Three’s something odd with the “all out justice” recently declared by P-Noy. It’s literally directed at the Abu Sayaff when no less than the MILF website claimed credit for the 19 casualties last week. Why go all out against a bandit group for deaths that they were not responsible for? Reports of collusion between elements of the two groups aside, the answer of course is the fact that by opting to talk peace, we have politicized the effort to punish the MILF criminally when they violate the laws and customs of war. The conflict between the MILF and the GPH in Mindanao is what used to be called in Cold War days as a “ low-intensity conflict” but is classified by the International Committee of the Red Cross, the keepers of international humanitarian law, as a non-international armed conflict. As such, it is governed by Additional Protocol 2 to the Geneva Conventions and Common Article III of the Geneva Conventions. Under these rules, wanton killing and the passing of sentences without prior judicial determination complying with internationally recognized standards are prohibited and punished as war crimes. These acts fall within the jurisdiction of the International Criminal Court (ICC), which we only very recently joined.
Why politicized? Well, P-Noy obviously cannot talk peace when he’s prosecuting the leadership of the MILF. Under IHL and the ICC, leaders of armed groups are oftentimes the targets of prosecution for war crimes even if committed by their subordinates, and the purpose for that is to send a clear message to military leaders that pursuant to the Yamashita principle, they have the obligation to disseminate amongst their troops what the law is and to ensure that their subordinates comply with it all the time. When they fail to prevent these crimes from happening and where they further fail to take steps to investigate, prosecute and punish their subordinates, they too acquire individual criminal liability under the principle of the “command responsibility”. Effectively though, the on-going peace talks have made prosecuting the leadership of the MILF impossible unless these talks are shoved aside completely. This is, as P Noy has stated, not to our best interest. But this is also why countries with similar problems have referred their domestic enemies to the ICC. In fact, the leaders of non-state groups such as Thomas Lubanga, Germaine Katanga, Bosco Ntanganda, John Pierre Gombo, Joseph Kony and Ali Muhammad Ali Abd-Al-Rahman are all commanders of similar groups such as the MILF: non-state armed groups. They are all standing trial for war crimes at the ICC.
This is the third option. Now that we have become the 117th member of the ICC, we could, as Congo, Central African Republic and Kenya, all state parties to the ICC have done: refer the prosecution of the MILF to the ICC, to insulate the criminal proceedings from the pitfalls of domestic politics.
Although based only on media reports, it appears that at least three soldiers were captured alive by the MILF but were killed anyway. Although there is no “combatant” in non-international armed conflicts and hence, no “prisoner of war” status, there is still the obligation of fighters in these conflicts to treat their detainees humanely. There too is the prohibition on wanton killing. As a limitation on means and methods of warfare, the law commands all fighters not to order that “no quarters be given”, or not to leave survivors behind. The logic behind this prohibition is that military necessity is defined only as the “complete subjugation of the enemy and not to kill all fighters in the battlefield”. Specifically, the law applicable to the three captured soldiers is that since they have ceased to be active fighters, they shouldn’t have been killed as otherwise; their killing would be a war crime. . The basis for prosecution under the ICC would be Article 8 of its Statute (war crimes), Section (c) “namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” Also applicable would be Section (e) of the same Article: “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:… (ix) Killing or wounding treacherously a combatant adversary”.
Precisely, the beauty of our membership to the ICC is that the prosecutions of the MILF leadership for these kinds of crimes no longer have to be as political as when they are prosecuted before our local courts. Naturally, since our local courts are agents of the same state that is talking peace with the MILF, the later will insist that the same should not prosecute their leadership as a precondition for continued peace negotiations. Well, they cannot ask that of the ICC since such political consideration simply will not come to play in a court that was created precisely to put an end to these kinds of atrocities.
Here’s hoping thus that P-Noy will consider this option seriously. It certainly is better that making the MILF look less guilty for the slaughter of 19 of our bravest men in uniform.