Monday, July 16, 2007

Is Command Responsibility Applicable to CPP-NPA? MILF-ASG? AFP?



Today's editorial cartoon is inspired by something from Cox and Forkum called Half a Dozen of One, Six of the Other

The strangest reaction to the beheadings in Basilan comes from PDI whose editorial position was basically "Hit them with an iron fist and an open mind, but keep your head and let's have peace talks!" What? First the howitzers then the handbag full of money and ancestral domain land grants for all the warlord freedom fighters? And that bit about "keep your head" was hardly funny.

FOUNDING FATHER JOAQUIN BERNAS, S.J., has More About Command Responsibility following last week's column essay. This is likely in preparation for a Supreme Court-led extrajudicial "summit" being held today on the issue of extrajudicial killings (which will probably exclude the issue of extrajudicial beheadings, but let's not lose our heads over that!). Today Fr. Bernas makes a big pitch for the Philippines to apply new "international humanitarian jurisprudence" to the disappearances of Leftist personalities and their alleged detention and/or murder by the Armed Forces of the Philippines --a theme being sounded by many from Academe, the Media and the Left.

Fr. Bernas clearly had the Armed Forces of the Philippines in mind while he was "redacting" the recent decisions of the International Criminal Tribunal for the formerYugoslavia, but the ICTY's work trying war crimes and atrocities there, seems even more applicable to the actions of the CPP-NPA and the MILF-ASG.

Fr. Bernas explains the elements of establishing command responsibility with a clear design or template to be applied on the AFP, but think of the Abu Sayyaf commander and alleged perpetrator of last Tuesday's atrocity, Isnilon Hapilon, the Beheader of Basilan and his pals in the MILF hierarchy as you read Bernas:
First, what must the superior-subordinate relationship be? The superior can be military or civilian. The authority can be de jure or de facto. It was necessary to state this in the ICTY cases because in conflict situations, such as in the former Yugoslavia where formal structures of command had broken down, those who were effectively in command with power to prevent and punish crimes committed by persons under their control but without formal appointment, could be held responsible for failure to do so.

Second, what must the mental state of the superior be? The Trial Chamber in the ICTY cases held that a superior possesses the necessary knowledge to incur liability where: "(1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Article 2 to 5 of the Statute, or (2) where he had in his possession information of a nature, which at least, would put him on notice of the risk of such offenses by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates."

A Commission of Experts explained further that the commander's state of knowledge could take one of the following forms: "(a) actual knowledge, (b) such serious personal dereliction on the part of the commander as to constitute willful and wanton disregard of the possible consequences, or (c) an imputation of constructive knowledge, that is, despite pleas to the contrary, the commander, under facts and circumstances of the particular case, must have known of the offenses charged and acquiesced therein."

The third element requires personal dereliction on the part of the superior. A legal duty rests upon all superiors to take all necessary and reasonable measures to prevent the commission of offenses or to punish perpetrators. But superiors cannot be held responsible for having failed to do the impossible.

All this is now part of customary international law for situations of either international or internal conflict. And since the Philippines, through its Constitution, adopts the generally accepted principles of international law as part of the law of the land, this customary law is now part of domestic law. Thus, in the context of the current continuing internal conflict, can this be the basis for instituting prosecution of superiors whose subordinates may be found responsible for extra-judicial killings and other military abuses?

No one could do a better job than Fr. Bernas of indicting the MILF-ASG for war crimes and breaches of the Geneva Conventions under "international humanitarian law" for its treacherous ambush, beheadings and mutilation of fourteen Marines, to which gruesome end they actually dedicated their command responsibility! No summit is required to see that, surely!

But you know what? Those long-nosed United Nations Rapporteurs like Philip Alston, (for whom SOME people may be grandstanding and hoping to get interesting jobs later on) are not very likely to be interested in those EXTRAJUDICIAL BEHEADINGS of the Abu Sayyaf. They have some other set of killings in mind for some extrajudicial activism of the highest order.

Here now are Chief Justice Reynato Puno and Associate Justice Adolf Azcuna talking to Ricky Carandang about the Supreme Court initiated Summit on Extrajudicial Killings.
...Part One...


...Part Two...


The most substantial thing I heard Puno say is that the High Court will be examining the "standard" to be required of respondents to writs of habeas corpus, explicitly saying that "due diligence" may not be enough and that something like "command responsibility" may be forced on such respondents through a change in the Rules of Court.

Well okay, it's not the first time the High Court has played with fire. All eyes and ears are on them on this one, in their exercise of the Right to Publicity.

I think the most egregious and heinous violations of human rights ought to be punished first, for without a demonstration of the ability and political will to do at least that, all the High Court is doing is .... grandstanding for their newfound pals in Europe and the lofty judicial salons of Geneva . It would be outrageous if the only result of this is Reynato Puno in The Hague sipping wine and sinecure with Hilario Davide.

