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Sulo Hotel, Quezon City , Philippines , 15 September 2008
An Overview of the Humanitarian Protection Policies and Interventions of the Commission on Human Rights
delivered by
Chairperson, Commission on Human Rights of the Philippines
Interventions of the Commission
Pursuant to Section 18, Article XIII of the Philippine Constitution, one of the primary functions of the Commission is to monitor government compliance with human rights obligations. Over the course of the armed conflict in Mindanao, the Commission has fully exercised its mandate to monitor the human rights situation and the government's response. Several reports from the various offices of the Commission continue to supply the central office with information crucial to the formulation of the Commission’s recommendations to the government.
Assessment of Humanitarian Protection
CHR Region X Consolidated Field Reports, Lanao del Norte and Sur ( August 19, 2008 )
On 17 August 2008 , in Tamparan, Lanao del Sur, MILF separatists ambushed a military convoy, killing ten (10) troops and four (4) CAFGUs. Twelve (12) others were injured.
On the same day, in Iligan City , two improvised explosive devices detonated in two separate pension houses. There were four (4) injured civilians, although one (1) is under custody for being suspected of being the bomber.
On 18 August 2008, the three hundred (300) members of the MILF under the command of Abdulla Macapaar (a.k.a. Commander Bravo) launched simultaneous attacks on the municipalities of Kauswagan, Maigo, Bacolod and Kolambugan. Kauswagan and Kolambugan
CHR Special Mission to North Cotabato ( August 14-16, 2008 )
The Commission sent a Special Mission to North Cotabato to monitor the human rights situation of internally displaced persons at ten (10) evacuation centers.
On basic services (Principle 18 of the United Nations Guiding Principles on Internal Displacements [hereafter referred to as UNGPID]), the team found that although social workers, the ICRC and NGOs were visible, evacuation centers generally did not have regular supply of food and drinking water. Shelter is inadequate as evacuees generally sleep on the floor or on muddy ground. Toilets are lacking and sanitation in general is poor. In most locations, the local plan for disaster management appears disorganized.
On essential medical services (Principles 18 & 19, UNGPID), the team found that medical care and medicines are inadequate. Except for a few instances, psycho-social services are non-existent.
On education services (Principle 23, UNGPID), the team observed that except for one location, all schooling for children displaced is absent. The LGUs and DepEd have not provided for an education program for children in evacuation centers.
On protection during displacement (Principle 11, UNGPID), there were no reports on torture, rape, sexual harassment, or cruel, inhuman or degrading treatment of IDPs.
On the free movement of IDPs (Principle 12, UNGPID), it was noted that evacuees moved freely in and out of the centers. In some centers, the men leave in the morning to return to their homes and guard their property only to return to the centers at night.
On the non-separation of family members (Principle 17, UNGPID), the team noted that evacuations were compliant with keeping families intact.
The Region XII Office of the Commission conducted two investigations in Maguindanao, the first covering the following: 1) an alleged food blockade affecting the municipalities of Datu Saudi and Datu Piang and 2) the pillage of the municipalities of Dapiawan, Datu Saudi and Ampatuan. The second report covered the death of 5 civilians in Datu Piang due to airdropped weapons.
On the first report, it was discovered that the highway linking Datu Saudi and Datu Piang was the stage of several encounters between the AFP and the MILF, especially during the period of August 20-28. On the 30 th of August, a food distribution convoy headed by the DSWS-ARMM was stopped temporarily by the military. The findings were that no blockade was in place but access for convoys carrying relief goods was limited because of the armed encounters.
On the reports of the pillage of three municipalities in Maguindanao, it was found that dozens of houses and commercial establishments were emptied of their goods. From the report in one unidentified location, 14 houses/establishments were ransacked, 3 houses were destroyed. In Dapiawan, two (2) mosques were vandalized. In Brgy. Madia, Datu Saudi, 12 houses were destroyed. In Brgy. Dadtumeg, Kabuntalan, an unverified number of houses were looted as well. In all cases, it was alleged that the military was responsible for the looting and destruction, although this remains unverified at this time.
In the second report, CHR investigators proceeded to the Regional Medical Center in Cotabato City and interviewed the lone survivor of an airborne ordnance blast that killed five (5) minors, including a 17-year old pregnant youngster, in Datu Piang, Maguindanao. While civilians were escaping the impending violence on 8 September 2008 , a “bomb” was allegedly dropped by an OB 10 plane over near a bridge, killing the civilians. The military has confirmed flights in the area of Datu Piang, Maguindanao, but denied that a bomb was ordered to be dropped in the same area.
