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A consensus is shaping up among lawyers’ circles, human rights groups, civil libertarians and others that the case against the President, along with rogue generals implicated in the war crimes and crimes against humanity, should proceed under the principle of command responsibility even if this means calling for her arrest and indictment in an international tribunal held outside the country.

President Gloria M. Arroyo may heave a sigh of relief when Congress convenes for its 14th session this July without a third impeachment waiting to be filed against her. But there are increasing doubts whether she can evade responsibility anymore for the extra-judicial killings and other human rights violations that her own security forces have reportedly committed under her watch since 2001.

Directly or indirectly, the office of the President has been linked repeatedly to the executions, frustrated killings and abduction of activists which, it is widely believed, could not have been committed systematically and on a nationwide-scale without Mrs. Arroyo, as commander-in-chief of the armed forces, knowing or encouraging it. The atrocities were attributed to government’s national security doctrine cited in Oplan Bantay Laya I and II, which sought to “neutralize” suspected front organizations of the communist underground. The counter-insurgency strategy, which the President wanted to fast track in two years, aimed at breaking the backbone of the armed revolutionary movement but its punitive operations launched in so-called “priority areas” led instead to the assassination and abduction of community leaders, party-list organizers, rights activists, leaders of church and faith communities, as well as a big number of workers, peasants, indigenous people, Muslims, women and children. By the latest count, the human rights alliance Karapatan reports that there have been 866 victims of extra-judicial or summary executions and at least 180 victims of forced disappearance. This is on top of tens of thousands of civilians hurt and displaced by militarization in the rural provinces.

Since the beginning of this year, the Arroyo government has come under a defensive tack owing to mounting pressures from within the country and international and multilateral organizations for the state security forces to be reined in and for a stop to the killings. Arroyo has been served notice by a number of foreign governments and institutions that the release of development aid would be contingent on its human rights record.

At home, Arroyo officials face possible investigation by the Senate for their role in the extra-judicial killings and disappearances with at least one of three active AFP generals, who have implicated military top brass to the killings, promising to reveal everything once the probe opens. Pledging to have the Supreme Court (SC) take a proactive role on the deteriorating state of human rights, Chief Justice Reynato Puno has convened a summit on July 16-17 to take up the issue of “command responsibility” in connection with the political killings. The chief justice had earlier designated 99 regional trial courts as special tribunals for the speedy and expeditious resolution of human rights cases. “The extrajudicial taking of life is the ultimate violation of human rights,” Puno said in announcing the tribunals last February. “Extrajudicial killings also constitute brazen assaults on the rule of law.”

The investigations expected to be held in the Senate, the Puno-initiated human rights summit, and similar activities can serve as venues for tackling the issue of “command responsibility” in the killings that could go all the way to the office of the President. Anticipating the fire that could start blazing against Arroyo, Executive Secretary Eduardo Ermita last week said command responsibility only applies to military personnel and does not include the President as commander-in-chief. The definition of command responsibility by Ermita, a former Marcos colonel, smacks of how little the presidential office knows about the doctrine. Or it can be seen as a move to shield the President from her possible accountability for the killings.

The doctrine of command responsibility used to apply only to military personnel and their superiors who can be subjected to criminal or civil liability for war crimes and crimes against humanity they committed. Over the years, however, the doctrine – adopted in various tribunals and codified in international laws – has evolved to cover also civilian authorities.

The first attempt at codifying the principle of command responsibility was The Hague Convention (IV) of 1907 Respecting the Laws and Customs of War on Land and was first applied at the Leipzig War Trials in 1920. Emil Muller, a German army captain, was tried and sentenced to imprisonment for his failure to prevent the commission of crimes inside a prisoner-of-war camp under his command.

In relation to large-scale war crimes and crimes against humanity, the doctrine was cited in the trial and execution of General Tomoyuki Yamashita for atrocities committed in the Philippines by Japanese forces under his command during World War II. Yamashita, who was in command of the 14th Area Army of Japan in the Philippines, was found by the U.S. Military Tribunal guilty of atrocities committed by his troops against thousands of Filipino civilians.

