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FEATURES/MeloCommissionReport-5/Jan. 22, 2007
INDEPENDENT COMMISSION Created under Administrative Order No. 157 (s. 2006) R E P O R T x x x IV. FINDINGS From the evidence and presentations received by the Commission, it became apparent early on that the Commission must differentiate its inquiry into the killings of activists from those of media personnel and agrarian reform movement. It appeared that the killings of media personnel are more or less attributable to reprisals for the victims' exposés or other media practices. In the media killings, local politicians, warlords, or big business interests are viewed as the parties responsible for the killings, while in agrarian reform related killings, it is suspected that landowners and those opposed to the implementation of land reform are behind the killings. On the other hand, the killings of activists were invariably laid at the doorstep of the military. The investigation of killings of media personnel by the PNP was notably more successful than that that of activist killings. For the media killings, formal complaints have been filed in a great majority of cases. Suspects in the media killings have been named and identified. In activist killings, there have been a measly number of complaints filed with the authorities. In all, the killings of media personnel have been, more or less, solved, compared to the activist killings and agrarian reform related killings. On the other hand, it is not clear if the agrarian reform-related killings have the same etiology as the activist killings. Thus, the Commission hereby sees fit to submit its findings on activist killings independently of that of the media killings and agrarian reform-related killings. MEDIA KILLINGS It appears that the killing of media personnel has been characterized by the lack of a central or homogenous theory for the motives therefor. Most of the killings have been plausibly attributed to either personal vengeance, local politics, or commercial concerns. While the media killings are by no means less abhorrent than the activist killings, the fact is that no central theory accusing agents of the government of the systematic assassination of media personnel has been forwarded, not to mention substantiated. Likewise, the progress or performance of the PNP insofar as the media killings are concerned is much better than that pertaining to activist killings. Task Force Usig has forwarded for prosecution 21 out of the 26 cases of slain media men. Nonetheless, the increase in the number of slain media men should not go unheeded. The fact is that certain persons or groups have been so bold as to assault and kill media personnel for their own selfish interests. This cannot be condoned. The PNP as well as the prosecution arm of the government should make sure that the perpetrators of these crimes are brought swiftly to justice. AGRARIAN REFORM-RELATED KILLINGS With the exception of Hernando Baria, the killing of farmers-activists appeared to have followed the same pattern as other activists. In the case of the Vigo spouses, their killing could have been motivated by political reasons or by reason of their perceived ties with the NPA. In the case of Enrico Cabanit, it appears that he was killed for his activities as a peasant farmer leader, and not for affiliation with politicians or with the NPA. In any case, their deaths are equally deplorable and cannot be countenanced. Most of the cases of agrarian-related killings have pending investigations or legal action before the proper authorities. Hence, the result of such investigations should shed more light on the persons or interests behind the killings. In this regard, the prosecution and law enforcement authorities concerned should expedite the investigation and prosecution of these crimes. Particular attention should be placed on the investigations being undertaken by the police in the various cases, specifically that of Cabanit, it appearing that the police seemed to have failed to earnestly and properly investigate the same. ACTIVIST KILLINGS From the evidence gathered, and after an extensive study of the same, the Commission comes to the conclusion that there is no direct evidence, but only circumstantial evidence, linking some elements in the military to the killings. THERE IS NO OFFICIAL OR SANCTIONED POLICY ON THE PART OF THE MILITARY OR ITS CIVILIAN SUPERIORS TO RESORT TO WHAT OTHER COUNTRIES EUPHEMISTICALLY CALL “ALTERNATIVE PROCEDURES” -- MEANING ILLEGAL LIQUIDATIONS. However, there is certainly evidence pointing the finger of suspicion at some elements and personalities in the armed forces, in particular General Palparan, as responsible for an undetermined number of killings, by allowing, tolerating, and even encouraging the killings. A. THERE IS SOME CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE PROPOSITION THAT SOME ELEMENTS WITHIN OR CONNECTED TO THE MILITARY ARE RESPONSIBLE FOR THE KILLINGS: No witness came forward to testify that he or she witnessed the military or any military personnel actually participate in any extrajudicial