A separate report on displacements in Datu Anggal Midtimbang and Talayan, Maguindanao was also relayed to the central office last 2 September 2008 .
Report of the Subcommittee on Children Affected by Armed Conflict and Displacement (SC CAACD)
The Commission, through its Child Rights Center (CRC), participated in a child-focused emergency rapid assessment of the worsening situation in North Cotabato , under the auspices of the inter-agency SC CAACD. The team conducted focus group discussions in Dabil Sampulna Elementary School in Midsayap and Aleosan Elementary School to assess child evacuees. In other assessment sites, participatory observation and key informant interviews were used particularly in interactions with local government officials.
The key findings of the team include:
The Commission released a statement on 13 September 2008 , expressing “deep alarm on the toll armed conflict has inflicted our children. The children’s right to life and survival, their right to development, their right to an education and their right to be with their families are but some of the rights that are disrupted and even violated in situations of armed conflict.” The statement echoed the findings of the child-focused emergency rapid assessment.
The statement also emphasized that “ [r]ecruitment of children in armed groups is one of the six grave child rights violations identified by the Untied Nations’ Security Council.” For this reason, the Commission condemns the conscription of minors into the MILF, as reported in the media on 12 September 2008 .
“The Commission calls on the leadership of all Non-State Armed Groups to cease and desist from the practice or tolerance of recruiting children in the active ranks or in the auxiliary services. Your children’s place should never be in the trenches of war-ridden fields but in schools where they can develop and actualize as complete individuals living lives with dignity and humanity.” The Commission “reiterate[s] [its] challenge to the MILF leadership to cooperate and allow a CHR special team to access and inspect MILF training camps for the purpose of verifying the veracity of AFP’s claim of MILF’s training and use of minors as combatants.”
On Addressing the Issue of Civilian Volunteer Organizations (CVOs)
The Commission has not obtained any observations or information on the on-going organization of civilian defense forces and vigilante groups. None of the special missions or field reports transmitted to the Commission had covered hard information related to the newspaper reports that the PNP and DILG have been arming civilians to protect communities from the hostile advances of the MILF. Except for brief mention of missing CAFGUs (Consolidated Field Reports, CHR- X, August 19, 2008 on page 5), the Commission is without any statistics as to the true number of Civilian Volunteer Organizations (CVO), duly organized or otherwise, the number of casualties suffered by the CVOs and other pertinent information.
In addressing the public concern over the revival of CVOs, reference has to be made to past documents issued. In 23 March 2000 , the Commission issued an advisory on the revival of CAFGUs. As is the case in the current conflict resulting from the failed MOA-AD negotiations, the advisory reads, “The revival of the CAFGU is being justified as an emergency measure of protecting innocent people from violence committed by criminal elements.” It reads further, “Unless they are properly trained as required for (sic) the military and the regular police force and are subject to disciplinary sanctions, the armed CAFGUs might violate human rights...”
The possibility of abuse is a major concern. The context of the 2000 CHR Advisory was numerous cases of human rights violations committed by the CAFGU against civilians filed before the Commission. In the context of the current state of affairs in Mindanao, the possibilities for abuse are expanded. This includes possibility of CVOs committing human rights abuses against innocent civilians, but by using their conscription and government-issued firearms beyond the limits of defending themselves, their property or their community.
The parameters which define the limits of civilian defense forces is clearly outlined in the antiquated 1987 guidelines promulgated by the Inter-Agency Subcommittee on Civilian Volunteer Self-defense Organizations , to which the Commission had participated in. The guidelines read:
“IV. Guidelines:
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A. Such volunteer organizations must be properly organized and shall be exclusively for self-defense and protection. The leaders, key officials and members thereof, especially those authorized to carry firearms must be identified and listed ... A built-in system of policing themselves must be established and implemented;
B. They must not engage in any activities contrary to law...;
C. ... only those elements allowed to the use of firearms under the law such as licensed firearms holders, military and police reservists and private security guards shall be the authorized to be the armed component thereof , and shall be under the supervision of the military and police . In any case, the possession of firearms and the carrying of the outside of residence shall be in accordance with Presidential Decree No. 1866 and its Implementing Rules and Regulations (Possession and Carrying of Firearms)... Military supervision shall include the conduct of training in matters emphasizing the following, among others:
D. In Addition:
The Commission emphasizes the following points: 1) the issuance of firearms is not explicitly provided for, but only an enumeration of persons who may constitute the armed element of a CVO; 2) only persons who are licensed to use and carry firearms may use the same for the purposes of a CVO; and 3) civilians who form part of CVOs must be trained and supervised on self-defense and human rights (among other things) by the military and police.
