[Reflection] Discussion on my recent blog article


Book on Non-State Accountability under International Humanitarian Law. Photo from iihl.org

Danny Carranza: Darwin, good read. However, i disagree. Non-state armed groups should be held equally liable for human rights violations, especially by those who profess to respect human rights. Distinctions between violation and abuse may not even matter to victims. And from the point of view of many victims of human rights violations, they know that the their experiences constitute human rights violations.

Danny Carranza: This should have read: This is what a group called CALASAG said in their position paper during the deliberation on the anti-torture bill. The 1998 Rome Statute of the International Criminal Court, which is considered the highest development of international criminal law so far, both torture and enforced disappearance are key specific acts which may be committed as part or elements of a crime against humanity, under its Art. 7, par. 1 (f) and (i). The Rome Statute definitions of the crimes of genocide, crimes against humanity, and war crimes – “the most serious crimes of concern international community as a whole” – are not limited to commission by state agents. In fact, the very first case prosecuted in the ICC is against leaders of a NSAG, the Lord’s Resistance Army (LRA) of Northern Uganda.

Darwin Mendiola: Danny, that’s a good point…

Darwin Mendiola: But my reflection is quite clear… when it involves the attack against the civilian, it falls to the category of human rights transgression. while the atrocities committed by warring parties against each other, it is a breach of the law of war.

Darwin Mendiola: I don’t think we have different concept of what victims of human rights violations are. I agree that regardless of the perpetrator as long as it is in the context of power relation, victim must be accorded with rights to remedy and justice…

Darwin Mendiola: However, we must understand that state and non-state actors are not in the same footing… we expect a greater level of responsibility from the state than the non-state actors. There are outlaws in the first place and not bound by the same legal obligation. But of course, we must demand from the state the accountability of NSA for their wrongdoings…Adherence to human rights is what differentiate NSA from common criminals. So if they don’t adhere with this principle…there is no reason to dignify their criminal act

Danny Carranza Thanks for the education, Darwin. But in fact, some non-state actors profess to be better than the current state in their observance of human rights standard. This is the reason they want to topple the state. In regard to the CPP NPA, they have entered into an agreement to respect hr-ihl under the CARIRIHL.

Danny Carranza: So how do we describe the violations under CARHRIHL? The NPAs abuse human rights and the Ph government violate human rights?

Danny Carranza: Again, I quote from the CALASAG position paper:

Danny Carranza: The CARHRIHL is in fact an agreement whereby a non-state binds itself with an obligation to respect, protect and fulfill human rights. If they themselves consider it an obligation, why do we hold on to the traditional view that only state actors can be held liable for human rights violations?

Danny Carranza: Violations under CARHRIHL are VIOLATIONS, not simply abuse of human rights. And both the Ph government and the CPP-NPA-NDF should be held liable when such violations occur.

Darwin Mendiola: Danny, sorry if i did not able to reply to you earlier… Anyway, I think we are in the same page in understanding NSA accountability. I believe that the CARHRIHL sets legal obligations on both the state and non state…. There is no question about that… But again,the convergence of HR and IHL is the protection of civilians caught in the war. It does not cover the actual atrocities between parties as a result of war. Besides, its enforcement is limited to the peace talks…Its ironic that monitoring and investigation are on the hands of both parties in a joint body… HR is not a subject of negotiation.

Darwin Mendiola: HR should not be a subject of any political negotiation… It is inherent and universal. the problem with CAHRIHL is that it is meant to be a political tool rather than a legal binding instrument…

Danny Carranza: But that is precisely how concepts and eventually major international treaties on human rights evolved: through political negotiations, although primarily by signatory states. The process of discourse making, including human rights discourse is essentially a political process. I would surmise that there were a lot of political actions and negotiations which took place before we, as Filipinos, were allowed to vote, years after the right of suffrage as a human right was deemed universal.

Darwin Mendiola: Danny, i definitely agree with you… it is indeed a historical fact…that any concepts whether political or legal including human rights evolve through negotiation. but when it becomes a socially accepted principle…it is already a law that requires enforcement… in terms of CAHRIHL, the fact that it is already agreed upon by two parties… it should be enforced… not through negotiation but through established institutional mechanisms… because if it remains to be a subject of negotiation… it defeats its own purpose of providing protection…Besides practically, it is the state which has greater responsibility to enforce such agreement than their counterpart…

Danny Carranza: When your concept of human rights is set in stone, i dont think there is any room for the evolution of that concept. It is precisely because our appreciation of human rights is evolving that we continuously negotiate. If you mean that violation of human rights by non-state actors has yet to become socially acceptable, maybe its because you dont accept it yourself.

Darwin Mendiola: Danny, don’t get me wrong…. I do recognize that NSAs are equally capable of human rights abuses… i believe my blog article was very clear on that. My only argument boils down to the question, when do we consider a violation an affront to human rights. My position as what i have put forward in my blog is that when it is an attack against the civilian whether it is perpetrated by the state or by NSAs. But when the atrocities are between warring parties (or combatants), those only fall to the category of war crime. I believe this analysis is consistent with Rome Statute and all other international human rights instruments. I personally welcome the ratification of the Rome Statute of the Philippine government. It will certainly provide better protection fro human rights against the abuses of the state and the NSAs. But again, i would like to reiterate that the aim of IHL is to strike a balance between military necessity and humanitarian concerns. It converges with human rights standards when the powerless civilians are the ones who bear the brunt of war…

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