Friday, January 15, 2010

Crime Against Humanity vs. GMA, Ampatuan, et al?

by Benjamin G. Maynigo*

The most significant event in the Philippines during 2009 is what is now called the Maguindanao massacre. I believe that based on the reports and comments of respected journalists, columnists and media outlets, the murderous acts would qualify as a “crime against humanity”. Let us read what they all said:

Jose Ma. Montelibano: “the barbarism of the Maguindanao massacre is a class of its own in the history of brutality in the Philippines.”

Philippine Daily Inquirer, “Roots of the Massacre”: “THE MAGUINDANAO MASSACRE, a crime so horrific, so unspeakable that it led people to ask whether it was committed by animals or monsters…”

Witness “Boy”: “Ampatuan, Jr. had ordered the gunmen to kill all the members of a rival political clan, including women and children, and to make sure no evidence was left behind.

Rodel Rodis: “…the barbaric slaughter of 61 innocent people, including 30 working journalists. I also viewed on the Internet gruesome close-up photos of the mangled, brutalized bodies of the victims, images which still haunt me.”

Analyn Perez and TJ Dimacali of GMANews.TV, “It is now confirmed that 31 of those killed are journalists, thus-making it “one of the deadliest single events for the press in memory” and giving the Philippines the title, “the world’s worst place to be a journalist”, according to International Press Freedom watchdog Committee to Protect Journalists (CPJ). Since 2001, the start of the regime of Gloria Macapagal Arroyo (GMA), 99 journalists had been killed in the Philippines.”

Reviewing my notes in International Criminal Law and going over the relevant jurisprudence, the acts described above definitely fall under the definition of “crimes against humanity.” Under the law, “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; and (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

The fact that the attack was directed against a group of protected parties under International Law, more particularly a civilian population which included children, women, and journalists, leaves me no doubt that this massacre is a crime against humanity.

Reactions to these criminal acts against humanity struck me and correspondingly propelled me to consider alternative measures for the victims to receive justice.

Former Filipinas Magazine Editor & Publisher Mona Lisa Yuchengco wrote: “Why aren’t more people up in arms (no pun intended) over this massacre demanding for justice? Will this, like all other atrocities, be buried in our national consciousness? No wonder we’re always in the dumps! Sorry, but I am very pessimistic about the government doing the right thing right now.”

Charging the Ampatuans, GMA and others for committing “crimes against humanity” means that the case or cases would fall under “universal jurisdiction”. The trial is heard outside of the Philippines free from the judicial corruption, intimidation, fear, political intervention and further commission of inhumane acts. The nationality of the victims is irrelevant. The crimes do not have to be committed in time of war or in connection with crimes against peace. The assertion that the alleged acts are legal under domestic law is no defense against it.

The Statute of Limitations also does not apply to crimes against humanity. So, GMA and her cohorts can be charged this year, next year or anytime in the future. There was a specific Convention on the Non-Availability of the Statutory Limitations to War Crimes and Crimes Against Humanity, U.N. GAOR Res.2391 (XXIII) (1968). In fact, under the same Convention, covered are not just direct participants and accomplices, even representatives of the authority that tolerated the commission of the crimes. In certain cases, even “ex post facto law” was considered not in violation of the rule of law.

Why should GMA be included in the charge?

A great writer and a Facebook friend Conrado de Quiros said it best: “She (GMA) not only stole lives—though that is staggering enough in itself, ushering as it did the culture of impunity, which is really a pale phrase to describe the murder of crows or the slaughter of the innocents or the gunning down of suspects and burying them in shallow graves—she stole everything else. She stole this country’s hope, she stole this country’s spirit, she stole this country’s life.

Being congressman did not save Romeo Jalosjos from jail for the rape of a minor. Being congresswoman will not save Gloria Macapagal-Arroyo from jail for the rape of a nation.”
The degree of responsibility is always commensurate to the degree of powers and resources that one has to meet that responsibility. GMA had all the powers to prevent or stop the Ampatuans from committing this “orchestrated attack on the very dignity of man” as described in Article 6(a) of the Nuremberg Charter.

