Dateline Manila: Is PNoy liable for ‘command responsibility’ over SAF tragedy? PDF Print E-mail
Friday, 06 February 2015 13:53

BY Sammy Santos


Taking the cudgels for the President who has been intensely under fire since the Jan. 25 brutal killing of 44 police commandos, pro-administration Senate President Frank Drilon said “the principle of ‘command responsibility’ was not applicable in the Mamasapano incident and that “President Aquino could not be criminally charged on the basis of this doctrine.”

Drilon, a bar topnotcher and a former justice secretary, said the president did not commit any violation of the principle of command responsibility in connection with the Mamasapano bloody encounter.

“I do not agree that President Aquino has incurred any liability on the principle of command responsibility under international law. Under the Rome Statute, command responsibility will apply if the superior, knowing his subordinates will commit a crime, fails to stop the commission of the crime, or knowing that his subordinates committed a crime, fails to punish them,” said Drilon.

“In this particular case, the Special Action Force of the Philippine National Police, per news report, was there to serve a warrant of arrest to known terrorists, not to commit any crime, so the principle of command responsibility does not apply,” noted Drilon. “The command responsibility has no application with President Aquino under the Rome Statute.”

Earlier, Sen. Miriam Defensor Santiago, a recognized expert in international law, said that the massacre of the 44 SAF members allegedly by the Moro Islamic Liberation Front (MILF) makes the military commander and other superior officials responsible for war crimes under the charter of the International Criminal Court, which hears cases against heads of state and the top-ranking military commanders.

“The SAF massacre is properly called a ‘non-international armed conflict.’ We make this distinction, because the relationship of the Philippine government with a non-state actor like the MILF is different from the relationship of our government with other states. The rule is to deny legitimacy to rebels, terrorists, or other armed groups,” she said, adding that the death of the SAF members constituted “atrocities,” and therefore the punitive laws against war crimes apply.

In his statement, Drilon explained that doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to which the Philippines is signatory. Section 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control.

According to the doctrine of command responsibility, a superior may be held criminally responsible for a crime committed by his subordinates if it is proven that despite his awareness of the crimes of subordinates, he fails to fulfil his duties to prevent and punish these crimes.

To hold a person criminally responsible under the doctrine, these three requirements must be proven: A relationship of superior-subordinate linking the accused and those who committed the underlying offences at the time of the commission of the crime;  the knowledge on the part of the superior that his subordinates have committed or taken a culpable part in the commission of a crime or are about to do so; and a failure on the part of the superior to take necessary and reasonable measures to prevent (“duty to prevent”) or to punish those crimes (“duty to punish”).

Moreover, Drilon said the Senate would support any move that would uncover the truth on the Mamasapano incident to end the spread of misinformation and lies regarding the tragedy.

He was reacting to the proposal of a number of senators and congressmen for the creation of an independent Truth Commission through an act of Congress that will investigate the Mamasapano incident.

“I support any process that will lead us to the truth and enable Filipinos to get to the bottom of this unfortunate and unwarranted bloody encounter,” said Drilon. “Whether it is through the Truth Commission being proposed or through the Board of Inquiry, or with the aid of a congressional hearing, the most important thing is we get to the facts.”

“Our search for justice in this event begins by establishing the truth. Every Filipino deserves to know why our policemen died, how they were killed, and most importantly, who in the end killed them,” Drilon said.

* * * *

Every now and then, the Letters to the Editor section of newspapers can be a source of sensible commentaries on the burning issues of the day. One such letter was written by one Orly Javier Manolo, entitled “Peace process at all costs?” which was published in the Philippine Daily Inquirer Tuesday, Feb. 3.

In his letter, Manolo articulates the public outrage over the killing of the 44 PNP-SAF commandos in Mamasapano and the reaction of legislators to the tragedy by suspending the public hearings on the draft Bangsamoro Basic Law in Congress.

At the end of the day however, Manolo stressed, the quest for justice and the demand for public accountability “should not come at the cost of the peace process—the very thing that can help end the cycle of violence and injustice that inflame insurgencies in this nation.”

Allow me, dear readers, to share Manolo’s well-written letter with you:

“The horrors of the Jan. 25 encounter between elite police commandos and elements of the Moro Islamic Liberation Front (MILF) did not end with the gruesome death of nearly 50 policemen. In an instance, the incident has clouded the prospects of the passage of the Bangsamoro Basic Law (BBL) in Congress, and the challenge is now on government to prove its commitment to peace and social reform initiatives for Mindanao, while ensuring that justice for the dead will be swiftly dispensed.”

“To be sure, the bloody event has affected the attitude of Congress toward the proposed law, and this is best shown by the suspension of public hearings on the BBL by Sen. Bongbong Marcos, as well as by Senators Alan Peter Cayetano and Jayvee Ejercito’s withdrawal from sponsorship of the bill. Fortunately, other members of the Senate believe otherwise, saying that this latest act of violence should inspire, not discourage, legislative efforts to ensure peace and justice long sought in Mindanao.”

“Senate President Franklin Drilon said that the incident must not stand in the way of efforts to bring lasting and genuine peace and development in Mindanao and called for a comprehensive probe into the tragedy. Sen. Grace Poe, chair of the Senate committee on public order, has vowed to conduct an investigation on the matter. Sen. Miriam Santiago, who has been actively involved in the debates on the BBL’s constitutionality, said that legislative inaction will be counterproductive and that the hearings should continue with even more vigor.”

“The statements of Drilon, Santiago and Poe are welcome amid the understandable outrage over the atrocity, and the disaffection of many with the ongoing peace process. Those behind the Jan. 25 massacre should face justice, and all parties must be made accountable for their actions. However, this should not come at the cost of the peace process—the very thing that can help end the cycle of violence and injustice that inflame insurgencies in this nation. We can only hope that Congress—and the Philippine government as a whole—will do the right thing, and uphold the cause of peace and democracy, which is greater than any act of barbarity.—ORLY JAVIER MANOLO”

Well said, Mister Manolo. Kudos.