Extrajudicial killings

Wednesday, October 5, 2016

Extrajudicial killings as crime against humanity

A TOTAL of 3,257 extrajudicial killings (EJKs) were committed during the Marcos dictatorship. In contrast, there were 805 drug-related fatalities from May 10 (when Rodrigo Duterte emerged winner of the presidential election) to Aug. 12, per the Inquirer count.

If the current rate continues, the total number of EJKs for the six years of the Duterte administration will end up about 700 percent more than the killings committed during the 14 years of the Marcos dictatorship.

President Duterte is either ill-advised or terribly underestimating the risk that he can be held liable at the International Criminal Court, given the circumstances of the killings.

In 2011, the Philippines ratified the Rome Statute which established the International Criminal Court. Under this treaty, every Filipino, including the President, can be tried by this Court which has jurisdiction over crimes against humanity. The treaty provides that when murder is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” it becomes a crime against humanity.

The possibility that the current EJKs will be considered by the International Criminal Court as amounting to a crime against humanity is a liability risk that our President is miscalculating.

Ruben Carranza, director of the New-York-based International Center for Transitional Justice, points out that “[w]hen over 500 civilians have been killed by both police and vigilantes with the clear goal of targeting them in a ‘war against drugs,’ with their impunity explicitly guaranteed by the president, then the elements of EJKs as a ‘crime against humanity of murder’ are already there—(a) widespread or systematic killings, (b) civilians are targeted, and (c) the perpetrators know or intended their conduct to be part of a widespread or systematic attack.”

On Aug. 11, Kabayan party-list Rep. Harry Roque delivered a privilege speech in which he said: “It is clear that the civilian population is being attacked—news reports all around us overwhelmingly establish that hundreds of Filipinos have been killed either directly by governmental forces or with their support or tolerance.”

Roque likewise said: “It is also clear that the President is aware that these acts are ongoing. Even without proof of a directive on his part, he has, in many instances, spoken about the use of violence against drug syndicates.”

Roque cited the decisions of international criminal tribunals which prosecuted political and military officials for crimes against humanity committed in Rwanda and the former Yugoslavia. These tribunals declared that “it is not necessary to show that [the crimes committed] were the result of the existence of a policy or plan” and that the plan “need not be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events.”

The party-list representative cautioned the President to be careful: “While it would be imprudent for me to say with certainty that President Duterte has already committed a crime against humanity, it would be a disservice to this entire nation if I did not warn him to be careful. Neither the Rome Statute nor general international law prescribes a minimum number of victims for an indictment. So long as the [International Criminal Court] believes that the war on drugs is ‘widespread’ and ‘systematic,’ [it is] likely to investigate.”

The President enjoys immunity under Philippine law, but he has no similar immunity for crimes under the International Criminal Court’s jurisdiction. Carranza says “the presidents of Sudan and Kenya were charged” in the court even during their incumbency. And there is no expiration of liability for ICC crimes, so he can be charged even long after he leaves Malacañang.

The determination of Mr. Duterte to cleanse the country of the drug menace and his willingness to risk his “life, honor, and the presidency” to achieve this goal are praiseworthy.

However, we are at that stage of our civilization where we have long abandoned the ancient practice of relying on operatives to dispense justice through the smoking barrel of their guns. We have advanced our civilization by relying on gun-wielding men to apprehend criminals, but have separately assigned the task of listening to accusations of guilt and protestations of innocence to men and women who mete out penalties.

It is true that our current justice system is notoriously imperfect and graft-prone. But we do not improve our way of life by marching back to the Dark Ages where justice is made synonymous with violence. We improve our defective justice system by fixing it, not by abandoning it.

It is true that the proliferation of drugs is partly due to corrupt judges. But it is also true that illegal drugs proliferate because of a corrupt police force and a corrupt prosecution service, both of which are executive agencies within the President’s control to reform.

It is also true that before our children become drug dependents who clog police and court dockets, there are the education, health, and social welfare departments which are executive agencies within the President’s control to tap for instructive, reformative, and curative solutions to the drug menace.

We want our President to succeed in his fight against illegal drugs. But in his haste and zeal, he may end up accused of a crime more serious than the ones perpetrated by his archenemies. The last thing our country needs is a President facing trial at the International Criminal Court.

