[Note] MAG’s Position Paper on the Proposed Law Establishing the National Preventive Mechanism


The Optional Protocol to the United Nations Convention against Torture (OPCAT) establishes “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”.

The setting up of the National Preventive Mechanism (NPM) as one or several visiting bodies designated or maintained, at the domestic level, is in fact already long overdue as the Philippines is obligated to establish this preventive system within one year from its ratification of the OPCAT in 2012.

Nonetheless, the Medical Action Group (MAG) welcomes the on-going legislative process at the House of Representatives for the enactment of the NPM to complement the implementation of Republic Act No. 9745 or the “Anti Torture Law of 2009”. This piece of legislation seeks to prevent the act of torture and other forms of ill-treatment and to complete the necessary protection mechanism to end torture impunity.

While the OPCAT does not specify a specific form or structure for the NPM and the states are free to designate one or several new or existing bodies as their NPMs. It does however provide minimum requirements for the NPM according to which it should be:

  • Independent (its function, personal and institutional capacity);
  • Provided with sufficient resources (financial, human, logistical or material);
  • Have the expertise necessary to fulfil its mandate;
  • Have powers and guarantees, in particular access to all places of deprivation of liberty, information and persons; and
  • Enjoy privileges and immunities (i.e. protection from sanctions and confidentiality of information).

One of the possible organizational forms that the NPM can take is the designation of the Commission on Human Rights (CHR). Under the 1987 Philippine Constitution, the CHR is to ‘exercise visitorial powers over jails, prisons, or detention facilities. But these are merely general visitorial powers. However, the visiting mandate of the NPM is specifically aimed at the prevention of torture and other cruel, inhuman or degrading treatment or punishment, and has particular features prescribed by the OPCAT for unrestricted and unannounced visits. Thus, the NPM should be proactive and non-adversarial in its approach.

The MAG is fully supporting the proposed set up reflected in House Bill No. 5193 authored by Reps. Kit Belmonte and Barry Gutierrez for the establishment of the NPM as an attached agency to the CHR. An attached body to the CHR can make possible the diversity of expertise, but also gender balance and the adequate representation of ethnic and minority groups.

Nonetheless, whatever form the NPM may take, what is essential is that the NPM can carry out its mandate to conduct regular visits to all places of detentions without restriction. Their visits should lead to reports and concrete recommendations to improve the protection of persons deprived of liberty. After which, an annual report on their activities and their findings must be published after consultations with relevant government agencies and non-government organizations. The NPM can also give comments on relevant laws and regulations and propose for necessary reforms.

However, the setting up of the NPM should not be limited to legal consideration as it also involves health issues. The MAG believes that the participation of medical and health professionals in these visiting mechanisms is essential to address health issues related to torture and ill-treatment, examines and gives treatment to detainees, recommending actions to be taken to improve the treatment of detainees, to evaluate the health system and to assess the impact of general conditions of detention on the heath of detained population.

The United Nations Manual on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (or ‘Istanbul Protocol’) was developed to specifically use for torture documentation using scientific evidence based gathering. The Istanbul Protocol is now an internationally recognized guideline for medical and legal experts. It can be used as a tool to gather and document accurate and reliable evidence in connection with cases where torture is alleged and to help practitioners to assess the consistency between allegations and medical findings.

The medical professionals are in essence a key to prevent torture impunity. The medical documentation and medico-legal reports (MLR) that they write are important facts that can be used as pieces of evidence in legal or administrative proceeding for prosecuting torture cases and facilitating redress and reparation for survivors. It is therefore important to increase the capacity of medical practitioners in evaluating the physical and medical conditions of persons deprived of liberty using of the Istanbul Protocol. Thus, the Department of Health (DoH) needs to take an active role in the work of the NPM.

