Command responsibility September 4, 2006
IN 1996, A COUPLE OF YEARS AFTER JUDGE Manuel Real of Honolulu found Marcos guilty of the torture and killing of thousands of prisoners during martial law, the Marcoses appealed the case in Pasadena, California. Their lawyer challenged Real’s basis for finding Marcos guilty on the ground that Real had given the jury questionable instructions. Specifically, Real had instructed the jury that they could find Marcos guilty if: “(1) Marcos directed, ordered, conspired with, or aided the military in torture, summary execution and ‘disappearance’ or (2) if Marcos knew of such conduct by the military and failed to use his power to prevent it.”
Marcos’ lawyer argued that American law does not support the second condition, and that “no international law decision ... has ever imposed liability upon a foreign official on those grounds.”
The Pasadena court denied the appeal, saying those two conditions of “command responsibility” are in fact well borne out both by US and international law. It cited the US Supreme Court ruling on Yamashita, thus:
“[T]he … charge is (the failure of the) petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit extensive and widespread atrocities’ ... [T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates ... [P]rovisions [of international law] plainly imposed on petitioner who, at the time specified, was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”
If the Melo Commission is serious about its work, all it has to do is go by this luminous precedent. Forget summoning GMA’s minions, summon GMA (Gloria Macapagal-Arroyo) herself to answer for the “extensive and widespread atrocities” being wreaked by her troops.
Congress, of course, was quick to exonerate her from blame in this respect. That was one of the issues brought against her by those seeking her impeachment. Well, we have a saying in this country, which is: The hardest person to wake up is the one who is pretending to be asleep. Might as well try reviving someone who has passed out in drunken stupor, you’ll have better chances.
The pro-GMA majority argued to a man or woman that there was nothing to connect GMA to the killings. Of course, you won’t find any written or verbal order given by her directly to Maj. Gen. Jovito Palparan to torture and summarily execute suspected NPA rebels—after the “Hello Garci” tapes she would have become more wary of expressing her incontinent desires carelessly. But then you won’t find the same thing either from Marcos. He never explicitly ordered his generals verbally or in writing to torture, summarily execute, or erase from the face of the earth any trace of suspected rebels. That is something you might expect Erap to do, had he been inclined to rule forever by force—and thank God he was not. But that is not something you might expect from Marcos or GMA.
Thank God, however, as Judge Real’s ruling reminds us—a ruling GMA herself has gone by, as seen by her earnest efforts to extract from the Marcos estate the sums demanded by Real for the indemnification of the torture victims—there is another criterion for liability or culpability in atrocity. That is the full knowledge that the atrocity is happening and, while having the power to do so, the failure or unwillingness to stop it.
Does GMA know the atrocity is happening?
Are you kidding me? At the very least, the killings—of activists and journalists—began long before she unleashed her “war against the NPA.” The corpses were piling up, which had begun to alarm both the international journalistic and human rights community. The “war,” an epically cynical one launched against an enemy that posed little threat physically; indeed, that had been GMA’s own allies in her quest for the presidency—she ardently conspired with them to oust Erap, a fact that by Palparan’s current definition of the “enemy” should easily land her in that category—is merely meant to give the killings a quasi-legal mantle.
At the very most, as that last part suggests, Palparan has never hidden his homicidal bent. He has boasted about it, defying his critics, who are almost by definition people who still believe in democracy. He has openly advocated death to the enemy. He has said publicly that if you get shot in the company of a suspected NPA rebel, that’s your fault. He has said airily that he does not see any difference between party-list and communist, they are all the same. That is a recipe for a bloodbath. No, that is an engraved invitation to genocide.
Has GMA tried to stop this?
Are you kidding me even more? She has not told Palparan that in a democracy, people are presumed innocent until proven guilty, she has told Palparan to keep up the good work. She has not told Palparan that in a democracy there is a distinction between combatant and non-combatant, soldier and civilian, people who believe in Marx and people who take up arms to build a communist state; she has told Palparan, he (like she) is one piece of work. She has not told Palparan that in a democracy the principle is not to kill first and apologize later or not at all (how can she?), she has held him up for emulation before the nation.
