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
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The Anti-Torture Law: a good advance but misses out on non-state
torture By Robert Francis B. Garcia and Soliman M. Santos, Jr.
“Torture is torture, whoever does it.
The same is true of terrorism.”
- C. Douglas Lumis, Terror and the Terrorist
(Penang: Multiversity & Citizens International, 2008)
The Philippines finally has an Anti-Torture Law, one which legally
defines and penalizes torture, as well as provides remedies and redress
for its victims. This is definitely a most significant advance
for the protection of human rights in the Philippines, the test of
course being in the implementation measures, including the deterrence
and prevention of torture. There is, however, one significant
drawback or gap in the law. It is limited, by definition, to
torture committed by state or governmental agents. It does not
cover similar torture committed by non-state actors, including
non-state armed groups (NSAGs) who also perpetrate it, as we shall
shortly illustrate. Consequently and more importantly, it does not
cover their victims for purposes of remedies and redress.
Both
state and non-state torture were actually covered in the Senate version
of the Anti-Torture Bill but it was the House version limited to
torture by state agents that prevailed in the bicameral conference
committee on the notion that this was supposed to the “pristine”
concept of torture (and even of human rights). We shall show
further below that this in fact misses out on the best that has been
created by humanity in terms of international and also constitutional
law. It is as if we are still in a time warp when it comes to
human rights, and do not even seem to learn from the lessons of recent
history.
Some Facts: Experiential Basis for Non-State Torturq
As
documented by The Redress Trust, a London-based international NGO
seeking reparation for torture survivors, several NSAGs in the
Philippines have reportedly been responsible for torture, including the
Communist Party of the Philippines-New People's Army- National
Democratic Front (CPP-NPA-NDF), Moro National Liberation Front (MNLF),
Moro Islamic Liberation Front (MILF), the Abu Sayyaf Group (ASG) and
the Rajah Solaiman Movement (RSM). It is notoriously
difficult to obtain reliable information about torture by NSAGs, given
the nature of their operations and the threat of retribution facing
anyone who dares to speak out. The situation in the Philippines
is special because it is one of the first cases worldwide where
survivors of torture by NSAGs have organized themselves and have spoken
out publicly about the torture they suffered. This is the Peace
Advocates for Truth, Healing and Justice (PATH), an organization of
victims and survivors of the CPP-NPA internal purges of the 1980s, as
well as their relatives, friends and supporters.
Torture and
executions were an intrinsic part of internal purges that were launched
systematically as regional operations or campaigns against suspected
infiltrators or “deep penetration agents” in the various CPP-NPA-NDF
regions and sustained throughout the 1980s. The pattern in all
these campaigns was frighteningly similar: suspicion, arrest,
interrogation, forced confession, detention, execution; a bloody domino
effect that had bodies writhing, rolling, and dying en masse. The
first co-author (Garcia), then with the CPP-NPA in the Southern Tagalog
region, was himself arrested in November 1988, tortured and thrown
along with 56 other chained guerrillas in the Sierra Madre mountain
ranges of Laguna and Quezon. At that time, 66 suspects were
already executed.
The range of torture methods documented
in detention camps include: beatings, lacerating the skin with a blade,
hanging by the wrists or ankles, rape, sexual molestation and
humiliation (e.g., women stripped naked were forced to brawl),
clamping and mutilating male and female genitalia with forceps,
searing the private parts with molten plastic, water cure, suffocation
with plastic bags, denial of food and water; tranquilizers and drugs
used as truth serum, like Ativan, Novain, and Demerol; and other
methods. Methods of execution included: bashing the back of the
skull with a wooden club, stabbing with a fixed bayonet or sharpened
bamboo stick, breaking the neck (“marine hold”), beheading, and
disembowelling. While the exact number of those tortured and killed in
these campaigns is unknown, it is clear that there are at least several
thousands of victims.
The first co-author observed that the
torturers also experimented with various combinations of physical and
psychological terror tactics. A female detainee was beaten up,
hung on a tree and forced to watch how they beat up other
victims. Then she was made to listen the recorded voices of her
children. Some were left dangling in trees for days. They slit
the captives’ skin with a knife or shaved off their eyebrows for
fun. Captives’ legs were forced apart and their thighs were sat
upon. Their skin was seared with a lamp. The first
co-author himself suffered a broken jaw, concussions on the head,
wounds where the chains rubbed on the skin, and a battered psyche that
proved much harder to heal. The sheer brutality of the experience
itself may have been one of the reasons why most of the survivors
refused to talk about it for a very long time. It was much easier to
talk about military atrocities than the cruelty of one’s own
comrades. Thus, the truth was buried (literally and figuratively)
for a long time. As with healing and justice.
Many of the
demands by the victims of the purges, in particular to retrieve the
body, inform the families of those killed, fully account for what
happened, agree to a full and impartial investigation, and engage in a
process of healing, remain unfulfilled. In 2006, the first co-author
had occasion to write that “The absence of an anti-torture law in the
Philippines also poses a limitation, thus [whatever few] charges filed
are limited to serious physical injuries and serious illegal
detention.” There is gladly now an Anti-Torture Law but,
ironically, it also poses a limitation to redress for victims of
torture by NSAGs.
