CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
21 September 2013
The Zamboanga siege perpetrated by the MNLF faction of Nur Misuari is in its mopping-up operation stages and eventually Pnoy will be faced with the question of what to do or how to exact accountability for the mayhem, destruction and ultimately, the crimes committed by these MNLF fighters for the past several days.
No doubt, as reported, there were already sworn statements taken from those who were taken hostage and there is already a special prosecutor assigned to do the inquest of those who have survived the siege, as apparently, most of the MNLF fighters were killed and only few remained.
The question is: should these survivors be allowed to claim collective or individual criminal responsibility for their actions?
This is important since once collective responsibility is asserted as a defense, then it follows that they will not be held individually responsible for their acts opening up the possibility that no one may go to jail for the specific crimes any of these MNLF fighters have committed during the siege.
The special prosecutor will proceed to consider whether the acts committed constituted the crime of rebellion or there were other specific criminal acts committed, which may range from serious illegal detention, arson, murder, physical injuries and the like. The possibility of combining these specific crimes with the crime of rebellion will also have to be considered.
But one useful international instrument to remember in this move to prosecute these crimes is Protocol II of the Geneva Convention of 1949, Relating to the Protection of the Victims of Non-International Armed Conflicts, 8 June 1977, which the Philippines ratified back in December 11, 1986, thus applicable in the Philippines, the special prosecutor may just have to find a specific legislative enactment applying the specific provisions of the Protocol.
Art. 6.2 (b) of Protocol II states that no one shall be convicted of an offence except on the basis of individual penal responsibility and the International Committee of the Red Cross in its Commentary to this provision expounded thus :
This sub-paragraph lays down the fundamental principle of individual
responsibility; a corollary of this principle is that there can be no
collective penal responsibility for acts committed by one or several
members of a group.
Perhaps a more important question begging some answers is, how far should the government run after Nur Misuari for this siege?
Nur Misuari may be expected to claim immunity for his actions since he is doing it by taking direct state action in establishing the supposedly independent republic he called the Bangsamoro Republik and asserting that the Philippine laws do not apply to him, and he may even challenge Pnoy to run after him in the International Court of Justice or any other relevant United Nations body.
This is a bait, since if that is done, the Philippine Government will in effect recognize the acts committed by Misuari which constitute an assertion of the right to self-determination of the Muslims who followed Misuari when he first made that declaration establishing the Bangsamoro Republik.
The prudent course of action is, depending on the evidence that will be gathered, Misuari should be prosecuted as an ordinary perpetrator of criminal acts, mainly as a principal for all the acts of his followers, who asserted they were doing them upon instructions of Misuari, notwithstanding the fact that Misuari denies having directed or instructed these fighters to do what they did.
Will this affect the peace process on-going with the MILF which are in its closing stages of negotiations for the remaining annexes? What will happen to the process mentioned by Secretary Ging Deles over ABS-CBN News Channel (ANC) several days before that she is supposed to meet with Misuari in Jakarta precisely to discuss how to transition the discussions that they are having on the unfinished business of the implementation of the 1996 Peace Agreement signed by then President Fidel V. Ramos with Nur Misuari? What will the other “lost command” groups like Umbra Kato do in the meanwhile, adopt a wait- and- see attitude to see how resolute is the Philippine Government in dealing with these acts of lawlessness disguised as acts of disgruntlement with the implementation of past peace agreements, for that will determine how far they can go in doing what they plan to do and getting away with it?
As in most telenovelas, the best thing to do is to wait what will happen next, as they say in the vernacular : Abangan!