UPDATES: PDI Editorial finds itself in a Pit of Despair today by tying itself to a false choice between PEACE TALKS and BLOODSHED over the Basilan beheadings last Tuesday. Which is why it has had to use words like, "nuanced but firm" and "striking the balance". There is another way of looking at things that may lead more quickly out of the pit than all this Liberal Angst. So far we have had years of peace talks unending AND bloodshed unending. Perhaps it is more than a coincidence. Peace talks grant legitimacy to the claims of belligerency of the MILF -ASG and the CPP-NPA. But it is as if the Government decided to have peace talks with Organized Crime syndicates, like drug cartels or prostitution and human trafficking rings. Yet, if we were Colombia, we might make peace with the Medellin Cartel but the Cali Gang would surely take over the old caudillos going into liquidation. Perhaps, what we need is a change in paradigm. The MILF-ASG and CPP-NPA are really like organized crime syndicates, except they are after political power and territorial sovereignty. Treating and dealing with them as such, for example in the manner suggested by the Anti-Terrorism Law, might lead to LESS bloodshed and a way out of the Pit. Labeling these groups as 'terrorist', calling a spade a spade, makes their organized activities and methods anathema and illegal, but not the individual goals and beliefs of their members and supporters. I think it is time to refute the claims of these insurgent groups and their hypocritical leaders that they represent the Filipino people, of whatever ethnic or religious grouping. Just having these peace talks indulges these false claims and perpetuates the cycle of violence and bloodshed. The real choice is between peace talks and peace actions (as in keeping the peace and maintaining law and order!)

11 comments:

Manila Bay Watch said...

In military parlance, command responsibility applies to a nation's army.

If you recognize that the MILF and the other parallel armies have a right to be slapped with command responsibility charge, then you have just recognized them as official armies.

So which will it be? They are a legit group of armed combatants or they aren't?

Backbone to crush them is what is needed and not some de facto recognition of legitimacy.

DJB Rizalist said...

mbw,
it seems the jurisprudence on it is not as open and shut as you make it out to be . That was the point of bernas and the Yugoslav experience. Also Geneva Conventions do cover more than national or official armies.

It is having peace talks with them that I think grants them some measure of legitimacy as belligerents

Manila Bay Watch said...

I agree - Geneva Conventions cover more than just national armies; any army recognized by a national government against which its own official army fights falls under the terms of geneva conventions during armed hostilities.

Problem is you gotta have the names or the list of of those armed combatants against which your national army fights in order to apply the geneva convention terms in the aftermath of a gruesome encounter - not enough to have the name of the parallel army chief's name.

Obviously peace talks with these parallel armies render them very legit. That should force these parallel armies to abide by the terms of the geneva convention.

Peace talks with the MILF to me are useless. MILF which is the breakaway faction of the MNLF will have its own breakaway faction the moment they agree to terms of a peace talk - never ending problem. This govt must pummel these scalawags. (The problem is you have a tiny army to deal with all the nation's parallel armies simultaneously - and the HSA is not about to enlarge that army to be effective in running after these parallel armies that commit terrorist acts.)

blackshama said...

This was what I learned as a cadet in ROTC (which the Arroyo administration beheaded for political expediency with the Left).

Soldiers obey lawful commands or commands given by lawful authority. The source of the lawfulness is really the constitution. Thus soldiers have the obligation to UPHOLD the Constitution.

Command responsibility can only be exercised legally in a lawful organization, where the law and ultimately the Constitution prescribes sanctions for violations.

The MILF, CPP-NDF-NPA, Abu Sayyaf are not armies of a sovereign power . Giving them that status (one of Joma Sison's major fantasies for the NPA) may allow them to claim Geneva Convention conditions.

The only legit way is to force them to disarm before negotiations for a political settlement can begin.

If they won't the Republic of the Philippines will have to crush them.

john marzan said...

But you know what? Those long-nosed United Nations Rapporteurs like Philip Alston, (for whom SOME people may be grandstanding and hoping to get interesting jobs later on) are not very likely to be interested in those EXTRAJUDICIAL BEHEADINGS of the Abu Sayyaf. They have some other set of killings in mind for some extrajudicial activism of the highest order.

the fact are that:

a) the abu sayyaf do terroristic acts.
b) some in our military (our protectors) are corrupt, and do heinous partisan acts like murder dissidents and rig elections.

nobody is surprised at a), and ASAIK, everybody condemns what the Abus did. they're terrorist bastards. you don't need to invite alston to figure that out for you.

OTOH, b) has a "man bites dog" element to it (or maybe it's a bit of a throwback to the marcos era)

john marzan said...

I think Arroyo is once again showing weakness against the abu sayyafs and MILF perpetrators.

btw dean, do you think the US should now get more publicly involved in hunting down these bastards?

Alas natin sa baraha ang US military presence, hindi ba?

DJB Rizalist said...

john,
when someone commits an ordinary crime like murder or bank robbery, is it at all relevant to the innocence or guilt of such parties that some military or policemen are also into murder and robbery?

john marzan said...

when someone commits an ordinary crime like murder or bank robbery, is it at all relevant to the innocence or guilt of such parties that some military or policemen are also into murder and robbery?

it's not to me. but i do feel a little more betrayed.

DJB Rizalist said...

john,
don't you think the americans have their hands a lil full right now? shouldn't we be helping out by solving our own lil problems?

john marzan said...

john,
don't you think the americans have their hands a lil full right now? shouldn't we be helping out by solving our own lil problems?


hah. i did not expect that answer from you.

but without the US military assistance and presence, the situation in mindanao would be much much worse than it is right now.

as for arroyo, i don't think she's capable of dealing with the REAL threats to our country.

DJB Rizalist said...

john,
The problem with the anti american filipinos is that they implicitly rely on America for defense when the chips are down. Because even then, she can be attacked for imperialism by them. gma is just like them though. (the anti americans I mean!)