While the Republic Act (RA) No. 9745 or Anti-Torture Law has a number of strong provisions relating to victim’s access to a physical, medical and psychological examination, but until now, torture victims still rarely have access to a legal counsel and a medical doctor immediately after arrest and during detention. And even if investigating authorities guarantee the access to medical examination, the lack of formal knowledge and capacity of the medical doctors who are often among the first persons to come into contact with torture survivors creates a medical complicity as some doctors don’t perform the medical examination properly and diligently either due to low awareness on torture documentation or because of the intimidation or the fear of reprisal from the government authorities.

Thus in many cases, the investigations concerning allegations of torture are either completely unreliable. In some cases, medical examination is only allowed after inquest as torture victims were only seen by doctors assigned to any police or military health centers or to government hospitals who often just do cursory “check list” physical examinations with no inquiries about how torture marks may have been inflicted and the medical certificates have no reference to torture and the need for medical treatment.

Prevention of torture must also go hand in hand with prison reform. Prison condition as MAG observed is the most punishing aspect of doing time in jails. The general prison conditions are not only found dangerous to health and to human life. It breeds diseases, breaks down of one’s sanity and exacerbates tensions among inmates. Sexual violence and abuse are also being reported rampant in the correctional and custodial system. This is despite the passage of the Republic Act 10575 or the Prison Modernization Act of 2013. Major reforms must be undertaken that could give prison inmates a chance at rehabilitation and a meaningful life after imprisonment.

MAG has been advocating for prison reform for the past three decades. We have in fact submitted a recommendation to the Office of the Executive Secretary in 2011 on the Amended Guidelines for Recommending Executive Clemency particularly on Section 3 regarding Extraordinary Circumstances. We then proposed that:

  1. for humanitarian reason, to lower the age cut-off requirement to sixty (60) from seventy (70) years old; and
  2. for medical reason, to include terminally ill prisoners and debilitating diseases.

This as we argued conforms to the United Nations Standard Minimum Rules for Treatment of Prisoners.

For the NPM to effectively work, the Subcommittee on the Prevention Against Torture has given special value on civil society’s involvement. Not only that individuals working for civil society members should be give a place in the NPM but the appointment procedures should be made transparent, inclusive and participatory.

For MAG, the creation of the NPM should not be considered merely a “quick fix solution” but rather should be given careful review of the its mandate, jurisdiction, independence, membership, powers and responsibilities and working methods, to ensure that it fully complies with the international human rights standards.

The work of the NPM should go beyond regular visits and recommendations by conducting awareness-raising, training, or even launching of localized public inquiries, consultation and coordination meetings on how to address torture and ill-treatment and the general conditions of detention.

Ending impunity requires accountability. But it can start from preventing the commission of the human rights violation through collaborative efforts.  

Medical Action Group

Note: MAG’s position paper was presented during the Technical Working Group Meeting of Committee on Human Rights, at the House of Representatives on 10 February, 2015.

 

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[Reflection] Ten Facts that People should know about LGBTQ and Hate Crime in the Philippines


By Darwin Mendiola

The recent murder of a 26 year old Filipino transgender woman named Jennifer Laude by a U.S. Marine once again ignited public protest and renewed a call for wider recognition and better protection of the rights of lesbians, gays, bisexuals, trans-genders and queers in the Philippines.

As a human rights advocate, I firmly stand on the spirit and letter of the Universal Declaration of Human Rights that recognizes that (Article 1) “all human beings are born free and equal in dignity and rights” and  that (Article 2) “everyone is entitled to all the rights and freedoms without discrimination.”

I wrote this article not to get into the nitty-gritty of the case but to simply share these important facts about LGBTQ and Hate Crime for the information of everyone.

This is a product of online research and not solely of my opinion.

But I strongly believe that sharing these Ten Facts that People should know about LGBTQ and Hate Crime can contribute to further promote and protect human rights.

#1 According to 2011 study of the United Nations, LGBTQ people are becoming increasingly vulnerable to crimes because of their sexual orientation and gender identity (SOGI).

