”

- Mary Robinson, former uN High Commissioner for Human Rights

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CHAPTER 2Adherence to Human Rights &

International Humanitarian Law

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Command Responsibility refers to the “accountability or responsibility of the commander of a military force or unit for the acts of his men, inclusive of the authority to order, direct, prevent or control the acts of his men.” (People v Lucero, et. al, GR No. 64323-24, May 31, 1999)

AFP commanders at all levels shall retain command responsibility over all their personnel, units, and offices detached and placed under operational control of other commands, officers and agencies. (Sec. 5, Administrative Order 219 – Oct 4, 1995)

Human Rights matter is a command responsibility. Commanders who are proven, through due process, to have countenanced human rights abuses by way of summarily dropping complaints, intimidating the complainant and/or witnesses, “cover-up” of

the incidents, failure to report to superiors, and/or shows inaction on the complaint, shall be held accountable either as conduct unbecoming an officer or as accessory. (GHQ, AFP Guidelines on Human Rights and Improvement of Discipline, issued on January 2, 1989)

Commanders shall be responsible for the conduct and behavior of AFP personnel under their control and supervision. They will be held accountable under pertinent provisions of the Articles of War, or as accessory after the fact in cases where they refuse to act, delay or otherwise aid or abet the wrongdoing of their subordinate who is the subject of a valid complaint or warrant of arrest. (DND/DILG Joint Circular Number 2-91 dated September 9, 1991)

Under the Doctrine of “Command Responsibility”, a commander is duty-bound to closely monitor, supervise, direct, coordinate, and control the overall activities of his subordinates within his area of operations, and can and shall be held administratively accountable for neglect of duty in taking appropriate action to discipline his men. (Executive Order Nr 226, 17 February 1995)

2.1 Accountability in Human Rights Violations: Command Responsibility

The term “commanders” refers to the following: Major Service Commanders, Area Commanders, Division Commanders, Brigade Commanders, Battalion Commanders, Company Commanders, Platoon Leaders and Detachment Commanders and their equivalent in the PN, PAF and AFPWSSUs. (GHQ, AFP Directive on Strict Adherence to the Doctrine of Command Responsibility, issued on 04 February 2007)

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Neglect of duty under the doctrine of “Command Responsibility”

The Commander shall be held accountable for the neglect of duty if he has knowledge that a crime or offense is to be committed, is being committed, or has been committed by his subordinate, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during or immediately after its commission.(Section 1, Executive Order 226)

Presumption of knowledge

A Commanding Officer is presumed to have knowledge of the commission of irregularities or criminal offenses within his area of responsibility in any of the following circumstances:

1. When the irregularities or illegal acts are widespread within his area of jurisdiction;

2. When the irregularities or illegal acts are repeatedly or regularly committed within his area of responsibility; or

3. When members of his immediate staff or office personnel are involved. [Section 2, Executive Order 226]

Command Responsibility under RA 9851

Sections 8-12, RA 9851 provide that a superior shall be criminally responsible as a principal

for crimes committed by subordinates under his/her effective command and control, or effective authority and control, as a result of his/her failure to properly exercise control over such subordinates, where:

1. He/she either knew or, owing to the circumstances at the time, should have known that his/her subordinates were committing; and,

2. He/she 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. (Section 10, RA 9851)

duties of the Commanding Officer

1. undertake Corrective Measures on any Misconduct Committed by AFP Personnel

Commanders shall ensure that all participants in security operations shall be briefed and debriefed before and after every operation to insure proper behavior of personnel and understanding of their mission as well as to assess the overall impact of the operation to AFP goals and objectives and whenever necessary immediately undertake corrective measures on any misconduct committed by AFP personnel. (DND/ DILG Joint Circular Number 2-91 dated September 9, 1991)


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2. Take Custody of erring Personnel

Upon receipt of an adverse report indicating that military personnel under his command committed a serious offense, the commander shall immediately take custody of subject military personnel subject to the provisions of EO 106, s-37, and cause the expeditious conduct of investigation of such report by an appropriate investigating officer, if he is not yet under the custody of the police or the regular courts. (Para 4d of GHQ Letter-Directive on Commander’s Responsibility on Criminal and Administrative Cases Involving Military Personnel dated Oct 13, 2001)

All human rights-related incidents allegedly committed by members of the AFP in the course of security operations shall be immediately investigated and, if evidence warrants, charges shall be filed in the proper courts. Reports of investigation as well as actions taken shall be submitted to GHQ fifteen (15) days after receipt of information about the alleged human rights violation. (DND/DILG Joint Circular Number 2-91 dated September 9, 1991)