killing. Neither are there in almost all the cases any eyewitnesses to the killings who could actually identify the perpetrators, much more identify them as members of the military. Quite deplorable is the refusal of the activist groups such as Karapatan, Bayan Muna, etc., to present their evidence before the commission. If these activist groups were indeed legitimate and not merely NPA fronts, as they have been scornfully tagged, it would have been to their best interest to display the evidence upon which they rely for their conclusion that the military is behind the killings. In fact, this refusal irresistibly lends itself to the interpretation that they do not have the necessary evidence to prove their allegations against the military. It would not even be unreasonable to say that their recalcitrance only benefits the military's position that they are indeed mere fronts for the CPP-NPA and thus, enemies of the state. Nevertheless, despite the refusal of the activist groups to cooperate, and regardless of the question of their legitimacy, certain facts, taken together with admissions and statements by the witnesses, lead the Commission to conclude that there is some circumstantial evidence that a certain group in the military, certainly not the whole military organization, is responsible for the killings. To maintain otherwise would be closing one's eyes to reality. 1. Motive At once, it becomes clear that perhaps a small group in the armed forces may be said to have the motives for the elimination of the civilian activists. In a great majority of the cases of activist killings, the only explanation for the victims' deaths is the fact that they were allegedly rebels, or connected with the CPP/NPA. Apart from a negligible few solved cases, the PNP has not uncovered any other explanation for their killing. As admitted by Gen. Esperon and Gen. Palparan themselves, the armed forces considers the so-called left wing and some party list organizations, and their members, “enemies of the state,” who should be “neutralized.” They qualify their statement by stating that the word “neutralize” does not necessarily mean killing, but should be taken in the context of their holistic approach to the war on communism – that is, to include socio-civic and other works designed to bring communist rebels back to the fold of the law and thus “neutralize” their threat. Nonetheless, the fact that certain elements in the military would take the more direct approach to “neutralizing” the enemy cannot be discounted. Gen. Palparan, for one, stated that he cannot categorically deny the possibility that some of his men may have been behind some of the killings No plausible explanation has been given for the rise in extrajudicial killings, except that the killings were perpetrated by the CPP-NPA pursuant to a purge of its ranks. It is argued that documents have been “captured” detailing this plan of the CPP/NPA, and that there are witnesses to testify to this fact. The documents and witnesses, however, despite request by the Commission, were not presented. While the PNP stated that some of the victims may have been targeted by the CPP/NPA for alleged “financial opportunism,” no clear basis or evidence was presented in that regard. In fact, none of the victims was positively identified as a financial officer of the CPP/NPA. In any case, the overwhelming majority of the victims were mere students, peasants or laborers, and thus, were highly unlikely to have committed any financial opportunism. Then too, it is surprising if there indeed is an on-going purge among the ranks of the CPP-NPA, why the military has done nothing to promote or encourage such rift. Verily, if your enemies begin to fight among themselves, the result could only be to your benefit. Moreover, it would be contradictory for the military to consider the “purge” theory while at the same time claim that the victims were enemies of the State. If the CPP-NPA, the avowed enemy of the State, were indeed minded to purge the victims from its ranks, then it would have been in the interest of the military to bring the victims, being possible defectors or informants, to the government's fold. Enigmatically, the military has continued to classify the victims as “enemies of the state.” This throws the whole “purge” theory out of line and makes it somewhat improbable. More telling, however, is the fact that Gen. Palparan himself does not believe in this “purge” theory, declaring that he had no reason to believe that the killings were perpetrated by the CPP/NPA. The foregoing leads only to the conclusion that the “purge” theory cannot be accorded credence. The NPA purge theory being discredited, the only other theory left is that certain elements within or connected to some military officers are responsible for the killings. The victims, according to Gen. Palparan and others, were enemies of the State; hence, their neutralization. 