Miriam: President can face trial for massacre of SAF commandos
PRESIDENT Benigno Aquino 3rd may be held criminally liable for the death of 44 members of the Special Action Force (SAF) under the doctrine of command responsibility and he can be tried by the International Criminal Court (ICC), Sen. Miriam Santiago said on Monday.
According to Santiago, the massacre of the SAF commandos by the Moro Islamic Liberation Front (MILF) makes the military commander and other high-ranking officials responsible for war crimes under the charter of the ICC, which hears cases against heads of state and top-ranking military commanders.
Since Aquino is the Commander-in-Chief of the Armed Forces of the Philippines (AFP), complaints can be filed against him by anyone before the ICC in connection with the killing of police commandos in Mamasapano, Maguindanao, last week.
“Anyone who thinks that President Aquino should assume command responsibility as Commander-in-Chief of the military and AFP may file a compliant in the ICC,” Santiago said.
She noted that any person or non-government organization (NGO) with an active legitimate interest in the outcome of the case can file the complaint against the President and other military and police officials involved in the failed operation to arrest two international terrorists.
“It is not enough to tell them (relatives of the victims) that they (44 SAF men) died for their country. They are entitled to their full human rights,” Santiago noted.
This means that all those who were involved in the operation that went awry can be charged with violation of humanitarian laws and war crimes.
“The SAF massacre is properly called a ‘non-international armed conflict.’ We make this distinction, because the relationship of the Philippine government with a non-state actor like the MILF is different from the relationship of our government with other states. The rule is to deny legitimacy to rebels, terrorists or other armed groups,” the senator explained.
She said the legality of the non-international armed conflict in Mamasapano falls under three main international rules: Common Article 3 to the 1949 Geneva Conventions on the Protection of Victims of International Armed Conflicts; the Geneva Conventions Additional Protocol 2; and the Rome Statute of the International Criminal Court.
Santiago in particular cited the Rome Statute, which contains a provision on war crimes committed in non-international armed conflict.
Article 8, para. 2, sub-para. (f) of the Rome Statute provides: “It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict by the governmental authorities and organized armed groups.”
The senator also explained that under the ICC Rome Charter, the military commander or person is criminally liable where two factors are present: the commander either knew or should have known that his forces were about to commit such crimes and the military commander or person failed to take all necessary and reasonable measures to suppress the commission of the crime.
President Aquino, Santiago said, can be charged and tried by the ICC because it already tried many heads of state in the past.
The senator was elected judge of the ICC in 2011 but, last year, she relinquished the post she never assumed for health reasons.
Santiago said if the United States were somehow involved in the Mamasapano clash, it could further complicate the situation because it would provide the MILF justification to seek intervention from their allied foreign states.
She also noted that any intervention by another state or states in the SAF operation is prohibited by international law.