3. Order the Arrest and Confinement or Restriction of Offenders

To immediately order the arrest and confinement of military personnel who commit, are actually committing, or have been charged for committing a grave offense pursuant to Articles of War # 70 - Arrest and Confinement. If arrest or confinement is made without prior investigation or formal

charges filed immediately upon arrest or confinement, investigation shall be initiated and completed not later than eight (8) calendar days after the arrest and confinement to determine the existence of prima facie evidence to justify his continuous confinement, restriction to limits or custody under a responsible officer. (Para 4b of GHQ Letter-Directive on Commander’s Responsibility on Criminal and Administrative Cases Involving Military Personnel dated Oct 13, 2001)

disciplinary Punishment

The imposition and enforcement of a disciplinary punishment for any act/omission that resulted in a human rights violation is a Commander’s responsibility. Failure to punish the offender means that he tolerated the act of his subordinates. It is vital that disciplinary punishment should be imposed in case of a violation. The imposition of punishment growing out of the same act/omission shall not be a bar to trial by court-martial if higher authorities have a reasonable ground to believe that the offender is not properly punished.

No offender shall be punished until a thorough and impartial investigation has been conducted. This investigation shall include inquiry as to the truth of the matter, consideration of all circumstances present and recommendation made in the interest of justice and discipline.

GUIDEBOOK

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The Government of the Philippines (GPH) recognizes that respect for human rights and international humanitarian law is of crucial importance and urgent necessity in laying the ground for the pursuit of peaceful and negotiated settlement with rebel groups; thus, has entered into agreements with the National Democratic Front (NDF) of the Communist Party of the Philippines/New People’s Army (CPP-NPA). In support to the government’s efforts for the attainment of long and lasting peace, the AFPIC strictly adheres to the following agreements:

The CARHRIHL is the first comprehensive agreement in the substantive agenda of the peace negotiations which was signed by GPH and NDF panels on March 16, 1998 in The Hague, Netherlands. The CAHRIHL seeks to confront, remedy and prevent the most serious human rights

violations, as well as to uphold, protect and promote the full scope of human rights and fundamental freedoms, including:

1. The right of the victims and their families to seek justice for violations of human rights, including adequate compensation or indemnification, restitution and rehabilitation, and effective sanctions and guarantees against repetition and impunity.

2. The right to life, especially against summary executions (salvagings), involuntary disappearances, massacres and indiscriminate bombardments of communities, and the right not to be subjected to campaigns of incitement to violence against one’s person.

3. The right to liberty, particularly against unwarranted and unjustified arrest and detention and to effectively avail of the privilege of the writ of habeas corpus.

4. The right not to be subjected to physical or mental torture, solitary confinement, rape and sexual abuse, and other inhuman, cruel or degrading treatment, detention and punishment.

2.2 Human Rights & International Humanitarian Law in the Peace Process

Comprehensive Agreement on Respect for Human Rights and

International Humanitarian Law (CARHRIHL)

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5.The right to substantive and procedural due process, to be presumed innocent until proven guilty, and against self-incrimination.

6. The right to privacy of communication and correspondence, especially against intercepting, pilfering and opening of mail matters and conducting illegal surveillance and information gathering through electronic and other means.

7. The right not to be subjected to forced evacuations, food and other forms of economic blockades and indiscriminate bombings, shellings, strafing, gunfire and the use of landmines. (Part III, Art 2, CARHRIHL)

To ensure the compliance of both parties to the CARHRIHL, a joint committee was formed. The panel committee is composed of six members in which each Party has three representatives. The peace agreement has a monitoring committee whose primary task is to review human rights violations that are screened by both the GPH and the NDF monitoring committee and to determine whether these complaints are to be reported to the Party that the complaint is filed against. The Commission on Human Rights takes part in the investigation process when cases are filed alongside the GPH monitoring committee. The committee is presided by representatives of human rights organizations that are specifically nominated by each Party. (Part V, CARHRIHL).

1. Complaint is received by the Joint Secretariat

3. Screening of complaints for each committee (GPH and NDF)

4. Joint Monitoring Committee (JMC) reviews the complaints

2. Forwarded to GPH and NDFP

5. JMC shall initiate requests or recommendations for the

implementation of the Agreements to the government agencies involved

6. Investigation of the complaint shall be conducted by the party (GPH or

NDF) concerned

7. Concerned party shall make recom-mendations to the Negotiating Panel

8. Appropriate action shall be taken based on these recommendations

Complaint Process in the Joint Monitoring Committee

GUIDEBOOK

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In firm adherence to The Hague Joint Declaration and pursuant to the pertinent provisions of the Joint Statement signed in Breukelen, The Netherlands on June 14, 1994, the Government of the Republic of the Philippines (GPH) and the National Democratic Front of the Philippines (NDFP) adopted the Joint Agreement on Safety and Immunity Guarantees ( JASIG).

JASIG is a comprehensive agreement between the GPH and the NDF that seeks to facilitate the peace negotiations, create a favorable atmosphere conducive to free discussion and movement during the peace negotiations, and avert any incident that may jeopardize the negotiations. JASIG, which was signed by both parties on February 24, 1995, accords safety and immunity guarantees to protect the rights of negotiators, consultants, staffers, security, and other personnel who participate in the GPH and NDF peace negotiations.