2. Capacity and Opportunity The suspected group in the military has no doubt the capacity or the means to carry out the killings. In fact, the killings appear to be well organized and the killers adequately equipped. More telling, however, is the fact that, with the CPP-NPA out of the question, only a group with certain military capabilities can succeed in carrying out an orchestrated plan of eliminating its admitted enemies. Too, this group admittedly has all the opportunity to carry out the said killings. Its members roam the countryside free from restrictions, pursuant to their “all-out war” on communism. Their presence in the areas where the killings occurred is undeniable. If there were killing squads or assassins from the NPA roaming in any particular area ready to strike against its former cadres, the military, no doubt, would be one of the first to know. 3. Reaction Likewise, the reaction of some officers of the armed forces to the rising number of killings lends itself to the inference that they were not much averse to what was happening. Practically nothing was done to prevent or investigate the killings, not even to look into the worsening public opinion and accusations against Gen. Palparan. 4. General Palparan The rise in killings somehow became more pronounced in areas where Gen. Palparan was assigned. The trend was so unusual that Gen. Palparan was said to have left a trail of blood or bodies in his wake wherever he was assigned. He “earned” the moniker “Berdugo” from activist and media groups for his reputation. Gen. Palparan ascribes his grisly reputation to his enemies, as part of their propaganda campaign to discredit him and to denigrate his excellent performance in implementing the various missions and programs assigned to him by his superiors. Gen. Palparan, clearly the man in the center of the maelstrom, admits to having uttered statements openly encouraging persons to perform extrajudicial killings against those suspected of being communists, albeit unarmed civilians. Worse, he was reported to have “expressed delight” at the disappearance of at least two persons, mere students, but who were suspected of being communist or activists.Among these inculpatory items are the following: *Gen. Palparan stated that certain Organizations and Party List Representatives act as support systems providing materials and shelter for the CPP-NPA. *Interviewed by Pia Hontiveros and Tony Velasquez on the TV Program “Top Story,” Gen. Palparan, when asked why he considered organizations like Bayan Muna as fronts for the NPA, responded, saying “… a lot of the members are actually involved in atrocities and crimes…” When asked what evidence he had to support this allegation, he said that he had no evidence, but that “he could feel it.” *Referring to certain activist organizations, Gen. Palparan mentioned: “Even though they are in Government as Party List Representatives, no matter what appearance they take, they are still Enemies of the State.” (May 16, 2006, Philippine Daily Inquirer) “The Party List Members of Congress are doing things to further the revolution, the communist movement… I wish they were not there…” (Interview with Pia Hontiveros and Tony Velasquez -- Top Story) “It is my belief that these members of party list in Congress are providing the day-to-day policies of the rebel movement” (February 3, 2006, French Press Agency) “… in the course of our operation, there were some reports that that BAYAN MUNA headquarters at the time in Mindoro was used as a hideout of the armed group. And as I said, a recruitment agency because they recruit young people there as members of some organizations then eventually go up in the mountain. And then, there were those who surrendered to us confirming this…” * In connection with the repeal of the anti-subversion law, he stated: “I want communism totally erased.” (May 21, 2006, Philippine Star) “…to wage the ongoing counterinsurgency…— by 'neutralizing' not just armed rebels but also a web of alleged front organizations that include leftist political parties, human-rights and women's organizations, even lawyers and members of the clergy.” (“Wagging the Buffalo”- September 25, 2006, Newsweek) “I Encouraged Civilians to Fight Back ” (August 22, 2006, issue of Manila Standard Today) * Other statements: “My order to my soldiers is that, if they are certain that there are armed rebels in the house or yard, shoot them. It will just be too bad if civilians are killed in the process. We are sorry if you are killed in the crossfire.” “There would be some collateral damage, but it will be short and tolerable. The enemy would blow it up as a massive violation of human rights. But to me, it would just be necessary incidents.” “Sorry na lang kung may madamay na civilian.”; “The death of civilians and local officials were ‘small sacrifices' brought about by the military's anti-insurgency campaign.” (Philippine Daily Inquirer, September 12, 2006) “[T]hey cannot be stopped completely… the killings, I would say are necessary incidents in a conflict because they (referring to the rebels) are violent. It's not necessary that the military alone should be blamed. We are armed, of course, and trained to confront and control violence. But other people whose lives are affected in these areas are also participating…” “The killings are being attributed to me but I