I’m happy that Senator Miriam Defensor-Santiago, the best President that we never had, agreed with my view that International Humanitarian Law (IHL) is applicable to the Mamasapano massacre that led to the heroism of the SAF 44. The good senator concurred with our view when she opined that President Aquino may be held liable on the basis of command responsibility.
IHL is the law applicable in times of armed conflict. It exists to protect civilians and other non-combatants from the adverse consequences of armed conflict. It achieves this goal by according non-combatants protection and by limiting the means and methods of warfare open to all combatants and fighters.
“Command responsibility” is a principle in IHL developed in the Philippines as a result of the trial of Yamashita, the highest-ranking Japanese officer in Southeast Asia at the end of World War II. When Yamashita was accused of war crimes, he put forth the defense, among others, that he did not know and did not order the atrocities complained about. The Philippine Supreme Court rejected this argument ruling that Yamashita willfully turned a blind eye to these atrocities. According to the Court, Yamashita should have developed a sound system where he could ensure that his troops knew the law and that they were in compliance with it.
On appeal to the US Supreme Court, a separate opinion formulated what today would be the principle of command responsibility. This is that a commander should be liable for the atrocities committed by his subordinates when he knew or should have known about the authorities, and he failed to take steps to prevent the crimes from happening, and fails to take steps to investigate, prosecute and punish them for these crimes.
Where I differ though from Senator Santiago is in her opinion that PNoy could be held liable for command responsibility.
My disagreement with the senator is not because I think the President should be absolved completely of command responsibility . In fact, on the occasion of the 5th anniversary of the Maguindanao massacre, I submitted the view, which was supported by the current UN Special Rapporteur on Freedom of Expression, that the 1-percent conviction rate our prosecutors have in convicting perpetrators of extra-legal killings may be a basis for holding the President liable under command responsibility since he has failed to prosecute and punish the perpetrators of the extra-legal killings in this country. Instead, my view is that PNoy should probably be held responsible for the massacre of the SAF 44 since he is Commander-in-Chief of the Armed Forces of the Philippines and the PNP, but not under the principle of command responsibility.
Why? Simply put, command responsibility under IHL may be used only against commanders and superiors of troops that may have committed grave breaches of IHL, the laws and customs of warfare. In the Mamasapano massacre, the sheer discrepancy in terms of the body count indicate that the SAF 44 may not have been engaged in battle; instead, what may have happened was a slaughter. What made matters worse is the fact that the slaughter must have resulted from our policemen’s wrong assumption that even if they are fighters in the territory of a domestic armed group, they will not be attacked because of an on-going ceasefire between our government and the MILF. This is the crime of perfidy or inviting the confidence of fighters that they have protected status and proceeding to attack them anyway. Moreover, the death count suggests that the MILF may have issued the order not to leave any survivors as in fact, there was only one who managed to escape the carnage. This again is a war crime since giving such an order is expressly prohibited by IHL and is furthermore contrary to the concept of military necessity and military objective. The object of warfare is the compete submission of the enemy and not to kill all of the adversaries. The inhumanity done to the corpses of our heroes is yet another war crime—that of cruel, degrading and humiliating treatment.
Simply put, it is the leadership of the MILF that should be held criminally liable under command responsibility since their troops probably committed the war crimes. To reiterate, PNoy could not be held responsible under the principle because it is neither the PNP nor the AFP that committed the crimes. If at all, his liability is that of a commander-in-chief who must take responsibility for a police manhunt that turned awry.
This should not at all absolve PNoy from liability for the death of the SAF 44. If in the past, the ineptitude and inexperience of this government have led to bad policies, his lapse in governance this time around should not go unpunished.
It’s time for his bosses to make their decision. I say we fire him for gross incompetence, a valid ground for loss of trust and confidence.