Under the JASIG, duly accredited persons in possession of documents of identification or safe conduct passes are guaranteed free and unhindered passage in all areas in the Philippines, and in traveling to and from the Philippines in connection with the performance of their duties in the peace negotiations. All accredited persons are provided immunity from surveillance, harassment, search, arrest, detention,

prosecution and interrogations or any other similar punitive actions due to any involvement or participation in the peace negotiations. The immunity guarantees cover all acts and utterances made in the course of the peace negotiations and likewise cover all materials, information and data submitted to or produced pursuant to these peace negotiations. (Para II, JASIG)

CONTACT NUMBERS

GPH Monitoring Committee SecretariatJoint Monitoring Committee of CARHRIHL6F Immaculate Conception Multi-Purpose Bldg.,41 Lantana St., Cubao, Quezon CityLandline: (02) 725-4621E-mail Address: [email protected]

AFP Human Rights Office (AFPHRO)Bulwagang Heneral Valdez Bldg.,General HeadquartersCamp General Emilio Aguinaldo, Quezon City(0917) 725-1003

OPAPP JASIG DeskGPH-NDF Panel Secretariat Office, 4F, Agustin 1 Bldg., Ortigas Ave., Ortigas Center, Pasig City Cell phone: (0918) 938-1958Landline: (02) 636-0701 loc 827Telefax: (02) 638-2295

AFP JASIG DeskOCD, J2, GHQ Camp Gen Emilio Aguinaldo, Q.C.Cell phone: (0917) 543-6191/ (0919) 669-1601

PNP JASIG DeskIOD, ODI, PNP2F, NHQ Bldg., Camp Crame, Q.C. Cell phone: (0929) 187-6562

Joint Agreement on Safety and Immunity Guarantees ( JASIG)


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Procedures in Apprehending or Challenging Personalities if JASIG is in effect

The apprehending officer/challenger should properly inform the “apprehended individual” of the basis for such challenge.

The “apprehended individual “ must present to the apprehending officer the document of identification (DI) which will serve as “safe conduct pass” supporting his/her claim for JASIG guarantees.

The apprehending officer must submit an incident report to his pertinent JASIG desk and its oversight officer within 24 hours from the time of the incident/apprehension. The Office of the Presidential Adviser on the Peace Process (OPAPP) JASIG desk must be provided with a copy of said report.

If the person is eligible for JASIG, the apprehending officer must immediately release him/her and provide clearance. A copy of the clearance must be furnished to the AFP/PNP units on the ground and OPAPP JASIG Desk.

If the person is not eligible for JASIG, the apprehending officer must immediately turn him/her over to AFP/PNP units or government agencies for proper processing and disposition. A report shall be submitted to the concerned AFP/PNP/OPAPP JASIG desks.

1. Inform

2. Verification

3. Submission of Report

(Letterhead)(Phone and Fax Numbers)

This is to acknowledge that _____________________ with the Document Identification Number ______ is a __________ in the GRP-NDFP peace negotiations.

The above named person is entitled to the safety and immunity guarantees provided under the Joint Agree-ment on Safety and Immunity Guarantees (JASIG) for the duration of the peace negotiations.

You are hereby required to facilitate the safe conduct and free passage of the named persons. Thank you for you courtesy and assistance. (Seal) ____________ Chairperson

GUIDEBOOK

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Writ of Habeas Corpus

“Habeas corpus” is a Latin phrase which literally means “you have the body.” The writ is an order to the person in charge of someone’s detention to deliver the named person so that the court can investigate the legality of his imprisonment. Basically, it is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place and explain the cause of his detention. The Writ of Habeas Corpus generally extends to all cases of illegal confinement or detention by which a person is deprived of liberty, or the rightful custody of a person is withheld from the person entitled to it. (http://phbar.org)

Writ of Amparo

The Writ of Amparo is of Mexican origin. Amparo means protection from the Spanish word “Amparar.” It is a remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission of a public official/employee, or of a private individual or entity. (http://en.wikipedia.org)

The writ is issued in cases of extrajudicial killings and enforced disappearances or threats thereof. (Sec 1, Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, 25 Sept 2007)

In the event that the Writ of Amparo is issued against any member of the AFP, by the Supreme Court, Court of Appeals, Sandiganbayan or any Justice of such court, and the Regional Trial Court, the following rules of action shall be strictly followed by the units concerned as provided by the AFP Policy Directive on Actions and Defense under the Rule on the Writ of Amparo dated Dec. 17, 2007:

1. To verify the identity of the aggrieved party;

2. To recover and preserve evidence related to the death or disappearance of the person identified in the petition or whose right to life, liberty or security is threatened with violation of an unlawful act or omission as alleged in the petition that may aid in the prosecution of the person/s responsible;

3. To identify witnesses and obtain statements from them concerning the death or disappearance;

2.3 Legal Remedies in Cases of Enforced Disappearances & Extra-Judicial Killings

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4. To determine the cause, manner, location and the time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

5. To identify and apprehend the person/s involved in the death or disappearance; and,

6. To bring the suspected offenders before a competent court.

Writ of Habeas data

The Writ of Habeas Data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or private individual. The writ of habeas data enables the petitioner to invoke the right to privacy and right to information.

In Latin America, the writ has been used to enable the petitioner to obtain information about himself from public or private records. This has been particularly useful in cases of extrajudicial killings and enforced disappearances as the families of victims could demand undisclosed information. In cases where data about the petitioner has been falsified, the petitioner can use the writ of habeas data to correct the data.

The writ can also be used to invoke the right to privacy. The writ enables a person to know the purpose in which the data about himself is being collected. (A.M. No. 08-1-16 SC, Jan 22, 08 - The Rule on the Writ of Habeas Data)

When a Writ of Habeas data is served, the respondent shall observe the following:

1. The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons.

2. The return shall, among other things, contain the following:

a. The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others;

b. In case of respondent in charge, in possession or in control of the data or information subject of the petition:

i. A disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;

ii. The steps or action taken by the respondent to ensure the security and confidentiality of the data or information;

iii. The currency and accuracy of the data or information held; and,

c. Other allegations relevant to the resolution of the proceeding. (A.M. No. 08-1-16 SC, Jan 22, 08 - The Rule on the Writ of Habeas Data)

GUIDEBOOK

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CHAPTER 3Human Rights in

Intelligence Operations

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“Our soldiers and marines understand that whether NPA, Abu Sayyaf, or criminals; they have rights and are entitled to the protection of the law.”...

“We are the AFP of all, not only of the law-abiding Filipinos, but also of those needing more attention and greater understanding”.

- Excerpt from the CSAFP Command Message 02-09 dated 13 July 2009

The primary mandate of intelligence is to collect, process, evaluate and disseminate intelligence to the end users in accordance with the law. It is basically information gathering and production of intelligence to be used by the different AFP units. (AFPM 2-011, 2007)

Human Rights-Based Intelligence Operations (HR-BIO) underscores the respect for the preservation of life, liberty, security, human dignity, equality, and rule of law while accomplishing the objectives of intelligence missions. The following are the guiding principles on the conduct of all intelligence operations:

1. Paramount consideration of the safety of civilians

In engaging the enemy, avoid, or if it cannot

be avoided, minimize collateral damage byway of incidental injury or loss of life to civilians and damage to private property.

2. Inclusion of human rights protection in all intelligence activities

The commanding officer is responsible in the supervision, promotion and implementation of the HR and IHL principles. Briefings and debriefings should be conducted prior to and after all intelligence operations/activities stressing the importance of observing human rights protection.

3. Adherence to the Rule of Law

All intelligence personnel must adhere and be familiar with the principles of HR and IHL and related provisions of the Revised

3.1 Guiding Principles in Intelligence Operations

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Penal Code and the special laws. No arrest shall be made based on mere suspicion or raw intelligence.

4. Protection and Welfare of All Persons in Custody

Ensure the full protection and welfare of all persons in custody and take immediate action to secure medical attention whenever required. Arrested individual shall be treated humanely and accorded of all his/her rights.

5. Restrained use of Force

As much as possible, apply non-violent means before resorting to the use of force and firearms.

Firearms shall never be used against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving imminent grave threat to life.

6. Monitor and Act on HR Violations.

All intelligence units should include in their periodic reports all human rights violations monitored in their respective areas of operations. Said reports shall include specific data indicating: name of personalities involved; time and place and nature of violations; and actions taken by the unit.

Presentation of the HR-BIO Guidebook by the former Chief of Staff, AFP, Gen Ricardo David, together with MGen Francisco N Cruz Jr, Deputy Chief of Staff for Intelligence, J2 to Loreta Ann P Rosales, Chairperson, Commission on Human Rights (CHR) during the Intelligence Family Conference on January 21, 2011


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In law enforcement operations, the participation of intelligence units is limited to supporting the PNP and other law enforcement agencies. During law enforcement operation, the support role of an intelligence unit/personnel shall be limited to the confirmation of the person to be arrested and the place to be searched; serve as guide to the place where the operation is to be made; and helping the uniformed personnel and/or peace officer subdue the person to be arrested in case he/she resists the arrest.

Lateral coordination among the operating units and government agencies is a must-Coordination among operating units and other government agencies that have jurisdiction over the area to ensure and enhance immediate cooperation-Participating personnel will also be briefed on general and specific rules to the type of operations to be conducted

Only the prescribed uniform or attire of respective units involved and countersigns agreed upon shall be worn during the operations-Use of countersign/identification is a must when civilian attire is used for operations not warranting the use of military uniform.

All firearms to be used for the operation shall be covered by proper documents-Proper documents include Mission Orders (MO) and Memorandum Receipt (MR)/Acknowledgement Receipt of Equipment (ARE)-Unnecessary display of firearms outside of the area of engagement shall be avoided.

3.2 Rules of Behavior in Support to Law Enforcement Operations

Gather information/evidence about illegal activities-Investigate to confirm involvement in illegal activities-Check for existing and valid Warrant of arrest (WA), if none, apply for WA-Apply for Search Warrant (SW) if there are illegal items in the possession of the person to be arrested-In serving of SW, AFP Intelligence personnel can have a supporting role. Only the PNP, NBI or other law enforcement agencies can conduct search and seizure

Case conference with PNP and other Law enforcement Agencies-Participating personnel shall be briefed on legal procedures and related legal consequences-Participating personnel will also be briefed on general and specific rules to the type of operations to be conducted

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Before making an arrest or search, personnel must know the following rules: (Chapter I, 1-6, AFPM 2-011, 2007)

Intelligence personnel may arrest a person without a judicial warrant of arrest under any of the instances provided under Section 5, Rule 113 of the Revised Rules of the Court, as follows:

In Flagrante delicto In his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

Hot Pursuit doctrine

The offense has in fact just been committed and he has personal knowledge of the facts indicating that the person to be arrested has committed it.

escapee

The person to be arrested is a prisoner who

“The test of in flagrante delicto arrest is that the suspect was acting under circumstances reasonably tending to show that he has committed or is about to commit a crime. Evidence of guilt is not necessary. It is enough if there is probable cause.“

— Sen. Miriam Defensor Santiago during her speech at the PNP Headquarters, March 2006

escaped from a penal establishment or place where he is serving judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another.

Person/s arrested without warrant shall be immediately turned over to the appropriate Prosecutor’s Office for inquest proceedings to avoid any violations under RA 7438 and /or Art. 125 of the Revised Penal Code in consideration of key hours provided for by laws: 12 (light), 18 (correctional), 36 (afflictive), 72 (under Human Security Act), except when such person/s arrested execute/s a waiver .

“If a warrantless arrest is made and eventually the court finds the arrested persons to be innocent and acquits them, are the arresting officers liable? The answer is no.”

— Sen. Miriam Defensor Santiago

The test of the ‘hot pursuit doctrine’ is probable cause which is defined by the Supreme Court as “an actual belief or reasonable grounds of suspicion”. It requires that the law enforcement unit holds direct knowledge of the crime or has personally witnessed the suspect right after the crime was committed. There is no need to witness the actual commission of the crime itself.


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The recommended actions in effecting warrantless arrest are provided below: (Chapter I, 1-4, AFPM 2-011, 2007)

Team leader provides identification to the target of arrest or any other person present

-State name, rank, designation, unit and address of his unit-Formal introductions may be dispensed with when the person arrested: (1) is engaged in committing an offense, (2) is seen after committing an offense, (3) escaped or fled from the arresting officer, and the giving of information will imperil the arrest

Inform the cause of the arrest and present the issued warrant

-If the person to be arrested is on a moving vehicle, the arresting unit shall warn the passengers to park their vehicles and to surrender peacefully.

Conduct body search

-The arresting team may conduct a body search on the arrested person who may pose a threat to the arresting team or the public.

Confiscated items must be documented and inventoried

-The following may be confiscated from the arrested person: (1) objects used in the commission of the crime, (2) objects which are fruits of the crime, (3) objects which might be used by the arrested person to commit violence or to escape, (d) dangerous weapons and those which may be used as evidence in the case.

Person arrested must be immediately turned over to the nearest PNP station for proper documentation

-No unnecessary or excessive use of force shall be resorted to in making arrests and the persons arrested shall not be subjected to greater restraint than what is necessary.

GUIDEBOOK

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Violation of Art 125, RPC

delay in the delivery of detained persons to proper judicial authorities, carries the following penalties for any public officer or employee who delays the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for liberation of such person:

1. The penalty of arresto mayor (one month and one day to six months) in its maximum period to prision correccional (six months and one day to six years) in its minimum period , if the detention has not exceeded three days;

2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued more than three but not more than fifteen days;

3. The penalty of prision mayor (six years and one day to twelve years), if the detention has continued for more than fifteen days but not more than six months; and,

4. That of reclusion temporal (twelve years and one day to twenty years), if the detention shall have exceeded six months.

Procedures, duties and Guidelines for Arresting or Investigating Officer

Based on the 1987 Philippine Constitution, jurisprudence and Republic Act No. 7438, an Act defining the Rights of Persons Arrested, Detained or Under Custodial Investigation as well as Duties of the Arresting, Detaining and Investigating Officer, the following are the procedures, guidelines and duties which the arresting or investigating officer must do and observe (People vs Mahinay, 302 SCRA 455, Feb. 1, 1999):

1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person;

2. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice;


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4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf;

5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;

6. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same;

7. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insists on his waiver and chooses to speak;

8. The person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the

police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun;

9. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements;

10. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence; and,

11. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished.

