Press Release
February 2, 2015


Sen. Miriam Defensor Santiago, a widely recognized expert in international law, said that the recent massacre of some 44 policemen by the Moro Islamic Liberation Front (MILF) makes the military commander and other superior officials responsible for war crimes under the charter of the International Criminal Court, which hears cases against heads of state and the top-ranking military commanders.

"The SAF massacre is properly called a 'non-international armed conflict.' We make this distinction, because the relationship of the Philippine government with a non-state actor like the MILF is different from the relationship of our government with other states. The rule is to deny legitimacy to rebels, terrorists, or other armed groups," she said.

Santiago said that the death of some 44 members of the Police Special Action Force constituted "atrocities," and therefore the punitive laws against war crimes apply.

"The legality of the non-international armed conflict in Mamasapano falls under three main international rules in international law: Common Article 3 to the 1949 Geneva Conventions on the Protection of Victims of International Armed Conflicts; the Geneva Conventions Additional Protocol 2; and the Rome Statute of the International Criminal Court," the senator said.

She added that the SAF massacre meets the highest threshold for a non-international armed conflict and also meets the level of intensity required.

Santiago, who was elected judge of the International Criminal Court but had to decline due to cancer, said that the Rome Statute contains a provision on war crimes committed in non-international armed conflict.

Santiago said the Rome Statute Article 8, para. 2, subpara. (f) provides: "It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict by the governmental authorities and organized armed groups."

Santiago said that under the ICC Rome Charter, the military commander or person is criminally liable where two factors are present:

First, the commander either knew or should have known that his forces were about to commit such crimes.

Second, the military commander or person failed to take all necessary and reasonable measures to suppress the commission of the crime.

In order to determine whether to apply treaty-based rules on non-international armed conflicts, the senator said a distinction should be drawn between situations of armed conflict and those of law enforcement.

"Law enforcement activities remain below the threshold of an armed conflict, if for example, it merely involves the use of tear gas for domestic riot control purposes," she said.

Santiago also wondered if the SAF massacre was an 'internationalized conflict' in the sense that there may have been another state that was a party to the conflict.

"Internationalized armed conflicts are subject to the law of international armed conflicts. These include situations of outside control of insurgency as decided in a 1999 case by the International Criminal Tribunal for Yugoslavia," she said.

Santiago said that after responsibility has been pinpointed, the military commander and other superior officers found guilty should be punished according to "rules derived from established customs, from the principles of humanity, and from the dictates of public conscience, also known as the Marten's Clause."

In addition to international humanitarian law, Santiago invoked human rights law to punish those found guilty of the SAF massacre.

"International humanitarian rights conventions refer to so-called 'core rights.' Such rights can never be derogated from by any armed group, whether in a situation of internal disturbance and armed conflict," she said.

Santiago said that the three main sources of humanitarian law that she cited are binding equally on all states and non-state entities involved in an armed conflict.

The senator also questioned the possible 'intervention by another state or states' in the SAF massacre because it is prohibited by international law.

As a general rule, foreign states are not normally allowed to provide help to the rebels in a non-international armed conflict situation.

She said that if the CIA was involved owing to the counter-terrorism campaign worldwide by the US government, any foreign help from the CIA would complicate the legality of the armed conflict.

"If the Philippine government received help from the CIA, then the rebels under international law would argue that they have a right of counter-intervention from their own friendly state," she said.

Santiago cited the famous Nicaragua case decided by the International Criminal Court where the Court said:

"Encouraging the organization of armed bands for incursion into the territory of another state and by participating in acts of civil strife in that state, is not only an act of illegal intervention in the internal affairs of a foreign state, but also contrary to the principle of the prohibition of the use of force."

News Latest News Feed