Tuesday, October 4, 2016

Danica May, 5 years old

MORE THAN 1,800 deaths so far, and counting. That’s the number provided by Philippine National Police chief Ronald dela Rosa himself at the Senate inquiry into the surge of extrajudicial killings since July 1, when President Duterte took office with a vow to rid this country of drugs and crime by whatever means.

How many of these deaths involved minors? The government numbers do not indicate that information. And so the death of Danica May Garcia will eventually be lumped along with the rest—one more negligible statistic in the administration’s brutal war against the drug menace that it has declared as the country’s No. 1 problem today.

But there is nothing ordinary or negligible about the story of Danica May. Only five years old, the girl that her grandmother said was always excited to attend kindergarten at a nearby school was hit in the head by a stray bullet when her grandfather Maximo Garcia was shot by a gunman at the back of their house. The grandfather, a tricycle driver, survived with a wound in the stomach; the child died in hospital, becoming the youngest fatality so far in the ongoing bloodbath.

When is the death of a human being one too many? Is there even a just measure for it? Dela Rosa said 756 persons in the PNP list died because they resisted arrest.

“Nanlaban.” If they had not done so, he said, they would be alive today. “Buhay sila.” And yet, in a recent viral video, a drug suspect already wounded and shouting surrender still ended up peppered with bullets by the Pasay City police.

And these are the adult ones, who, peremptorily declared suspects under lists drawn up in secret by police and barangay officials and, by that unproven accusation, without benefit of any formal investigation that would

allow them to clear their name, may find themselves summarily killed. Take Danica May’s grandfather, who had earlier presented himself to the police after learning that he was on a drug watch list. That act appears to have only exposed him further to harm, leading to the attempt on his life three days later. But his young apo got shot and bled to death in the process.

“Collateral damage,” the defenders of this campaign would say—the banal wording meant to carve a comfortable distance from the unnerving wails of those mourning dead loved ones. Besides, the same defenders would say, it wasn’t the administration that pulled the trigger.

This kind of response is appalling, and misses the point. Whatever one’s position in this war, the current apparently state-sanctioned climate of impunity where people under mere suspicion of crime are killed without compunction is already a tragedy—a violation of the fundamental presumption of innocence enshrined in the Constitution. But the death of children—whether by unfortunate accident or as the targets themselves, as in the well-documented case of three brothers, all minors, summarily executed by the so-called Davao Death Squad years ago—brings the tragedy to another level.

President Duterte’s war is now claiming many more unintended victims. Can it be because of the official endorsements of extrajudicial means emanating from, or abetted by, Malacañang? Earlier, the top cop himself has said he thinks the spiraling vigilante deaths are welcome because they mean that the drug syndicates are eliminating each other; now, he has taken to goading admitted addicts who have surrendered to police to commit arson on the houses of their alleged drug suppliers.

The apparent effect of these extraordinary exhortations is to open the environment to greater bloodshed and a wider field of combat—and with it, the possibility of many more civilians, including children, dying in the crossfire.

While Danica May’s death made the headlines, no significant public outcry attended the news. Contrast that with the shock and outrage expressed by many Filipinos on social media over the video of a shell-shocked boy in Aleppo, covered in dust and blood, uncomprehending and rendered mute by the carnage around him. Children are indeed the most vulnerable victims of any war, but one need not look to Syria or other countries for confirmation of that distressing truth. The out-of-control

violence in our streets is racking up the same victims; Danica May will not be the last of them.

5 peasants killed in 6 days

Assert Socio-Economic Initiatives Network of the Philippines (Ascent) strongly condemns the recent spate of extrajudicial killings of farmers in the provinces of Nueva Ecija and Isabela. Within a span of only six days five farmers have been killed.

On Sept. 3, 2016, armed men opened fire on around 100 farmers who were taking a break from their “bungkalan” in the Fort Magsaysay Military Reservation in Nueva Ecija. The attack injured four of the farmers and seriously injured another. The farmers were all members of Alyansa ng mga Magbubukid na Nagkakaisa, a local peasant organization engaged in asserting their right to land and food, and in disaster risk reduction.

Then last Sept. 7, Ariel Diaz was gunned down by armed men in broad daylight. Diaz was chair of Danggayan Dagiti Mannalon, intermunicipal coordinator of Peasant Alliance Against Foreign Landgrabbing in Isabela and coordinator of Unyon ng mga Manggagawa sa Agrikultura, an organization of agricultural workers. He was the fifth peasant to be killed in six days under the Duterte administration.