This first ever United Nations report on the human rights of LGBTQ people provides details on how around the world people are continuously being discriminated and have endured hate-motivated violence, because of their real or perceived sexual orientation or gender identity. The report identifies homophobia, biphobia and transphobia as the major motivations for hate crimes against LGBT people.

Reference: http://www2.ohchr.org/english/bodies/hrcouncil/docs/19session/A.HRC.19.41_English.pdf

#2 Still, 76 plus countries around the world considered homosexuality illegal.

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), there are at least 99 people around the world who are currently in prison for allegedly violating laws that punish those who are born gay, lesbian or bisexual. While at least 148 other people are awaiting trial on charges related to homosexuality.

Reference: http://76crimes.com/76-countries-where-homosexuality-is-illegal/

#3 As a response to this alarming global gender situation, the United Nations Human Rights Council has passed this year a landmark resolution condemning violence and discrimination against LGBTQ people.

The resolution states that the world needs to take a fundamental step forward by reaffirming one of the Human Rights’ key principles – that is everyone is equal in dignity and rights. It encourages all UN states-members to take necessary legal, legislative and judicial measures to address human rights violations against LGBTQ.

Reference: http://www.pinknews.co.uk/2014/09/26/un-human-rights-council-passes-landmark-lgbt-rights-resolution/

#4 Even the Catholic Church is now considering reviewing its conservative stance on homosexuality as Pope Francis called on the Church to welcome gays and lesbians in the community, who “must be accepted with respect, compassion and sensitivity.”

Pope Francis reiterated this call on the Church during the Catholic Synod or the meeting of All Bishops to tackle a number of controversial issues facing the Catholic Church, including how to respond to changing families and how to better communicate Catholic doctrine. Pope Francis’s famous “Who am I to judge?” position has made him the “Man of the Year 2014” for LGBTQ.

Reference:  http://www.bbc.com/news/world-europe-29677779

#5 The United States of America is one of the countries that recognizes and addresses the issue of Hate Crimes.

President Barack Obama signed in 2009 the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which expands the existing United States federal hate crime law to gender, sexual orientation, gender identity or disability. In fact, the first hate crime laws in the United States were passed after the American Civil War, beginning with the Civil Rights Act of 1871, to combat the growing number of racially motivated crimes.

Reference: http://www.bilerico.com/2009/10/obama_signs_matthew_shepardjames_byrd_hate_crimes.php

#6 In the Philippines, a study backed by the UN has found that LGBTQ people have become more accepted in the Philippines.

The Filipino public seems to take a rather an open and tolerable view of the gay community, at least judging from popular media and the widespread use of gay lingo. But according to Ladlad, one of the LGBTQ groups in the Philippines. discrimination against LGBTQ still persists and they are becoming increasingly vulnerable to hate crimes. The UN study found hate crimes remained a big threat among the LGBTQ community in the Philippines. It cited that there were at least 28 LGBT people reportedly killed in the first half of 2011.

Reference: http://www.pinknews.co.uk/2014/05/12/un-study-finds-gays-increasingly-accepted-in-phillipines-but-hate-crimes-remain-a-threat

#7 The Commission on Human Rights performs a function of a Gender Ombud.

The Commission on Human Rights (CHR) announced in 2013 that the Commission will look into cases of hate crimes against Lesbians, Gays, Bisexuals, and Transgenders (LGBTs) across the country which hopefully lead to a better prosecution and investigation of hate crimes.

Reference: http://www.rappler.com/nation/35553-chr-document-hate-crimes-lgbts

#8 Hate Crime is not yet a distinct crime in the Philippines.

LGBTQ groups claimed that violence against LGBTQ people is not treated as a hate crime. There is no specific mechanism that helps identify hate crime victims or makes use of the sexual orientation and gender identity of the person as the aggravating circumstance for the commission of the crime. It is not even investigated as such and just merely considered as a common crime against any person and/ or property. LGBTQ groups lament the absence of an anti-Hate Crime law in the Philippines. The fact that there are no basic figures and statistics on Hate Crimes shows that the government has not considered as such in past years.

