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
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