Responsibility of Macapagal-Arroyo

Thus in the Philippines, at least three legal luminaries believe that President Arroyo cannot insulate herself from responsibility over the extra-judicial killings and abductions. One of them, Judge Silvino Pampilo, Jr., of Manila RTC Branch 26 said late June that as commander in chief of the AFP, Mrs. Arroyo was also covered by the principle of command responsibility. He clarified though that she would be liable “only after she steps down from office.”

“Responsibility for summary executions or disappearances extends beyond the person or persons who actually committed these acts,” Pampilo, Jr. said. “Anyone with higher authority who authorized, tolerated or ignored these acts is liable for them.”

The judge, who will preside over one of the special tribunals authorized by Chief Justice Puno to handle extrajudicial killings, also said the tribunals may use the doctrine to hold military commanders and police officers criminally liable for their subordinates’ actions.

He cited Section 1 of EO 226 (Feb. 17, 1995), which states: “Any (AFP) officer shall be held accountable for neglect of duty under the doctrine of command responsibility, if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during or immediately after its commission.” In the absence of any law under which the commander may be held criminally liable, the command responsibility doctrine may be used, he added.

Raul Pangalangan, former dean of the University of the Philippines’ College of Law, agrees: “The President may be held to account, whether as head of state under state responsibility, or as commander in chief under individual criminal responsibility.” In his Inquirer column (“Passion for Reason,” June 29, 2007), he wrote that the 1998 Rome Statute’s codification of command responsibility is an authoritative statement of “customary international law” which, under the Philippine Constitution’s “incorporation clause” is deemed “part of the law of the land.”

ICC Treaty

Even if Mrs. Arroyo has refused to ask the Senate to ratify the ICC Treaty, under which heads of state, military commanders and other
perpetrators of war crimes and crimes against humanity can be prosecuted, the government is under obligation to uphold it anyway since it is a signatory to the 1969 Vienna Convention on the Law of Treaties. Under this Convention, signatory states are under obligation of “good faith” to abide by any treaty’s “object and purpose.” International law, Pangalangan believes, has junked the doctrine of head-of-state immunities for humanitarian law violations, citing the Rome Statute’s declaration that “official capacity as a Head of State…shall in no case exempt a person from criminal responsibility under this Statute.”

Prof. Harry Roque, director of the UP Institute of International Legal Studies, also agrees that the command responsibility doctrine and the UN’s Universal Declaration of Human Rights are sufficient to hold commanding officers as well as civilian leaders accountable.
Those contemplating to hold Arroyo liable for the atrocities can refer to a precedent case in the class suit filed against Ferdinand Marcos by 10,000 torture victims in Honolulu where the former dictator lived in exile following his ouster in 1986. Marcos was found guilty in 1992 by a federal jury in the trial presided by U.S. District Judge Manuel Real of Los Angeles for wholesale abductions, tortures, summary executions and “disappearances” that occurred during his martial law regime.

The liability of President Macapagal-Arroyo for the extra-judicial killings, forced abductions and other crimes perpetrated since she assumed office in 2001 stems from allegations that such cases were committed as part of her government’s counter-insurgency campaign that falls under Oplan Bantay Laya I and II. The operation plan has been executed under a national security doctrine adopted by Macapagal-Arroyo’s Cabinet Oversight Committee for Internal Security (COC-IS) which is presided over by Ermita with the aggressive support of National Security Adviser Norberto Gonzales. Reports also pointed to the possible complicity of the national police and the Department of Justice (DoJ), among other agencies, in providing legal screen to the suspected perpetrators and their superiors by either making it difficult for the victims’ kin to seek legal remedies or by unreasonably dismissing criminal charges, leaving the relatives and rights watchdogs no other recourse to seek justice.

State Forces

Investigations conducted by local human rights groups, the Melo Commission, the UN Special Rapporteur, Amnesty International, Asian Human Rights Commission, the EU Parliament, and recently, the Washington-based Human Rights Watch, in varying degrees, attribute the atrocities to state security forces. Most of their reports are one in saying that the crimes were committed systematically and on a nationwide scale, with the biggest number of the killings perpetrated in priority areas of counter-insurgency. Many of the victims and their legal organizations were named as “enemies of the state” in PowerPoint presentations and manuals circulated by the military while other reports said that they were likewise listed in military hit lists and had received death threats from identified military authorities before they were finally shot or abducted. In many of the incidents, the assassins and abductors wore ski masks, rode on motorcycles or other vehicles with some of these subsequently traced to military camps.

The killings and abductions were perpetrated in a climate of political repression. In response to the public clamor for her resignation over allegations of widespread cheating in the 2004 presidential election, she ordered a crackdown on progressive legislators, key leaders of the political opposition, military critics and cause-oriented groups. She declared a state of emergency at one time, and succeeded in effecting a Bush-inspired “anti-terrorism law” to give legitimacy to what is feared as a de facto martial law. She threatened to abolish the Senate through charter change when its members sought an investigation of electoral cheating and human rights violations.
Macapagal-Arroyo has been repeatedly accused of either instigating, encouraging, or at least being informed about the killings. She has reportedly failed to rein in her security forces and order a stop to the perpetration of the crimes. Violations of human rights were among the charges cited in the two impeachment complaints against the President at the House of Representatives in 2005 and 2006, and in her indictment before the Citizens’ Congress for Truth and Accountability (CCTA) in Quezon City where she was found guilty. In 2005, she was also indicted and was found guilty by the International Criminal Tribunal for Iraq held in Tokyo in connection with her involvement in the U.S. war against Iraq.

At The Hague last March, the Permanent People’s Tribunal (PPT) found her guilty of crimes against humanity. The PPT also named the AFP as having a “central role” in the atrocities as “a structural component and instrument of the policy of the ‘war on terror’ in the Philippines.* The PPT verdict was transmitted to the International Court of Justice (ICJ), the International Criminal Court (ICC), and the International Criminal Tribunal for the former Yugoslavia (ICTY).

At present, there is a manifesto being circulated that calls for the criminal prosecution of Arroyo before a UN International Criminal Tribunal. This has been supported so far by former President Corazon C. Aquino, former Vice President Teofisto Guingona, former Cabinet secretaries, lawyers, and other prominent personalities and mass leaders.
A consensus is shaping up among lawyers’ circles, human rights groups, civil libertarians and others that the case against Macapagal-Arroyo, along with rogue generals implicated in the war crimes and crimes against humanity, should proceed under the principle of command responsibility even if this means calling for her arrest and indictment in an international tribunal held outside the country. Posted by (Bulatlat.com)

 Save as PDF