Memorandum

TO: Atty. Elvira Veronica Escueta-Duavit

FROM: 2012-45554

RE: Mamasapano encounter

DATE: January 11, 2017

Facts

On 25th of January 2015, an armed encounter between the Moro Islamic Liberation Front,
the Bangsamoro Islamic Freedom Fighters, and the Special Action Force of the Philippine National
Police resulted to the death of sixty-seven Filipinos, forty-four of whom were policemen.1 The
said encounter resulted from the Philippine National Police Operation Exodus, which sought to
neutralize international terrorists, namely, Zhulkifli Bin Hir, Ahmad Akmad Bataboi Usman, and
Amin Baco.2 The tragic outcome of the operations had urged several legislators to call for an
investigation on the incident.3

More than the context surrounding the conflict pertaining to the encounter, the Senate Panel
report also points out the various violations and pertinent domestic laws and international laws
which are significant in the discussion of the Mamasapano incident.4 In the same report, the
Committee on Public Order emphasized that there were administrative violations made on the part
of the Philippine National Police, pertaining to the chain of command and lack of necessary
intelligence. Furthermore, on a statement released by Mr. Iqbal, spokesperson of the Moro Islamic
Liberation Front, during the Senate hearing on the Mamasapano incident, points out that the Moro
Islamic Liberation Front, as an organization, declared that the actions of their members were not
sanctioned by their organization, and hence were committed in their private individual capacities.5
Issues
1. Liability of the MILF and BIFF Commanders, under Philippine and International Law
2. Liability of the Soldiers who executed the wounded, under Philippine and International Law;
3. May the Provincial Fiscal of the place where the encounter took place investigate the case and
file the necessary information?

1
Philippine National Police. Board of Inquiry Mamasapano Report.(March 13, 2015),
http://www.gov.ph/2015/03/13/boi-mamasapano-report-march-2015/
2
Supra
3
S. Rpt. 120, 16th Cong., 2nd Sess. (2015)
4
Supra
5
Interview with Mohagher Iqbal, Chairman of the Peace Negotiating Panel of the MILF, Manila, January 26, 2015.
Discussion
The Committee on Public Order dubs the Mamasapano Incident as an act of terrorism as
defined by R.A. No. 9372, or the “Human Security Act”.6 The Human Security Act qualifies
terrorism as any act listed by the law which are committed and thereby creating a condition of
widespread extraordinary fear and panic among the public, with the goal of coercing the
government towards an unlawful demand.7 Furthermore, the Committee on Public Order pointed
out that the case does not comply with the requisites of “self-defense” as claimed by the
spokesperson of the Moro Islamic Liberation Front, Mr. Iqbal.8The involved members of the Moro
Islamic Liberation Front cannot claim self-defense as the element of unlawful aggression on the
part of the members of the fallen Special Action Force.9
The involved Moro Islamic Liberation Front and the Bangsamoro Islamic Freedom
Fighters members may also be charged with murder qualified by the qualifying circumstances of
“taking advantage of superior strength” and “with aid of armed men” and “employing means to
afford immunity”.10 They may also be charged with frustrated and attempted murder, depending
on the gravity of injuries of the other Special Action Force members. 11The act of taking the
weapons and equipment of the fallen Special Action Force Troopers, members involved are liable
for robbery as defined by the Revised Penal Code. 12
While the same institute may qualify as war crimes, defined by the Rome Statute, the said
case is not within the jurisdiction of the International Criminal Court.13Said acts cannot be
considered as war crimes since the Moro Islamic Liberation Front, as an organization, disowned
the acts of their involved members in the encounter, and hence lack the necessary requisite of being
a part of a large-scale commission of crime.14 Such condition, along with the fact the there was no
referral made by the Philippines to the International Criminal Court, the said incident remains
beyond their jurisdiction and incurring no liability on the part of the parties involved.
Republic Act no. 10071 reserves the right to investigate cases such as a the Mamasapano
Incident to the office of the Provincial Prosecutor.15The Provincial Prosecutor may investigate
charges of crimes that transpired within their respective jurisdictions and thereafter file the
information.16

6
S. Rpt. 120, 16th Cong., 2nd Sess. (2015)
7
Rep. Act No 9372 (2007), sec. 3.
8
See note at 6, supra
9
REV. PEN. CODE , art. 11
10
REV. PEN. CODE , art. 248
11
Ibid.
12
REV. PEN. CODE , art. 293-295
13
See note at 6, supra
14
Rome Statute of the International Criminal Court, December 28, 2000 (November 1, 2011), U.N.T.S.
15
Rep. Act No. 10071 (2009), sec. 9.
16
Supra
Conclusion
Criminal liability had been incurred on the part of the members of the Moro Islamic
Liberation Front and the Bangsamoro Freedom Fighters involved in the Mamasapano incident.
The lack of proof as to whether the said retaliation of the concerned members is mandated by the
organization denies qualification of the said incident as a war crime under the Rome Statute.
Furthermore, administrative liabilities had also been incurred by the Philippine National Police
ranks on their part as well. The provincial prosecutor of the territory concerned is given the
authority by law to investigate the relevant aspects pertinent to the Mamasapano case.