Some Law: Legal Basis for Non-State Torture
The House version of the Anti-Torture Bill, as we said, prevailed in
the bicam on the definition of torture limited to commission by state
agents on the notion that this was supposed to be the “pristine”
definition based on the 1984 UN Convention Against Torture (CAT).
But the CAT itself says quite clearly provides that its definition of
torture is “without prejudice to any international instrument or
national legislation which does or may contain provisions of wider
application.” There are at least three international instruments
which contain provisions of wider application as regards the
prohibition against torture, because these instruments do not limit its
commission to state agents: the 1948 Universal Declaration of
Human Rights (UDHR), the 1966 International Covenant of Civil and
Political Rights (ICCPR), and the 1998 Rome Statute of the
International Criminal Court.
The Rome Statute, considered
the highest development of international criminal law to date, in fact
contains a definition of torture that is not limited to commission by
state agents, nor limited to certain purposes for the torture (such as
obtaining information or a confession, or for intimidation or
coercion). Sen. Miriam Defensor Santiago should be credited for
bringing the Rome Statute definition of torture into the Senate
version, and likewise Senate Justice and Human Rights Committee Chair
Sen. Francis Escudero for adopting it and then vigorously arguing for
it in the bicam, against the prevailing wind there. The House
stalwarts there prevailed with arguments like the “pristine” definition
of the House version as against the Senate version’s Rome
Statute-inspired definition being “too broad.”
But human
rights are supposed to be broad and “of wider application,” as in “All
Human Rights for All.” And what can be more “pristine” for human
rights than the UDHR and ICCPR which are two of the three instruments
which constitute the “International Bill of Rights.” Canadian
human rights lawyer David Matas had already commented about this
torture definition issue in a 1997 Manitoba Law Journal article on
“Armed Opposition Groups” (when there was still no 1998 Rome
Statute): “... the prohibition against torture in the UDHR and
the ICCPR do not state that public officials shall not commit
torture. Instead those statements state that no one shall be
subjected to torture. To restrict these obligations just to
government officials is to narrow the scope of their literal meaning
and the purpose of the constraints which is, after all, not to regulate
governments, but to assert the human rights of individuals.”
Matas
pointed out that that the ICCPR also states that nothing in it may be
interpreted as implying for “any state, group or person” any right to
perform any act aimed at the destruction of rights and freedoms.
The more specific instruments like the CAT must not be used to read
down the more general instruments. The specific does not limit
the general. When the UDHR says that everyone has the right to
life, it does not say or mean that everyone has the right to have only
public officials respect the right to life. The UDHR means that
everyone has the right to have his/her state, i.e. the government and
all the citizens of the state, respect the right to life.
It
is time we go back to and reaffirm the rights-holders, inc. all
potential victims of torture. In the final analysis, it is the
victims and their human rights that matter. From the point of view of
the victims of torture, there is no difference whether it is committed
by a state or non-state perpetrator. State and non-state perpetrators
may be differently situated but that cannot be said of their victims,
who should be given equal protection. The law is not only about
the effective prosecution of perpetrators but also about the available
remedies and redress for victims. To the extent that the law
effectively excludes victims of non-state torture, then the law itself
violates the constitutional principle and right of equal protection of
the law.
In the 1998 Comprehensive Agreement on Respect for
Human Rights and International Humanitarian Law (CARHRIHL) between the
Government of the Republic of the Philippines (GRP) and the National
Democratic Front of the Philippines (NDFP), there are mutually agreed
prohibitions against “physical or mental torture,” and “other inhuman,
cruel or degrading treatment, detention and punishment.” So, it
is quite clear here that a particular NSAG, the NDFP which represents
the CPP-NPA, has undertaken obligations pertinent to the prohibition
against torture. It is therefore a wonder why this kind of human
rights accountability by a NSAG, and agreed to by the Philippine
government, was not reflected in the Anti-Torture Law.
One
consequence of this law that may be reasonably anticipated is NSAG
impunity for torture. And so, despite released ASG kidnap victim
NGO worker Millet Mendoza’s testimony that “The group that held me was
adept at psychological torture… undergoing something like a mock
execution. The terror that gripped me, which remains to this day, is
indescribable…,” the perpetrators cannot be prosecuted for torture
because of their non-state status. And consequently too, their
victims like Milet cannot avail of the remedies and redress, inc.
compensation and psycho-social rehabilitation, under the law. In
this regard, this “pristine” law unfortunately seems to be based more
on “logic” than on experience.
---------------------
Robert Francis
B. Garcia is the long-time Secretary-General of
PATH, himself a victim of the CPP-NPA purges of the 1980s, about which
experience he has written the book To
Suffer Thy Comrades: How the Revolution Decimated its Own (Manila: Anvil,
2000).
Soliman M. Santos, Jr. is
Regional Focal Point for Asia of the South-South Network (SSN) for Non-State
Armed Group Engagement and is a human rights lawyer, inc. of the “Abadilla 5”
victims of torture by state agents. They
are the convenors of the formative non-governmental Committee on Accountability
of Non-State Armed Groups (CALASAG) [see its section in the SSN website www.southsouthnetwork.com].
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8/24/09
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