However, the current revival of CVO units is pursuant to Executive Order No. 546, series of 2006 . Below is the official press release from the Public Information Agency on 27 August 2008 :
DILG authorizes barangays in Lanao del Norte, Iligan to deputize police auxiliaries
Cagayan de Oro City (27 August) -- " Each barangay will be authorized to deputize five police auxiliaries who will be under the strict supervision of the Philippine National Police (PNP) ." This was pronounced by Interior and Local Government Secretary Ronaldo V. Puno during his visit in Kolambugan and Iligan last August 25.
This idea of a police auxiliary was taken from the Executive Order 546, signed by President Gloria Macapagal Arroyo two years ago, authorizing the deputization of civilian volunteer organizations (CVOs) and the use of barangay tanods as "force multipliers" in the campaign to wipe out terrorist threats.
CVO applicants will undergo a rigid screening process and training program before they can be deputized as armed police auxiliaries who will help the PNP maintain peace and order at the barangay level.
Stringent record-checking will be done to determine if there is any criminal record by a CVO applicant . Those CVOs who will be qualified will undergo in an "army-like" training by Armed Forces of the Philippines (AFP) Special Action Force. Once passed, these qualified police auxiliaries will be given long hand guns issued by PNP to assist both the police and AFP in protecting their barangays from extremities and other lawless element.
"Through this Executive Order, binibigyan po natin ng karapatan ang ating local officials and PNP to deputize police auxiliaries," Puno said.
However, Puno pointed out that not all CVOs or barangay tanods will be given firearms . "It is not true we are arming all CVOs," he quickly explained. It will be only those who will be trained as police auxiliaries.
These police auxiliaries will be under the supervision of PNP. Puno pointed out that only the PNP has the authority to issue and distribute firearms. Moreover, the PNP will make it a priority to make sure that these police auxiliaries will not abuse the use of their firearms. PNP will impose a continuous monitoring and evaluation on them.
Puno, who also chairs the National Police Commission (NAPOLCOM), warned local government units LGUs) against tapping these police auxiliaries as private armies and stressed that reports of abuses committed by local officials will be immediately investigated.
He said abuses committed by local officials will lead to the automatic revocation of the authority of police auxiliaries in their areas and the cancellation by the NAPOLCOM of their power to approve the deputization of CVOs.
Executive Order 546 gives the PNP a more active role in the internal-security concerns. It is stated in the said directive that PNP shall actively support the Armed Forces in suppressing insurgency and other serious threats to national security. PNP is also authorized to deputize barangay tanods as "force multipliers" in the peace and order plan, subject to the approval of the local peace and order councils.
Said EO also stressed the important role of local officials in drawing up internal security plans in their respective localities and the making of PNP as co-equal partner in the effort of combating insurgencies and terrorism in the country.
In his recent visit to Kolambugan, the Secretary led in the turning over of relief goods to the affected families and interfaced with the local officials. He also turned over a new police patrol car to the said local government and CVO equipment to the chief of police and barangay officials for the use of their police auxiliaries. Moreover, the Philippine Flag was also raised to show that normalcy has returned to the town which was taken over by the MILF for five hours last August 18.
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Later in Iligan City , the Secretary and General Razon were able to interface with the local officials, addressed the CVO applicants, and interviewed the MILF surrenderees.
These visits in the municipality of Kolambugan and Iligan City were part of the two-day visit of the Secretary in Mindanao to assess the situation in villages attacked by MILF renegade forces and discuss measures with local chief executives on how to restore normalcy in these areas. His next stop will be in Cotabato City . (DILG-10)”
Briefly stated, according to Secretary Puno, not all members of CVOs will be armed. Only those that qualify under stringent “army-like” training will be deputized as “police auxiliaries” and will be issued long handguns. It must be noted that EO 546 is too brief to include all the limitations found in the Inter-Agency Guidelines. There is no statement, whether in the EO 546 or in the press release of the PIA, on the limitations of combat operations of the CVOs. Are CVOs limited to the defense of their persons, community and property? Are they barred from undertaking the prerogatives of the police and military? Are they limited to operating up to adjoining barangays only?
Unlike the Inter-Agency Guidelines, EO 546 leaves so many questions unanswered.
Even with the safety measures put in place, through EO 546 or the 1987 guidelines, the concerns over drafting civilians into armed conflict remain. It must be underscored that the conflict between the MILF and government security forces constitutes non-international armed conflict. As such many customary norms of international humanitarian law are applicable. The most notable of these norms is the imperative on both the MILF and the government to protect civilians and IDPs.
