The empire's mirror image. Truth, justice, and the “non-state” question

This time I'm sharing you an excerpt of the inroduction I wrote for the study made by Lutz Oette of Redress (UK-based NGO) titled Not Only the State: Towards Enhanced Protection, Accountability and Effective Remedies. Included as well is Gil “Pamboy” Navarro's personal account as originally published in the Philippine Daily Inquirer.

Much of this piece is taken from my article on CARHRIHL as well as snippets from various articles and developments on the case of Weng Libre, Maximiano Paner, and the other purge victims and how these are somehow related to (or complicated by) our present human rights situation.

The complete study can be found on the following url:
http://www.redress.org/publications/Non%20State%20Actors%209%20June%20Final.pdf

- Bobby

Introduction to Not Only the State

There is one simple but inescapable conclusion illumined by this study: the laws we have right now, and their implementing mechanisms, need to catch up. I have more than a passing interest in the subject of this study....(having) contemplated the various ways by which the abomination of the CPP anti-infiltration campaigns will be remedied. Reading this paper, I realize how laborious that route would be...

The sheer experience of bruality from one's own comrades may have been one of the reasons why most of us 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. Thus the truth was buried for a very long time.

Talking about the experience was difficult enough as it were, finding legal redress was not even imagined. At least not until recently.

In August 2003, we brought together a group of people who were directly or indirectly victimized by the CPP-NPA's anti-infiltration campaigns – former comrades who survived the torture, families who lost a member or two, and compatriots who believe that the thousands of comrades who fell in the wake of these anti-infiltration campaigns must find their due. We formed the Peace Advocates for Truth, Healing and Justice (PATH).

All of our members are involved in various other advocacies and campaigns, but find this particular one far harder and fraught with obstacles. Many of us are human rights workers who never tire of hollering against the State’s abuses – work that is by no means easy, but pretty much cut and dried. It enjoys the luxury of certitude and “political correctness.” Furthermore, legal remedies addressing State-perpetrated violations of human rights and international humanitarian law are very much in place.

The issue of non-State-perpetrated violations however, such as the Philippine communist purges, is much more complex and uncertain. For one, we are hard-put to carry this issue to a government audience, knowing full well that the latter has to equally answer for much. This makes it even harder to invoke state accountability on grounds of “positive obligation,” for even victims of human rights violations by the state can hardly take them to task. As this study puts it: “...states have frequently employed counter-insurgency strategies and outright war to combat these groups instead of resorting to judicial processes. These strategies are themselves often characterised by serious violations of human rights and humanitarian law.”

What adds to the complexity of this issue is that the war is still raging. The end to the violent conflict between the government and the CPP-NPA is nowhere in sight, as such addressing the issue of past violations inevitably gets mired in political manoeuvrings. The government uses it as an effective propaganda ammunition against the rebels, while dispensing with counter-insurgency measures that fall way below human rights and IHL standards. Like at present, left-wing activists are being summarily executed on an almost daily basis, while the government in effect is mouthing: “They had it coming,” or, “Just like in the past, they are killing their own comrades.” In such a situation, the truth suffers, along with justice and accountability.

In addition to this, bringing up the issue remains a dangerous undertaking, simply because the CPP-NPA is still armed and active. They have also categorically dismissed any possibility of reopening the issue, claiming that it is already a closed book. The perpetrators, they say, have either fled the Party or have been rightfully punished. The scores of victims' families who do not know what really happened, and the thousands of dead-and-disappeared, point to the contrary.

The Party, in its long history, have not shown any capacity for undertaking due process and credible investigations that pass accepted international norms. What they have shown thus far is the capacity for dispensing summary executions, a number of which they publicly proclaim, such as the assassination of former Party leaders Romulo Kintanar and Arturo Tabara.

Thus, understandably, most of their victims refuse to raise the issue or bring it to the proper body for fear of courting further harm.

We at PATH have explored various legal options, one is the filing of individual criminal cases against identified lead perpetrators, such as those involved in the OPML in the province of Laguna. As expected, the wheels of justice grind to an almost standstill. Gathering evidence of a crime that happened more than a decade back poses a terrible challenge, including the lack of witnesses willing to testify and the blurring of memory through time. The absence of an anti-torture law in the Philippines also poses a limitation, thus the charges filed are limited to serious physical injuries and serious illegal detention.

