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PEACETALK: Caveat Amnestor;  Pax et Justitia

NAGA CITY (MindaNews/13 Nov) — AMNESTY GRANTOR BEWARE.  We write this in the context of an expected Presidential proclamation for certain persons for legally punishable acts committed “in pursuit of political beliefs or in connection with the rebellion waged by the New People’s Army (NPA) under the direction of the Communist Party of the Philippines,” which amnesty proclamation has been agreed in principle (not yet the actual proclamation) in the ongoing peace talks between the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP).  This is intended “to promote an atmosphere conducive to the attainment of a just, comprehensive and enduring peace and in line with the Government’s peace and reconciliation initiatives.” 

That is all well and good. Perhaps the only concern is that the amnesty should not cover those undeserving of it under generally or internationally accepted standards of non-coverage.  Thus, the caveat in this article’s title.  We understand that a draft of the expected proclamation provides “that amnesty shall not cover crimes against chastity and other crimes for personal ends.”  This exclusion is justifiably warranted but it is not enough.

Interestingly, there is also, among others, House Bill (HB) No. 490 for an Act Granting Amnesty to Members of the CPP-NPA-NDFP “and other individuals and groups involved in past political conflicts who shall apply under this Act.”  This is interesting on several levels.  Firstly, amnesty is by concept an act of executive, not legislative, clemency.  But unlike other forms of executive clemency such as pardon, reprieve and commutation of sentence, a presidential proclamation of amnesty is subject to a Congressional resolution (not bill) of concurrence.   Secondly, the bill author is Representative and former President Gloria Macapagal Arroyo of the former “U.S.-Arroyo regime” with which the CPP-NPA-NDFP were mortal enemies.  Indeed, what a difference a new regime, “anti-U.S.” at that, makes?  

Thirdly, the amnesty coverage per HB 490 is broadened – as should usually be – to cover “other individuals and groups involved in past political conflicts,” i.e. other than the CPP-NPA-NDFP, presumably like its rejectionist breakaway groups, the Moro liberation fronts, and even military rebel groups.  And fourthly, the Arroyo amnesty bill, to its credit, excludes from coverage “the crimes against chastity, rape, torture, kidnapping for ransom, use and trafficking of illegal drugs, and violations of international law or conventions and protocols, even if alleged to have committed in pursuit of political beliefs or if the individual or group [Note: group] was accused of political [the] political conflict.” (underscoring supplied)

There are crimes even for political ends or in pursuit of political beliefs that should indeed be excluded from amnesty under generally or internationally accepted standards of non-coverage.  The most familiar standard is found in what is considered as a rule of customary international humanitarian law (IHL) that itself sanctions or mandates amnesty:  “At the end of hostilities, the authorities in power must endeavor to grant the broadest amnesty to persons who have participated in non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.”  (underscorings supplied, from Rule 159 in the authoritative 2005 two-volume study of the International Committee on the Red Cross on Customary International Humanitarian Law

Customary international law is certainly part of “the generally accepted principles of international law” and, as such, are “adopted” by no less than the Philippine Constitution “as part of the law of the land.”   If war crimes are the most familiar standard for exclusion from the coverage of amnesty in the context of an internal armed conflict, the exclusion may be said to also apply to other crimes on the same or similar level of unacceptability as war crimes.  In the widely accepted Rome Statute of the International Criminal Court (ICC), of which the Philippines is a State-Party, war crimes together with genocide and crimes against humanity are characterized as “the most serious crimes of concern to the international community as a whole.”  There is therefore good reason to also exclude genocide and crimes against humanity from amnesty coverage.

In addition, the same may be said of certain specific acts under the broad categories of war crimes, genocide and crimes against humanity such as particularly extra-judicial killings (EJKs), torture and enforced disappearances.  These crimes are covered not only by international law and conventions but also by recent Philippine special laws which implement them like Republic Act (RA) No. 9851 (for war crimes, genocide and crimes against humanity), RA 9745 (for torture) and RA 10353 (for enforced disappearances), while there is the current Senate Bill (SB) No. 1197 of Senator Leila de Lima to cover EJKs.   It might be noted though that while the Rome Statute of the ICC, the Convention Against Torture (CAT), the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), and RA 9851 cover both state and non-state perpetrators, it is unfortunate that RA 9745, RA10353 and SB 1197 are presently limited to only state perpetrators.

