What is International Humanitarian Law and why is it being raised vs red-tagging?
MANILA, Philippines — No less than President Rodrigo Duterte, has been accused of red-tagging — the practice of labeling dissenters and activists as rebels, terrorists or enemies of the state that he the government prefers to call "truth tagging."
In Zarate v Alvarez, Associate Justice Marvic Leonen defined the practice as “the act of labelling, branding, naming and accusing individuals and/or organizations of being left-leaning, subversives, communists or terrorists (used as) a strategy...by State agents, particularly law enforcement agencies and the military, against those perceived to be ‘threats’ or ‘enemies of the State.’”
At the Senate, hearings into the red-tagging of personalities — including celebrities and members of Congress — have led to discussion on whether red-tagging should be penalized, though senators are wary of restricting freedom of speech. The hearings have also served as a venue for the government's anti-communist task force to throw more allegations against activist groups and the alternative media.
Karapatan files suit
But rights alliance group Karapatan last week ran to the Office of the Ombudsman, accusing officers of the National Task Force to End Local Communist Armed Conflict of violating the International Humanitarian Law, specifically the principle of distinction, over its practice of red-tagging.
Karapatan, in a complaint prepared with the assistance of the National Union of Peoples’ Lawyers, said continued red-tagging of its human rights workers are a violation of Section 6(h) of Republic Act 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity.
RA 9851 holds that the state adopts “generally accepted principles of international law, including the Hague Conventions of 1907, the Geneva Conventions on the protection of victims of war and international humanitarian law, as part of the law our nation.”
The provision holds that "persecution against a group on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other groups that are impermissible under international law" fall under “other crimes against humanity.”
What is IHL?
When the military posted photo of the remains of Jevilyn Cullamat, whom they identified as a medic for the New People's Army, alongside seized arms and streamers in an encounter with rebels, her mother, Rep. Eufemia (Bayan Muna party-list) said this was a violation of IHL.
Cullamat, in her letter-complaint to the Commission on Human Rights, said the soldiers violated Article 16 of the fourth Geneva Convention, which states that all parties to a conflict shall protect all killed against “pillage and ill-treatment.”
Despite a photo of her dead body posed with a rifle that was posted on an Army website, task force officials said Jevilyn's remains were cared for and shown respect. Defense Secretary Delfin Lorenzana has since said troops have been ordered to "see to it that all casualties, either [New Peoples’ Army], Abu Sayyaf or everything, should not be published where they are lying helpless."
RELATED: Cullamat: Body of daughter killed in clash not a trophy to pose with
A briefer from the International Justice Resource Center explained that IHL “is the legal framework applicable to situations of armed conflict and occupation” that aims, “for humanitarian reasons, to limit the effects of armed conflict.”
Retired Supreme Court Associate Justice Adolfo Azcuna, in a webinar on human rights hosted by the Department of Justice, explained that the IHL “binds states to respect, recognize and enforce the fundamental rights of people in their territory, based on customary international law and treaty law.”
Azcuna, who previously sat as a commissioner of the International Commission of Jurists, added that IHL applies at all times, whether or not there is an armed conflict or even when there a country does not have a constitution.
"It is applicable in times of war, as well as times of peace because it is based on humanity that is always continuing," Azcuna added.
NUPL National President Edre Olalia explained the IHL “sets out ‘rules of war’ and is also known as ‘law of armed conflict’ because it sets limitations, standards and principles on what is legally permissible or allowed even if, because of, or in spite of armed hostilities between parties.”
He continued that IHL was crafted to “’humanize’ armed conflicts by primarily protecting civilians, civilian populations and those not taking or have ceased to take part in armed hostilities (medics, chaplains, hors de combat). “
RA 9851 defines hors de combat as a person “in the power of an adverse party,” who has expressed an intent to surrender, or has been rendered unconscious or incapacitated by wounds or sickness and unable to defend themselves.
Distinction between civilians, armed combatants
Olalia, in an e-mail to Philstar.com, added that IHL “distinguishes between unarmed civilians and armed combatants,” as the law also aims to protect combatants’ rights in the course of war. This means, Olalia said, there should be no deceitfulness, cruelty, torture, attacks on dignity, or disrespect of the dead even in conflict areas.
IHL also protects those involved “in the peace talks in whatever capacity do so as civilians and thus should be protected from attacks, reprisals, harassment, hostility and punishment.”
