Law, War and ending Silence i) Command responsibility & extrajudicial killings ii) Due process and the special courts

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1 National Summit on Extrajudicial Killings and Enforced Disappearances Manila, July 2007 Presentation - Abigail Hansen-Goldman 1 Law, War and ending Silence i) Command responsibility & extrajudicial killings ii) Due process and the special courts Silent enim leges inter arma (in times of war, laws fall silent) - Marcus Tullius Cicero Pro Milone, 52 BC "Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. - Justice Anton Scalia, Hamzi v Rumsfeld, US Supreme Court, 2004 I wish to thank His Honor, Chief Justice Puno, for initiating this crucial event, and I am honored to have been invited to speak today, where I participate with the support of the European Commission. I also wish to thank the Delegation of the European Commission in Manila, not simply for their active participation in the Summit, but most importantly for their long and continuing concern for the issue of extrajudicial killings in the Philippines. Finally, I wish to thank the Philippines Judicial Academy for their assistance, and with whom I look forward to working further in relation to judicial training on this complex issue. Before commencing, I think we can take judicial notice that there is an overriding need for a comprehensive, multi-lateral approach in our quest to end extrajudicial killings in this country, an approach based on our shared desire for justice. I am therefore heartened by the clear intention of Chief Justice Puno to have genuinely representative participation in this Summit. I note that, amongst others, there are invitees from the Office of the President, the Judiciary, the Armed Forces of the Philippines, the Philippines National Police and many other key executive and parliamentary agencies, as well as numerous representatives of civil society and the international community. The European Commission an ongoing commitment In response to the Report of the Independent Commission to Address Media and Activist Killings 2, to the preliminary report by Philip Alston, UN Special Rapporteur on extrajudicial, 1 Disclaimer: Ms. Hansen-Goldman participates in this Summit with the support of the European Commission. However, the views expressed in this presentation are purely those of the author, and may not necessarily be in accordance with the official position of the European Commission. 2 Hereinafter referred to as the Melo Commission

2 summary or arbitrary executions, to European Parliament resolution of 26 th April 2007, and above all to the Philippines formal request to the European Union to provide technical assistance, the European Commission is directly cooperating with the Commission on Human Rights of the Philippines and the Philippine Judicial Academy regarding the training for Judges of Special Courts. In addition, the European Union sent a team of experts in June 2007, which undertook a comprehensive needs assessment with a view to examining the capacities of Philippine State institutions and agencies and identifying potential assistance measures aimed at improving the investigation and prosecution of cases. These initiatives amply demonstrate the European Union s commitment to assisting the Republic of the Philippines in its efforts to protect the lives of its citizens by expeditiously and effectively investigating these incidents and bringing the perpetrators to justice. Introduction I wish to speak today about two complementary issues that have dominated my professional life. The first concerns the concept of command, or superior, responsibility in international criminal and humanitarian law. Specifically, I will examine how it has evolved - or more specifically expanded in application- in recent times, and how this concept can be incorporated not only into a national integrated system of accountability for the atrocity of extrajudicial killings, but also into existing military and law enforcement culture. The second area I wish to examine may be more polemical for certain sectors of the audience, since it does not fit squarely into our field of vision of strategies for preventing and ensuring responsibility for extrajudicial executions, namely the importance of defendant rights at every stage of a criminal investigation or trial. In the course of this summit, I ask participants to keep at the forefront of their reflection and discussions the positive requirement to preserve the principles of due process, and in particular fair trial rights. Following from what I have just stated, and in strict application of the presumption of innocence, I wish to state ab initio that, while I have read a number of reports from national and international human rights organizations, as well as the Final Report of the Independent Commission to Address Media and Activist Killings 3, many of which draw certain factual conclusions, I do not wish to impute any specific responsibility for these killings, this being clearly a matter for judicial process. In particular, in examining the concept of command responsibility, I do not wish to state or imply that such responsibility exists in law or in fact relative to any individual, group or institution in the Philippines. Contribution Quite apart from my specific intervention today on the subjects I have mentioned, I hope to be able to bring the breadth of my experience to our discussions as a whole, drawing on too many! years working as a human rights and criminal trial lawyer, in order to contribute to the broader and specific objectives of this Summit. More generally, and in the longer term, the European Commission will also be lending its political and technical experience in a number of areas, with the aim of finding the right equilibrium between rights and responsibilities in the eradication of these crimes. Europe has 3 Hereinafter referred to as the Melo Commission