In 1991, 3,100 hectares of the Fort Magsaysay Military Reservation was awarded to over a thousand farmers under the Comprehensive Agrarian Reform Program, but the government failed to implement the awarding. The Philippine military was at times instrumental in denying Fort Magsaysay farmers their right to their land.

The government has denied poor peasants in the Philippines their right to land and food for so long. In order to fight hunger and poverty, they have implemented projects geared toward attaining food security and disaster-risk management. Bungkalan is one such example. It is a form of communal farming, wherein members collectively farm a piece of land, the produce of which they divide among themselves based on their actual work contribution.

Poor peasants have also been active in asserting their right to food as well as attaining peace and justice. However, instead of assistance, they are dealt with bullets and death and are targeted for extermination by land-grabbers and large corporations, often in cahoots with government officials and security forces.

Ascent is deeply concerned with this turn of events, given the recent pronouncements of the Duterte administration regarding change to improve the lives of the poor. We urge the government to show its commitment to protecting the right of farmers to food and land by ensuring that no more peasants become victims of extrajudicial killings. In addition, we also call on the government to immediately investigate the attacks on farmers and the killings and bring those responsible to justice.

—RENMIN CRISANTA VIZCONDE,

‘Nanlabán, patay’

As soon as you switch on the television to watch the news in Filipino, the word you hear again and again and again is “patay” (dead). The word comes as different parts of speech (noun, verb, etc.) and in different tenses and conjugations-pinatay, pinapatay, pumatay, pumapatay, napatay. Drug-related, of course.

The other word of the season is “nanlabán” (fought back). Filipino grammarians should be able to explain why “lumaban” (also translated as “fought back”) is not as precise as nanlabán (accent on the last syllable, pronounced mabilis). If a diacritical mark (tuldik) were to be used, it would have a pahilis on the last syllable-thusnanlabán. (Remember malumay, malumi/paiwà, mabilis/pahilís and maragsa/pakupyâ in Balarila class.)

Nanlabán does not seem to have an exact equivalent in other Filipino languages and dialects. What they have is the simple equivalent of lumaban (pronounced malumay). In Hiligaynon or Ilonggo, it is nagbatò.

Nanlabán, if at all it was meant to sound more onomatopoeic than lumaban, means to fight back, and fight back with defiance. The mabilis/pahilís sound gives it a defiant streak.

But Balarila aside, the word patay that should evoke solemn thoughts and feelings—for the dead that deserve respect no matter what they were before their souls left their bodies—now has a criminal connotation. That is, in the news.

The word patay that is being used nowadays especially in news reports, means “corpses”—lifeless bodies and cadavers strewn about on sidewalks, grassy fields, dark alleys, even inside homes and hovels. Some died while allegedly shooting back at their pursuers (nanlabán), others were summarily killed, their corpses wrapped in garbage bags, fastened with packing tape and completed with a warning scrawled on a piece of cardboard: “Pusher, huwag tularan.”

Didn’t PNP Chief Ronald “Bato” dela Rosa say something about allowing the pursued to fight back? “Kung ayaw lumaban, palabanin.” If the pursued does not fight back, make him fight back. Defiance justifies a bullet.

I used to get irritated when, with aplomb, newscasters would shout out loud the day’s headlines and (with imaginary drums rolling) exclaim: “PAT-AY!” As in “Batang nasagasaan ng tren, PAT-AY!” As if it were a cause for rejoicing.

I’m not saying they should sound elegiac, but even with the volume lowered you can tell by the look on the newscasters’ faces and the tautness on their necks that they are shouting. Now there is really no need for them to shout “PAT-AY!” Because “patay” is the new normal.

President Duterte’s war on drugs has drawn strong reactions here and abroad because of the rising number of corpses since he took office two-and-a-half months ago. The number has hit the 3,000 mark. No need to describe here the gruesome details, only to say that the deaths have been classified according to how the 3,000 or so met their gruesome end. Drug bust, extrajudicial, shoot-out, vigilante-style—name it. What, no suicide?