References: https://ph.news.yahoo.com/blogs/the-inbox/lgbt-hate-crimes-rise-024938543.html

#9 Just recently, Sen. Bam Aquino filed the Senate Bill No. 2122 or the Anti-Discrimination Act of 2014, which seeks to combat discrimination of any forms. The bill seeks to prohibit and penalize discrimination on the basis of ethnicity, race, religion or belief, gender, sexual orientation, civil status, HIV status and other medical condition, among others. Among the acts that will be prohibited are inflicting stigma; denial of political civil, and cultural rights; denial of right to education such as refusal to admit or expulsion and imposition of sanctions or penalties; denial of right to work; denial of access to goods and services; denial of right to organize; inflicting hard on health and well-being; engaging in profiling; abuses by state and non-state actors; and detention and confinement. Under the bill, any act of discrimination shall be fined from P100,000 to P500,000 and an imprisonment of up to 12 years. A similar bill was filed by Rep. Teddy Casino of Bayan Muna, last June 26 which aimed to pioneer a House probe on the growing numbers of hate crimes in the country.

Reference: http://www.gmanetwork.com/news/story/383705/news/nation/stiffer-penalties-for-hate-crimes-vs-lgbts-pushed-after-transgender-s-killing

#10 Quezon City, Philippines’ largest city has approved ordinance that bans anti-gay discrimination.

The ordinance is the first of its kind in the Philippines. It expands the 2003 City Resolution which only centered on discrimination of homosexuals in terms of employment.

The new city-wide ordinance makes it mandatory to educate employers and educators around the city on the rights of LGBTQ.

It prohibits and provides sanctions on any violations of LGBTQ’s rights on equal access to job opportunities, delivery of goods or services, insurance, and accommodation in Quezon City.

Under the new ordinance, establishments will be directed to designate a comfort room that can be used by all genders, regardless of sexual orientation and gender identity or expression.

Reference: http://www.pinknews.co.uk/2014/10/02/philippines-quezon-city-passes-law-banning-anti-gay-discrimination/

While immediate focus should be on resolving the significant rise of alleged Hate Crime, much attention should also be given to any forms of discrimination against LGBTQ community.

Though, crime prevention is primary a government’s responsibility, prevention of any forms of discrimination is everyone’s business. It is about time for all of us to get out of the jury box with all our biases and prejudices. It must begin from us. For all we know recognition comes respect and respect begets responsibility which entails accountability.

No to hate crime Photo file courtesy of  www.rappler.com

[Document] Position Paper of the United Against Torture Coalition on the National Preventive Mechanism


By Atty. Ricardo Sunga III

Within one year from ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Philippines is obligated to establish a national preventive mechanism. It is one or several visiting bodies, set up, designated or maintained, at the domestic level, for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.

There is range of possible forms that the National Preventive Mechanism (NPM) can take. This paper explores them. Section I of this paper considers the standards that the NPM must observe. Section II critically examines the various possible forms of the NPM through the lens of these standards.

This paper was written by Atty. Ricardo A. Sunga III for the United Against Torture Coalition in 2012.

Ricardo Sunga III, LLB (University of the Philippines) and LLM (University of New South Wales), is a member of the Philippine Bar. He has been a professorial lecturer at the University of the Philippines College of Law, and is currently a Law Reform Specialist of the University of the Philippines Institute of Human Rights. He is also the Regional Coordinator for the National Capital Region of the Free Legal Assistance Group, an organization of human rights lawyers.

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Photo File: Courtesy of www.justiceinspectorates.gov.uk

You can download the UATC Position Paper here.

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[Document] Bangsamoro Basic Law


The Office of the Presidential Adviser on the Peace Process (OPAPP) has made public the draft Bangsamoro Basic Law, which President Benigno Aquino III personally submitted to Philippine Congress.

