36 Righting Wrongs: Criminal Law Provisions in the Philippines related to National Security and their Impact on Human Rights Defenders The UN Special Rapporteur on human rights and counter-terrorism considered that it is only when these three conditions exist that an act may be criminalized as a terrorist act.241 The HSA defines terrorism by linking to acts that are punishable under the RPC and other domestic laws, including acts under Article 134 on rebellion and insurrection, which, as has been highlighted earlier, violate the principle of legality in criminal law, given the vagueness and broadness of the definitions of these crimes. This concern was also highlighted by the UN Special Rapporteur on human rights and counter-terrorism in his communication to the Government of the Philippines in 2007. He expressed concern regarding the definition of “terrorism” under the HSA, explaining that the principle of legality in criminal law “implies that the requirement of criminal liability is limited to clear and precise provisions in the law”, to ensure that the law shall not be subjected to arbitrary interpretation and thereby broaden the scope of proscribed conduct.242 Crimes that are defined so ambiguously that they may cover a wide range of acts of different gravities and are punished with disproportionate penalties, violate the rule of proportionality enshrined by Article 15 of the ICCPR.243 The HSA’s vague definition of terrorism is incompatible with international law, as it prevents individuals from knowing whether their actions constitute terrorists acts under the law and this does not conform to the principle of legality and infringes upon Article 15 of the ICCPR. Furthermore, as noted by the UN Special Rapporteur, the definition of what constitutes terrorism under the HSA is overbroad as it is not consistent with the first of the three cumulative conditions he set out, which is the condition that the crime committed is with “deadly” or “serious violence” against members of the general population or segments of it, given that the crimes it refers to do not all necessarily involve serious or deadly violence or hostage taking.244 For instance, the elements of Article 134 (on rebellion) do not require that such public uprising or taking arms against the government is “deadly” or causes “serious violence” against members of the general population or segments of it. Moreover, the definition of terrorism under the HSA does not meet the third cumulative condition specified by the UN Special Rapporteur in that it does not require that the criminal act be carried out with the aim of “furthering an underlying political or ideological aim”. The TFPSA, meanwhile, in defining what constitutes “terrorist acts”, incorporates the vague and overbroad definition of the HSA. In addition, the TFPSA definition is linked to treaties that have been ratified by the Philippines that do not fulfill the three cumulative criteria set out by the UN Special Rapporteur on human rights and counterterrorism. For instance, the TFPSA defines as “terrorist acts” those acts under the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf,245 a treaty which describes offences that are committed on fixed platforms and determines which State Party may establish jurisdiction over these offences. Not all the acts described in this Protocol satisfy the three cumulative conditions set out by the UN Special Rapporteur. First, the acts prohibited in this Protocol may be executed without using means that are deadly or constitutes serious violence. Second, the acts 241 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/6/17/Add.1 (2007), para. 67. 242 Ibid. at para. 66. 243 UN Special Rapporteur on the independence of judges and lawyers, Report on the mission to Peru, UN Doc. E/CN.4/1998/39/Add.1 (1998), para. 129; Human Rights Committee, Comments on Egypt, UN Doc. CCPR/C/79/Add.23 (1993), para. 8. The UN Special Rapporteur on counter-terrorism and human rights defenders also expressed concern that the punishment of 40 years imprisonment without parole under the HSA, applicable to all crimes within section 3 in an undiffentiated manner could result in disproportionate punishment in some cases and limited judicial discretion to take into consideration a defendant’s acts and circumstances. Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/6/17/Add.1 (2007) at para. 70. 244 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Communication with Governments, UN Doc. A/HRC/6/17/Add.1 (2007) at para. 69. 245 Section 3(3)(h) of the TFPSA.