Three days ago, Inquirer Opinion ran an open letter to President Duterte from three commissioners of the Global Commission on Drug Policy (http://www.globalcommissionondrugs.org/to-the-president-of-the-philippines/), Fernando Cardoso, former president of Brazil; Louise Arbour, former UN high commissioner for human rights, Canada; and Sir Richard Branson, entrepreneur, founder of the Virgin Group. The letter is now circulating on the internet.

The Global Commission on Drug Policy was established in 2010 by political leaders, cultural figures and globally influential personalities to contribute to the world debate on drug policy. It aims at bringing to the international level an informed, science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies.

The commission has 23 members, including eight former heads of state. It advocates an open international dialogue on issues related to drugs, and on the negative impact of the current international control regime on health, human rights and development. It calls on broadening the debate on drugs and drug policy beyond just drug trafficking and organized crime.

In their letter, the commissioners pointed out to the President that his strategy that had already been used in Thailand failed to reduce drug trafficking there. They pointed out the marked successes in harm and crime reduction in countries that employed alternative strategies.

“Mr. President, we believe that your current strategy also constitutes an unwinnable war, at a terrible cost to your population. It is not a question of choosing between human rights and the safety of your people, as you have claimed, but the means employed to address crime must not result in further crimes against individuals whose conduct often causes very little harm…

“An effective drug policy is far more complex than you portray it, and should include investments in drug prevention and treatment, harm reduction, public health, socioeconomic development, criminal justice reform, as well as security.

“These measures will help address the root causes of drug use and drug trafficking, and not only respect the needs and rights of all individuals, but will also be far more effective long-term than the brutal approach which you currently favor.”

With Mr. Duterte’s let-it-be stance on drug convict Mary Jane Veloso, who is on death row in Indonesia, he could not—for the life of him—suddenly be a bleeding-heart President begging Indonesian President Widodo to spare her life. Mary Jane had been found guilty of smuggling 2.6 kilograms of heroin. The Velosos who, on cue, had rudely lambasted then President Benigno Aquino III—who, to be fair, did all he could to stay Mary Jane’s hanging—are now pleading for help from the new President who counts corpses at breakfast.

No, he did not plead for her, President Duterte announced, minus the usual expletives.

Monday, October 3, 2016

History of Extrajudicial Killings in the Philippines

Extrajudicial killings and other gross human rights violations in the Philippines emerged as a public phenomenon during the administration of Ferdinand Marcos, especially during and after his imposition of martial law.22 Marcos declared martial law in 1972, lifting it in 1981.23Although he justified martial law as a necessary response to armed Communist rebels, his assumption of emergency powers was also a systemic assault against his political opponents and the press as well as the beginning of an intensified counterinsurgency campaign against various rebel groups.24 Marcos’s political opponents were murdered, disappeared, and/or tortured on a vast scale—a practice that would intensify even after martial law was officially lifted.25 Targets included farmers, students, lawyers, journalists, tribal leaders, and academics.26 The practice of ‘salvaging’ became particularly widespread. ‘Salvaging’ refers to the disappearance and summary execution of accused subversives by the military with ‘their bodies left where they will eventually be found.’27

In addition to the targeting of political opponents and the media, the Marcos years saw an intensified counterinsurgency campaign that led to numerous civilian deaths in areas where the New People’s Army operated.28 In addition to those killed by the regular military were those killed by paramilitary forces armed, supported or tolerated by the government.29 These groups engaged in brigandage against civilians and other crimes like smuggling and murder for hire, in addition to being employed to kill the government’s political opponents.30 When the government was questioned about its or its adjuncts’ killings, its standard responses included claiming that victims had died while attempting to escape from government custody, in armed encounters with the military, or had been assassinated by Communists—claims that were usually rejected.31

The rise in human rights violations during the Marcos era has been traced to a number of factors: (1) official orders from Marcos to detain suspects without warrants and in extralegal safe houses; (2) the enculturation of graduates from the Philippine Military Academy in a culture of ‘torture, corruption and impunity’; (3) Marcos’ permissiveness with respect to military commanders’ pursuit of Communists combined with competition amongst commanders for his favor; (4) and the transformation of anti-insurgency efforts into underground campaigns ‘spreading terror through arrests, salvaging and torture.’32 Despite this strategy, the Marcos years saw a large increase in the numbers of armed rebel fighters and in their popular support.33 The New People’s Army was hardly innocent of murder either, dispatching ‘Sparrow’ death squads into the cities to engage in assassinations and engaging in a ‘purge’ in the 1980s in which it executed hundreds of its own members.34 However, even then, the government was seen as responsible for the bulk of human rights violations.35