The Bangsamoro Basic Law will abolishes the Autonomous Region in Muslim Mindanao (ARMM) and will establish the new Bangsamoro political identity in its place. The law is based on the Comprehensive Agreement on the Bangsamoro signed by the Philippine government and the Moro Islamic Liberation Front (MILF) in March 2014.

You can download the proposed Bangsamoro Basic Law here.

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Courtesy of www.hatawtabloid.com

[Reflection] Reaping the fruits of labor


Chair Loretta Ann Rosales of the Commission on Human Rights of the Philippines speaks on the compensation of Martial Law human rights victims. Photo by allvoices.com

The Commission on Human Rights of the Philippines: Its Legitimacy and Performance

Efforts have been made in recent years at the international level to establish clear criteria or at least minimum standards to measure the effectiveness of the existing national human rights institutions (NHRIs). The normative standards and legal foundations for such institutions were developed in 1991. This set of guidelines is called the Paris Principles.

But despite having this set of guidelines, there is still a general recognition that the establishment of NHRIs is a new field in human rights work particularly on the side of the governments. In fact, until now many States-members of the United Nations have yet to set up their own NHRIs not only because they lack adequate knowledge on how it works but mainly of fear that their performances will be measured on such aspect. It only shows that there is still a dire need to deepen our understanding on the nature and character of NHRIs in order to make these special bodies really become effective promotional and protection mechanisms for human rights.

This will also refute the notion of some governments that creating them is in itself a good human rights performance. But legal foundation does not automatically assume public legitimacy as one of my colleagues commented in my previous blog article on the same topic that, “its legitimacy and credibility have to be won”.

The standards set by the Paris Principles were quite clear. NHRIs should first be established by law with clear mandate and functions. But that does not end there. They must also have some form of independence not only structurally but politically. Why? Because they need to earn and retain the public trust. The public perception of NHRI is very important benchmark of its effectiveness. In the first place, NHRIs are supposedly formed to monitor the state’s human rights obligations to its own people whose needs they are intended to serve. It is therefore essential to assess whether vulnerable sectors or groups who are prone to abuses are being protected by NHRIs.

This generally speaks about the functions of NHRIs or on whether they have adequate powers to do their mandate, their accessibility to the public, their operational efficiency and their ability to respond to the needs of the victims and their next of kin and to curb human rights violations.

The Commission on Human Rights of the Philippines is said to be one of the most dynamic NHRIs in Asia but still others are of the opinion that its works still fall short of the international standards. Although, It has been performing most of the responsibilities expected from NHRI such as reporting to the government on human rights matters; ensuring harmonization of national laws with international human rights standards; encouraging ratification of international human rights instruments; contributing to states’ reports to UN treaty bodies and committees; co-operating with international, regional and other national human rights institutions; assisting in human rights education; publicizing and promoting human rights. But these are driven more by its institutional obligations rather than working on its transformative role.

There are many aspects of its nature and works that need to be reviewed but let me focus my points of analysis on areas that I believe are problematic.

The Paris Principles require NHRIs to have some level of independence from government to maintain its objectivity and impartiality. One aspect that needs serious consideration in assessing the CHRP is the nomination and selection of its Commissioners. So far, the appointment process is completely at the discretion of the President. It is not participative and transparent. It is no different from other political appointments except that there is no public hearing or interview of nominees. It often comes as a surprise when a new commissioner is appointed. My question is not on the qualifications of the nominees but on the process itself. There is no doubt on my mind that the appointment of the previous and current Chairperson of the CHRP is probably the best decision made by the executive. But this doesn’t stop the public in wondering that the appointment is based mainly on political connections. Some will still argue that the appointment is just mere formality and has no effect on the performance of the CHRP as shown by the previous and current leadership. Others will also say that its organizational and fiscal autonomy have really helped to make it work independently with less if not a complete lack of intervention from the government.