did not kill them, I just inspired the triggermen.” On being asked if his soldiers are responsible for the killings: “… perhaps maybe, if there are, and if they do that, that's their own responsibility, it's not mine…” “… some soldiers are emotional when their comrades are hurt or killed. There could be soldiers who decide to take the law into their own hands. But that's illegal. ” “I cannot categorically deny that (referring to the military having special units not properly identified in bonnets and masks operating in the middle of the night.)” “I am responsible (referring to extra-judicial killings), relatively perhaps,” Gen. Palparan said that his actions could have encouraged people to take the law into their own hands. He, however, qualified this by saying it was not really intentional on his part. “… So if I have, within my capacity to prevent it, I would prevent the same. But in the course of our campaign, I could have encouraged people to do that. So maaaring may responsibility ako doon, on that aspect. But how could I prevent that, we are engaged in this conflict. All my actuations really are designed to defeat the enemy. And in doing so, others might have been encouraged to take actions on their own.” “Whoever did this … could have been encouraged by my actions and actuations in the course of my campaign, whoever they are. That is why I said, relatively. If there are some soldiers, maybe then, I could have been remiss in that aspect. But we are doing our best to keep our soldiers within our mandate.” Gen. Palparan's numerous public statements caught on film or relayed through print media give the overall impression that he is not a bit disturbed by the extrajudicial killings of civilian activists, whom he considers enemies of the state. He admits having uttered statements that may have encouraged the said killings. He also obviously condones these killings, by failing to properly investigate the possibility that his men may have been behind them. Gen. Palparan's statements and cavalier attitude towards the killings inevitably reveals that he has no qualms about the killing of those whom he considers his enemies, whether by his order or done by his men independently. He mentions that if his men kill civilians suspected of NPA connections, “it is their call,” obviously meaning that it is up to them to do so. This gives the impression that he may not order the killings, but neither will he order his men to desist from doing so. Under the doctrine of command responsibility, Gen. Palparan admitted his guilt of the said crimes when he made this statement. Worse, he admittedly offers encouragement and “inspiration” to those who may have been responsible for the killings. He also admits to having helped in the creation of so-called “barangay defense forces,” which may or may not be armed, to prevent the entry of CPP/NPA in such barangays. Such defense forces are equivalent to an unofficial civilian militia. It is well-known that such militia can easily degenerate into a mindless armed mob, where the majority simply lord it over the minority. This is a fertile situation for extrajudicial killings. In this way, Gen. Palparan contributed to the extrajudicial killings by creating ideal situations for their commission and by indirectly encouraging them. Then too, during a hearing before the Committee on National Defense and Security of the House of Representatives held on May 25, 2005, Gen. Palparan was asked the following questions by the Chairman of the Committee, Congressman Roilo Golez: “The Chairman: Thank you, Your Honor. May we have your comment on the accusation that you have special teams not properly identified in bonnets or masks operating in the middle of the night?” “Mr. Palparan: Your Honor, I cannot categorically deny that and also admit that, but our operations…” “The Chairman: You do have teams that operate that way?” “Mr. Palparan: I don't have official policy on that matter.” The lack of a categorical denial on the part of Gen. Palparan in respect of whether the units under his command “have special teams not properly identified [and] in bonnets or masks operating in the middle of the night” is, as a matter of law, an admission of the existence of such special teams. Obviously, such special teams operating in the middle of the night wearing masks or in bonnets have only one sinister and devious purpose or objective: the extrajudicial elimination of the enemies of whoever formed these teams. Moreover, it is not disputed that the number of killings rose in the areas where Gen. Palparan was assigned. Gen. Palparan explained that this was due to increased number of operations against the NPA, thus resulting in more encounters and deaths. However, the figures for the increase in number of civilian activists killed outside of encounters was not explained. In any case, all other authorities admit that there was indeed a rise in the killings of unarmed activists and media personnel. However, due to the lack of cooperation from the activist groups, not enough evidence was presented before the Commission to allow it to pinpoint and eventually to recommend