However, the implementation of EO 546 to create CVOs or auxiliary forces raises the question of how to classify civilians participating in armed conflict. In IHL, the combatant and the civilian are clearly defined, and the protections for both are delineated.
“Generally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants. The conditions for combatant... status can be derived from Article 4 of the Third Geneva Convention and from Articles 43 and 44 of the First Protocol, which developed the said Article 4.
“[A] civilian is any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of the Third Geneva Convention and Article 43 of PI (see PI, Article 50). Under the law governing the conduct of hostilities, as contained especially in Articles 48 et seq . of PI, and under customary international law, civilians are entitled to general protection against the dangers arising from military operations; in particular they may not be made the object of an attack. Except for the relatively rare case of a levee en masse , civilians do not have the right to participate directly in hostilities. If they nevertheless take direct part, they remain civilians but become lawful targets of attacks for as long as they do so .”
The application of EO 546 does not address the curious status of members of CVOs, especially those named as police auxiliaries. The lack of development of international law on the status of militias and other civilian volunteers in non-international armed conflict makes it difficult to determine whether or not all the protections given to civilians are applicable to these police auxiliaries. It is not known, for example, whether police auxiliaries can be attacked while their weapons are not in hand but they are currently participating in an on-going armed conflict. Civilians who participate in conflict revert to full civilian protection when they are not at the moment engaged in combat and weapons are not high and ready. Is this the same for police auxiliaries? While questions like these continue to have doubtful answers, it seems a prudent step to analyze the issue of civilian combatants, the parameters that should define the application of EO 546 and whether the 1987 Guidelines should be integrated into the current set up of forming CVOs.
The Commission calls on the Government of the Philippines to heed the following recommendations:
CHR-XII, “Report on Displacements in Datu Anggal Midtimbang and Talayan, Maguindanao”, 2 September 2008 .
Commission on Human Rights, “Statement on Children in Situations of Armed Conflict: Children are Zones of Peace”, issued on 13 September 2008 , on p. 1.
Commission on Human Rights, Human Rights Advisory (CHR-A5-2000): “On the Revival of Civilian Armed Forces Geographical Units”, March 23, 2000 .
Inter-agency Subcommittee on Civilian Volunteer Self-defense Organization, “Guidelines on Civilian Volunteer Self-defense Organizations”, 30 October 1987 .
Ibid., on p. 3-4 (Emphasis supplied).
EXECUTIVE ORDER NO. 546 , DIRECTING THE PHILIPPINE NATIONAL POLICE TO UNDERTAKE ACTIVE SUPPORT TO THE ARMED FORCES OF THE PHILIPPINES IN INTERNAL SECURITY OPERATIONS FOR THE SUPPRESSION OF INSURGENCY AND OTHER SERIOUS THREATS TO NATIONAL SECURITY, AMENDING CERTAIN PROVISIONS OF EXECUTIVE ORDER NO. 110 SERIES OF 1999 AND FOR OTHER PURPOSES, July 14, 2006
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SECTION 2. In the exercise of its responsibility, subject to the concurrence of the appropriate Local Chief Executive through the Local Peace and Order Council, the PNP is hereby authorized to deputize the barangay tanods as force multipliers in the implementation of the peace and order plan in the area.
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SECTION 4. The Local Chief Executives, in coordination with the Local Peace and Order Councils, shall include in the integrated area/Community Public Safety Plan of their respective city/municipality, the priority program of action/thrust in resolving the insurgency and other serious threats to national security and ensure appropriation thereof for effective implementation of this Executive Order.
http://pia.gov.ph/?m=12&sec=reader&rp=6&fi=p080827.htm&no=60&date=08/27/2008
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, incuding those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
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(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
Knut Dormann, “The Legal Situation of 'Unlawful/Unprivileged' Combatants”, RICR Mars IRRC, March 2003, Vol. 85, No. 849 on p. 45-46.
Recommendations of the Commission on Human Rights, embodied in the North Cotabato Special Mission Report, 1 September 2008 , on pp. 12-13 and the CHR-X Progress Report on Lanao del Norte, 11 September 2008 , on pp. 17-19.
Recommendations of the Commission on Human Rights, “Statement on Children in Situations of Armed Conflict: Children are Zones of Peace”, issued on 13 September 2008 , on p. 3.
See paragraph 74 (d), Philip Alston, “Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Report of the Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions, Mission to the Philippines”, February 12-21, 2008, on p. 25.