NOTE: Re the preliminary report on Mamasapano by the Senate Committee chaired by Sen, Grace Poe, our expert chimes in below. He has the cojones to do just that.
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Ultimately Responsible? NO, Poe!
By Benjamin Maynigo
My barber asked, “What is your take on the Senate Report on the Mamasapano encounter? According to the report, PNoy is ‘ultimately responsible for the outcome of the mission’. Do you agree?”
“NO, Poe!” I told my barber. The report bothers me. I believe that Senator Poe and the other Senators who signed the report have an erroneous understanding and incorrect application of the doctrine of Command Responsibility. Their claim that as Commander in Chief as well as Chief Executive of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) respectively, he is responsible for the criminal or illegal acts committed by the subordinates under his supervision and control.
There exists a body of law as well as jurisprudence that govern and apply the doctrine of Command Responsibility.
Section 28 (a) of the Rome Statute states, “A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person 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.”
If the parties are non-military, Section 28 (b) applies, “With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior 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.“
The doctrine enunciated in the case of General Yamashita and the cases tried by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Nuremberg trials, and other cases, clearly illustrate how Command Responsibility was applied.
According to the tribunals, for the Commanders to be liable and responsible for the acts of others, look for the following elements:
- A superior-subordinate relationship must exist, where the superior has supervision and control over the subordinate;
- A subordinate committed a criminal act;
- The superior either knew, should have known, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes; and
- The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to take steps for the punishment of the subordinates.
Applying it to the Yamashita case, for example: The Japanese Imperial Forces in the Philippines during World War II committed atrocities amounting to mass murder, rape, and other war crimes or crimes against humanity. It was decided that General Yamashita as Commander of the Imperial Forces was as guilty as his subordinates who committed the crimes.
General Douglas MacArthur was the Commander of the US Armed Forces in the Pacific that included the Philippines where he was initially stationed. When he left the country for Australia, the Japanese atrocities continued unabated during his absence. He failed to prevent them while he was in Australia. He was not ultimately responsible. In fact, he returned to liberate the Filipinos from these atrocities!
US President Harry Truman ordered the dropping of the atomic bomb in Hiroshima and Nagasaki killing about 200,000 people. Was he ever cited for being “ultimately responsible”? No, it ended World War II!
Let us apply it to the Mamasapano incident. The Senators insist on calling it a “massacre” despite the fact that 392 SAF heavily armed Commandos participated. The Senators and the Press called the SAF 44 heroes and yet, they are being portrayed as having been mercilessly “massacred” by unnumbered BIFF, MILF, and other armed groups. I assume that the forty-four (44) SAF policemen fought valiantly killing the global terrorist Marwan and other rebels. The Senate Report is silent on what the rest of the 392 did, but it was quick to conclude, “The President is ultimately responsible for the outcome of the mission.”
What was the mission, and what was the outcome? The SAF Commandos were tasked to serve the Warrants of Arrest to capture Marwan – a globally wanted criminal and terrorist and Usman– another terrorist. Fully aware that they were hiding in a very secluded area and protected by Muslim rebels, the Commandos knew that it was a risky undertaking. It was a great mission for them because capturing both would prevent more deaths from terrorist bombings.
They successfully served the warrants and neutralized Marwan. Usman was wounded but escaped. In the process, fighting ensued resulting in the death of 44 SAF policemen, and 18 rebels. There were 348 SAF survivors returning safely and successfully avoiding being “massacred”.
Except for the “massacre”, the mission was successful. But for the “massacre”, the Senate Report says that the President is ultimately responsible. The basis was a lot of “could have been”, “could have done more”, and “might have been” which are in legal parlance “speculative” and therefore, inadmissible.
Most importantly, the doctrine of Command Responsibility is erroneously understood, and incorrectly applied.
First, the Senate Report claims that BIFF, MILF, and other armed groups committed the alleged “massacre”. There is no superior-subordinate relationship between President Aquino and the perpetrators of the “massacre”.
Second, President Aquino obviously did not know, could not have known, or consciously disregarded any information that the rebels would be committing a “massacre”. On the contrary, he received false information from his subordinates to base his decision.
Third, he did not have the power to prevent the “massacre” but definitely ordered the Armed Forces to go and pursue the criminals, and for the Secretary of Justice to investigate and file the necessary charges for the victims to obtain justice. Furthermore, he ordered the sacking of General Napenas and forced the resignation of General Purisima.
Either as a Commander in Chief or Chief Executive, it is his prerogative to skip any Chain of Command. He may consult officers or officials of lower ranks if he chooses to in aid of Execution. He may rely on certain advisers or resource persons who have expertise and his confidence also in aid of Execution. That is why in Organizational Charts, there is what we call Table of Organization vs. the Table of Power as well as those who have Line vs. Staff functions. In the Catholic hierarchy, here is the chain: God, Pope, Cardinal, Archbishop, Parish Priest, and Parishioner. Sometimes the Parishioner communicates directly with God or asks for the intercession of the Blessed Virgin Mary and/or the Saints.
Sometimes the CEO asks low-level employees to give their suggestions or express their complaints directly to him confidentially, thus – skipping the Chain.
In the Mamasapano incident, the Court issued Warrants of Arrest and asked the SAF policemen to serve the warrants, in aid of Justice Administration. Prosecutors and Courts make use of State witnesses to strengthen the cases also in aid of Justice Administration. Congress relies on resource persons or experts in their investigations, in aid of Legislation.
Let me reduce this thing to absurdity (reduction ad absurdum). The cause of the cause is the cause of the final effect (causa causae est causa causati).
If there were no warrants of arrest to serve, the SAF policemen would not have gone there and have not been “massacred”. Is the Court ultimately responsible”?
If BBL became law, Muslim courts would issue warrants, Muslim policemen would serve them and no “massacre’” would occur. Is Congress ultimately responsible?
President Aquino displayed bold leadership and daring to get the SAF to serve and execute a Court Order for a national and global cause. The Senate Report itself recognizes his commitment to the peace process that even former President Ramos supports.
There is a need for the Rule of Law, Justice and Peace to prevail in the Muslim region. The Comprehensive Peace Agreement and the BBL (Bangsamoro Basic Law) are attempts to fulfill this need. PNoy and the Executive branch have done their jobs.
Senators and Congressmen, do yours! Blaming PNoy would get you and us nowhere! Amend it if you must but pass a constitutionally acceptable BBL that would guide the destiny of our Muslim brothers and our nation!