By Raphael Lorenzo A. Pangalangan
Philippine criminal law is commonly associated with positive conduct. The powers that be purport that having never ordered extra-judicial killings, liability cannot be incurred therefor. That view is mistaken. It ignores how both domestic and international law criminalizes actions and omissions alike. This is aptly illustrated through the doctrine of command responsibility: a mode of omission liability echoed throughout International Criminal Law and embedded in the Philippines’ domestic history and jurisprudence. The doctrine attaches criminal liability to military commanders, persons effectively acting as military commanders, and “other” superiors for a distinct actus reus: the dereliction of duty—the failure to prevent or repress a subordinates’ unlawful conduct or submit the matter to the competent authorities. It is thus not the order alone but the failure to order otherwise that may trigger individual criminal liability. By tracing the doctrine’s development from Manila to Rome, the paper cures the common misconception of crime and illustrates how omissions have long been punished in Philippine legal order.
Keywords: command responsibility, omission liability, Philippine criminal law, international criminal law