3 known throughout the centuries, and continuing in part even today, the scourge of war, of terrorism, of civil unrest, of atrocities by neighbor against neighbor. Despite these attacks against peace on the continent, Europe has largely preserved the sovereignty of its States, and protected the diversity and security of its peoples, without overly compromising the rights of its individual citizens or the responsibilities of its institutions. The rule of law, of course, has been utterly indispensable to this process, but the role of individuals is equally vital. As Margaret Mead wrote so inspiringly: Never doubt for a moment that a small groups of committed individuals can change the world. Indeed it is the only thing that ever has. i) Command Responsibility & Extrajudicial Killings Background Various formulations of the concept of command responsibility have most likely existed since the first wars waged by humankind. Mention for example was made in 6 th century Chinese writings of the requirement of an officer to ensure that his troops conducted themselves in an appropriate and civilized manner during armed conflict. Much later, during the American Civil War, the Lieber Code was developed which introduced the first form of true criminal responsibility for violations of the laws of war, including the liability of commanders for the acts of subordinates. The Hague Convention (IV and X) of 1907 then extended this concept to the international level, and thus international humanitarian law was formalized. However, it was not until the aftermath of World War II that the international community put into practice these concepts of criminal responsibility, with the creation of the Nuremburg and Tokyo war crimes trials. The Melo Commission provides a detailed and accurate history and treatment of the law of command responsibility that I will not restate here. I will however examine the key components of this doctrine, since it will help us to proceed with discussions at this summit. The first truly legal definition of command responsibility was formulated in the case of In re Yamashita, a 1946 decision of the US Supreme Court on appeal from the United States Military Commission in Manila. General Yamashita was the first defendant to be charged in the basis of an act of omission. He was commander of the 14th Area Army of Japan in the Philippines, which was responsible for the commission of appalling atrocities against civilians and prisoners of war. He was charged with: unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes (emphasis mine). The Court relied on the relatively embryonic humanitarian law of the time to establish Yamashita s guilt, in particular on Articles 1 and 43 of the Regulations to the Fourth Hague Convention of 1907, Article 19 of the Tenth Hague Convention of 1907, and Article 26 of the 1926 Geneva Convention on the wounded and sick. The Court stated that:

4 Where vengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable (emphasis mine). In re Yamashita therefore established for all time that a commander has a positive duty to take appropriate measures within his power to protect prisoners of war and the civilian population, and that his knowledge of unlawful actions is sufficient to impose individual criminal responsibility. This is now referred to as the Yamashita Standard, which is essentially that a commander should have known about a war crime, but did nothing to stop it. This case however did not adequately resolve the issue of the degree of knowledge required to establish command responsibility, a point which was progressively taken up by subsequent decisions, for example the High Command Case 4 of the Nuremburg tribunal referred inter alia to a personal dereliction of duty, amounting to criminal negligence that is based on a wanton, immoral disregard of his subordinates actions. The so-called Medina Standard 5 resulted from the Court Martial of an American captain for failing to prevent the massacre of approximately 300 Vietnamese civilians at My Lai in This held that a commander is criminally responsible if he ordered a crime to be committed or "knew that a crime was about to be committed, had power to prevent it, and failed to exercise that power." The Additional Protocol I 6 (1977) to the Geneva Conventions of 1949, Article 86(2) further codified the doctrine of command responsibility,, stating that: The fact that a breach was committed by a subordinate does not absolve his superiors from responsibility if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach (emphasis mine) Article 87 also obliges a commander to report to competent authorities i any violation of the Geneva Conventions or of AP I. The establishment of the ad hoc criminal tribunals established by the United Nations (the International Criminal Tribunal for ex-yugoslavia 7 and the International Criminal Tribunal for Rwanda 8 ) has lead to an exponential development of international criminal law and procedure, and notably the doctrine of command responsibility. Article 7(3) of the ICTY Statute and Article 6 (3) of the ITCR Statute state that the fact that the crimes were committed by a subordinate does not relieve his superior of criminal responsibility if: he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. The tribunals case law has subsequently refined the doctrine of command responsibility, with 4 The United States vs. Wilhelm von Leeb, et al 5 The United States vs. Captain Ernest L. Medina, 32 CMR Hereinafter referred to as AP I 7 Hereinafter referred to as the ICTY 8 Hereinafter referred to as the ICTR