The case of Jesse Marlowe Libre is a particular case in point. In November 2005, we at PATH, with the help of forensic scientists and volunteer experts were able to exhume the remains of his parents, revolutionary couple Jesse and Nida Libre. They were falsely suspected as spies and killed by the CPP-NPA in Cebu on September 1985.

The truth behind the disappearance of the young orphan Libre's parents was withheld from him by the movement (they claimed the military killed them). It was only in 2005 when he learned the disconcerting reality upon seeing his parents' skeletons buried together in a mountain gravesite, bearing tell-tale signs of severe torture and violent death. Thus with the exhumation of truth comes the cry for justice.

What are the legal options available to him? We can barely find witnesses willing to testify. Who are responsible? A whole Party organization was involved. What are the levels of accountability? It was a complex hierarchical setup: there were onlookers, guards, interrogators, torturers, executioners, decision-makers, and Party directives. Truth and justice are simply lost in the labyrinth.

Another quasi-legal option is our call for the creation of a Truth and Justice Commission, being aware of the extreme difficulty of filing individual court cases. But Commissions of this sort were successfully done in post-conflict situations, i.e. in countries in transition. We find no precedent of a Truth Commission set up in any country with ongoing conflict, though we are open to setting such a precedent back home.

As we grope around for tenable legal recourse, we welcome any political developments that could offer some promise or possibility of an official, widely recognized probe. Thus when the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (or CARHRHIL, the first out of four stages in the substantive agreement within the ongoing peace talks between the Philippine government and CPP-NPA-NDF2), we asked: “Could this be the avenue we are looking for?”

Sadly, CARHRIHL gives little indication in that direction. The negotiating parties have set up the Joint Monitoring Committee (JMC) on April 14, 2004 purportedly to monitor each other’s compliance with the stated agreements on human rights and international humanitarian law. But it covers only cases that happened “on or after August 7, 1998,” the official date of the pact. That effectively leaves out the bloodiest and most far-reaching crimes that resulted from the anti-infiltration purges because they happened more than a decade back. It is not retroactive.

Besides, what powers does the JMC actually wield? The most disconcerting feature of the agreement is “the failure of the CARHRIHL to vest the JMC with executory power.” Indeed, all the JMC can do is deliberate on a filed complaint, try to reach a consensus, and then throw it to the “Party concerned” for further investigation.

Nothing in the agreement indicates that either Party can be compelled to investigate. Much less are they compelled to provide reparation for the aggrieved. Indeed, till this day not one of the cases filed with the JMC, whether against government or the CPP-NPA-NDF, has moved an inch beyond their respective filing cabinets.

In short, we have an official “agreement” to respect HR and IHL, with a body to “monitor” compliance, but no teeth to enforce it. All we have is their word, which, going by experience, does not amount to much. All it has accomplished so far is bolster the CPP-NPA's claims to belligerency.

As this paper pointedly observes: “While such developments (i.e. bilateral agreements or unilateral declarations of observance) have the potential to result in greater protection, doubts remain concerning their effectiveness: there is often little external monitoring of agreements or commitments and it is unclear what steps, if any, have been taken with a view to preventing torture.

In the absence of such verification, it is difficult to assess whether the purported steps are genuine attempts to stop torture by members of the group concerned. Claims about steps taken may equally serve as mere gestures to gain enhanced legitimacy by appeasing those who raise human rights concerns without changing the actual practice. Continued reports about torture and other serious violations by non-state actors often appear to point to the latter.”

This paper however does not close the door on pursuing creative “engagements” with armed groups towards convincing them to abide by HR and IHL standards. This suggestion has some merit, and in an ideal setting it would be wise to negotiate with them on these grounds. Armed groups generally operate on the basis of political expediency, thus productively engaging them might entail setting mechanisms that would make it “politically costly” for them not to follow the standards. These mechanisms, however, have yet to be realized.

Human rights violators from the State have to face the entire UNDHR and all international humanitarian laws, while the best recourse for victims of non-State violations remains the common Article 3 of the Geneva Conventions, with hardly any enabling mechanisms.

Sol Santos writes: “...human rights creates obligations on or can be applied to non-state actors like rebel groups, and not just states or governments. The basis for this is the more dynamic view that human rights are meant not just to regulate the state but, more fundamentally, to assert the inherent rights of individuals against all forces, whether state or non-state, which would violate them.”

Poring through this comprehensive study, we at PATH realize that many people in the world find themselves stuck in the same boat. The victims of the former Yugoslavian conflict, the RUF in Sierra Leone, Shining Path of Peru, and so on continue to suffer from a very constricted legal terrain at either national or international levels.

