Manila, 21 February 2007
I have spent the past ten days in the Philippines at the invitation of
the Government in order to inquire into the phenomenon of
extrajudicial executions. I am very grateful to the Government for the
unqualified cooperation extended to me. During my stay here I have met
with virtually all of the relevant senior officials of Government.
They include the President, the Executive Secretary, the National
Security Adviser, the Secretaries for Defence, Justice, DILG and the
Peace Process. I have also met with a significant number of members of
Congress on different sides of the political spectrum, the Chief
Justice, the Chief of Staff of the Armed Forces of the Philippines
(AFP), the Chair of the Human Rights Commission, the Ombudsman, the
members of both sides of the Joint Monitoring Committee, and
representatives of the MNLF and MILF. Of particular relevance to my
specific concerns, I also met with Task Force Usig, and with the Melo
Commission, and I have received the complete dossier compiled by TF
Usig, as well as the report of the Melo Commission, the and the
responses to its findings by the AFP and by retired Maj-Gen Palparan.
I have also visited Baguio and Davao and met with the regional Human
Rights Commission offices, local PNP and AFP commanders, and the Mayor
of Davao, among others.
Equally importantly, roughly half of my time here was devoted to
meetings with representatives of civil society, in Manila, Baguio, and
Davao. Through their extremely valuable contributions in the form of
documentation and detailed testimony I have learned a great deal.
Let me begin by acknowledging several important elements. The first is
that the Government's invitation to visit reflects a clear recognition
of the gravity of the problem, a willingness to permit outside
scrutiny, and a very welcome preparedness to engage on this issue.
The assurances that I received from the President, in particular, were
very encouraging. Second, I note that my visit takes place within the
context of a counter-insurgency operation which takes place on a range
of fronts, and I do not in any way underestimate the resulting
challenges facing for the Government and the AFP. Third, I wish to
clarify that my formal role is to report to the UN Human Rights
Council and to the Government on the situation I have found. I
consider that the very fact of my visit has already begun the process
of acting as a catalyst to deeper reflection on these issues both
within the national and international settings. Finally, I must
emphasise that the present statement is only designed to give a
general indication of some, but by no means all, of the issues to be
addressed, and the recommendations put forward, in my final report. I
expect that will be available sometime within the next three months.
Sources of information
The first major challenge for my mission was to obtain detailed and
well supported information. I have been surprised by both the amount
and the quality of information provided to me. Most key Government
agencies are organized and systematic in much of their data collection
and classification. Similarly, Philippines civil society
organizations are generally sophisticated and professional. I sought,
and obtained, meetings across the entire political spectrum. I leave
the Philippines with a wealth of information to be processed in the
preparation of my final report.
But the question has still been posed as to whether the information
provided to me by either all, or at least certain, local NGO groups
can be considered reliable. The word 'propaganda' was used by many of
my interlocutors. What I took them to mean was that the overriding
goal of the relevant groups in raising EJE questions was to gain
political advantage in the context of a broader battle for public
opinion and power, and that the HR dimensions were secondary at best.
Some went further to suggest that many of the cases were fabricated,
or at least trumped up, to look more serious than they are.
I consider it essential to respond to these concerns immediately.
First, there is inevitably a propaganda element in such allegations.
The aim is to win public sympathy and to discredit other actors. But
the existence of a propaganda dimension does not, in itself, destroy
the credibility of the information and allegations. I would insist,
instead, on the need to apply several tests relating to credibility.
First, is it only NGOs from one part of the political spectrum who are
making these allegations? The answer is clearly 'no'. Human rights
groups in the Philippines range across the entire spectrum in terms of
their political sympathies, but I met no groups who challenged the
basic fact that large numbers of extrajudicial executions are taking
place, even if they disagreed on precise figures. Second, how
compelling is the actual information presented? I found there was
considerable variation ranging from submissions which were entirely
credible and contextually aware all the way down to some which struck
me as superficial and dubious. But the great majority are closer to
the top of that spectrum than to the bottom. Third, has the
information proved credible under 'cross-examination'. My colleagues
and I heard a large number of cases in depth and we probed the stories
presented to us in order to ascertain their accuracy and the broader
context.
As a result, I believe that I have gathered a huge amount of data and
certainly much more than has been made available to any one of the
major national inquiries.