However, the CHRP must also realize that they are a collegial body and that they are more than the sum of all the Commissioners. They must act collectively in order to become a high functioning and effective organization. One concrete step to do this is to strengthen their regional offices’ capacities to respond effectively and promptly. It also needs to take a look on its concept of the Barangay Human Rights Action Offices. While the idea is quite unique and promising, but they are still poorly trained, supported and directed.

The CHRP’s public accountability remains a demand rather than an established mechanism. Although, efforts are being made at the regional level particularly the Asian NGOs Network on National Human Rights Institutions (ANNI). The public has little awareness and knowledge if not totally at bay on the CHRP’s work beyond the publication of its annual reports. Despite of the existing and ongoing civil society engagement with the CHRP, there is still a big gap in public participation specifically in the grassroots level.

Everyone will perhaps agree that the links between civil society organizations and NHRI particularly one which is established in a situation where serious human rights violations persist, cooperation can create a political space within which civil society can operate and help NHRI do its work. However, such collaboration should be a two-way process. Human rights NGOs are usually the main source of knowledge, expertise and public legitimacy that can be of benefit to a national institution. But it would become wary if not downright hostile if the NHRI will act as an apologist of the government.

The Paris Principles provide the obligation to NHRI to promote human rights through public education. The CHRP human rights program has the legal and institutional support through various Executive Orders and statutory laws. But there seems to be no evaluation procedure to measure its impact and effectiveness. CHRP must understand that public awareness-raising is just one aspect of human rights education. It should be internalized and observed by those who undergo the program especially the security sectors. The real valuable of their work on education, training, reviews of laws, study of international instruments must be felt by the public at large.

I know that it is not an easy task to evaluate the CHRP’s effectiveness and it may not be fair to measure its performance in relation to all the other institutions and mechanisms that are essential to the promotion and protection of human rights.

I am not saying that I am an expert on this subject. I even admit that my engagement with the CHRP is limited and my exposure to their works is minimal. My opinion here is merely based only on my personal perceptions and observations and my analysis is drawn from various studies and reports.

But as a human rights advocate and a concerned citizen, my only purpose in writing this is not to discredit anybody nor put the CHRP in a bad light but to open a venue for a national discourse aims at making human rights a reality on the ground which the CHRP should be leading the way. After all, it is what we sow that we reap.

[Reflection] Demanding Human Rights Obligation Beyond the State


Chairperson Loretta Ann Rosales of the Commission of Human Rights speaks about the obligation of everyone to respect human rights of all.

The accountability of non-state actors for human rights abuses has been the subject of discussion by experts and human rights advocates alike for the past two decades. It arises from the premise that actors other than the state are in fact equally capable of carrying out the worst forms of human rights violations.

It is beyond cavil that the human rights abuses which have been committed, are still being committed and can possibly be committed by non-state actors especially the armed groups evoke strong passions for culpability.

People are bound to disagree on whether it is legitimate or not to engage in armed violence in order to bring about change, even when the motive is to end injustice. It is perhaps an understatement to say that our views are usually colored by our political bias in relation of armed groups to the application of human rights.

It invites more controversy when the opinion comes from Chairperson Loretta Ann Rosales of the Commission on Human Rights, who has been the subject of media attention in the past couple of weeks for her vocal censure on extreme and unjustifiable violence committed by both state and non-state actors. She even professed when asked by one reporter to define human rights during the media briefing on the formal signing of the Memorandum of Agreement between the Medical Action Group and its partners, the Commission on Human Rights (CHR), the Association of Municipal Health Officers of the Philippines (AMHOP) and the British Embassy on August 8, 2011 that because, “everyone is endowed with human rights and as a result we all have the duty and responsibility to respect and make sure that everyone can exercise their rights.”

In ordinary discourse, this statement may be accepted as an aphorism but applying it in a particular context is where different interpretations come in contention. Given the fact that Chair Etta was already being accused by militant groups of using her position to pursue her personal vendetta against alleged erstwhile comrades in the national democratic movement and by using the Commission on Human Rights as an inquisition arm of the Aquino regime against the left, this statement may be construed as a justification.