Correcting this is an imperative, if we are to be true to the notion of human rights universality. Thus in the final analysis, we continue to grope, even as crimes against humanity continue to pile up and bury the old ones. Torture and other inhuman acts continue to be committed all over the world, both by governments and armed groups. War and injustice prove to be fertile grounds for these atrocities to breed and multiply. We cannot emphasize enough the urgency of creating new laws and mechanisms that could deter them, or deal with them in a manner that would restore our humanity.

Gil Navarro's Account:

[Extract of article posted on 27 December 2003 Inquirer News Service, as part of Juan Sarmiento's five-part series "CPP Victims Seek Justice, Closure" (PDI, 26-20 December 2003) (INS’s EDITOR'S NOTE: Following is a first-person account of Gil Navarro, a survivor of "Operation Missing Link." He has since left the underground movement.)]
IT BEGAN with an invitation to a labor conference in a guerrilla zone. Our group of five reached a New People's Army camp in Laguna on July 1, 1988. I was then 26 and the secretary of the Communist Party of the Philippines' section organizing committee in Calamba, Laguna.

Three of us were blindfolded and chained and ordered not to talk. The next morning, I noted that there were about 10 cells with prisoners, about 10 meters apart, covered with plastic sheets. After a week, I was presented to Dex, Gerry and Igor, and told to sit at the table. "Starting today, we are dropping you from the rolls of the party because you're a DPA (deep-penetration agent)," Dex said. "That's not true," I protested. "Only the Central Committee can drop me from the rolls."

"Someone has already squealed on you," Gerry said…

Three days passed before I was interrogated again... "Are you going to confess now?" Dex said. "What will I confess?" I said. I could still smile then. They presented someone, a youth organizer from Biñan, who had supposedly identified me as a spy. He was sobbing. Then he was led away."You son of a bitch. So you're a nut hard to crack!" Dex said. A yellow pad was rolled and used to hit my face. Vlady pointed an M-16 at me and pulled the trigger. The rifle had no bullet. I was then made to sit before a pit three feet deep. "Are you going to confess now?" they asked, a gun pointed at me."What will I confess?" I said. They put bullets between my fingers and squeezed. Someone shoved a fist against my chest bone. I cried in pain. I was also made to squat, and my shin was hit with something hard.

After that day, I was interrogated daily. I was roused from sleep at night. I was slapped repeatedly. The routine lasted a month. Two women took notes of my interrogation. On those nights, I could hear someone's cries and the whirring of a power saw. Sometimes, they deprived me of food. There were moments when I entertained the thought of committing suicide by slashing my wrists with the sharp edge of a tin can, but I couldn't find any.

The anti-DPA campaign was called Operation Missing Link because no one knew how they disappeared. I decided to make up a story after an incident in the second week of August. Someone asked me [after having killed another detainee in front of my eyes]: "Will you be the next? What's your message to your family?" That's when I said yes.

Yes, I was recruited by Tatang's son. Yes, I'm a DPA. They asked about my salary, my network, how I was recruited. I found it difficult to make up something. I merely confirmed what they had told me. I thought that what I was doing was not right, but it was a matter of survival. I told them about Red Sox ("Oplan Red Shank"), a military plan to infiltrate the party, which I had earlier read about in a torn page of the Inquirer that I found at the camp.

Two days later, Igor and Lea made me list down the supposed military spies I knew. They took a picture of me holding a plate with my name on it. Then the series of killings began. Many more were arrested.

I received severe torture at the second camp. With my hands bound, I was made to sit by a big tree. They raised my feet as if I were being made to do a split. Igor pulled at one of my legs and a woman pounded my knee with a coconut shell. "Confess some more!" said Igor, Ken and Dex. Then, before all the people in the camp, Dex took off my underwear. Using a razor, he slit the skin just above my penis four times. The torture lasted for half a day. "Just kill me because I just made up the story.

You won't get anything from me. Call Ken and tell him to kill me," I screamed. Days later, they asked me about some names in Manila. If they were unsatisfied with my answer, Igor would force me to eat a piece of paper. We stayed at the camp for two weeks…At night I could hear screams. I saw people being marched off, with someone carrying a spade and a crowbar.

I was set free on Dec. 8. The then head of the Southern Luzon Commission summoned me and said: "I can no longer shed tears to ask for your forgiveness. Come, let's go to our comrades." Unchained, I went to a group that included those who had also been released, as well as some members of the Central Committee. They sang a song welcoming me back to the party. I cried.