Miriam: PNoy may be held liable for deaths of fallen 44 SAF men

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The senator noted that it cannot be denied that after Aquino’s speech last week, where he admitted knowing about the operation, more questions, rather than answers, surfaced.

“What was the direct line of command between the President and the operators? It was not clear whether he just approved the operation at the very start and then let it have its own life or he approved the particular operation. If so, whose advice is he taking and what precautions were taken to protect the life of these almost uniformly very young police?” she asked.

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She also asked why there was no coordination and preparation for the military encounter.

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

She said under the ICC Rome Charter, the military commander or person is criminally liable if he either knew or should have known that his forces were about to commit such crimes and the military commander or person failed to take all necessary and reasonable measures to suppress the commission of the crime.

The senator wondered if the Mamasapano incident could be considered an “internationalized conflict” between states.

“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.

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She 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.”

Santiago said, in addition to international humanitarian law, human rights law should be invoked to punish those found guilty of the killing of SAF commandos.

“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.

The senator also questioned the possible “intervention by another state or states” in the incident 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.

Santiago said if the Central Intelligence Agency (CIA) was involved owing to the US government’s global counterterrorism campaign, 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.

She cited the famous Nicaragua case decided by the International Criminal Court where the Court states: “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.”