The Anti-Torture Law: a good advance but misses out on non-state
torture
by Robert
Francis B. Garcia and Soliman M. Santos, Jr.
Addressing Human Rights Violations by Non-State Actors
by
Leila M. De Lima
Chairperson, Commission on Human Rights of the Philippines
|
Addressing Human Rights Violations by Non-State Actorsby
LEILA M. DE LIMA
Chairperson, Commission on Human Rights of the Philippines
KEYNOTE SPEECH
Good morning to all of you.
First of all, let me thank your organization, the Peace Advocates
for Truth, Healing and Justice (PATH), in particular, your Secretary
General Robert Garcia, and Chairperson Lilian Mercado-Carreon, for the
invitation to be part of today's significant event.
Today's event marks yet another milestone in the lifespan of your
institution. This is PATH's third General Assembly, marking more
than 9 years of existence, 9 years of being at the forefront of the
effort, to ensure an end to impunity in the Philippines.
You and I know that the human rights situation in the Philippines
today is in a dismal state. Allegations and acts of torture,
abduction and summary executions are unfortunately commonplace.
Standards and policies set down on paper are presented to the public
and the international community, while the reality on the ground has
been very different. And to make matters worse, the protection
and promotion of the human rights to an adequate standard of living,
adequate food, to health and to education, leave much to be desired.
These are the abuses and violations which tend to get more play
in the media. Government officials go on the air, to air their
side of alleged human rights breaches. Incidents involving police
officers and soldiers get to be investigated and covered by media.
Legislators are able to require public officials to attend hearings, on
events of interest. Many of these investigative procedures are
fairly straightforward, and are regularly conducted, while the public
at large watches on television.
While
these particular investigations are, of course, crucial, they do not
tell the whole story. For there are other human rights
violations, perpetrated in the past, and which continue to be carried
out into the present, involving organizations and individuals who do
not belong to government security forces. We are talking here of
non-State actors. And while human righAddressing Human Rights
Violations by Non-State Actorsts efforts have tended to focus on the
duties and obligations of the State vis-a-vis its citizens, there is
also the recognition that these non-State actors bear duties and
obligations as well.
Torture is
reprehensible, whether it is experienced at the hands of police
officers, revolutionaries or separatists. And the anguish of
loved ones is no less deep, whether their loved one is disappeared by a
group of soldiers or by that person's fellow guerrillas. The pain
and degradation, scars and trauma, sense of loss and emptiness, they
are there whether the perpetrators are with government or not.
In fact, in some ways, abuses experienced at the hands of a
person's former comrades cut deeper,because there is a sense of
betrayal there which is very real. This sense of betrayal was
discussed on page 57 of the book, "To Suffer Thy Comrades," written by
Mr. Garcia. He explained there the emotional response to torture
and inhumane treatment, carried out by former colleagues, and I quote:
"First is the inevitable shock. While as revolutionaries,
we were by and large psychologically prepared for the real dangers
inherent in that state, we were totally unprepared to experience
adversity under comrades' hands ... Those who were arrested later ...
had more or less seen it coming, thus the attendant shock effect has
been considerable lessened. Nevertheless, the incredulity at such
a thing actually happening had been common to all." End of quote.
It is beyond cavil that non-State actors are equally capable of
carrying out the worst forms of human rights violations. These
abuses must be condemned by all human rights advocates, and the effort
to put an end to these types of atrocities must continue. We at
the Commission on Human Rights (CHR) thank you for making this your
mandate, and honor the work that you have done, on behalf of the
victims of human rights abuses at the hands of non-State actors.
The CHR has also been working to address the violations of
non-State actors. I’m here to dispel doubts or misconceptions
about the nature of CHR’s mission and dismiss apprehensions of certain
overreacting personalities on the Chairperson’s capacity for
impartiality or a balanced determination of the truth. Let me
share therefore some of our advocacies for NSAs’ accountability.
During the congressional proceedings, up to bicameral level, on the
Anti Torture Bill, the CHR advocated for the inclusion of the
recognition, that non-State actors must also be held accountable for
acts of torture. Unfortunately, as approved and ratified, the
bill espouses the majority position on the exclusion of NSAs from its
coverage.
More than ten years ago, the Commission
participated in the crafting of the Comprehensive Agreement on Respect
for Human Rights and International Humanitarian Law, or CARHRIHL, which
sought to hold both the government and the National Democratic Front of
the Philippines, accountable for violations of human rights and the
laws and customs of war.
Just last month,
the CHR called on all parties to the fighting in Basilan, to respect
human rights and international humanitarian law (IHL). We have
called on all parties to eliminate practices as, the use of child
soldiers, the use of women and children as human shields, the taking of
hostages, the carrying out of torture and cruel, inhuman and degrading
treatment, the use of indiscriminate bombing, and the use of blockades,
like food blockades, which cause civilians to suffer undue
hardship. In particular, the CHR has issued a standing request to
the Moro Islamic Liberation Front (MILF) regarding the issue of child
soldiers. While there has been some progress there, it remains
insufficient. And only recently, in a mission to Surigao del Sur,
I together with a CHR team came face to face with former child
soldiers, who allegedly fought under the NPA.