What the Melo Commission needs is not wit, it is will. The proof is in plain sight. The question is not whether or not that commission has the wile or guile to find it. The question is whether or not that commission has the eyes, or balls, to see it.
http://opinion.inq7.net/inquireropinion/columns/view_article.php?article_id=18804
Marcos’ lawyer argued that American law does not support the second condition, and that “no international law decision ... has ever imposed liability upon a foreign official on those grounds.”
The Pasadena court denied the appeal, saying those two conditions of “command responsibility” are in fact well borne out both by US and international law. It cited the US Supreme Court ruling on Yamashita, thus:
“[T]he … charge is (the failure of the) petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit extensive and widespread atrocities’ ... [T]he law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates ... [P]rovisions [of international law] plainly imposed on petitioner who, at the time specified, was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”
If the Melo Commission is serious about its work, all it has to do is go by this luminous precedent. Forget summoning GMA’s minions, summon GMA (Gloria Macapagal-Arroyo) herself to answer for the “extensive and widespread atrocities” being wreaked by her troops.
Congress, of course, was quick to exonerate her from blame in this respect. That was one of the issues brought against her by those seeking her impeachment. Well, we have a saying in this country, which is: The hardest person to wake up is the one who is pretending to be asleep. Might as well try reviving someone who has passed out in drunken stupor, you’ll have better chances.
The pro-GMA majority argued to a man or woman that there was nothing to connect GMA to the killings. Of course, you won’t find any written or verbal order given by her directly to Maj. Gen. Jovito Palparan to torture and summarily execute suspected NPA rebels—after the “Hello Garci” tapes she would have become more wary of expressing her incontinent desires carelessly. But then you won’t find the same thing either from Marcos. He never explicitly ordered his generals verbally or in writing to torture, summarily execute, or erase from the face of the earth any trace of suspected rebels. That is something you might expect Erap to do, had he been inclined to rule forever by force—and thank God he was not. But that is not something you might expect from Marcos or GMA.
Thank God, however, as Judge Real’s ruling reminds us—a ruling GMA herself has gone by, as seen by her earnest efforts to extract from the Marcos estate the sums demanded by Real for the indemnification of the torture victims—there is another criterion for liability or culpability in atrocity. That is the full knowledge that the atrocity is happening and, while having the power to do so, the failure or unwillingness to stop it.
Does GMA know the atrocity is happening?
Are you kidding me? At the very least, the killings—of activists and journalists—began long before she unleashed her “war against the NPA.” The corpses were piling up, which had begun to alarm both the international journalistic and human rights community. The “war,” an epically cynical one launched against an enemy that posed little threat physically; indeed, that had been GMA’s own allies in her quest for the presidency—she ardently conspired with them to oust Erap, a fact that by Palparan’s current definition of the “enemy” should easily land her in that category—is merely meant to give the killings a quasi-legal mantle.
At the very most, as that last part suggests, Palparan has never hidden his homicidal bent. He has boasted about it, defying his critics, who are almost by definition people who still believe in democracy. He has openly advocated death to the enemy. He has said publicly that if you get shot in the company of a suspected NPA rebel, that’s your fault. He has said airily that he does not see any difference between party-list and communist, they are all the same. That is a recipe for a bloodbath. No, that is an engraved invitation to genocide.
Has GMA tried to stop this?
Are you kidding me even more? She has not told Palparan that in a democracy, people are presumed innocent until proven guilty, she has told Palparan to keep up the good work. She has not told Palparan that in a democracy there is a distinction between combatant and non-combatant, soldier and civilian, people who believe in Marx and people who take up arms to build a communist state; she has told Palparan, he (like she) is one piece of work. She has not told Palparan that in a democracy the principle is not to kill first and apologize later or not at all (how can she?), she has held him up for emulation before the nation.
What the Melo Commission needs is not wit, it is will. The proof is in plain sight. The question is not whether or not that commission has the wile or guile to find it. The question is whether or not that commission has the eyes, or balls, to see it.
http://opinion.inq7.net/inquireropinion/columns/view_article.php?article_id=18804
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