prosecution of the persons ultimately responsible for the killings. There is no definite or identifiable person, entity or interest behind the killings. There is likewise no definitive account of the actual number of activist killings. Even Karapatan and Amnesty International have wildly differing figures. The circumstantial evidence presented before the Commission and the inferences it draws therefrom are probably grossly inadequate to support a criminal conviction, considering the requirement that conviction before a court requires proof beyond reasonable doubt. However, the Commission is not a court of law bridled with the strict rules on admissibility and weight of evidence. Thus, it can proceed with a certain degree of certitude in stating that, in all probability, some elements in the military, among whom is suspected to be Gen. Palparan, are responsible for the recent killings of activists. In any case, further in-depth investigation into the numerous killings, including extensive evidence gathering, is necessary for the successful prosecution of those directly responsible. In this, the testimony of witnesses and the presentation of evidence from the victims and their families and colleagues would be indispensable. B. GEN. PALPARAN AND PERHAPS SOME OF HIS SUPERIOR OFFICERS, MAY BE HELD RESPONSIBLE FOR FAILING TO PREVENT, PUNISH OR CONDEMN THE KILLINGS UNDER THE PRINCIPLE OF COMMAND RESPONSIBILITY. It being well-nigh obvious that some elements in the military were behind the killings of activists, it becomes equally plain that some ranking officers in the Army (for the Navy, Air Force and Coast Guard are not herein involved), have not performed their function of investigating or preventing the said killings, as well as punishing their perpetrators. Under the doctrine of command responsibility, one may be held responsible for the killings if he authorized, encouraged, ignored or tolerated the killings. This failure to act may perhaps be attributed to the misconception of some that command responsibility extends only to acts which a commander orders or authorizes, and not to criminal acts of his subordinates done on their own, although he had knowledge or, had reason to know of, or should have known about the same. Failure to investigate and to punish is just as inculpatory. 1. Command Responsibility defined Contrary to the apparently inaccurate notion of command responsibility entertained by some officers in the AFP, command responsibility in the modern international law sense is also an omission mode of individual criminal liability wherein the superior officer is responsible for crimes committed by his subordinates for failing to prevent or punish them (as opposed to crimes he ordered). The doctrine of “command responsibility” is not unfamiliar, being a guiding principle in military organizations. The doctrine was formalized by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the Trial of Emil Muller. Muller was sentenced by the Court for failing to prevent the commission of crimes and to punish the perpetrators thereof. The 1946 Yamashita case is a decision of the US Supreme Court which was appealed from the Philippine Supreme Court, when the Philippines was still a colony of the United States. The US Supreme Court convicted Yamashita as the superior of the Japanese forces which committed unspeakable atrocities throughout the Philippines, acts of violence, cruelty, and murder upon the civilian population and prisoners of war, particularly a large-scale massacre of civilians in Batangas, as well as wholesale pillage and wanton destruction of religious monuments in the country. The US Supreme Court determined that Yamashita possessed the duty as an army commander to control the operations of his troops, and was criminally liable for permitting them to commit such despicable acts. Various laws of warfare were cited as basis of such superior responsibility: Articles 1 and 43 of the Regulations annexed to the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention of 1907, and Article 26 of the 1926 Geneva Convention on the wounded and sick. The Court concluded that Yamashita possessed: …an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals. In the Medina case, concerning the infamous My Lai Massacre in Vietnam, it was held by an American Court Martial that a commander will be liable for crimes of his subordinates when he orders a crime committed or knows that a crime is about to be committed, has power to prevent it, and fails to exercise that power. After the Hague Convention, the first international treaty to comprehensively codify the doctrine of command responsibility is the Additional Protocol I (AP I) of 1977 to the Geneva Conventions of 1949, Article 86(2) of which states that: … the fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility…if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach. Article 87 obliges a commander to “prevent and, where necessary, to suppress and report to competent authorities" any violation of the Conventions and of AP I. In Article 86(2) for the first time a provision would “explicitly address the knowledge