With due respect to Chair Rosales, there is no question about her integrity, knowledge and dedication for human rights. Besides, the CHR even before her appointment has already been working to address the abuses of non-State actors as part of its mandate to ensure human rights are respected.

But Chair Rosales and the CHR should be aware of their own institutional limitation as well as the strict application of human rights principles. They should clearly determine when human rights are violated and when is not. Contrary to what have been said, the distinction between human rights violation and abuses is not simply technical nor political but rather legal, logical and practical.

For the human rights community, the accepted wisdom was that human rights principles and law applied only, or mainly, to the mediation of the relationship between citizens and the State. Under this classical interpretation of rights, only States violated human rights and anyone else who acted inappropriately was a criminal. States have a great responsibility in terms of accountability and remedy. It is a matter of social contract between the state and the people and not between private individuals.

Human rights are basically the protection and preservation of human dignity. It is a shield of protection against the “sword-bearing” power-that-be. Thus, Human rights are not within the individual private sphere but on the public and social sphere of power relation.

Even the international humanitarian law is clear with its convergence with human rights. That is when it involves the violations of the rights of civilians and not the atrocities committed by warring combatants against each other. Humanitarian law is obviously based only on the balance between military necessity and humanitarian considerations. The best argument for this is the “Boxing Ring” analogy which states that when a boxer (warring parties/combatants) enters the ring, he or she renounces his or her right not to be hit. Yet, a boxer is expected to follow some rules like no hitting below the belt or no-head butting. However, this is not equal when the boxer punches someone outside the ring.

Following this analogy, it is safe to conclude that the beheading of soldiers in Basilan by suspected Abu Sayyaf is not a human rights violation but a criminal act, plain and simple. Madam Etta should not confuse human rights from brutal atrocities.

Although, there is now a growing recognition on human rights abuses of non-state actors through the doctrine of drittwirkung which provides the idea that the human rights obligation is equally applied in relations between private parties and with that of the horizontal duty of states to ensure human rights (indirect drittwirkung).

But pursuing direct responsibility of non-state actors will only lead to confusion especially about what rules to apply, if there is any. A thin border exists between a group regarded as a criminal threat to be dealt with through law enforcement mechanisms, and a political opponent to be dealt with in the context of political negotiations.

Even strategies to ensure respect for human rights directed at highly sophisticated organizations with clearly delineated channels of leadership are unlikely to be effective in preventing or much less ending human rights abuses. The leadership of an armed group, for example, will often deny any criticism and claim that certain acts do not reflect official policy and are simply errors committed by rogue members. It may point to the difficulties faced by an underground organization, or one fighting on different fronts. They may also quick to dismiss it as mere back propaganda which aims to discredit their legitimate revolutionary agenda. If the military used to claim lack of effective control within its politicized ranks whenever human rights violations came into spotlight, interestingly this same excuse is also used by their non-state counterparts.

More so, that there are many practical and security constraints exist in relation to non-State actors, which make investigations and fact finding much more difficult. It is easier to subpoena a police officer, than to subpoena a rebel soldier. There is a greater chance that a government official will attend a court hearing, than a guerrilla leader. Even just the act of finding a rebel soldier is complicated, and the probability of bringing one in is slim, if not nil.

Clearly, some armed groups have carried out horrifying human rights abuses that deserve to be condemned in the strongest terms. I believe that everyone recognize the need to limit if it is not possible at this time to completely eliminate such abuses.

The moral obligation to stand against any forms of human rights violation may be beyond the state but ensuring accountability remains at the hand of the state. It is inevitably entailed state responsibility through the effective discharge of the state’s duty to protect human rights and to exercise due diligence.

Madam Etta should know that invoking the respect for human rights is more of dealing with the principle not by political conviction.