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The Anti-Torture Law: a good advance but misses out on non-state torture

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“Torture is torture, whoever does it.
The same is true of terrorism.”

– C. Douglas Lumis, Terror and the Terrorist
(Penang: Multiversity & Citizens International, 2008)

The Philippines finally has an Anti-Torture Law, one which legally defines and penalizes torture, as well as provides remedies and redress for its victims. This is definitely a most significant advance for the protection of human rights in the Philippines, the test of course being in the implementation measures, including the deterrence and prevention of torture. There is, however, one significant drawback or gap in the law. It is limited, by definition, to torture committed by state or governmental agents. It does not cover similar torture committed by non-state actors, including non-state armed groups (NSAGs) who also perpetrate it, as we shall shortly illustrate. Consequently and more importantly, it does not cover their victims for purposes of remedies and redress.

Both state and non-state torture were actually covered in the Senate version of the Anti-Torture Bill but it was the House version limited to torture by state agents that prevailed in the bicameral conference committee on the notion that this was supposed to the “pristine” concept of torture (and even of human rights). We shall show further below that this in fact misses out on the best that has been created by humanity in terms of international and also constitutional law. It is as if we are still in a time warp when it comes to human rights, and do not even seem to learn from the lessons of recent history.

Some Facts: Experiential Basis for Non-State Torture

As documented by The Redress Trust, a London-based international NGO seeking reparation for torture survivors, several NSAGs in the Philippines have reportedly been responsible for torture, including the Communist Party of the Philippines-New People’s Army- National Democratic Front (CPP-NPA-NDF), Moro National Liberation Front (MNLF), Moro Islamic Liberation Front (MILF), the Abu Sayyaf Group (ASG) and the Rajah Solaiman Movement (RSM). It is notoriously difficult to obtain reliable information about torture by NSAGs, given the nature of their operations and the threat of retribution facing anyone who dares to speak out. The situation in the Philippines is special because it is one of the first cases worldwide where survivors of torture by NSAGs have organized themselves and have spoken out publicly about the torture they suffered. This is the Peace Advocates for Truth, Healing and Justice (PATH), an organization of victims and survivors of the CPP-NPA internal purges of the 1980s, as well as their relatives, friends and supporters.

Torture and executions were an intrinsic part of internal purges that were launched systematically as regional operations or campaigns against suspected infiltrators or “deep penetration agents” in the various CPP-NPA-NDF regions and sustained throughout the 1980s. The pattern in all these campaigns was frighteningly similar: suspicion, arrest, interrogation, forced confession, detention, execution; a bloody domino effect that had bodies writhing, rolling, and dying en masse. The first co-author (Garcia), then with the CPP-NPA in the Southern Tagalog region, was himself arrested in November 1988, tortured and thrown along with 56 other chained guerrillas in the Sierra Madre mountain ranges of Laguna and Quezon. At that time, 66 suspects were already executed.

The range of torture methods documented in detention camps include: beatings, lacerating the skin with a blade, hanging by the wrists or ankles, rape, sexual molestation and humiliation (e.g., women stripped naked were forced to brawl), clamping and mutilating male and female genitalia with forceps, searing the private parts with molten plastic, water cure, suffocation with plastic bags, denial of food and water; tranquilizers and drugs used as truth serum, like Ativan, Novain, and Demerol; and other methods. Methods of execution included: bashing the back of the skull with a wooden club, stabbing with a fixed bayonet or sharpened bamboo stick, breaking the neck (“marine hold”), beheading, and disembowelling. While the exact number of those tortured and killed in these campaigns is unknown, it is clear that there are at least several thousands of victims.

The first co-author observed that the torturers also experimented with various combinations of physical and psychological terror tactics. A female detainee was beaten up, hung on a tree and forced to watch how they beat up other victims. Then she was made to listen the recorded voices of her children. Some were left dangling in trees for days. They slit the captives’ skin with a knife or shaved off their eyebrows for fun. Captives’ legs were forced apart and their thighs were sat upon. Their skin was seared with a lamp. The first co-author himself suffered a broken jaw, concussions on the head, wounds where the chains rubbed on the skin, and a battered psyche that proved much harder to heal. The sheer brutality of the experience itself may have been one of the reasons why most of the survivors refused to talk about it for a very long time. It was much easier to talk about military atrocities than the cruelty of one’s own comrades. Thus, the truth was buried (literally and figuratively) for a long time. As with healing and justice.

Many of the demands by the victims of the purges, in particular to retrieve the body, inform the families of those killed, fully account for what happened, agree to a full and impartial investigation, and engage in a process of healing, remain unfulfilled. In 2006, the first co-author had occasion to write that “The absence of an anti-torture law in the Philippines also poses a limitation, thus [whatever few] charges filed are limited to serious physical injuries and serious illegal detention.” There is gladly now an Anti-Torture Law but, ironically, it also poses a limitation to redress for victims of torture by NSAGs.