Extent of my focus
My focus goes well beyond that adopted by either TF Usig or the Melo
Commission, both of which are concerned essentially with political and
media killings. Those specific killings are, in many ways, a symptom
of a much more extensive problem and we should not permit our focus to
be limited artificially. The TF Usig/Melo scope of inquiry is
inappropriate for me for several reasons:
(a) The approach is essentially reactive. It is not based on an
original assessment of what is going on in the country at large, but
rather on what a limited range of CSOs report. As a result, the focus
then is often shifted (unhelpfully) to the orientation of the CSO, the
quality of the documentation in particular cases, etc.;
(b) Many killings are not reported, or not pursued, and for good
reason; and
(c) A significant proportion of acknowledged cases of 'disappearances'
involve individuals who have been killed but who are not reflected in
the figures.
How many have been killed?
The numbers game is especially unproductive, although a source of
endless fascination. Is it 25, 100, or 800? I don't have a figure. But
I am certain that the number is high enough to be distressing. Even
more importantly, numbers are not what count. The impact of even a
limited number of killings of the type alleged is corrosive in many
ways. It intimidates vast numbers of civil society actors, it sends a
message of vulnerability to all but the most well connected, and it
severely undermines the political discourse which is central to a
resolution of the problems confronting this country.
Permit me to make a brief comment on the term 'unexplained killings',
which is used by officials and which I consider to be inapt and
misleading. It may be appropriate in the context of a judicial process
but human rights inquiries are more broad-ranging and one does not
have to wait for a court to secure a conviction before one can
conclude that human rights violations are occurring. The term
'extrajudicial killings' which has a long pedigree is far more
accurate and should be used.
Typology
It may help to specify the types of killing which are of particular
concern in the Philippines:
· Killings by military and police, and by the NPA or other groups, in
course of counter-insurgency. To the extent that such killings take
place in conformity with the rules of international humanitarian law
they fall outside my mandate.
· Killings not in the course of any armed engagement but in pursuit of
a specific counter-insurgency operation in the field.
· Killings, whether attributed to the military, the police, or private
actors, of activists associated with leftist groups and usually deemed
or assumed to be covertly assisting CPP-NPA-NDF. Private actors
include hired thugs in the pay of politicians, landowners, corporate
interests, and others.
· Vigilante, or death squad, killings
· Killings of journalists and other media persons.
· 'Ordinary' murders facilitated by the sense of impunity that exists.
Response by the Government
The response of Government to the crisis of extrajudicial executions
varies dramatically. There has been a welcome acknowledgement of the
seriousness of the problem at the very top. At the executive level the
messages have been very mixed and often unsatisfactory. And at the
operational level, the allegations have too often been met with a
response of incredulity, mixed with offence.
Explanations proffered
When I have sought explanations of the killings I have received a
range of answers.
(i) The allegations are essentially propaganda. I have addressed this
dimension already.
(ii) The allegations are fabricated. Much importance was attached to
two persons who had been listed as killed, but who were presented to
me alive. Two errors, in circumstances which might partly explain the
mistakes, do very little to discredit the vast number of remaining
allegations.
(iii) The theory that the 'correct, accurate, and truthful' reason for
the recent rise in killings lies in purges committed by the CPP/NPA.
This theory was relentlessly pushed by the AFP and many of my
Government interlocutors. But we must distinguish the number of 1,227
cited by the military from the limited number of cases in which the
CPP/NPA have acknowledged, indeed boasted, of killings. While such
cases have certainly occurred, even those most concerned about them,
such as members of Akbayan, have suggested to me that they could not
amount to even 10% of the total killings.
The evidence offered by the military in support of this theory is
especially unconvincing. Human rights organizations have documented
very few such cases. The AFP relies instead on figures and trends
relating to the purges of the late 1980s, and on an alleged CPP/NPA
document captured in May 2006 describing Operation Bushfire. In the
absence of much stronger supporting evidence this particular document
bears all the hallmarks of a fabrication and cannot be taken as
evidence of anything other than disinformation.
(iv) Some killings may have been attributable to the AFP, but they
were committed by rogue elements. There is little doubt that some such
killings have been committed. The AFP needs to give us precise details
and to indicate what investigations and prosecutions have been
undertaken in response. But, in any event, the rogue elephant theory
does not explain or even address the central questions with which we
are concerned.