Also, during the CHR's public inquiry into the abduction, rape
and murder of Ms. Rebelyn Pitao, a letter was sent to the victims'
father, Mr. Leoncio Pitao, a New People's Army (NPA) commander, in
order to procure more information on the allegations then being
made. Unfortunately, we did not receive a response. And
this, as well as the already mentioned CHR standing request to the
MILF, bring me to another point.
The
Commission respects the work that you do, and your effort to hold
non-State actors accountable for violations, because we have clear
understanding of how difficult such a mandate is. Many practical
and security constraints exist in relation to non-State actors, which
make investigations and fact finding much more difficult. It is a
much more straightforward process to subpoena a police officer, than it
is to subpoena a rebel soldier. There is a greater chance that a
government official will attend a hearing, than a guerrilla
leader. Even just the act of finding a rebel soldier is
complicated, and the probability of bringing one in is slim, if not
nil.
The work that you have done is
therefore extraordinary. In the face of very real practical
constraints and with issues of security always to be considered, you
have helped to shed light on some of the darker chapters of recent
Philippine history. Your exhumation of human remains these past
several years, in places like Cebu and Zamboanga, is an impressive
achievement. You have helped to bring closure to loved ones,
friends and family members. And through these exhumations of
human remains, you have given victims one more chance to tell the story
of their ordeal.
The CHR has also recently
exhumed human remains in Davao, victims who allegedly died at the hands
of a death squad. Therefore, we know that discoveries such as
yours can be difficult to come by. And we understand that the
work involved in exhumation and identification can be
painstaking. But at the same time, it is clear that families and
friends have the right to know the truth regarding the fate of their
loved ones, and victims must be given a voice so that killings such as
these can be brought to an end. The work that you do and the
exhumations that you carry out, are therefore crucial and indispensable.
One other thing that complicates your work, lies in the fact that
there are those who would use the information you uncover, to deflect
attention away from violations carried out by the government.
Your website, specifically in a September 20, 2006 post by Mr. Garcia,
had touched on this. I quote:
"[T]he
problem with all this is that we have a case where the pot and the pan
are both calling each other black and greasy. The AFP and the
CPP-NPA hold dismal human rights records ... Do we choose between the
lesser killer?
“As the polarization and
antagonism between both parties continue, along with the body count, we
at PATH affirm all the more our neutrality; faithful only to universal
human rights ideals and partial only to truth and justice." End
of quote.
Like yours, the mandate of the
CHR requires the CHR to act in an independent manner. We look to
carry out our investigations, in a credible manner, by acting with
impartiality, neutrality, fairness, and with respect for the human
rights of all parties concerned. We are concerned with violations
carried out by both government and non-State actors. Our
Constitutional mandate makes no distinction based on the identities of
wrongdoers. And this concern with non-State actors will be
further enhanced once the proposed Charter of the CHR, passes through
Congress, and becomes law.
This concern by
the CHR with violations on both sides also reflects the current state
of international law. Common Article 3 to the four Geneva
Conventions provides for certain minimum protections, during internal
armed conflicts, which must be respected by "each Party to the
conflict." No distinction is made between the government and
rebel groups. Neither is any such distinction made in the Rome
Statute of the International Criminal Court, with respect to whether a
violator is with the government or a non-State actor.
This is one reason the CHR is working hard, to garner support for
the ratification by the Philippines of the Rome Statute. By
becoming a party to this treaty, one other mechanism is made available
for helping to end impunity in our country, with respect to both State
and non-State actors. We look forward to working with your
organization, in order to help make the passage of this treaty a
reality, in the near future.
As internal
armed conflict continues to ravage our nation, as the military, the
police, and civilian auxiliaries engage in combat with the forces of
rebel and separatist groups, civilians are injured and killed, and
atrocities take place on both sides. Such is the horror of
war. You know of this. Some of you have experienced its
brutality first hand. Some of you have lost loved ones to armed
conflict and its aftermath. Working toward the end of armed
conflict, and holding human rights violators accountable, is an
endeavor that both our institutions can get behind.
In the end, we really have very little choice. A society
where abuses are carried out with impunity, is one that is unfit to
live in. A country where the torture and murders of the recent
past are left buried, is one that we cannot, in good faith, bequeath to
our children. Change must take place, and it is institutions like
PATH, which advocate for accountability, truth and justice, while
acting with impartiality, which will help bring about that
change. And as you carry out your work, know that you have an
ally and a partner in the Commission on Human Rights.
Maraming salamat po.
COMMISSION ON HUMAN RIGHTS On the Occasion of the Third General Assembly of the Peace Advocates for Truth, Healing and Justice
Bantayog ng mga Bayani, Quezon Avenue, Quezon City 5 September 2009 |