But experience globally and locally has shown that what amount to EJKs, torture and enforced disappearances from the point of view of the victims have been perpetrated also by non-state armed groups or actors like rebel groups and rebels.  There is most notably in recent Philippine history the CPP-NPA internal purges of the 1980s which were characterized by all three said crimes, “three-in-one,” as it were. 

And if we are to add one more crime to the six internationally-proscribed crimes we have pointed out with a view to their exclusion from amnesty coverage, aside also from those other crimes specified (rape, kidnapping for ransom, use and trafficking of illegal drugs)  for that purpose in Rep. Arroyo’s HB 490, it would have to be terrorism which is also proscribed by international conventions and our domestic RA 9372 (Human Security Act of 2007), albeit not the best kind of anti-terrorism legislation because of some objectionable features.  But at least, as far as the international and domestic law against terrorism is concerned, both state and non-state perpetrators definitely can be called to account.

Relevant to our discussion about warranted exclusions from amnesty coverage is some recent jurisprudence in several cases arising from one particular CPP-NPA purge that occurred in Inopacan, Leyte in 1985.  The most prominent corresponding case is that against some 52 CPP-NPA-NDFP leaders and personalities led by Jose Maria Sison which was actually for multiple murders (15 counts).  Some of the detained or bailed accused sought the dismissal by two trial court concerned of the murder charges under the long-time political offense doctrine, whereby common crimes like murder perpetrated in furtherance of a political offense like rebellion are absorbed into the latter which is the proper offense, not murder.  Upon elevation to the Supreme Court (SC), it ruled in 2014 in the elevated cases there, with the lead case known as Ocampo vs. Abando, that no such dismissal can be made prior to a determination by the trial court that the murders were committed in furtherance of rebellion (OR for that matter, whether the murders turn out to be more in the nature of violations of RA 9851).  

The separate Concurring Opinion of Justice Marvic Mario Victor F. Leonen in that SC case is most instructive on the political offense doctrine and the exceptions thereto, which can be said to parallel those to amnesty coverage.  He extensively discusses the bearing of RA 9851 on that doctrine, which again can be said to parallel that on amnesty.  He ultimately discusses a “nuanced interpretation of what will constitute rebellion,” even demanding of it a high moral ground, as should be demanded of true rebels with a cause, thus:

It is not our intention to wipe out the history of and the policy behind the political offense doctrine. What this separate opinion seeks to accomplish is to qualify the conditions for the application of the doctrine and remove any blanket application whenever political objectives are alleged. The remnants of armed conflict continue. Sooner or later, with a victor that emerges or even with the success of peace negotiations with insurgent groups, some form of transitional justice may need to reckon with different types of crimes committed on the occasion of these armed uprisings. Certainly, crimes that run afoul the basic human dignity of persons must not be tolerated. This is in line with the recent developments in national and international law.

x x x

Concomitantly, persons committing crimes against humanity or serious violations of international humanitarian law, international human rights laws, and Rep. Act No. 9851 must not be allowed to hide behind a doctrine crafted to recognize the different nature of armed uprisings as a result of political dissent. The contemporary view is that these can never be considered as acts in furtherance of armed conflict no matter what the motive. Incidentally, this is the view also apparently shared by the CPP/NPA/NDF and major insurgent groups that are part of the present government’s peace process.

We, therefore, should nuance our interpretation of what will constitute rebellion.

The rebel, in his or her effort to assert a better view of humanity, cannot negate himself or herself. Torture and summary execution of enemies or allies are never acts of courage. They demean those who sacrificed and those who gave their lives so that others may live justly and enjoy the blessings of more meaningful freedoms.

Torture and summary execution – in any context – are shameful, naked brutal acts of those who may have simply been transformed into desperate cowards. Those who may have suffered or may have died because of these acts deserve better than to be told that they did so in the hands of a rebel.

In fine, the qualification against “any blanket application [of the political offense doctrine] whenever political objectives are alleged” in defense of common crimes charged for acts in furtherance of rebellion should also apply (meaning the qualification) against any blanket grant of amnesty for rebellion and other crimes in furtherance thereof or in pursuit of political beliefs.  Incidentally, it is in this SC case that the first batch of 11 NDFP claimed consultants, who had been arrested and detained due to the trial court cases, were granted conditional provisional liberty by the SC itself last August for their attendance and participation as consultants in the Oslo peace talks that month and subsequently – at the intervention motion of the GRP peace panel (again, what a difference a new regime makes).

