By Charmaine P. Lirio
THEY MAY not have been given much attention by media so far, but there were many civilian victims of the clash between the Special Action Forces (SAF) of the Philippine National Police (PNP) and armed groups at Mamasapano, Maguindanao last month. And should they want to, they can file criminal charges against state and non-state actors for possible violations of the international humanitarian law or IHL.
At least five civilians died while and an undetermined number of non-combatants were wounded as a result of the Mamasapano incident. Among the protected persons under the IHL – which penalizes war crimes including those committed during non-international armed conflict — are civilians or those who are not part of the hostilities.
The exchange of fire between policemen and the MILF killed eight-year-old Sarah Panunggulon; Barudin Lagalan, 22; Muhammad Amblang, 30, a farmer, and five other civilians.
Langalan was found with his hands tied, dead along with the SAF troopers. His wife said he was on his way to the public market early morning of Jan. 25, 2015 to charge his cellphone.
It appeared, according to Gov. Mujib Hataman of the Autonomous Region in Muslim Mindanao, that the SAF troopers had arrested Langalan, when the latter came out of his hut early that fateful day of the Mamasapano clash.
IHL was adopted by the Philippines in 2009 through Republic Act No. 9851. Crimes against protected persons in non-international armed conflict, under Section 4(b) and (c) of RA 9851 include:
* Violence to life and person, in particular, willful killings, mutilation, cruel treatment, and torture;
* Committing outrages upon personal dignity, in particular, humiliating and degrading treatment;
* Taking of hostages;
* The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, which affords all judicial guarantees that are generally recognized as indispensable;
* Intentionally directing attacks against the civilian population and civilian objects;
* Launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment, which would be excessive in relation to the concrete and direct military advantage anticipated;
* Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;
* Using the presence of a civilian or other protected person to render certain points, areas, or military forces immune from military operations;
* Intentionally using starvation of civilians as a method of warfare; and
* Using children to participate actively in hostilities.
Non-state actors and all officials, regardless of capacity, may be held liable for these crimes. Only the President and other persons specifically granted immunity from suit by law may be protected from prosecution under the IHL.
Families of the victims or the Commission on Human Rights (CHR) may file the criminal charges against the individuals found to be responsible for the incident. The penalty for the commitment of such criminal acts is imprisonment of up to 20 years and a fine ranging from P100,000 to P500,000. In case of extreme gravity of the offense or when the crime resulted in death or serious physical injury, the penalty is reclusion perpetua or life imprisonment with accessory penalties and a fine of up to P1 million.
CHR Information Division Chief Marc Titus Cebreros says, however, that before anyone can press charges, the individual or individuals liable for the death or injuries have to be identified first. The process of determining who are criminally liable, he adds, will take time. In fact, he says, CHR has yet to identify who fired the bullets that wounded and killed the civilians. Forensic analysis would be needed to determine that, which could mean significant waiting time. Among other things, the position of the bodies would have to be mapped out and the trajectory of the bullets traced. Autopsies would have to be performed; with at least one of the fatalities being Muslim, that would mean one victim going without autopsy since Muslims bury their dead as soon as possible.
CHR itself is waiting for the reports of the PNP-SAF and the Moro Islamic Liberation Front (MIILF) so that it could move forward with its own investigation. According to Cebreros, though, the filing of criminal charges may not be done right away since any matter involving the Mamasapano clash have to be considered in light of the peace talks. For instance, he explains, if it was determined that one bullet came from the MILF, both sides will still have to determine how the case will be prosecuted or if a special tribunal will be formed.
Cebreros says that although CHR has pending cases under RA 9851, there has been no convictions under that law since it was passed more than five years ago. – PCIJ, February 2015