The first to comprehensively codify the doctrine of command responsibility was the Additional Protocol I (AP I) of 1977 to the Geneva Conventions of 1949. AP I clarifies that crimes committed by a subordinate does not absolve his superiors from responsibility “if they knew” or “had reason to know” about the commission and did nothing to prevent any breaches of the Convention. Based on Article 86 of AP I, it has been interpreted that command responsibility extends as high as any officer in the chain of command who knows or has reason to know that his subordinates are committing war crimes and fails to act to stop them.

This principle was subsequently upheld by the International Criminal Tribunal for the former Yugoslavia (ICTY, formed in 1993) in a number of cases it tried from 1998-2001. In the Prosecutor vs Blastic case, the tribunal referred to the International Committee for the Red Cross Commentary to AP I which asserts that “ignorance cannot be a defense (if) the absence of knowledge is the result of negligence in the discharge of (the commander’s) duties.” In the same vein, Article 28 of the Rome Statute of the International Criminal Court (ICC, 1998) imposes individual responsibility on military commanders for crimes committed by forces under their command and control if they “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes.”

On the international level, the doctrine of command responsibility clearly has been extended to civilian authorities exercising control over military forces. Referring back to the post-World War II prosecutions in Nuremberg and Tokyo, a number of civilian authorities were convicted of war crimes. Two of the most prominent examples are Japanese Prime Minister Hideki Tojo, who was a former military commander, and Foreign Minister Koki Hirota. Their civilian cloak did not prevent the International Criminal Tribunal for the Far East in holding them criminally liable for the atrocities committed by the Japanese military.

More recently, the ICTY and the International Criminal Tribunal for Rwanda (ICTR) have held civilians criminally liable for the actions of military forces under their control. At the ICTR in 1998, former Rwandan Prime Minister Jean Kambanda pled guilty to six criminal counts, including genocide and crimes against humanity. He is now serving a life sentence for these crimes. These rulings underscore the coverage of command responsibility to include the key role civilian officials and political leaders play in the commission of atrocities during an armed conflict.

Command responsibility is determined not just by rank but also by subordination, under which top civilian authorities can be pinned down. Iavor Rangelov and Jovan Nicic (Command Responsibility: The Contemporary Law, Humanitarian Law Center, 2004) point to four layers of legal command covered by the principle: policy command (heads of state, high-ranking government officials); strategic command (war cabinet, chiefs of staff); operational command; and tactical command (direct command over troops on the ground).

Thus in the Philippines, at least three legal luminaries believe that President Arroyo cannot insulate herself from responsibility over the extra-judicial killings and abductions. One of them, Judge Silvino Pampilo, Jr., of Manila RTC Branch 26 said late June that as commander in chief of the AFP, Mrs. Arroyo was also covered by the principle of command responsibility. He clarified though that she would be liable “only after she steps down from office.”

“Responsibility for summary executions or disappearances extends beyond the person or persons who actually committed these acts,” Pampilo, Jr. said. “Anyone with higher authority who authorized, tolerated or ignored these acts is liable for them.”

The judge, who will preside over one of the special tribunals authorized by Chief Justice Puno to handle extrajudicial killings, also said the tribunals may use the doctrine to hold military commanders and police officers criminally liable for their subordinates’ actions.
He cited Section 1 of EO 226 (Feb. 17, 1995), which states: “Any (AFP) officer shall be held accountable for neglect of duty under the doctrine of command responsibility, if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during or immediately after its commission.” In the absence of any law under which the commander may be held criminally liable, the command responsibility doctrine may be used, he added.

Raul Pangalangan, former dean of the University of the Philippines’ College of Law, agrees: “The President may be held to account, whether as head of state under state responsibility, or as commander in chief under individual criminal responsibility.” In his Inquirer column (“Passion for Reason,” June 29, 2007), he wrote that the 1998 Rome Statute’s codification of command responsibility is an authoritative statement of “customary international law” which, under the Philippine Constitution’s “incorporation clause” is deemed “part of the law of the land.”

Even if Mrs. Arroyo has refused to ask the Senate to ratify the ICC Treaty, under which heads of state, military commanders and other perpetrators of war crimes and crimes against humanity can be prosecuted, the government is under obligation to uphold it anyway since it is a signatory to the 1969 Vienna Convention on the Law of Treaties. Under this Convention, signatory states are under obligation of “good faith” to abide by any treaty’s “object and purpose.” International law, Pangalangan believes, has junked the doctrine of head-of-state immunities for humanitarian law violations, citing the Rome Statute’s declaration that “official capacity as a Head of State…shall in no case exempt a person from criminal responsibility under this Statute.”