While we are at it, including with SC jurisprudence, as for the Oslo peace talks agreement for releases of some 434 “political prisoners” (more precisely, “detained prisoners listed by the NDFP,” actually by Karapatan), it is interesting to note that both the GRP and NDFP lawyers have “been exploring all legal means to secure the release of the prisoners.”  These include allowing the prisoners to post bail, pardon from President Duterte, and withdrawal of cases filed by the government.  The second batch of about 50 prisoners are said to be released “because of humanitarian reasons – many of them will be women, the sick, the elderly and those who have been detained for more than 10 years.”  Indeed, when there is political will, there is a way.

Possibly relevant to this is what might be called the reaffirmed “Enrile bail doctrine” based on a recent SC decision which gave bail consideration due to “the fragile health and advanced age of Enrile,” apart from his apparently not being a flight risk for required appearances during the trial, in his Sandiganbayan plunder case, thus:  “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or endanger is life.  Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive incarceration during the trial.”  Constitutional equal protection of the law dictates the application of the “Enrile bail doctrine,” while it stands, to others similarly situated.  But note that this doctrine emphasizes “the objective of bail to ensure the appearance of the accused during the trial,” thus apparently making flight risk a major consideration in its application.         

Be that as it may, being a peace consultant or panel member, or being a woman, sick, elderly or long-detained, or other humanitarian considerations, does not or should not by itself absolve anyone from war crimes, crimes against humanity, genocide, EJKs, torture, enforced disappearances, terrorism and the like that he or she may have committed, as it does not or should not absolve one who committed plunder.

PEACE AND JUSTICE.   It should be noted that there are also the still pending criminal cases, this time for violation of RA 9851, among others, against Moro National Liberation Front (MNLF) commanders and fighters led by its Chairman Nur Misuari for the Zamboanga City siege of 2013.  This has come to the spotlight again with his historic meeting with President Rodrigo Duterte in Malacañang last November 3 that was said to bring the Mindanao peace process back “on track.”   Notably, while the Zamboanga City community led by Mayor Maria Isabelle Salazar was supportive of this particular peace effort to being the MNLF main faction of Misuari “on board,” she nevertheless expressed her community’s sentiment that he “has to be made accountable” for his MNLF forces’ transgressions in that siege, saying “we trust that justice will eventually be served.”  Presidential spokesperson Ernesto Abella has replied that those concerns would be addressed at the “right time.”  This is an excellent illustration of the classic tension between peace and justice in peace processes.

Don’t look now but the 1976 Tripoli Agreement (40th anniversary this year!) — but not the 1996 Final Peace Agreement (20th anniversary this year!) — with the MNLF also provided for amnesty and release of political prisoners.  And for that matter, the 2014 Comprehensive Agreement on the Bangsamoro (CAB), particularly its Annex on Normalization, with the Moro Islamic Liberation Front (MILF) provides for “amnesty, pardon and other available processes towards the resolution of cases of persons charged with or convicted of crimes and offenses connected to the armed conflict in Mindanao.”

Philippine Daily Inquirer commentator Raul J. Palabrica surmises that to get around the Zamboanga City siege cases against Misuari and his MNLF forces involved therein, the government may have to reduce the criminal cases to simple rebellion and drop the “crimes against humanity” (RA 9851) portion.  Rebellion being a political offense, it can therefore be forgiven or absolved by way of a grant of amnesty.  In which case, Palabrica says “the victims of the Zamboanga siege may wind up as collateral damage” of the Mindanao peace process.  The amendment of the charges against Misuari et al. from violation of RA 9851 to rebellion, if ever, would have to be justified by the evidence in the cases.  And if ever, it may have to pass through Justice Leonen again —  to repeat what he said, “persons committing crimes against humanity or serious violations of international humanitarian law, international human rights laws, and Rep. Act No. 9851 must not be allowed to hide behind a doctrine crafted to recognize the different nature of armed uprisings as a result of political dissent. The contemporary view is that these can never be considered as acts in furtherance of armed conflict no matter what the motive.”      