Azcuna also explained that IHL protects combatants and civilians alike, such as organizations like the International Red Cross that often operates in conflict areas.
“Even during conflict itself, armed forces are protected in the sense that rules limit the type of warfare or weapons that can be used to minimize the damage even to combatants,” he added.
Peace talks and the CARHIHL
In the NUPL-crafted Karapatan suit, complainants asserted that IHL applies in the prevailing armed conflict between the government and the Communist Party of the Philippines-New Peoples' Army, which was also recognized under the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHIL) in 1998.
The National Democratic Front of the Philippines represents the rebels at peace talks and is not included in President Duterte's proclamation declaring the CPP and NPA as terrorist groups.
Under CARHRIHL, which was signed in 1998, the government and the NDFP committed to "uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights."
But when Duterte terminated peace talks in 2017, the government asserted that they will suspend recognition of previous agreements with the CPP-NPA-NDF. This included the Hague Joint Declaration — the framework of the formal peace talks — and the CARHRIHL.
Olalia however said the government’s assertion that CARHIHL has been terminated along with the peace talks is still open to factual and legal challenge.
“The CARHRIHL is, unless mutually rescinded or abrogated, remains a bilateral agreement that is binding and effective regardless of the status of the peace negotiations, much less the peace process as a whole, and independent of who represents or holds power of each power at any given time,” he said.
Olalia said that a party cannot just unilaterally get out of an agreement, and this applies to the Hague Joint Declaration and the Joint Agreement on Safety and Immunity Guarantees.
“In fact, alleged violations from both sides continue to be claimed or reported and this is not suspended by the so-called suspension of CARHRIHL,” Olalia added.
Former Rep. Mong Palatino (Kabataan party-list), in a 2016 opinion piece on Bulatlat.com, explained that CARHIHL also "specified the duty of both parties to probe all cases of human rights abuses." Under the agreement, the rights of victims and survivors to seek indemnification was also laid down.
Olalia continued: “Independent of the CARHRIHL, IHL as understood in international law (mainly 1949 Geneva Conventions and its 1977 Protocols) subsist and are binding on both parties as they have both either signed or acceded to them. And their protection extends and covers with even greater reason to non-parties.”
The Philippines and the Anti-Terrorism Act of 2020
Olalia said that the IHL is “very important and imperative” in the Philippines where armed conflicts exist.
“It is especially so because of chronicled incidents of serious violations of these rules and because of credible reports of attacks on civilians & civilian populations, and even on combatants themselves,” he added.
Karapatan, in its complaint, said the principle of distinction — between civilians and combatants — is a hallmark of IHL and should be respected, “regardless of nature of conflict.” But through red-tagging, “civilians are deemed to be affiliated with or even members of the CPP or NPA,” they told the Ombudsman.
And in 2020, the much feared anti-terrorism law was entered into the Philippines’ statute books.
SPECIAL REPORT: Amid promised oversight of anti-terror law, how has the Senate probed past abuses?
Under the law, which faces 37 legal challenges at the Supreme Court, Olalia said that “the distinction and protection of civilians is blurred and the same is even legally sanctioned.”
Petitioners assailed the law for being vague and overbroad, saying it leaves authorities with unbridled discretion “to select the targets of the new terror law.”
“They may be ‘mis-associated’ with armed combatants without any rational connection except mere allegations and claims that will not satisfy competent, credible and admissible evidence in an impartial tribunal,” he added.
The SC will hold oral arguments on the petitions in January 2021.
Fight against impunity
Azcuna, for his part, said IHL is significant as there is a need for “an overarching principle against humanity.”
He stressed that the IHL is addressed to individuals, and not just to groups, and refers to individual responsibility.
“No individual should feel that he can do these violations of these rules with impunity. Sooner or later he or she will be punished,” Azcuna added.
The United Nations Human Rights Office said in a report published in June that there has been “near impunity” for drug war killings with only one conviction—for the murder of 17-year-old school boy Kian delos Santos in 2017.
"Despite credible allegations of widespread and systematic extrajudicial killings in the context of the campaign against illegal drugs, there has been near impunity for such violations," the report said.
The Department of Justice is holding a three-day Human Rights Summit. The event is one of the projects in a joint program on technical cooperation between the Philippine government and the United Nations pursuant to the latest resolution adopted by the UN Human Rights Council.
It closes on the December 10, International Human Rights Daw, with a message from United Nations Resident Coordinator Gustavo Gonzalez.
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