2. Extrajudicial Killings after Marcos: From Aquino to Arroyo

The fall of the Marcos regime in 1986 ended neither armed rebellions nor the political killings and enforced disappearances that had come to be associated with it. The succeeding administration of Corazon Aquino continued the practice of arming paramilitary groups, this time known as Citizen’s Armed Forces Geographical Units or CAFGUs,36 under direct military command, to which many human rights violations, including extrajudicial killings, were attributed.37 Peace talks between the government and the CPP-NPA fell apart when the NPA rejected the Aquino administration’s peace overtures, including offers of amnesty and the release of Communist Party leaders, and when it continued its armed campaign against the government.38

In 1987, Aquino declared a ‘total war’ against the NPA, against which the CAFGUs were released.39 CAFGUs distributed ‘hit lists’ of intended targets of violence, warning victims that they would be killed if they did not cease political activities, and engaged in the actual murders of the victims.40 Victims of extrajudicial killings included human rights activists, lawyers, members of the Church, and others.41 Aside from the CAFGUS, elite intelligence units allegedly engaged in covert assassinations.42

Aquino’s successor, President Fidel Ramos improved the Philippines’ record on extrajudicial killings and other traditional human rights concerns.43 Nonetheless, they continued, with most cases attributable to the CAFGUs, the military, and the police.44 In particular, the Ramos administration’s Presidential Anti-Crime Commission, led by then-Vice President Joseph Estrada, became notorious for the summary executions of criminal suspects with official sanction and with impunity.45 The government did, however, reach a framework for peace negotiations with the Communist Party or National Democratic Front, decriminalized membership in the Communist Party,46 and entered into a Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (‘CARHIHRL’) with the CPP-NDF.47

However, the CPP-NDF withdrew from peace talks in 2004 as President Gloria Macapagal-Arroyo’s administration was roiled by an electoral scandal that called her government’s legitimacy into question.48 The Arroyo administration, faced with military and popular discontent responded with a brief assumption of emergency powers directed against the CPP-NPA and discontented military officers.49 It then launched what it called an ‘endgame strategy’against the CPP-NPA.50 President Arroyo ordered the NPA’s defeat by the end of her second term in 2010.51 The campaign against the NPA swept broadly. Among others, the government included leftist members of Congress who had been elected to represent leftist political parties as enemies of the State.52 Outside Metro Manila, extrajudicial killings dramatically rose in number. According to one estimate, the number of cases of extrajudicial killings in the country, excluding journalists, tripled in 2005 and 2006, rising to 63 and 68 respectively from 22 in 2004.53

Special Rapporteur Philip Alston credited the rise to the government’s decision to try to end the insurgency by attacking leftist civil society organizations.54 Leftist activists and personalities, practically the sole victims of the killings,55 were found to have been listed on military and police lists called ‘orders of battle.’56 The manner of killing was generally uniform: victims would be shot by one or two assailants who would sometimes engage in the shooting while on motorcycles.57

Alston observed at least two different general typologies for such killings. In one province, the Armed Forces of the Philippines collect information about residents in particular areas to identify rebels or members of civil society organizations: those who cannot be persuaded to ‘surrender’ from their suspected affiliation then become targets for an extrajudicial execution.58 In another province, the AFP ‘systematically hunt[s]‘ down ‘leaders of leftist organizations’ using torture and interrogation to identify targets who are usually eventually killed.59

High-ranking officers, most notably then-General Jovito Palparan, Jr.,60 made public statements appearing to condone or approve of human rights violations. Palparan went on record to state, among others, that: ‘the killing of activists is necessary incident to conflict’; ‘I encourage people victimized by communist rebels to get even’; and ‘I cannot order my soldiers to kill, it’s their judgment call, they can do it on their own.’61 Palparan, a division-level commander, has been implicated as being directly involved in cases of enforced disappearances and extrajudicial killings.62

And allegation so fat least some official military involvement in extrajudicial killings have been supported with documentation.63 Other high-level administration officials, even Cabinet members, made statements apparently supportive of the scope of the government’s counter-insurgency strategy.64 But how high actual responsibility for the planning and ordering of extrajudicial killings goes remains unknown.65

President Arroyo and her chief military commanders have never been directly implicated in killings or disappearances.