5 this statutory definition split into three essential requirements: a superior-subordinate relationship; actual knowledge or reason to know that a criminal act was about to be or had been committed; and failure by a superior to take reasonable measures to prevent the crime or to punish the perpetrator. These elements do not allow a commander to plead ignorance there is a duty incumbent upon a commanding officer to take reasonable steps to acquire knowledge of a criminal act 9 ; and absence of knowledge is not excusable where it results from negligence in the discharge of a commander s duties. Finally, Article 28 of the Rome Statute of the International Criminal Court 10 states: (a) A military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control as a result of his or her failure to exercise control properly over such forces, where: (i) That commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (emphasis mine) The ICC therefore applies a stricter should have known standard, rather than the slightly more fluid had reason to know. Importantly, Article 28 (b) imposes a similar obligation relative to superior and subordinate relationships not described in paragraph (a), which allows the application of the Statute to other government officials not operating within a military structure, and non-state actors. Overall, then, we can see a clear evolution within the jurisprudence of international criminal law towards a more demanding interpretation of the scope of command responsibility. Command Responsibility under Philippine Law In 1949 the Philippine Supreme Court ruled that the Hague Convention, and thus the doctrine of command responsibility, was an accepted principle of international law 11, and stated that while the Philippines was not a party or signatory to the Hague Convention at the time, it nonetheless embodied generally accepted principles of international law adopted by the 1935 Constitution. Given that the Philippines has not ratified the key international instruments relative to command responsibility under international humanitarian and criminal law, notably the Rome Statute and the AP I, reference was extensively made in the Melo Commission Report to various formulations of superior responsibility in the Philippines, in particular the Articles of War and other military regulations and manuals, as well as Philippine case law in addition to the Kuroda case, relative to its obligations under international law. I have made comments to 9 See Prosecutor v Timohir Blaskic 10 Hereinafter referred to as the ICC 11 See Kuroda v. Jalandoni

6 these submissions later in the body of this presentation. State Responsibility It is also vital to discuss in this context, if only briefly, the doctrine of State responsibility under international law, which is that a State is obliged to take measures to protect its own people, through for example investigating, prosecuting or redressing private acts that violate fundamental liberties. It is a logical though not jurisprudential extension of the doctrine of command responsibility, that is, the State can in certain circumstances be made accountable for certain crimes of individuals through a failure to prevent violations or render perpetrators liable for violations, including offences under the doctrine of command responsibility. Comments on the Melo Commission Report 1. The Melo Commission Report states that the Philippines military s regulations and training and other manuals specify the responsibility of commanders for subordinates crimes, referring in particular to Articles 76, 97 and 105 of the Articles of War 12. I would with respect submit that the provisions of these articles do not establish enforceable command responsibility in the generally accepted sense. 2. The Melo Commission Report states that AP I and the Rome Statute, while signed by but as of yet lacking ratification by the Philippines, may be considered similarly applicable and binding. I would however strongly submit that only unreserved ratification and full implementation of these treaties into the national law provides full protection to the people of the Philippines under international humanitarian and criminal law. 3. The testimony, as reported, of high-ranking governmental witnesses betrayed at the very least - fundamental ignorance or misunderstanding of the doctrine of command responsibility. It would therefore appear that, not only is training on individual responsibility under international criminal and humanitarian law for military and law enforcement personnel desirable, but such training and awareness raising should be implemented pursuant to both a bottom-up and a top-down approach. 4. The Report states that it appears that the AFP did not investigate General Palparan on the matter on the ground that no formal complaint was lodged (p. 17), however I would submit that it would be useful to examine whether, under existing criminal procedure, State prosecutors dispose of a power of auto-saisine, whereby they may proceed without formal complaint, similar to the procedure used by the Prosecutors of the ICC and the ad hoc Tribunals. If not, it may be that such a power could be provided to prosecutors under the jurisdiction of the Special Courts in the Philippines, with of course suitable control and conditions to prevent abuse (see recommendations). 5. The Melo Commission reported that Gen. Esperon said that AFP s lack of coordination with Task Force Usig is intentional as it did not want to influence the 12 Example: All disorders and neglects to the prejudice of good order and discipline and all conduct of a nature to bring discredit upon the military services shall be taken cognizance of by a general or special or summary court martial according to the nature and degree of the offense, and punished at the discretion of such court

