Crimes in the context of war

Of far greater relevance to the fate of the Bangsamoro Basic Law than the use of an alias by Mohagher Iqbal, the chief negotiator of the Moro Islamic Liberation Front, are the charges about to be filed by the government against the MILF rebels who participated in the Jan. 25 firefight at Mamasapano. The Department of Justice has announced it will file charges against at least 90 MILF individuals for the killing of the 35 members of the 55th Special Action Company of the Philippine National Police Special Action Force.

This is what Justice Secretary Leila de Lima told reporters the other day: “It’s a crime. People died. I don’t want to say what charges will be filed, but the offenses are very much covered [by criminal law]. They (MILF leaders) have to understand that we will not accept that they will be exempt. No. We will insist on [the filing of criminal charges], and that is in fact discussed in the report.” (Inquirer, 4/18/15)

This view is consistent with the theory that the SAF commandos went to Mamasapano purely on a law enforcement mission—to serve arrest warrants on three international terrorists who had taken refuge in the area. Combined elements of the MILF and the breakaway Bangsamoro Islamic Freedom Fighters and members of other private armed groups attacked the 55th SAC troopers, who were to facilitate the safe withdrawal of the main law enforcement team.

The MILF views the events at Mamasapano differently, seeing the unannounced presence of the SAF in its area as a provocation. The narrative it offers starts from the fact that its members have lived peacefully in their communities, secure in the thought that a longstanding ceasefire agreement with the Philippine government protected them from any attack by government forces. They also believed that under this ceasefire agreement, they were to be informed beforehand of any government law enforcement activity in their area precisely to avoid accidental clashes and to protect the civilian population from harm.

The MILF claims that its members were forced to fight back only after two of their people fell from the first shots fired by the intruders. The SAF denies this, claiming that it was its men who suddenly became the targets of an unprovoked attack by the MILF. The Senate report supports this theory by calling the firefight a massacre. But the verification report rendered by the International Monitoring Team (IMT) disputes the idea of a massacre. It gives credence instead to the claim that the police indeed fired first, even as it faults the MILF rebels for aggravating the situation by crossing the river in order to get close to the trapped SAF troopers.

The IMT blames the SAF and the MILF for willfully violating the ceasefire protocols. But, it does not have the power to recommend sanctions. That power belongs to the Department of Justice and, in the case of state officials, to the Office of the Ombudsman. The latter has announced that it will soon present its own findings, which will zero in specifically on the culpability of police and military personnel.

One can imagine how much these issues have taken center stage as they weigh upon the discussion of the Bangsamoro Basic Law. The MILF has made it clear that it cannot and will not surrender any of its people to the government for their involvement in the Mamasapano incident. As far as their own investigation is concerned, these men had acted in self-defense, and cannot therefore be held criminally liable.

The government peace panel agrees that the existing peace agreement does not exempt the parties to the agreement from criminal liability. It likewise recognizes the justice department’s right to file charges against members of the MILF, even as the peace agreement with the rebel group remains in force. But, if such charges are to be filed, it strongly recommends that they be treated under the rubric of Republic Act No. 9851—the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and other Crimes Against Humanity. Not being a lawyer, I don’t know what difference this will make to the problem at hand: how to preserve the peace agreement.

This little known law, which was promulgated only in December 2009, lays down the norms governing offenses committed in the context of armed conflicts. Its message is that not everything is permitted even in war. Governments and rebels can fight each other, but if they care about what the rest of humanity says about their actions, they must do so within certain boundaries. The mention of RA 9851 sent me scurrying for a copy. I think the best available preview of this law comes from Soliman M. Santos Jr., who hails it as a “breakthrough law for international humanitarian law enforcement in the Philippines.”

It would be interesting—even for nonlawyers—to see how the actions of both the government troops and the rebels in Mamasapano would measure up to the standards laid down in RA 9851. My hunch is that this law would open more questions about the legality of the SAF’s “Oplan Exodus” than it would about the MILF rebels’ actions. For example, was Marwan given a chance to surrender before he was killed, or was he fired upon while asleep? Would cutting off his index finger not constitute a form of mutilation? Both could come under the purview of war crimes.

If anything, this law is a reminder that even in armed conflict, protagonists must not lose sight of fundamental human rights. While the world expects that burden to be assumed by both state and nonstate actors, I have always believed that governments have the greater responsibility to uphold the law.

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