factor of command responsibility.” While the Philippines signed and ratified the Geneva Convention of 1949, it has only signed and has not ratified AP I. The establishment of the International Criminal Tribunal for Yugoslavia (ICTY) by the United Nations Security Council has led to further international jurisprudence on the doctrine of command responsibility. Article 7(3) of the ICTY Statute states that the fact that the crimes ‘were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.' In Prosecutor v. Delalic et al (“the Celebici case”), the ICTY elaborated a threefold requirement for the existence of command responsibility, which has been confirmed by subsequent jurisprudence: • the existence of a superior-subordinate relationship; • that the superior knew or had reason to know that the criminal act was about to be or had been committed; and • that the superior failed to take the reasonable measures to prevent the criminal act or to punish the perpetrator thereof. The applicable standards of knowledge defined in the second requirement can further be classified as: (a) “Actual knowledge” – which may be established by either direct or indirect evidence; and (b) “Had reason to know” wherein absence of knowledge is not a defense where the accused did not take reasonable steps to acquire such knowledge. Notably, in the case of Prosecutor v Timohir Blaskic, (“the Blaskic case”), it was held that ignorance is not a defense where the absence of knowledge is the result of negligence in the discharge of duties. The latest expression of the doctrine of command responsibility in international law is in Article 28 of the Rome Statute of the ICC which states: In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. Article 28(a) imposes individual responsibility on military commanders for crimes committed by forces under their effective command and control if they ‘either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.' Interpreted literally, Article 28(a) adopts the stricter “should have known” standard. Notably, the Trial Chamber in Celebici strongly suggested that the language of Article 28(a) may reasonably be interpreted to impose an affirmative duty to remain informed of the activities of subordinates. However, given the example afforded by the ICTY's conflicting interpretations of the knowledge requirement in Article 86(2) of AP I, it cannot be assumed that a literal interpretation of Article 28(a) will be adopted by the ICC. In fact, the meaning of the phrase ‘owing to the circumstances at the time, should have known' in Article 28(a) has already become a point of contention within international law literature. AP I and the Rome Statute, however, have not been ratified by the Philippines, but clearly the international trend is towards their application. From the long line of international conventions and cases, it can be seen that the doctrine of command responsibility has evolved from its simplistic meaning at the time of the Hague Convention towards the much more stringent concept under the Rome Statute. Hence, in the Yamashita case, a commander had the duty to take appropriate steps or measures to prevent abuses on prisoners and civilians by his subordinates. In AP I, a superior is responsible if he fails to take feasible measures to prevent or report violations if he had knowledge or information of the same. In the Medina standard, the same responsibility extends to violations or abuses by subordinates which a commander “should have knowledge” of, meaning that the commander is now responsible for criminal acts of his subordinates of which he had actual or constructive knowledge. In the ICTY Statute and in the cases of Delalic and Blaskic, the commander is liable if he fails to act when he “had reason to know” that offenses would be or have been committed by his subordinates. The Rome Statute adopts the stricter “should have known” standard, in which the commander has an affirmative duty to keep himself informed of the activities of subordinates. Clearly, the indubitable trend in international law is to place greater and heavier responsibility on those who are in positions of command or control over military and police personnel, the only forces with the most lethal weapons at their disposal. 2. Command Responsibility as Binding Customary International Law As early as 1949, the Philippine Supreme Court had the occasion to rule that the Hague Convention, including the doctrine of command responsibility, was adopted as a generally accepted principle of international law by the Philippines. In this case, shortly after the end of World War II, Shigenori Kuroda, a Lieutenant General in the Japanese Imperial Army, questioned before the Supreme Court the creation of a military tribunal that tried him for his “command responsibility” in failing to prevent his troops from committing abuses and atrocities against the Filipino populace during World War II. He claimed that the Hague Convention on Rules and Regulations covering Land Warfare, of which he was accused of violating, among others, was inapplicable since the Philippines was not yet a signatory or party to it