Miriam: Determine command responsibility over Mamasapano

MANILA, Philippines (UPDATED) – There should be command responsibility over possible war crimes committed in the Maguindanao clash, and this can be determined through prosecution under international criminal and humanitarian laws, Senator Miriam Defensor-Santiago said Monday, February 2. 

In a press conference, Santiago said there is enough basis to try military commanders and "other superior officials" before the International Criminal Court (ICC) over what she called was the "massacre" of 44 elite cops in Mamamasapano, Maguindanao. At least 17 Moro rebels and 7 civilians also died in the clash. 

She said it remains unclear whether President Benigno Aquino III approved the particular operation to arrest wanted terrorists in a rebel-controlled area or if he approved the operations at the beginning but it had its own life. 

"Why were so many people sacrificed? What is wrong with our government that it does not know what happened?" she said. 

In response to Santiago, Senate President Franklin Drilon defended the President and said he disagrees that Aquino incurred a liability under international laws. 

Drilon added that the Mamasapano encounter was a matter of law enforcement, not war. 

University of the Philippines (UP) law professor Harry Roque earlier made a similar proposal, but his position was focused on prosecuting erring members of the Moro Islamic Liberation Front (MILF), which signed a peace accord with the government in March 2014, before the ICC.

However, Santiago – who was elected judge of the ICC but had to decline her seat due to cancer – said the international court only hears cases against heads of state and top-ranking military commanders and denies legitimacy to armed groups. 

The senator said the killing of 44 members of the Philippine National Police Special Action Force (PNP-SAF) is considered a "non-international armed conflict" because the matter does not involve two states. 

Santiago said the legality of the non-international armed conflict in Mamasapano falls under 3 international rules: 

The MILF is a rebel group which had been fighting for secession. They dropped the fight for independence in exchange for full autonomy when it entered into talks and eventually signed a peace framework agreement with the government. 

On Sunday, January 25, some 392 SAF commandos entered Mamasapano town in Maguindanao, a known bailiwick of the MILF. They were targeting two “high value targets,” one of them alleged Malaysian bomb maker Zulkifli bin Hir, better known as "Marwan.” 

The government said the SAF commandos were able to kill Marwan during the operation but combined forces of the MILF unit in the area and breakaway group Bangsamoro Islamic Freedom Fighters (BIFF) allegedly surrounded them on their way out of Mamasapano. (READ: Dead or alive? Top terrorist was cops' target)

After the incident, it emerged that acting PNP Chief Leonardo Espina and Interior and Local Government Secretary Mar Roxas were kept out of the loop during the operations. President Benigno Aquino III admitted knowing about the general details of the matter but refused to answer whether he made specific orders for the January 25 operations.  

Under the ICC's Rome Charter, Santiago said a military commander or a person is criminally liable where two factors are present:

Depending on the outcome of the investigation on what really transpired in Mamasapano, a distinction should also be made between whether the acts were committed under the context of law enforcement or armed conflict, Santiago said.  

Senate President reacts

In a statement, Drilon offered a counter-argument saying that the principle of "command responsibility does not apply in this case. 

“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,” Drilon told reporters. 

Drilon said SAF members trooped to Mamasapano to serve warrants of arrest to terrorists, not to commit a crime. 

The Philippine is a signatory of the Rome State of the International Criminal Court. 

Internationalized conflict? 

Santiago also questioned the possible involvement of other states in the Maguindanao clash following reports that US military forces were sighted in the area after the encounter. (READ: American soldier died with SAF 44? US embassy denies report)

If proven true, Santiago said this could complicate the situation. 

“If the Philippine government received help from the CIA, then the rebels under international law would argue that they have a right of counter-intervention from their own friendly state,” she said.

Santiago cited the Nicaragua case decided by the ICC, which ruled that: “Encouraging the organization of armed bands for incursion into the territory of another state and by participating in acts of civil strife in that state, is not only an act of illegal intervention in the internal affairs of a foreign state, but also contrary to the principle of the prohibition of the use of force.”

Although Senator Ferdinand "Bongbong" Marcos Jr suspended hearings on the proposed Bangsamoro Basic Law (BBL) under his committee pending the final report on the Maguindanao clash, Santiago pushed through with her 2nd hearing on the constitutional issues facing the proposed law on Monday. 

Proponents and objectors of the law made their own case arguing on whether the proposed law that seeks to create a new automous region in Muslim Mindanao can be passed through mere legislation or if it necessitates charter change. 

Santiago has been of the position that the proposed Bangsamoro, which would be parliamentary in form, creates a sub-state and goes beyond the confines of the Constitution. – Rappler.com