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Anti-Wiretapping Law

The means to conduct surveillance is limited by RA 4200 - An Act to Prohibit and Penalize Wiretapping and Other Related Violations of the Privacy of Communication, and For Other Purposes or otherwise known as the Anti-Wiretapping Law. It seeks to penalize wiretapping and other related violations of the right to privacy of communication guaranteed under the Bill of Rights. Any recording, communication or spoken word obtained in violation of the provisions of this Act is inadmissible as evidence in any judicial, quasi-judicial or administrative hearing or investigation.

unlawful acts under RA 4200 are the following:

1. Tapping of any wire or cable or using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word.

2. Knowingly possessing any tape/wire record, disc record, or copies thereof,

of any communication or spoken word; replaying the same for any other person or persons; communicating the contents thereof verbally, or in writing and, furnishing transcriptions thereof, whether complete or partial.

3.3 Rules of Behavior in Information Collection & Investigation

Wiretapping is lawful if the following conditions exist:

1. When a peace officer is authorized by written order from the court; and,

2. In cases involving treason, espionage, provoking war and disloyalty in cases of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the RPC and violations of Commonwealth Act No 616, punishing espionage and other offenses against national security. (Sec. 3, RA 4200)

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Human Security Act of 2007 (HSA, 2007)

Under the Human Security Act of 2007, the authority to conduct surveillance and interception of communications between members of judicially declared and outlawed terrorist organization, association or groups of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism may be granted by the Court of Appeals (CA). The law enforcement official shall first obtain an authorization from the Anti-Terrorism Council to file the written application before the CA.

The authorization granted by the CA shall be effective only for the length of time specified in the written order, which shall not exceed a period of thirty (30) days from the date of receipt of the written order by the applicant. It may be extended or renewed for another non-extendible period, which shall not exceed thirty (30) days from the expiration of the original when the court is satisfied that such extension or renewal is in the public’s interest.

The applicant and the witnesses he may produce must establish under oath or affirmation the following:

1. That there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit

terrorism has been committed, or is being committed, or is about to be committed;

2. That there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and,

3. That there is no other effective means readily available for acquiring such evidence.

No Torture or Coercion in Investigation and Interrogation

No threat, intimidation, or coercion, and no act which will inflict any form of physical pain or torment, or mental, moral, or psychological pressure, on the detained person, which shall vitiate his free will, shall be employed in his investigation and interrogation for the crime of terrorism or the crime of conspiracy to commit terrorism; otherwise, the evidence obtained from said detained person resulting from such threat, intimidation, or coercion, or from such inflicted physical pain or torment, or mental, moral, or psychological pressure, shall be, in its entirety, absolutely not admissible and unusable as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. (Sec. 24, RA 9372 or The Human Security Act of 2007)

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Physical Torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as:

- Systematic beating, head banging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach;

- Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten;

- Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound;

- Electric shock;

- Pulling out of fingernails;

- The submersion of the head in water or water polluted with excrement, urine, vomit and or blood until the brink of suffocation;

- Being tied or forced to assume fixed and stressful bodily position;

- Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals;

- Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;

- dental torture or the forced extraction of the teeth;

- Harmful exposure to the elements such as sunlight and extreme cold;

- The use of plastic bag and other materials placed over the head to the point of asphyxiation;

- The use of psychoactive drugs to change the perception, memory alertness or will of a person (The administration of drugs to induce confession and/or reduce mental competency; or the use of drugs to induce extreme pain or certain symptoms of a disease); and,

- Other analogous acts of physical torture.


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Mental/Psychological Torture refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person’s dignity and morale, such as:

- Blindfolding;

- Denial of sleep/rest;

- Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts;

- Confinement in solitary cells or secret detention places;

- Prolonged interrogation;

- Preparing a prisoner for a “show trial”, public display or public humiliation of a detainee or prisoner;

- Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

- Maltreating a member/s of a person’s family;

- Causing the torture sessions to be

witnessed by the person’s family, relatives or any third party;

- Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim’s head or putting marks on his/her body against his/her will;

- deliberately prohibiting the victim to communicate with any member of his/her family; and,

- Other analogous acts of mental/psychological torture.

GUIDEBOOK

36

AFP Policy on the Presentation of Arrested Person to Media

Presentation of arrested suspect/person to the media is against the constitutional rights of the individual as well as a violation of his right as a person. He shall be presumed innocent until proven guilty. (GHQ Letter-Directive Discouraging presentation of suspects to the media , issued on August 14, 2009)

AFP Policy on CHR Visitorial Powers

Sec 18 (4), Article XIII, 1987 Philippine Constitution states that the Commission on Human Rights (CHR) shall exercise visitorial powers over jails, prisons, or detention. In recognition of this power, the AFP issued the Policy on Spot Visits of CHR in Military Detention Centers on December 28, 2008:

1. All security officers with custodial responsibility over any detainee or prisoner shall extend maximum cooperation and

courtesy to members of the CHR in their exercise of their constitutional rights;

2. The authority and power to visit over jails, prisons, or detention facilities inside military camps, bases or installations shall only be accorded to the organic members of the CHR and limited to such area where the prisoner or detainee is kept, prisoned or detained;

3. Should the CHR exercise its visitorial powers beyond visitation hours, reasonable prior notice shall be made to the Commanding Officer of the detention facility for proper coordination and preparation to ensure security of visitors.

4. Immediate members of the prisoner or detainee’s family shall still be governed by the existing procedures and regulations with regard to visitation rights, even if they are accompanied by members of the CHR.

3.4 Guidelines in Handling of Person Arrested and Under Custodial Investigation

37

Intelligence personnel, during their operations, may encounter situations wherein the use of force or firearms is inevitable. The following guidelines shall be considered: (Chapter I, 1-4, AFPM 2-011, July 23, 2007)

3.4 Guidelines in Handling of Person Arrested and Under Custodial Investigation 3.5 Guidelines on the Use of Firearms

Intelligence personnel shall not engage in armed confrontation while conducting intelligence operation.

The use of firearm or weapon shall only be a last resort, after all peaceful means have been exhausted and in a manner commensurate to the situation.

The use of firearms for self-defense must be due to the actual threat of a hostile act or a clear and present hostile intent.

The designated leader of the engaged unit shall see to it that panic firing shall not occur. He shall supervise and direct his subordinate to fire their firearms only when necessary.

Prime consideration shall be the preservation of life and avoidance of collateral damage to properties/objects.

Intelligence personnel shall not use warning shots during support to law enforcement operations.

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Rules and Regulations on Children Involved in Armed Conflict (CIAC)

RA 7610 declared that Children shall be considered as Zones of Peace. They shall enjoy the protection of the State against dangers arising from an armed conflict. It is further declared that it shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the goal of children as Zones of Peace. (Sec 22, Art X, RA 7610)

AFP Policy on CIAC

The AFP strictly abide and respect the following:

1. Children shall not be the object of attack

“Children” refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition.”

- Section 3, RA 7610

3.6 Guidelines on Children Involved in Armed Conflict

and shall be entitled to special respect. They shall be protected from any form of threat, assault, torture or other cruel, inhumane or degrading treatment;

2. Children shall not be recruited to become members of the Armed Forces of the Philippines, of its civilian units or other armed groups, nor be allowed to take part in the fighting, or used as guides, couriers, or spies;

3. Delivery of basic social services such as education, primary health and emergency relief services shall be kept unhampered;

4. The safety and protection of those who provide services including those involved in fact-finding missions from both government and non-government institution shall be ensured. They shall not be the subject of undue harassment in the performance of their work. Parents or relatives of children separated from their family due to armed conflict shall be treated as well;

5. Public infrastructure such as schools, hospitals and rural health units shall not be utilized for military purposes such as command posts, barracks, detachments, and supply depots;

39

6. All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to armed conflict; and,

7. Captured “CIAC” shall be referred to the nearest DSWD office pursuant to existing laws, rules and regulations. (AFP Letter Directive Number 34 on Policy on Children in Armed Conflict dated Nov 24, 2009)

AFP Guidelines on Handling and Treatment of CIAC

The AFP treats rescued and surrendered children as victims rather than as offenders, irrespective of their being a member of an armed group. In the event that a child involved in armed conflict was taken into custody, AFP units are directed to adhere to the following guidelines: (AFP Guidelines on Handling and Treatment of Children Involved in Armed Conflict dated May 11, 2000)

1. The information to the effect must be immediately sent to General Headquarters, AFP passing through Command Channel and to DSWD Field Offices within 24 hours. Information to be given to the recipient agency shall include, among others, the following:

a. Name, age, address;b. Parents/nearest kin;c. Physical and mental condition;d. Tribal or ethno-liguistical affiliation, where practicable; and,e. Other circumstances relative to the rescue or surrender of the child.

2. The AFP unit effecting the surrender or

rescue should also perform the following:

a. Inform the Child of his/her rights;b. Provide medical treatment as necessary;c. Conduct Crisis Intervention Stress Debriefing (CISD) as necessary;d. Protect the child from further exploitation and trauma;e. Provide subsistence and other basic needs to the child; and,f. Maintain a data bank on children involved in armed conflict.

3. The Child should be turned over either to the Department of Social Welfare and Development (DSWD) Field Offices or the Local Chief Executive of the City or Municipality covering the area within 24 hours upon receipt of the child, under normal conditions. When the situation does not warrant the turnover of the child to the abovecited agencies/person in cases such as need for medical treatment, conduct of pursuit operations, security considerations, bad weather or very remote distance to the nearest receiving agency, the AFP unit continues to take custody of the child. The child, however, must be turned over to any of the aforementioned agencies/person within 72 hours from the time the child is taken into custody.

