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!)