7 latter s report. Further, coordination between the two bodies might be misconstrued. This phrase demonstrates that future investigation may need to examine mechanisms to enhance technical cooperation without compromising independence. 6. Melo Commission Recommendation (p. 71): The President should propose legislation to require police and military forces and other government officials to maintain strict chain of command responsibility with respect to extrajudicial killings and other offenses committed by personnel under their command, control or authority... It should penalize a superior government official, military or otherwise, who encourages, incites, tolerates or ignores, any extrajudicial killing committed by a subordinate (emphasis mine) I would however submit that such legislation should be drafted so as to allow a wider ambit of responsibility, in a similar vein to the ICC Standard, so as to allow for acts occurring within a superior subordinate relationship (and not merely for the acts of government officials), which would thereby encompass any acts of, for example, non- State actors. Similarly, I would also submit that a stricter should have known criteria, similar to that adopted by the ICC, should be incorporated in such legislation. 7. I join with the Melo Commission in stressing the importance of orientation and training of military and security personnel in the doctrine of command responsibility (p. 72). As stated earlier, however, such training should encompass all ranks, and not merely mid to high-raking officers, and should form part of the initial training and orientation of every member of the Armed Forces and Security agencies. ii) Due process and the special courts I would like to commence with the following passage from Report of the Melo Commission: One must uphold and observe the rule of law, the principles of justice, and the system and rules of how it is dispensed from investigation to arrest, to inquest, and to trial. The system may be far from perfect, giving rise to the temptation to take shortcuts. But precisely, shortcuts are in defiance of the system of impartial justice. The rules must be observed at all times. 13 Why should we care about the rights of an accused, who did not respect that most basic of rights, the right to life? Why should we discuss this now, today? Aren t we here to focus on justice for victims and their families? On accountability for criminals? There are many responses to this. As a very first point, we must consider due process since we are legally bound to do so under both the Philippines Constitution and the Philippines international treaty obligations. The Summit provides a perfect occasion to ensure these concepts are incorporated at the earliest opportunity, and that, in our justified enthusiasm to bring perpetrators to justice, we do not lose sight of the basic conditions for a fair trial. Secondly, a failure to provide fair trial rights to all accused persons regardless of the crimes alleged erodes not only the credibility of any court established to try particular crimes, but 13 Report of the Melo Commission, p. 2

8 also erodes the functioning of the legal system as a whole. The special courts have not only a specific legal mandate, they must also serve as a beacon for the ordinary criminal justice system, for ordinary Philippine people, for the international community. Thirdly, due process has a key role in preventing extrajudicial executions, since it is through the strict respect of defendant rights that a culture of personal and institutional responsibility grows and thrives. The presumption of innocence, the right to not incriminate oneself, the right to contact a lawyer and to an adequate defense, the right to an interpreter, and of course the prohibition of torture and using any evidence gained through torture all work together to provide a crucial buffer between the individual and the state, to offset the supreme powers of one against the vulnerability of the other. This is the very essence of fairness. Finally, due process is compatible with victim s rights, regardless of the severity of the violation that has occurred. Perhaps this may sound shocking to the families of victims that may be here today, and I ask them to bear with me. As stated before, a failure to provide due process, to seek and obtain a remedy through the rule of law, is at the heart of such killings, where an individual commandeers the legal process, turning himself into judge, jury, prosecutor, victim, witness and executioner. If defendant rights are not respected in their entirety and without exception, then we simply feed into the cycle and culture of violation; we become no better than the perpetrators themselves. Decisions based on a careful examination by an independent court of proven facts, and counterbalanced by the respect of a defendant s rights, rather than the mob rule that existed in Cicero s times, are the cornerstone of a lasting justice for victims. I note that the Philippines abolished the death penalty in June 2006, and I join with the European Commission in congratulating the Government and Philippine people for this important achievement on an question that is not without significant political and moral difficulty. The UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions has oft-emphasized the very special protection to be accorded to fair trial rights in situations where the death penalty may be applied. The abolition of the death penalty in the Philippines however does not in any way dilute its responsibility to provide due process to defendants. A number of fair trial rights can be found in the Constitution of the Philippines, and I note in particular the Bill of Rights provided at Article III, which protects certain fair trial rights of defendants, including inter alia the right to adequate counsel, the right to remain silent, and the prohibition of torture. These rights are reinforced and supplemented by the provisions and protections under the ordinary laws and case law of criminal procedure and evidence. I note with considerable concern however the provisions of the recent Human Security Act, which in my view creates an increased risk of serious human rights violations by Security Forces. I note, for example, that it allows for arrest without warrant and arbitrary detention for up to three days. I have considerable difficulty reconciling this legislation with Section 11 of the Philippine Constitution, which states: The State values the dignity of every human person and guarantees full respect for human rights. In addition to their rights under the Constitution, the Philippine people enjoy protection under the international treaties signed by their leaders. Primary amongst them are : - The Universal Declaration of Human Rights (UDHR) - The International Covenant of Civil and Political Rights (ICCPR) - The Geneva Conventions