The Arroyo administration’s response to the rise of extrajudicial killings was to publicly censure the killings and to organize task forces and commissions,66 though it saw little progress in terms of actual prosecutions and even less in terms of convictions.67 Nevertheless, the Arroyo administration did see some positive developments. Extrajudicial killings, excluding killings of journalists, declined in 2007 and after.68 The period also saw the finding of the government’s independent Melo Commission that the government was responsible for extrajudicial killings and the Supreme Court’s effort to address extrajudicial killings through the promulgation of the new writs of amparo and habeas data. In addition, the Arroyo period saw the passage of the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity69 and the Anti-Torture Act.70 Moreover, during the last few years of the administration, the country’s Commission on Human Rights took a more active role in investigation human rights violations.71 But the 2010 massacre in Maguindanao province of 58 people by gunmen connected to a political family allied with her administration severely damaged Arroyo’s reputation on human rights,72 as did continuing criticism from the Special Rapporteur and human rights groups concerning the effectiveness of the administration’s measures.73

credit:http://plj.upd.edu.ph/the-dispute-over-extrajudicial-killings-the-need-to-define-extrajudicial-killings-as-state-sponsored-acts/

byChristian D. Pangilinan

THE DISPUTE OVER EXTRAJUDICIAL KILLINGS: THE NEED TO DEFINE EXTRAJUDICIAL KILLINGS AS STATE-SPONSORED ACTS

For several years, the Philippines has faced significant criticism from the international community, human rights groups and local civil society for the deaths of political activists, journalists and others that are the apparent work of elements of the military and the national police. Although the government has publicly denounced such killings, elements of the government have also repeatedly argued that extrajudicial killings should also comprise killings by non-state actors—specifically those by rebel groups. This has led to a dispute over how the State and civil society should define extrajudicial killings. This article argues that efforts against extrajudicial killings should rely on a definition of such killings as acts that are attributable to the State. Such definition would be consistent with principles of state responsibility under international human rights law. Guaranteeing human rights requires that acts of the State be treated distinctly from those of non-State actors. Moreover, treating acts by States distinct from those not by States serves the important practical purpose of facilitating prosecution by allowing for remedies that are tailored for state acts. As an illustration, this article draws on the jurisprudence of the Inter-American Court of Human Rights to propose that victims or their representatives be able to obtain civil redress under an altered burden of proof.

INTRODUCTION

The killing and enforced disappearances of political activists have long been part of modern Philippine life—certainly ever since the administration of President Marcos, during which period the Philippines was repeatedly criticized for the deaths of activists from the political left.1 More recently during the administration of President Arroyo onward, from 2001 to the present, extrajudicial killings and enforced disappearances reemerged in Philippine public consciousness as a drastic rise in their number was reported.2 Reports conflict on the number of victims.3 Some suggest that the number cannot be known.4 Most estimates, though, count them in the hundreds.5

Many credit an increase of killings during the Arroyo administration to its professed goal to eradicate the New People’s Army (NPA)—the Communist Party of the Philippines’ (CPP) armed wing.6 The NPA has been active since the 1970s and has engaged in on-again, off-again peace negotiations with the government since the administration of President Corazon Aquino.7 The Arroyo administration’s anti-insurgency campaign swept broadly, targeting not only armed insurgents but also representatives from leftist political parties in the House of Representatives and members of civil society organizations that the military and police labeled, largely without substantiation, as insurgent fronts.8 In apparent accordance with the administration’s determination that the political left was composed of enemies of the State, numerous organizers, activists, low-level elected officials, leaders of indigenous tribes, and even priests have been assassinated.9 Regrettably, extrajudicial killings have continued even after the end of the Arroyo administration and the election of ‘Noynoy’ Aquino.10

Reports have identified members of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) as the largest bloc ofperpetrators.11 For its part,the government laid the blame largely upon the NPA, arguing that the deaths were the result of internal purges.12 Both President Arroyo’s 2006 Melo Commission and Philip Alston, the United Nations’ former Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, rejected that theory.13 But despite increased international scrutiny, few have been prosecuted, and almost no one has been convicted.14 Impunity for perpetrators has led international aid groups and civil society organizations to attempt to find ways to improve capacity in government to successfully investigate and prosecute human rights violations.15

