A feat for UMNO


imagesIt appears that it is not just my former colleague Marvic Leonen, who was rewarded with an appointment to the Supreme Court, who benefitted

from the “rushed” signing of the Framework Agreement on the Bangsamoro Political Region.

The signing of the same, while a source of hope to all Filipinos that peace would finally be realized in battle infested Mindanao, may have been intended all along to benefit foreigners: Prime Minister Najib Razak and his moribund UMNO political party.

My source in Kuala Lampur related how they were all surprised that the Agreement, which Philippine authorities, including Justice Leonen, expected to be signed only in December of this month, was signed two months earlier last October.

Initially, I thought it was Justice Leonen who wanted it signed in time for his interview with the Judicial Bar Council. But apparently, it was Prime Minister Razak who had more at stake in signing the agreement as early as possible. This is because anytime now, parliament in Malaysia will be dissolved to pave the way for the holding of general elections. In fact, the elections should be called no later than March of next year. The actual elections would take place within two months from when it was called.

How could the signing of the Agreement favor Prime Minister Razak and his UMNO party?

Immediately after the agreement was signed, Razak’s communication group spared no time in extolling the Prime Minister as the acknowledged peacemaker of the region. Apparently, and a Web scan of Malaysian newspapers confirmed this, the signing was banner story in Malaysia. Not only was Najib praised as a peace maker, he is now being promoted as a regional leader. I understand that he is now being considered to mediate a peaceful resolution of the conflict in Southern Thailand, as well. But this appears to be mere icing on the cake. The real value of the agreement for Razak and his party lies in Sabah. In the first place, the premier’s predecessor, Abdullah Ahmad Badawi, merely obtained a simple majority in the last general elections in Malaysia. I understand that UMNO lost to Anwar Ibrahim’s party in the Malay Peninsula. Their tenuous grasp to a parliamentary majority was courtesy of UMNO having clinched a majority of the 24 parliamentary
seats in Sabah. The story of how they managed to win in this crucial state of Sabah is stuff that are regular occurrences here in the Philippines: vote buying and patronage.

What made it worse, however, was that UMNO distributed residency cards to illegal Filipinos in exchange for their votes. This is now the subject of a Royal Inquiry. A Wikileaks entry summarized the role of Filipinos in Sabah in the last elections: “Mahathir also facilitated illegal immigration from Indonesia and the Philippines in order to better balance the state’s ethnic and religious equation as a measure to ward off any future
separatist sentiments in Sabah, in addition to attracting UMNO votes needed to control the state. A Royal Commission, operated properly, would likely expose the depth of UMNO x x x political corruption and vote manipulation, further inciting Sabahans.”

Razak will now go beyond vote buying in this upcoming election. My source in Kuala Lumpur told me that he rushed the signing of the
Agreement particularly to appeal to the Filipino voters in Sabah.

Worse, another source has informed me that he has even asked MILF Chairman Murad Ebrahim to intervene and campaign for UMNO in Sabah.

With the Filipino vote likely to determine who between Najib and Anwar would be the next Prime Minister of Malaysia, the Agreement was apparently signed in a rush to ensure the premier’s hold on the crucial Filipino vote in Sabah. The betting now is: would Chairman Murad do as Najib has asked him to do?

I have already expressed the view that much as we desire peace in Mindanao. this Framework Agreement, precisely because it was rushed,
may not stand the test of judicial scrutiny. I am joined in this view by noted constitutionalists Raul Pangalangan and Former Solicitor General Estelito Mendoza. Even Ateneo College of Law Dean Emeritus Fr Joaquin Bernas has expressed similar, albeit less pessimistic concerns. Even Anwar Ibraham, while hopeful that the agreement would lead to peace, expressed concern that the Agreement was not inclusive since the Mindanao politicians, among others, were excluded from the peace negotiations.

Worse, no less than the current head of Notre Dame University’s’ Institute for Autonomy and Governance fears the many mine fields that lie in Congress and in the Supreme Court: “This arena is a big minefield that scares me to no end. There are many things that can go wrong in this arena.”

But with this confirmation that the Agreement did not just benefit Leonen and was, on the contrary, intended primarily to be Razak’s electoral fete in Sabah, it would appear that the Framework Agreement, contrary to our best hopes and expectations, is indeed doomed.

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IHL Month


August 12, 1949 was when the Philippines signed the Geneva Conventions of 1949, the only universally ratified treaty in the world . This Convention codifies the corpus of international humanitarian law. This is the branch of public international law that applies only to situations of armed conflicts. It seeks to limit the adverse consequences of war for individuals who are not actively taking part in the hostilities. It seeks to achieve this avowed objective by: one, according protections to civilians, the wounded and the sick, humanitarian workers, prisoners of war, and religious leaders; and two, by limiting the means and methods of warfare.

The principle of protection mandates all fighters not to intentionally target protected persons. On the other hand, by highlighting to combatants and fighters that they do not have unfettered discretion on the means and methods of warfare, the law provides for a non-derogable code of conduct applicable to all fighters. For instance, there is the rule that all must fighters must distinguish between individuals with protection and combatants. Under this principle known as that of “distinction,” fighters must at all times desist from targeting protected individuals such as civilians. This is why humanitarian law advocates cry “war crimes” whenever members of the Armed Forces of the Philippines or the Moro International Liberation Front or the New People’s Army target innocent civilians.