Prof. Harry Roque, director of the UP Institute of International Legal Studies, also agrees that the command responsibility doctrine and the UN’s Universal Declaration of Human Rights are sufficient to hold commanding officers as well as civilian leaders accountable.

Those contemplating to hold Arroyo liable for the atrocities can refer to a precedent case in the class suit filed against Ferdinand Marcos by 10,000 torture victims in Honolulu where the former dictator lived in exile following his ouster in 1986. Marcos was found guilty in 1992 by a federal jury in the trial presided by U.S. District Judge Manuel Real of Los Angeles for wholesale abductions, tortures, summary executions and "disappearances" that occurred during his martial law regime.

The liability of President Arroyo for the extra-judicial killings, forced abductions and other crimes perpetrated under her watch stems from allegations that such cases were committed under her government’s counter-insurgency campaign that falls under Oplan Bantay Laya I and II. The operation plan has been executed under a national security doctrine adopted by Mrs.Arroyo’s Cabinet Oversight Committee for Internal Security (COC-IS) which is presided over by Ermita with the aggressive support of National Security Adviser Norberto Gonzales. Reports also pointed to the possible complicity of the national police and the Department of Justice (DoJ), among other agencies, in providing legal screen to the suspected perpetrators and their superiors by either making it difficult for the victims’ kin to seek legal remedies or by unreasonably dismissing criminal charges, leaving the relatives and rights watchdogs no other recourse to seek justice.

Investigations conducted by local human rights groups, the Melo Commission, the UN Special Rapporteur, Amnesty International, Asian Human Rights Commission, the EU Parliament, and recently, the Washington-based Human Rights Watch, in varying degrees, attribute the atrocities to state security forces. Most of their reports are one in saying that the crimes were committed systematically and on a nationwide scale, with the biggest number of the killings perpetrated in priority areas of counter-insurgency. Many of the victims and their legal organizations were named as “enemies of the state” in powerpoint CDs and manuals circulated by the military while other reports said they were likewise listed in military hit lists and had received death threats from identified military authorities before they were finally shot or abducted. In many of the incidents, the assassins and abductors wore ski masks, rode in motorcycles or other vehicles with some of these subsequently traced to military camps.

The killings and abductions were perpetrated in a climate of political repression choreographed by the President. In response to the public clamor for her resignation over allegations of widespread cheating in the 2004 presidential race, she ordered a crackdown on progressive legislators, key leaders of the political opposition, military critics, and cause-oriented groups. She declared a state of emergency at one time, and succeeded in effecting a Bush-inspired “anti-terrorism law” to give legitimacy to what is feared as a de facto martial law. She threatened to abolish the Senate through charter change when its members sought an investigation of electoral cheating and human rights violations.

Mrs. Arroyo has been repeatedly accused of either instigating, encouraging, or at least being informed about the killings. Or otherwise, that she has failed to rein in her security forces and order a stop to the perpetration of the crimes. Violations of human rights were among charges cited in the two impeachment complaints initiated against the President at the House of Representatives in 2005 and 2006, and in her indictment before the Citizens’ Congress for Truth and Accountability (CCTA) in Quezon City where she was found guilty as charged.

In The Hague March this year, the Permanent People’s Tribunal (PPT) found her guilty of crimes against humanity. The Tribunal also named the AFP as having a “central role” in the atrocities as “a structural component and instrument of the policy of the ‘war on terror’ in the Philippines.* The PPT verdict was transmitted to the International Court of Justice (ICJ), the International Criminal Court (ICC), and the International Criminal Tribunal for the former Yugoslavia (ICTY).

Ongoing is a manifesto for signing calling for the criminal prosecution of Arroyo before a UN International Criminal Tribunal and it has been supported so far by former President Corazon C. Aquino, former Vice President Teofisto Guingona, former Cabinet secretaries, lawyers, and other prominent personalities and mass leaders.

*Arroyo was indicted along with U.S. President George W. Bush, Jr. not only for human rights violations but also for economic plunder and transgression of the Filipino people’s sovereign rights. In 2005, she was also indicted and was found guilty by the International Criminal Tribunal for Iraq held in Tokyo in connection with her involvement in the U.S. war against Iraq.