4. Units shall protect the child from exposure to the media, except when justified by compelling national interest as determined by the SND or CSAFP. This exposure to the media shall, however, be conducted not more than once and in consultation with the DSWD Secretary.

GUIDEBOOK

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Anti-Terrorism Task Force. What We Need to Know About the “Human Security Act 2007.” October 2008.

Armed Forces of the Philippines. Soldier’s Handbook on Human Rights and International Humanitarian Law. GPV Printing Ventures Co., 2010.

Armed Forces of the Philippines. The Law of Armed Conflict-Essential for Commanders. AFP Human Rights Office.

Commission on Human Rights. A primer on Enforced Disappearance. 2008.

Commission on Human Rights. Ensuring the Right to Electoral Participation – Giving Access to Vulnerable Sectors in 2010. International Foundation for Electoral Systems. Pearl Hall, SEAMEO Innotech, Commonwealth Ave., Diliman, Quezon City, September 2008.

GPH-Monitoring Committee. Primer on the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law and the Joint Monitoring Committee. Office of the Presidential Adviser on the Peace Process. 2007.

International Committee of the Red Cross. The Fundamental Principles of the Red Cross and Crescent Movement. Pamphlet. 2009.

International Committee of the Red Cross. Ang ICRC sa Pilipinas. Pamphlet. 2009.

Mamauag, Jose Manuel S. International Humanitarian Law. Seminar-Workshop on Human Rights and International Humanitarian Law for Security Sector, 2010.

Philippine Army. Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law. 1999.

Philippine National Police. Human Rights Desk Operations Manual. PNP Human Rights Affairs Office, 2010.

Recio, Redento B. and Lao, Resurreccion T. Sa Ibayo ng Impormalidad, Pag-aangkin ng Dignidad. ALL WAYS Graphics and Printing Services, ESCR-Asia Inc., 2008.

Roque, Harry L. Jr. Asia-Pacific Yearbook of International Humanitarian Law. I n s t i t u t e of International Legal Studies, University of the Philippines Law Center, Diliman, Quezon City. Vol 3, 2007.

Sub-Committee on Children Affected by Child Armed Conflict and Displacement, United Nations Children’s Fund, National Disaster Coordinating Council, Office for Civil Defense, Council for the Welfare of Children. Rights-Based Disaster Management: Policy Guidelines.

The 1987 Philippine Constitution.

United Nations Children’s Fund. The Convention on the rights of the Child; Optional Protocol on the Involvement of Children in Armed Conflict; Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.

GHQ, AFP Guidelines on Human Rights and Improvement of Discipline, 02 January 1989.

AFP Guidelines on Handling and Treatment of Children Involved in Armed Conflict, 11 May 2011.

References

PROJeCT MANAGeMeNT TeAM (PMT)

MGeN FRANCISCO N CRuZ JR AFPDeputy Chief of Staff for Intelligence, J2

LTC JESSIE A BANASTAO (MI) PAFMAJ PHILLIPP G ALVAREZ JR (MI) PA

CPT LEX MICHELLE M DAPANAS JAGSCA Napoleon Gabriel A Abustan

CE John Vincent V Cardenas

ReSeARCH GROuP

CA Maria Aurora A SoberanoCA Donna Joyce C Fuertes

CA Cindy O LopezCA Nicanor V Lanuzo

CA Anna Liza P OchocoCA Diana Lou L Boado

CA Jackie Frances E GuevarraCA Kristina De Guzman

SuPPORT GROuP

CA Mike GuerreroSSg Ricardo C Lasmarias PAF

PO3 Alberto D Mabingnay PNSgt Joel N Perdido PAF

“ i grew up in an era where human rights were often violated. My father, together with many others, was a victim. our family and their families were victims too. We know more than anyone that the brilliant disregard of liberties will only bring us further into the dark.”

“ i grew up in an era where human rights were often violated. My father, together with many others, was a victim.

our family and their families were victims too. We know more than anyone that the brilliant disregard of

liberties will only bring us further into the dark.”

President Benigno S. Aquino III62nd Anniversary of the Universal Declaration on

Human RightsMalacañan Palace

10 December 2010

President Benigno S. Aquino III62nd Anniversary of the Universal Declaration on Human Rights

Malacañan Palace10 December 2010

“ i grew up in an era where human rights were often violated. My father, together with many others, was a victim.

our family and their families were victims too. We know more than anyone that the brilliant disregard of liberties

will only bring us further into the dark.”

“ i grew up in an era where human rights were often violated. My father, together with many others, was a victim. our family and their families were victims too. We know more than anyone that the brilliant disregard of liberties will only bring us further into the dark.”

human rights based intelligence operations guidebook ver5

Documents

deputy chief of staff

afp human rights office

j2s human rights advocacy

afp vice

red cross

red crescent

red lion

laws of war