Some Law: Legal Basis for Non-State Torture

The House version of the Anti-Torture Bill, as we said, prevailed in the bicam on the definition of torture limited to commission by state agents on the notion that this was supposed to be the “pristine” definition based on the 1984 UN Convention Against Torture (CAT). But the CAT itself says quite clearly provides that its definition of torture is “without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” There are at least three international instruments which contain provisions of wider application as regards the prohibition against torture, because these instruments do not limit its commission to state agents: the 1948 Universal Declaration of Human Rights (UDHR), the 1966 International Covenant of Civil and Political Rights (ICCPR), and the 1998 Rome Statute of the International Criminal Court.

The Rome Statute, considered the highest development of international criminal law to date, in fact contains a definition of torture that is not limited to commission by state agents, nor limited to certain purposes for the torture (such as obtaining information or a confession, or for intimidation or coercion). Sen. Miriam Defensor Santiago should be credited for bringing the Rome Statute definition of torture into the Senate version, and likewise Senate Justice and Human Rights Committee Chair Sen. Francis Escudero for adopting it and then vigorously arguing for it in the bicam, against the prevailing wind there. The House stalwarts there prevailed with arguments like the “pristine” definition of the House version as against the Senate version’s Rome Statute-inspired definition being “too broad.”

But human rights are supposed to be broad and “of wider application,” as in “All Human Rights for All.” And what can be more “pristine” for human rights than the UDHR and ICCPR which are two of the three instruments which constitute the “International Bill of Rights.” Canadian human rights lawyer David Matas had already commented about this torture definition issue in a 1997 Manitoba Law Journal article on “Armed Opposition Groups” (when there was still no 1998 Rome Statute): “… the prohibition against torture in the UDHR and the ICCPR do not state that public officials shall not commit torture. Instead those statements state that no one shall be subjected to torture. To restrict these obligations just to government officials is to narrow the scope of their literal meaning and the purpose of the constraints which is, after all, not to regulate governments, but to assert the human rights of individuals.”

Matas pointed out that that the ICCPR also states that nothing in it may be interpreted as implying for “any state, group or person” any right to perform any act aimed at the destruction of rights and freedoms. The more specific instruments like the CAT must not be used to read down the more general instruments. The specific does not limit the general. When the UDHR says that everyone has the right to life, it does not say or mean that everyone has the right to have only public officials respect the right to life. The UDHR means that everyone has the right to have his/her state, i.e. the government and all the citizens of the state, respect the right to life.

It is time we go back to and reaffirm the rights-holders, inc. all potential victims of torture. In the final analysis, it is the victims and their human rights that matter. From the point of view of the victims of torture, there is no difference whether it is committed by a state or non-state perpetrator. State and non-state perpetrators may be differently situated but that cannot be said of their victims, who should be given equal protection. The law is not only about the effective prosecution of perpetrators but also about the available remedies and redress for victims. To the extent that the law effectively excludes victims of non-state torture, then the law itself violates the constitutional principle and right of equal protection of the law.

In the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) between the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP), there are mutually agreed prohibitions against “physical or mental torture,” and “other inhuman, cruel or degrading treatment, detention and punishment.” So, it is quite clear here that a particular NSAG, the NDFP which represents the CPP-NPA, has undertaken obligations pertinent to the prohibition against torture. It is therefore a wonder why this kind of human rights accountability by a NSAG, and agreed to by the Philippine government, was not reflected in the Anti-Torture Law.

One consequence of this law that may be reasonably anticipated is NSAG impunity for torture. And so, despite released ASG kidnap victim NGO worker Millet Mendoza’s testimony that “The group that held me was adept at psychological torture… undergoing something like a mock execution. The terror that gripped me, which remains to this day, is indescribable…,” the perpetrators cannot be prosecuted for torture because of their non-state status. And consequently too, their victims like Milet cannot avail of the remedies and redress, inc. compensation and psycho-social rehabilitation, under the law. In this regard, this “pristine” law unfortunately seems to be based more on “logic” than on experience.

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Robert Francis B. Garcia is the long-time Secretary-General of PATH, himself a victim of the CPP-NPA purges of the 1980s, about which experience he has written the book To Suffer Thy Comrades: How the Revolution Decimated its Own (Manila: Anvil, 2000).

Soliman M. Santos, Jr. is Regional Focal Point for Asia of the South-South Network (SSN) for Non-State Armed Group Engagement and is a human rights lawyer, inc. of the “Abadilla 5” victims of torture by state agents. They are the convenors of the formative non-governmental Committee on Accountability of Non-State Armed Groups (CALASAG) [see its section in the SSN website www.southsouthnetwork.com].

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