Presidential peace adviser Jesus Dureza was reported as saying that, in the Mindanao peace process (if we may add, and for that matter, in the peace process on the Communist front), he did not want a situation similar to Colombia where citizens rejected a hard-earned peace agreement with communist rebels in a plebiscite last October, just before Colombian President Juan Manuel Santos won this year’s Nobel Peace Prize for that peace agreement.  What appears to be the most oft-cited reason for the rejection of the Colombian peace agreement with the Fuerzas Armadas Revolucionarias de Colombia (FARC) — aside from the lack of bipartisan support and significant public distrust of the FARC — was a public perception that the peace deal was too lenient justice-wise  to the rebel commanders and fighters, particularly those responsible for many kidnappings, killings, rapes, forcible use of children as  soldiers, and internal displacement.              

Under the Colombian peace agreement, rank-and-file fighters were expected to be granted amnesty, while those involved in war crimes would be judged in special tribunals with reduced sentences, many of which involve years of community service work like removing land mines once planted by the FARC.  But the political opposition leader, a former President himself who maintained wide-ranging influence, argued that the rebels should serve jail sentences and never be permitted to enter politics. The problem with the latter demand is that it would remove an essential incentive for the rebel group’s leadership to conclude a political settlement of the armed conflict, leaving only military options, thus precluding transformation of an armed militant organization into an unarmed political group and thus defeating the purpose of peace negotiations.   

In fairness, the Colombian peace agreement did try to balance peace with justice, even if many found it to be wanting.  The peace institute Conciliation Resources article “Colombia Brings Hope” reported that the Colombian peace process grappled with the question “How to avoid impunity for past crimes and at the same time reach a peace agreement to prevent new crimes from happening?” (and for that matter the question “How can Colombia hold human rights abusers accountable for their crimes, without imposing penalties so severe that they encourage guerrilla leaders to keep fighting?”) because “No guerrilla leader in the world would lay down arms voluntarily and go straight to prison for acts committed during the revolutionary struggle.” 

And this is the balancing of peace and justice which the Colombia peace process came up with, as reported by Conciliation Resources: “The parties have agreed that only political crimes will be amnestied.  Amnesty will not extend to serious war crimes, hostage taking, torture, forced disappearance, extrajudicial executions or sexual violence.  These crimes will be subject to investigation and trial by a Special Jurisdiction for Peace. Those perpetrators who confess their acts will still face restriction of liberties and rights, but with a focus on reparative and restorative functions towards the victims instead of sitting behind bars. Similar to the South African case, those who deny responsibilities but are found guilty will go to prison.”   

That balancing of peace and justice appears fair enough.  But the public perception or misperception of this as too lenient is a lesson learned by the continuing Colombian peace process.  And so, it now appears to be headed to a renegotiation of more stringent terms with the rebels, but this time with bipartisan participation.  President Santos is still optimistic:  “With the will for peace from all sides, I am sure we can reach satisfactory solutions for everyone soon.  The country will come out winning and the process will be strengthened.”  The continuing Philippine peace processes must also learn from these lessons and other aspects of the Colombian peace process.

One exemplary feature of the Colombian peace process was the strong voices in it of the victims of the armed conflict, even placing them at the center of the talks.  So much so that an agreement on justice for the victims of violence — to ensure their rights to truth, justice, reparations and guarantees of non-repetition — closed the fourth of five substantive items on the Colombian government-FARC negotiating agenda.  Unfortunately, in the Philippine peace processes, the voices of the victims on all sides of the armed conflicts have generally, or for the most part, been weak, unheard or unsolicited, so far.  There should be more victim voices in the talks.  In the meantime, even without victims to speak up, there is international and domestic law which somehow speaks for them.

[SOLIMAN M. SANTOS, JR. is presently Judge of the Regional Trial Court (RTC) of Naga City, Camarines Sur.  He is a long-time human rights and IHL lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer, whose initial engagement with the peace process was with the first GRP-NDFP nationwide ceasefire in 1986, particularly in his home region of Bicol, a long-time rural hotbed of the communist-led insurgency.  He was the main drafter of the “IHL Bill” which became RA 9851.  He is the author of a number of books, including his latest How do you solve a problem like the GPH-NDFP peace process?  (Siem Reap, Cambodia:  The Centre for Peace and Conflict Studies, 2016)]

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