Some major challenges for the future
(a) Acknowledgement by the AFP
The AFP remains in a state of almost total denial (as its official
response to the Melo Report amply demonstrates) of its need to respond
effectively and authentically to the significant number of killings
which have been convincingly attributed to them. The President needs
to persuade the military that its reputation and effectiveness will be
considerably enhanced, rather than undermined, by acknowledging the
facts and taking genuine steps to investigate. When the Chief of the
AFP contents himself with telephoning Maj-Gen Palparan three times in
order to satisfy himself that the persistent and extensive allegations
against the General were entirely unfounded, rather than launching a
thorough internal investigation, it is clear that there is still a
very long way to go.
(b) Moving beyond the Melo Commission
It is not for me to evaluate the Melo Report. That is for the people
of the Philippines to do. The President showed good faith in
responding to allegations by setting up an independent commission.
But the political and other capital that should have followed is being
slowly but surely drained away by the refusal to publish the report.
The justifications given are unconvincing. The report was never
intended to be preliminary or interim. The need to get 'leftists' to
testify is no reason to withhold a report which in some ways at least
vindicates their claims. And extending a Commission whose composition
has never succeeded in winning full cooperation seems unlikely to cure
the problems still perceived by those groups. Immediate release of the
report is an essential first step.
(c) The need to restore accountability
The focus on TF Usig and Melo is insufficient. The enduring and much
larger challenge is to restore the various accountability mechanisms
that the Philippines Constitution and Congress have put in place over
the years, too many of which have been systematically drained of their
force in recent years. I will go into detail in my final report, but
suffice it to note for present purposes that Executive Order 464, and
its replacement, Memorandum Circular 108, undermine significantly the
capacity of Congress to hold the executive to account in any
meaningful way.
(d) Witness protection
The vital flaw which undermines the utility of much of the judicial
system is the problem of virtual impunity that prevails. This, in
turn, is built upon the rampant problem of witness vulnerability. The
present message is that if you want to preserve your life expectancy,
don't act as a witness in a criminal prosecution for killing.
Witnesses are systematically intimidated and harassed. In a relatively
poor society, in which there is heavy dependence on community and very
limited real geographical mobility, witnesses are uniquely vulnerable
when the forces accused of killings are all too often those, or are
linked to those, who are charged with ensuring their security. The WPP
is impressive - on paper. In practice, however, it is deeply flawed
and would seem only to be truly effective in a very limited number of
cases. The result, as one expert suggested to me, is that 8 out of 10
strong cases, or 80% fail to move from the initial investigation to
the actual prosecution stage.
(e) Acceptance of the need to provide legitimate political space for
leftist groups
At the national level, there has been a definitive abandonment of
President Ramos' strategy of reconciliation. This might be termed the
Sinn Fein strategy. It involves the creation of an opening - the party-
list system - for leftist groups to enter the democratic political
system, while at the same time acknowledging that some of those groups
remain very sympathetic to the armed struggle being waged by illegal
groups (the IRA in the Irish case, or the NPA in the Philippines
case). The goal is to provide an incentive for such groups to enter
mainstream politics and to see that path as their best option.
Neither the party-list system nor the repeal of the Anti-Subversion
Act has been reversed by Congress. But, the executive branch, openly
and enthusiastically aided by the military, has worked resolutely to
circumvent the spirit of these legislative decisions by trying to
impede the work of the party-list groups and to put in question their
right to operate freely. The idea is not to destroy the NPA but to
eliminate organizations that support many of its goals and do not
actively disown its means. While non-violent in conception, there are
cases in which it has, certainly at the local level, spilled over into
decisions to extrajudicially execute those who cannot be reached by
legal process.
(f) Re-evaluate problematic aspects of counter-insurgency strategy
The increase in extrajudicial executions in recent years is
attributable, at least in part, to a shift in counterinsurgency
strategy that occurred in some areas, reflecting the considerable
regional variation in the strategies employed, especially with respect
to the civilian population. In some areas, an appeal to hearts-and-
minds is combined with an attempt to vilify left-leaning organizations
and to intimidate leaders of such organizations. In some instances,
such intimidation escalates into extrajudicial execution. This is a
grave and serious problem and one which I intend to examine in detail
in my final report.
Conclusion
The Philippines remains an example to all of us in terms of the
peaceful ending of martial law by the People's Revolution, and the
adoption of a Constitution reflecting a powerful commitment to ensure
respect for human rights. The various measures ordered by the
President in response to Melo constitute important first steps, but
there is a huge amount that remains to be done.