Let me show you what other respected writers say about GMA’s responsibility and accountability:

Jose Ma. Montelibano: “the barbarism happened because the barbarians were encouraged by their unholy alliance with Gloria that anything goes for as long they do their part in keeping Gloria in power. The arms that have been discovered so far around the barbarians’ complex also came from the AFP and DND as well as from other sources. The unholy alliance gave not only a signal of encouragement but arms to affirm support beyond the law.” Further, “Such brazenness would not have been possible without presidential support, even presidential initiatives asking the barbarians to do everything possible to ensure political victory and control.”

Solita Collas-Monsod: “SHE CODDLED THEM. That is the only way one can describe the relationship of President Macapagal-Arroyo and the Ampatuans of Maguindanao. And that coddling has resulted in the Maguindanao massacre…”

Another report: “Gloria Arroyo’s coddling of the Ampatuans for all these years has now blown-up in her face. A hundred years hence, history will likely see Gloria Arroyo as the enabler of the butcher of Maguindanao and judge her as guilty.

Nestor P. Burgos, Jr.: “the Ampatuan massacre was … abetted not just by official inaction ..consequence of a system of governance that not only nurtures but also arms the likes of the Ampatuan clan.”

Following the doctrine enunciated in the Yamashita case and in other International law cases, Command Responsibility as a legal basis for criminal liability has been accepted. Command responsibility is an omission mode of individual criminal liability: the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish. In the Yamashita case, Yamashita was charged solely on the basis of responsibility for an “omission”. Ironically, it involves Japanese troops engaged in atrocities against thousands of Filipino civilians. He was charged, found guilty and executed with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.” In fact, in the other cases, actual knowledge by the superior or commander of the criminal acts is not necessary. A lesser level of knowledge is sufficient.

These doctrines of Command Responsibility and Universal Jurisdiction are incorporated in the Statutes of ICTY, the ICTR, and the ICC and the Belgian Anti-Atrocities Law. Atrocities similar to the Maguindanao massacre have been investigated in Belgium, Spain, Rwanda and Yugoslavia. The laws of Australia, Germany, New Zealand and South Africa have been amended to allow such investigations as well. Austria, Denmark, Germany, the Netherlands and Switzerland brought alleged perpetrators to trial on the basis of universal jurisdiction.
Spain’s indictment of former Chilean President Augusto Pinochet is an example. He was charged for crimes committed mostly in Chile and against Chileans. Cases have been filed in Belgium against Mauritanian President Maaouya ould Sid’Ahmed Taya, then-Iraqi President Saddam Hussein, Israeli Prime Minister Ariel Sharon, Rwandan President Paul Kagame, former Chadian President Hissene Habre and many others.

Like many Filipinos, I have not given up on the Philippines. We always find a way to face challenges. Cory’s People Power made world history. We indicted, detained and convicted a president (Estrada). Unfortunately, GMA pardoned him. We indicted, detained, convicted and sentenced to the electric chair Governor Rafael Lacson and his cohorts in the Moises Padilla case. We indicted, convicted and imprisoned Bingbong Crisologo for burning entire barrios (villages). We sentenced Congressman Jalosjos to life imprisonment for raping a minor. These are all despite what had been described as a “culture of impunity”.

If the National Union of Journalists of the Philippines led by its Chair Nestor Burgos, supported by the writers/journalists mentioned in this article, other journalists worldwide, some lawyers, and Filipinos overseas would lead efforts to pursue this case, we might yet make another journey to history.

*An International / Cyber Lawyer, Benjamin G. Maynigo is the Founding Chairman of the LEXIS KUBERNETES (Laws in Cyberspace) Group. He earned his Bachelor of Laws Degree from San Beda College; Master of Laws from American University; and Master of Arts in Education from George Washington University. He was also the former President of the Philippine American Bar Association (PABA).

No comments: