Aquino cannot be criminally charged in Mamasapano encounter — Drilon

Senate President Franklin Drilon opens the First Session of the Senate for the Year 2015 on Tuesday (Jan. 20, 2015) at the Senate Building in Pasay City. (PNA photo by Avito C. Dalan)

MANILA – Senate President Franklin Drilon said on Monday President Benigno S. Aquino III cannot be criminally charged on the principle of “command responsibility” in the Mamasapano encounter that killed 44 Special Action Force (SAF) members of the Philippine National Police (PNP).

”I do not agree that President Aquino has incurred any liability on the principle of command responsibility under international law,” Drilon said.

Drilon made this reaction after Senator Miriam Defensor Santiago made a statement that “the death of the 44 SAF men makes the military commander and other superior officials responsible for war crimes under the International Criminal Court (ICC) charter.”

Under the Rome Statute, Drilon explained command responsibility will apply if the superior, knowing his subordinates will commit a crime, fails to stop the commission of the crime, or knowing that his subordinates committed a crime, fails to punish them.

“In this particular case, the Special Action Force of the Philippine National Police, per news report, was there to serve a warrant of arrest to known terrorists, not to commit any crime, so the principle of command responsibility does not apply,” Drilon said.

“The command responsibility has no application with President Aquino under the Rome Statute,” he added.

The doctrine has been codified in the Rome Statute of the ICC to which the Philippines is signatory. Section 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control.

According to the doctrine of command responsibility, a superior may be held criminally responsible for a crime committed by his subordinates if it is proven that despite his awareness of the crimes of subordinates, he fails to fulfill his duties to prevent and punish these crimes.

To hold a person criminally responsible under the doctrine, these three requirements must be proven:

(i) A relationship of superior-subordinate linking the accused and those who committed the underlying offenses at the time of the commission of the crime;

(ii) The knowledge on the part of the superior that his subordinates have committed or taken a culpable part in the commission of a crime or are about to do so; and,

(iii) A failure on the part of the superior to take necessary and reasonable measures to prevent (“duty to prevent”) or to punish those crimes (“duty to punish”).