Command Responsibility
Volume 20 Number 4
Friday, 06 November 2009 13:51

by Jerbert Briola

Is Gloria Macapagal-Arroyo as commander-in-chief responsible for the killings of activists?

International law has evolved a doctrine of command responsibility, under which military commanders are held responsible for the acts of their subordinates, civilian authorities exercising power over the military are held responsible for the acts of the military and military forces not connected to any nation state are also held responsible for their actions.

The human rights situation in the country today has taken a turn for the worse since GMA took the presidency in 2001. The killings of activists began long before she unleashed the “war against New People’s Army”. The corpses of suspected NPA members and sympathizers are piling up. We have also seen increasing number of victims of arbitrary arrest and detention. These conditions have brought to the fore an environment that makes violation of human rights as a policy. Given this kind of environment we have, the international human rights community took notice that a culture of impunity reigns, for which the highest government officials are responsible for allowing killers to remain scot-free and continue to hunt and kill activists in the country.

The Asian Human Rights Commission (AHRC) for its part noted that: “[b]y not prosecuting those guilty of serious crimes, the message given to the perpetrators is that they can continue to commit crimes in impunity; that they are above the law. The message sent to victims of these crimes and society in general is that there is no equality before the law. This will result in public mistrust of the very institutions meant to be enforcing the law.”

Furthermore, the AHRC continued that police torture and extrajudicial killings should thus not be treated as isolated incidents caused only by a few lower-ranking officers, but as by-products of a system that deliberately neglects command responsibility.

Theoretically, transparency is the precondition for efficiency, accountability and credibility all of which are necessary for institutions to function effectively. Thus, lack of transparency tends to deflect public scrutiny from the institution’s corrupt practices and to offer protection to a particular government official who is involved in committing human rights violation.

In documentation of torture cases, the AHRC pointed out, without transparency, it is difficult to know who exactly gave an order for torture, who approved the illegitimate promotion and who is ultimately responsible for overseeing conduct of officers of certain ranks without acquiescence and tolerance if not official sanction.

Abuse of authority emanates from the lack of transparency within any public institution. The AHRC clearly affirmed the notion that in most Asian countries, police officers notoriously abuse their power thus in the eyes of the public they usually are regarded as public enemies rather than public servants.

While this discipline should begin within the police force itself through internal mechanisms when necessary, it must include legal proceedings and suspension of duty, the AHRC said. In most instances senior officers do not initiate disciplinary inquiries in response to complaints of abuse or misconduct against their subordinate officers, nor are officers suspended from duty after being indicted by a court of law. In this way, they are encouraged to continue their behavior and official function. And some are even getting promoted. The supreme irony of all is that the soldier is measured not by his or her numerous acts of courage and the depths of his or her sense of nationalism but by the number of persons he or she kills and torture.

Take the case of former Maj. Gen. Jovito Palparan, who has been tagged as the “Executioner of Samar” or before then, “Butcher of Mindoro”. These tags do not just spring from thin air. Palparan during his stint in the military as commander of the Army’s 7th Infantry Division (ID) in Central Luzon, 8th ID based in Eastern Visayas and 204th Infantry Brigade (IB) in Mindoro Oriental had turned the serenity of these provinces into a howling wilderness. Under Palparan’s command, human rights situations in those provinces and nearby towns have been marked by a veritable bloodbath.

The scale of violations of human rights today is glaring. As it was then during the time of Marcos, this is a time of repression where everywhere before you is systematic repression. The disappearance of civilians, armed men pumping bullets on the heads of civilians, hooded armed men believed to be members of the military raiding civilians’ homes in the dead of night and soldiers who like their commander does not see any difference between unarmed activists and armed rebels. To Maj. Gen. Palparan and his men they are all the same.

Who has the command responsibility for that scale of mayhem?

Palparan’s commander-in-chief GMA pins medals on him. He was promoted from brigadier general to major general and GMA has even exalted Palparan in her State of the Nation Address (SONA) for a job well done, proposing that Palparan’s fellows in the military find inspiration in his example.

From reports and accounts, Palparan brushed off any accusations hurled against him that he had knowledge and direct hand on these cases and he emphasized the absence of proof of his personal participation in the cases cited above, but it is correct to say that command responsibility is what should apply.

The Additional Protocol I of 1977 to the Geneva Conventions of 1949 was the first international treaty that codified the doctrine of command responsibility. Article 87 requires a commander to ‘prevent and where necessary, to suppress and report to competent authorities’ any breaches of the Conventions and of Additional Protocol I. Today’s recognized standard of doctrine of command responsibility was refined out of the creation of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis and the International Military Tribunal for the Far East (the “Nuremberg” and “Tokyo” Tribunals).

Article 86(2) is the first international provision to ‘explicitly address the knowledge factor of command responsibility’. A literal interpretation of this provision suggests that it only imposes criminal liability on a commander where he could have learned of subordinates’ unlawful conduct from information already available to him.2

The AHRC pointed out that military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates, which includes breaches of international and domestic law. The AHRC further said that the criminal liability may arise either out of the positive acts of the superior - ‘direct’ command responsibility - or from his or her culpable omissions - ‘indirect’ command responsibility.

In short, the commanders could be located anywhere along the chain of command and be held criminally responsible so long as they had the ability to issue and instruct orders to their subordinates. If, however, the commanders did not have actual knowledge and failed to take measures to prevent the atrocity committed by his or her subordinates, he or she can still be held liable. This liability would be based primarily on constructive knowledge on the part of the commander - the idea that he or she “should have known” of these violations.3 This presupposes that the commander has full knowledge that the atrocity is happening and while having the power to do so, he or she fails or unwilling to stop it. It is given that a commander is under an affirmative duty to monitor the activities of his or her subordinates.

What makes GMA responsible for the killings today is the same thing that made Marcos responsible for the killings and torture of thousands civilians during martial law. It is the principle of command responsibility.

In 1996, Judge Manuel Real of Honolulu invoked that principle in finding Marcos guilty of the torture and killings of thousands of Filipinos during martial law in a class suit brought against him. The Marcoses appealed the case in Pasadena, California. The said appeal specifically stated that they could find Marcos guilty if: “(1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution and ‘disappearance’ or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it.”
The Pasadena Court of Appeals denied the appeal. The court said those two conditions of “command responsibility” are in fact well borne out both by US and international law. It cited US Supreme Court ruling on Gen. Yamashita, who served as commanding general of the Japanese forces in the Philippines as well as military governor of the islands during the latter part of World War II.

The ruling said thus: “[T]he…charge is (the failure of the) petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit extensive and widespread atrocities’…[T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates…[P]rovisions [of international law] plainly imposed on petitioner who, at the time specified, was military governor of the Philippines, as well as commander of the Japanese forces, and 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.”

In any case whether it involves the torture of civilians or the murder of activists in deserted places on earth the absence of proof who is responsible does not automatically mean innocence of those who are seating in the echelons of power.

We must ask then, can the principle of command responsibility apply in the current Philippine situation? The answer is a resounding YES. Is Gloria Macapagal-Arroyo as commander-in-chief responsible for the killings of activists? Again the answer can only be Yes.

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