9 - The Convention Against Torture (UNCAT) I note however that the Philippines has not signed the Optional Protocol to the Convention Against Torture (OPCAT), nor the International Convention for the Protection of All Persons from Enforced Disappearance. Whilst one can of course argue that these instruments do not change day-to-day reality in the Philippines, but their signing, ratification and implementation not only sends a powerful message that it considers itself accountable both to its people and to the international community, but their application can over time help change destructive attitudes and practices. The mechanisms provided for under the OPCAT for example, allow for the monitoring of places of detention, which will serve not only to prevent torture, but will also have a direct flow-on effect in preventing extra-legal disappearances and executions, and reinforcing the rights of detainees, as evidenced by the long experience of monitoring places of detention by such institutions as the International Red Cross. I welcome the clear willingness on behalf of the Philippine government to address the problem of extrajudicial killings, as evidence in part through the creation of Special Courts to deal with such cases on a prioritized basis. However, while it is agreed that justice delayed is justice denied, and both victims and defendants benefit from a speedy resolution of cases, I would submit that fast-tracking justice also risks serving short-term or political needs, and may provide incentives and an environment for a different range of abuses, for example heavy-handed extraction of confessions, inadequate time or resources for the preparation of a defense, and so forth. We should also be cautious as to the protective measures we propose for witnesses, so as not to violate the fundamental right of a defendant to examine witnesses. Of particular concern are so-called anonymous witnesses, which have been used in some jurisdictions, and which render the task of challenging their testimony by the defense extremely difficult, and in some cases almost impossible. I would also suggest that the defendant be availed of equal means to conduct his defense, rather than simply equal procedural arms the right to call witnesses, for example, is meaningless if a defendant does not have State support in facilitating their appearance in court. Reasonable payment of defense counsel is also crucial to ensure a quality of defense that is proportionate to the seriousness of the alleged crimes. A system of protection for defense witnesses and defense lawyers should also be provided if so required, since fear of retaliation may exist on both sides. In addition, the laws of evidence used in this trial should be subject to the same safeguards as the ordinary courts, with considerable caution to be afforded to hearsay or opinion evidence, and in particular the evidence of co-accused or those who may have been offered amnesty from prosecution. The admissibility of confessional evidence should be rigorously vetted, to ensure that it was not obtained through ill-treatment, threats, promises or other inducements. In particular, a scrupulous respect of defendant rights should be required at the moment of arrest and interrogation and during any period held incommunicado. iii) Conclusion A State s responsibility to protect, like the responsibility to protect under international law, can be said to be composed of three elements: the responsibility to prevent, the responsibility to react, and the responsibility to re-build. The latter in particular implies a long-term commitment, and institutional and cultural change; it cannot be based on a single initiative or approach, no matter how courageous. In this respect the international community, including

10 the European Commission, stands ready to shoulder part of the burden of change, drawing on its own history, its own lessons learnt. We are honored to be a part of that process at this Summit, in the struggle to end impunity for these crimes.