when the alleged violations took place. In ruling against Kuroda's objection, the Supreme Court of the Philippines categorically stated that while the Philippines was indeed not a party or signatory to the Hague Convention at the times in question, it nonetheless embodied generally accepted principles of international law adopted by the 1935 Constitution as part of the law of the land. The Supreme Court, through Chief Justice Moran, stated: It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. Even without Kuroda, the doctrine of command responsibility has truly acquired the status of customary international law, and is thus binding on all nations despite the lack of any ratified treaty embodying it, at least insofar as the Philippines is concerned. Its long and universally accepted application since WWI until the present allows this. In fact, based on the jurisprudence of the ad hoc international tribunals, and of other international tribunals and national courts, as well as on state practice, no less than the International Committee on the Red Cross (“ICRC”), has pronounced the following as a rule of customary international humanitarian law, in both international and non-international armed conflicts, binding on all States: Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible. More interestingly, the Philippines, even if not a party to Additional Protocol I to the 1949 Geneva Conventions, is among the states cited by the ICRC whose military manuals, military instructions, and legislation specify the responsibility of commanders for the crimes of their subordinates, confirming that the above rule has crystallized into a norm of customary international humanitarian law. In truth, the Philippine Armed Forces' own Articles of War recognizes a commander's responsibility for the actions of his subordinates under the general provision that a commander must maintain discipline within his ranks. Thus, Article 97 of the Articles of War states: General Article. Though not mentioned in articles, all disorders and neglects to the prejudice of good order and discipline and all conduct of a nature to bring discredit upon the military services shall be taken cognizance of by a general or special or summary court martial according to the nature and degree of the offense, and punished at the discretion of such court. Likewise, the utterance of statements which tend to induce subordinates to misbehave, such as words that would inspire subordinates to commit extrajudicial killings, is categorically punished in times of war under Article 76 of the Articles of War. Furthermore, Article 105 of the Articles of War recognizes the duty of commanding officer to punish men under his command for “minor offenses” and imposes a penalty for his failure to mete out the appropriate penalty when there is enough evidence to warrant such disciplinary measure. Hence, it is clear that the doctrine of command responsibility in general has been adopted by the Philippines, as a generally accepted principle of international law, and hence, as part of the law of the land. The doctrine's refinements and restatements – AP I and the Rome Statute, while signed by but as of yet lacking ratification by the Philippines, may be considered similarly applicable and binding. This was probably put best by Justice Perfecto in his separate opinion in Yamashita v. Styer, where he stated: The treaties entered into between members of the family of nations are but specific definitions and reinforcements of the general common law of nations, the "unwritten" rules of warfare, which for centuries have limited the method and manner of conducting wars. The common law of nations, by which all states are and must be bound, dictates that warfare shall be carried on only in accordance with basic considerations of humanity and chivalry. 3. International and State Responsibility While the killings are certainly not attributable to the military organization itself, or the State, but only to individuals or groups acting pursuant to their own interests, this does not mean that the State can sit idly by and refuse to act. Ultimately, the State has the responsibility of protecting its citizens and making sure that their fundamental liberties are respected. The growing worldwide consensus for state responsibility for non-state acts posits that if the State fails to investigate, prosecute or redress private, non-state acts in violation of fundamental liberties, it is in effect aiding the perpetrators of such violations, for which it could be held responsible under international law. Of note is the ruling of The Inter American Court of Human Rights in Velasquez-Rodrigues v. Honduras, viz: 172. […] An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention. 173. […] What is decisive is whether a violation of the rights recognized by the Convention has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible. Thus, the Court's task is to determine whether the violation is the result of a State's failure to fulfill its duty to respect and guarantee those rights, as required by Article 1 (1) of the Convention. 