War and law: shooting to kill armed rebels

The lawyer-President’s verbal order for the Armed Forces of the Philippines to shoot New People’s Army rebels on sight makes for interesting legal discourse, including for academic purposes, were it not more importantly a life-and-death matter. The lawyer-Vice President has weighed in, saying the shoot-to-kill order is illegal, contrary to the Constitution, presumably its due-process clause, as well as a criminal procedure that allows a citizen’s (warrantless) arrest as the mode of suppression when a person has committed, is actually committing, or is attempting to commit a crime in one’s presence.

The lawyer-spokesperson of the President (and his adviser on human rights) has replied on two levels of law. On the level of international humanitarian law (IHL), he said armed rebels in a noninternational armed conflict, like that between the NPA and the AFP, are legitimate military targets. On the level of criminal law, he said armed rebels are committing the crime of rebellion which involves taking up arms against the government. But he treads on dangerous ground when he conflates those two levels of law by (reportedly) saying that communists taking up arms against the government are legitimate military targets since they are committing a crime. He was later quoted as saying, “I assure you, no armed NPA will surrender to authorities.  The options are to shoot them or [allow] our men in uniform to be shot by them… If there’s a war, all those involved (presumably referring to combatants — SMS) can be fired at…”

IHL does allow, during armed conflict, attacks directed at military targets, including combatants of both state armed forces and antistate organized armed groups. But this is not absolute and has certain limits, including the fundamental IHL principles of military necessity and humanity as applicable under the circumstances, as pointed out in guidance materials of the International Committee of the Red Cross. It may be possible to neutralize the military threat posed through capture or other nonlethal means or options without additional risk to the operating forces or the surrounding civilian population. The armed rebel — or, for that matter, armed soldier — must be given the opportunity to surrender, depending on the circumstances. It cannot be presumed a priori that “no armed NPA will surrender to authorities,” because it has in fact happened. And any lethal self-defense can be justified only in the face of armed resistance.

On the level of criminal law and procedure, particularly where there is no armed encounter involved, perpetrators (like a rebel merely bearing arms) of the crime of rebellion are not to be treated as legitimate military targets but as suspects—in which case they may not be deprived of life or liberty without due process of law, which is mainly the function of criminal procedure. This procedure does not contemplate the abuse of the worn-out excuse of “nanlaban.” This level of law is largely (at least conceptually) one of law enforcement, or  a police matter, as they say, not a military matter. It is dangerous to conflate these two matters, as the NPA is unfortunately doing under the Communist Party’s “People’s Democratic Government.”

Given those two levels of law brought out (and we haven’t even dealt with the potentially complicating special criminal law on antiterrorism), and some possible conflict of law situations in the President’s foreseen (actually already existing) “virulent” AFP-NPA encounters, it is time for all concerned to think through this legal situation.  We have hardly scratched the surface in this limited space, and there is more work yet to do in preparing for the worst.

Unless, hoping against hope, we can somehow rise from the “virulent” abyss into which we have fallen. If there are to be no more lost loved ones like Josephine Anne Lapira and PO1 Joeffel Odon — a hope we have constantly expressed over the years — the leaders of both sides will have to find it in their hearts and minds to at least try to stop that fall by way of a reasonable ceasefire accompanying reasonable peace talks. With more sincerity.

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Soliman M. Santos Jr. is a judge of the Regional Trial Court of Naga City. He is a longtime human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer, whose initial engagement with the peace process was with the first GRP-NDFP nationwide ceasefire in 1986, particularly in his home region of Bicol. He is the author of a number of books on Philippine peace processes.