On whether the MILF should be charged for war crimes before the International Criminal Court for the ambushing and killing soldiers in Zamboanga
The killing of the 19 members of the AFP by rebels in Mindanao raises the issue of whether we can now, since we are now party to the Rome Statute of the International Criminal, charge them before the ICC. My answer is that it is extremely doubtful whether we can do so because even if we charge them with war crimes, which falls under the jurisdiction of the ICC, the war crimes must be characterized as widespread, or as part of a systematic plan or policy, and therefore you have to prove that in addition to the usual elements of murder.
In order for us to sidestep that problem, it is better not to bring the case before the ICC , but to charge them in regular RTCs in our country because then we have to prove that there was no plan or policy to exterminate whole peoples or to inflict this on a widespread population. I believe we can make a clear-cut case for murder because the laws of war, particularly international humanitarian law, were not followed. And particularly under the protocols of the Geneva Convention, since the soldiers were already captured, they are entitled to humane treatment. You are allowed to kill an adversary only in the open battlefield, only in the theatre of war. But once you have captured the adversary, then you fall under the terms of the Geneva Conventions on Peace, and then you fall under Protocols 1 and 2 which are ways of how to handle captured enemy soldiers. They should have treated the soldiers with all humane considerations. I believe therefore that the provincial fiscals should busy themselves by filing the proper complaint.
How will this affect the peace talks between the government and the MILF?
This is the typical confrontation between peace on one hand and justice on the other. We need to administer justice in a sense that our soldiers were killed beyond the limits of international humanitarian law which are incorporated in our Constitution as part of our laws. There has been a violation of law, therefore there should be a trial and there should be a judge to apply the law and then issue a judgment. The question of peace is completely separate from the issue. I do not feel that it is fair to just call it an isolated incident. I don’t think that if you are the family of one of these fallen soldiers you will say that it was a mere incident. It is of very grave importance, that is why we must now file the criminal charges in the RTC instead of involving ourselves in legal technicalities about whether we should file a case before the ICC. Then again, because these two tracks are parallel—the track of justice and the track of peace—we should continue with the talks. We should express regret that it has happened, and we should inform in good faith the negotiators that we are filing criminal charges under the Penal Code for these atrocities, but we are still willing to continue the peace talks.
The fastest way to achieve justice is to file an ordinary complaint for murder against the accused before the RTC. It will of course complicate the peace talks because any negativity during peace talks will cloud the trajectory.
Is this a sign of insincerity from the MILF?
That is going to be a very dangerous statement to make because in the first place we would have to assume that the rebels are united, so the burden of proof would ne on us, to prove that there was unity there because rebels fall into discrete separate groups and we have to find out which group is responsible. In any event, I am sure that there is enough military capability to identify the immediate captors of the soldiers so they can be charged in court, a warrant of arrest can be issued, and proceed to a manhunt for them, so local law enforcement authorities can have legal basis for placing them under arrest as accused in criminal cases instead of prisoners of war.
Are you in favor of an all-out-war against the MILF?
That might impact on the peace talks. At the same time, if there is no indication that the rebels are going to cooperate in the arrest and detention of the perpetrators of the crime of murder, then maybe it would be time to consider that proposal. It might be time to take a drastic step. But right now, our main concern is to bring justice to the families of the slain soldiers. #