174. The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation. 175. This duty to prevent includes all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages […] 177. In certain circumstances, it may be difficult to investigate acts that violate an individual's rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serous manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane. The Inter-American Court of Human Rights eventually found Honduras, as a state, liable for the prolonged detention and disappearance of a detainee, thereby entitling the victim's family to damages. The same offenses may also give rise to liability for the commanders for damages under the municipal law of other States. In another case relevant to the Philippine setting, Maximo Hilao v. Estate of Ferdinand Marcos decided by the Ninth Circuit of U.S. Court of Appeals, victims and families of victims of human rights violations during the administration of President Ferdinand Marcos filed a class suit against the estate of the late President seeking damages for human rights abuses committed against them or their decedents. The principal defense of the Marcos Estate was that the Estate would only be held liable for “acts actually committed by Ferdinand Marcos.” The U.S. Circuit Court of Appeals rejected this defense under the doctrine of command responsibility, holding that “[A] higher official need not have personally performed or ordered the abuses in order to be held liable” and that “[R]esponsibility for torture, summary execution, or disappearances extends beyond the person who actually committed those acts – anyone with higher authority who authorized, tolerated or knowingly ignored those acts is liable for them.” This shows that responsibility for acts committed in violation of customary international law may be recognized outside the state where they were committed by the international community. 4. Responsibility for killings is limited to individual officers and requires further proof of a wrongful act or omission. While State responsibility is possible for private acts, there is no basis to hold liable the entire military leadership, or even the entire leadership of one of its branches, under the doctrine of command responsibility. The findings herein do not justify a ruling that each and every high-ranking officer in the military, or the institution itself, should be held liable for the killings. In any case, command responsibility should always be coupled with a culpable act or omission. Hence, if it is shown that the officer concerned took the appropriate steps to address the violations of his subordinates, then he cannot be held liable for them under the doctrine of command responsibility. In all, command responsibility simply requires a measure of diligence and integrity on the part of the commander. He cannot simply let his men run amuck without his control or discipline in the same way that he cannot turn a blind eye to atrocities committed by them. If diligence in the performance of duty is shown, then the commander cannot be held responsible. No evidence was presented to the Commission that, in regard to the activities of Gen. Palparan, he was called upon to account for and to explain the same by his superiors. Indeed, Gen. Palparan's public statements alone could have provoked disciplinary action against him, not to mention court martial, for violation of the Articles of War. These offenses are serious and cannot simply be brushed aside. It was, thus, more compelling for the proper officers in the AFP leadership at least to investigate the utterances and behavior of Gen. Palparan and the killings behind them. In the same vein, under the doctrine of command responsibility, it was not proper to contend that no action under the circumstances was taken because no complaint had been lodged against Gen. Palparan and/or that anyway, Task Force Usig could very well have called him to account for his actions and words. Fortunately, the President was, as usual, on top of the situation. She promptly recognized the need for official state action to address what she felt was a disturbing rise in the number of killings of media men and activists. She recognized that she had the duty to address the situation appropriately. She created Task Force Usig to prioritize the investigation of the killings. While Task Force Usig was plagued with difficulties, this at least showed that the government was seriously going to do its duty to address these killings. In the same vein, the President's creation of this independent Commission is testimony to her commitment to unearth the etiology of these killings and hopefully to prevent further killings, as well as to bring the perpetrators thereof to justice. Sadly, her gesture has been largely misinterpreted by her political opponents as a “whitewash,” which, as this report itself will show, is not the case. (Back to: Melo Commission Report-1 -- Introduction) * * * (POSTSCRIPT comes out in the Philippine STAR every Tuesday, Thursday and Sunday. Its online edition is uploaded the night before at http://www.manilamail.com)
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