Furthermore, the law prescribes that the use of force must always be justified by military necessity. This means that all military strikes must always be for the reason that it will contribute to the military objective: that is, the complete subjugation of the enemy with the least incidental damage possible. This is why the giving of the order to “leave no quarters” or that no survivors should be left is also a war crime. This is because the military objective is only to defeat the enemy and not to kill all adversaries.

There too is the principle of proportionality which tempers the application of the principle of protection. Under this principle, the taking of life and damage to property is not always illegal if it can be shown that its perceived military advantage will outweigh its disadvantages. This, I reckon, is why all countries have agreed to be bound by IHL. For while IHL humanizes warfare, it still recognizes that states have the right to use as much force as is necessary to obtain its military objectives. Because of this rule, not all killings of civilians can be prosecuted as war crimes. Only those that expressly target civilians knowing them as such are punished.

Through an executive order, the month of August has been declared in the Philippines as IHL month to commemorate not just our signature to the Geneva Conventions, but more importantly, to remind all fighters in the country of their legal obligations under the law. Unlike human rights law which originally took the form of binding treaty obligations and therefore are duties of a state, IHL applies to all fighters without distinction. It applies to all officers and men of the AFP, the NPA. The Moro National Liberation Front, the MILF, and now, even to the Bangsamoro Islamic Federation Fighters of Umbra Kato.

This years’ celebration is unique because for the first time, we are celebrating IHL month with a three-in-one: we have passed a new domestic enabling legislation criminalizing breaches and violations of IHL, Republic Act 9851; we have become the 117th member state of the International Criminal Court, a permanent court that tries individuals for war crimes, among others; and we have become the latest state party to Additional Protocol 1 of the Geneva Convention. This latest protocol expands the protection of the law to all kinds of civilians. With these developments, we have become the most dedicated country in Asia to the implementation of IHL.

Furthermore, while we have not done away with all armed conflicts in the country, we appear to be making strides in arriving at a peace accord with all insurgents in the country, including the MILF and the NPA. This augers well too for IHL because while compliance with IHL certainly is indispensible in times of armed conflict, there is still no substitute for peace.

While the recent spate of violence waged by Umbra Kato’s BIFF in Maguindanao seems to indicate that long-term peace in Mindanao may take longer than expected, it helps that meanwhile, all Filipinos remain under the protection of IHL.

Happy IHL month to one and all!

When talking peace and prosecuting war crimes are not mutually exclusive


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.

MOA-AD Part 2?


Let me be very clear. There is no substitute to peace. Mindanao has been the theater of war since the Spaniards came to our shores. It is time for the people of Mindanao to finally live in an area rid of conflict and in peace. So what is the latest proposal engineered to bring peace to the war-ridden island? The Moro Islamic National liberation Front has finally made it clear. They want a state within a state (or a sub-state). According to its Web site, “The MILF’s formula to solve the Moro Question in Mindanao is very simple … Let the Moros run their affairs. Let them decide their own destiny. Let them succeed or self-destruct. Gone [are] the days when the government in Manila designed everything for them. The most important element here is self-determination … This is a right that cannot be foreclosed by any agreement or [be] the subject of negotiation.” First, what is this right to self-determination? It is a people’s right to “determine their political future and freely to pursue their economic, social and cultural development.”  Under current practice, it is a right of a people to  choose  between independence,  as well as self-government, local autonomy, merger, association or some other forms of participation in government. In other words, it is not limited to creating an independent state, contrary to what many believe. What are the limitations by which the MILF may be accorded this right? Well, in nullifying the Memorandum of Agreement on Ancestral Domain, a pact also intended to finally achieve peace during the Arroyo administration, the Supreme Court ruled that any agreement with the MILF should be within the confines of our Constitution. Said the Court: “MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the [Bangsamoro Juridical E Entity] are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.” Addressing the issue of the need to amend the Constitution to give effect to the agreement, the court declared: “Moreover, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee”. With these as guidelines, how do we assess the latest proposal of the MILF? Quite frankly, I think the latest proposal, if assented to by President Benigno Aquino III, may suffer the same fate as the earlier agreement on ancestral domain.  This is because what the MILF proposes goes beyond the grant of full autonomy that Congress may provide by law. In their own words, they want a “sub-state within a state”. This is an independent state within a federal form of government. Ours currently is a unitary form of government . In Basco et al vs. PAGCOR, the Court explained that in our system of government, “local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government.” A federal system of government, on the other hand, is where independent states share sovereignty with the central  government. Under this system, the states comprising the federation have an existence and perform functions that cannot be unilaterally changed by the central government. A federal system of government is clearly what the MILF wants under its concept of a “sub-state within a state”. There is nothing wrong with this except that as it currently stands, it cannot be done without amending the 1987 Constitution. Yes, there are procedures for this, either through a constitutional convention, a constituent assembly, or through a people’s initiative. But as stressed by Chief Justice Reynato Puno in his separate opinion : “there is no power nor is there any right to violate the Constitution on the part of any official of government. No one can claim he has a blank check to violate the Constitution in advance and the privilege to cure the violation later through amendment of its provisions. Respondents’ thesis of violate now, validate later makes a burlesque of the Constitution.” Mr. President, take heed.