But a persistent obstacle in developing and implementing strategies against extrajudicial killings is disagreement over what constitutes an extrajudicial killing in the first place—one of the principal obstacles being whether measures against extrajudicial killings, or whatever such killings are called,16 should be targeted at those by non-State actors such as the CPP-NPA in addition to State-sponsored killings. The military’s favored position is that extrajudicial killings should comprise both State and non-State acts.17 The Supreme Court seems to support the view that including killings by both the State and non-State actors as extra-judicial killings would be ‘more balanced,’ and has included private parties and the State as potential respondents to its new writs of amparo and habeas data.18 But civil society working groups19 and Congress have not yet acted definitively to define extrajudicial killings. Some may be wary that the military’s preference for the inclusion of acts by groups like the NPA would serve only to blunt efforts at investigating military abuses —as prior compromises have done.20

The conflict over what constitutes an extrajudicial killing has meant that, despite the persistence of the problem, no legislation defines what it is. The absence of a uniform and accepted definition of the kinds of political killings occurring has served to create uncertainty among those seeking to end such acts. For instance, even though President Benigno Aquino III’s administration ordered the creation of a Department of Justice task force to address killings and enforced disappearances,21 no guidelines have been issued that define what an extrajudicial killing is, leaving prosecutors in the dark as to the scope of what kinds of killings should be addressed as such. And uncertainty over the numbers of victims is the result, in part, of various sectors’ conflicting definitions over what deaths count.

This article proposes that the government define extrajudicial killings as killings for which the State is responsible instead of defining them as acts committed by either State or non-State actors. Such a definition would be consonant with how international human rights law has come to define the spectrum of State responsibilities towards citizens and serve important practical purposes. Part I of this article provides a brief history of extrajudicial killings in the Philippines from the Marcos administration to the present and discusses responses to extrajudicial killings by the Philippine government. Part I also outlines the Supreme Court’s decision in 2007 to include killings by non- State actors as possible extralegal killings under its new writ of amparo. Part II argues that the Supreme Court’s interpretation of international human rights law with regard to whether non-State actors could be responsible for extrajudicial killings was erroneous. It does so by providing an overview of the history of the early development in the 1980s of the human rights prohibition against summary or arbitrary executions and describing the emerging consensus during that period on the nature of extrajudicial killings. The reports of the Special Rapporteur on Summary and Arbitrary Executions confirmed human rights organizations’ characterization of extrajudicial killings as primarily State-sponsored acts with political motivations.

Part III then explains that although there is no international instrument that expressly defines an extrajudicial killing as a State act, such a definition is in accordance with the international understanding of the nature of extrajudicial killings and with State responsibility for the specific harms imposed upon victims when it kills unlawfully. Finally, Part IV responds to arguments that measures on extrajudicial killings should treat killings by State and non-State actors without distinction on the grounds that not doing so would be to suggest that armed rebels are not culpable for human rights violations. Rather, treating acts by the State distinctly does not mean granting impunity to non-State actors because they would remain subject to international humanitarian and criminal law. Moreover, treating State actors distinctly may permit the fashioning of remedies that would be more effective at providing redress.

To that end, Part IV suggests legislatives measures that may be taken through which civil compensation for victims of extrajudicial killings and their families may be provided more easily. Relying on the Inter-American Court of Human Rights’ approach to extrajudicial killings and enforced disappearances, already accepted and used by the Supreme Court in its jurisprudence on the writ of amparo, this research paper suggests that a new civil cause of action be created or recognized specifically against State extrajudicial killings and enforced disappearances that lowers the burden of proof for plaintiffs when there has been a State practice to which a victim’s killing or disappearance can be connected. Should a plaintiff meet that standard, the burden would then be placed upon the government to demonstrate that it is not responsible for the human rights violation. The provision of this remedy would allow speedier access to compensation and vindication for victims by dispensing with the prior requirement of criminal conviction by proof of guilt beyond reasonable doubt against state actor defendants. This remedy could complement criminal proceedings against defendants or provide an alternative when criminal proceedings are unavailing. Most importantly, this proposed remedy would penalize rather than reward the obstruction of the investigation and prosecution of human rights cases.

credit:http://plj.upd.edu.ph/the-dispute-over-extrajudicial-killings-the-need-to-define-extrajudicial-killings-as-state-sponsored-acts/

by: Christian D. Pangilinan