(Conspiracy 32:39 – 33:11) Kritzinger: “That is not – no, that is contrary to what the Chancellery has been told. I have directly been assured – I have – that – purge the Jews, yes, but to annihilate them – that we have undertaken to systematically annihilate all the Jews of Europe – that possibility has personally been denied, to me, by the Führer!”
Heydrich: “And it will continue to be.” (get permission from HBO)
That was a scene from the TV movie, “Conspiracy.” Reinhard Heydrich, played by Kenneth Branagh, gives a lesson to a representative of the office of the Reichschancellor, on how plausible deniability works in government.
Last week we looked at the legal Left; this week, we’ll be taking a second look at command responsibility and what the obligations of our armed forces are, when it comes to allegations of human rights violations.
I’m Manolo Quezon. The Explainer.
I. Command responsibility redux
LET’S begin with a basic question. When faced with a threat, how are governments supposed to respond to those threats?
Benito Mussolini, the Italian fascist dictator, was once respected as a thinker. He worshiped the principle that might makes right. Let’s take a look at how he answered that question.
He once wrote:
Was there ever a government in history that was based exclusively on the consent of the people and renounced any and every use of force? A government so constituted there never was and never will be. Consent is as changeable as the formation of the sands on the seashore. We cannot have it always. Nor can it ever be total. No government has ever existed which made all its subjects happy. Whatever solutions you happen to give to any problem whatsoever, even though you share the divine wisdom, you would inevitably create a class of malcontents…
Mussolini went on to describe the only solution he thought would work: armed might. He went on to say:
How are you going to avoid that this discontent spread and constitute a danger for the solidarity of the state? You avoid it with force –by employing force inexorably where it is rendered necessary. Rob any government of force and leave it only with its immortal principles, and that government will be at the mercy of the first group that is organized and intent on overthrowing it.
No one, I think, questions the right, indeed, the obligation of our government to defend the state. The right to self-defense is basic. What’s being debated is whether aggression is not only the best path, but the only path, and whether, to use Mussolini’s phrase, what should be done is “employing force inexorably,” that is, without limit.
Remember our show on President Magsaysay? He holds the distinction of having presided over the only successful suppression of a Communist rebel movement in our history. This shows it can be done. And here’s something to show that it doesn’t have to be done in only one way.
On October 17, 1953, Ramon Magsaysay, still a presidential candidate at the time, delivered a campaign speech at the University of the East. He described what a Huk rebel commander told him:
Mr friends, six passes were given to six Huks to come down to liquidate Magsaysay! And one of the Huks came down and handed over to me his pass given by this administration. This Huk commander told me: “Mr. Magsaysay, when you were Secretary of National Defense and we were in the mountains, you ordered your agents to locate our families. You distributed food to our starving wives and sick children. You hospitalized our sick and you gave jobs to those able to work. Nine thousand five hundred Huks surrendered to you and you gave them lands, electric lights, bulldozers, roads, water system and all the conveniences of city life. We are human beings. I cannot come down and kill. I am surrendering to you this pass.”
The debate here and now, is whether besides fighting in the field, our armed forces should be fighting civilians, too.
No one represents the debate on what the armed forces should do, and to what extent it should be held responsible in its duty to fight the New People’s Army, better than Gen. Palparan.
He has been bold and blunt in what he thinks should be done. And that is, to fight the NPA not just in the field, but to attack what he considers its support system, the legal Left.
In this view, Palparan isn’t unique. Testifying before the Melo Commission, Gen. Esperon said,
The CPP is the brain; the NPA is the armed
group; and the NDF is the shield. The NDF is composed of legal organizations
that may have been infiltrated by the CPP and NPA.
Melo Commission report, p. 13
But Gen. Esperon, before the same commission, was careful to distinguish military operations, fighting the NPA, from other efforts of a non-military nature, which he said were properly the department of the civilian agencies of the government. So far, so good; the problem is that Palparan made statements that at the very least, suggested he, as a commanding officer, had no problem if soldiers and civilians went beyond fighting the NPA in the field.
Here are some statements of Gen. Palparan, as quoted in the Melo report:
Potential vigilante style actions by anti-communist elements outside the
military organization cannot be stopped completely and the killing of
activists are necessary incident to conflict.
I cannot order my soldiers to kill, it’s their judgment call, they can do it on
their own.
I encourage people victimized by communist rebels to get even.
The killings are being attributed to me but I did not kill them, I just
inspire the trigger men.
Their (three student doing research work outside Manila) disappearance is
good for us but as to who abducted them we don’t know.
Melo Report, p. 17
Great examples of bravado, don’t you think? But the problem with such fire-breathing statements, is that they could be construed as an inspiration to portions of the military who might be tempted to use what Mussolini called inexorable force to solve political problems. Inexorable force may be ok for fascists, but it contradicts our democracy’s dedication to human rights.
Palparan’s statements have already led his critics to call him “the butcher,” and he has even become the focus of some investigations. The calls for such investigations began even when Palparan was still an officer on active duty.
In response to such calls, Gen. Esperon told the Melo Commission,
Additionally, Gen. Esperon said that to investigate Gen. Palparan during
the time when he was neutralizing the NPA would have been counterproductive.
Although Gen. Esperon admitted that the AFP has the power and
authority to investigate if any of its officers has violated certain rules and
regulations, such investigation may, however, muddle or obstruct any on-going
operation. Gen. Esperon added that the AFP has confidence in the duly
constituted investigative body.
Melo Report, p. 17
To his credit, Palparan, according to Esperon, expressed willingness to be investigated, but as the Melo Report noted, the AFP didn’t investigate Palparan because no formal complaint was lodged. So it’s been up to other institutions to do their own investigations.
Besides the Melo Commission, official investigations include Task Force Usig, both set up by the President, and the Commission on Human Rights which works independently. Recently, the CHR issued a preliminary report on General Palparan. The report was hailed by the AFP , which said it cleared the controversial general.
The CHR, however, denied it cleared General Palparan. A story in the Bohol Chronicle quotes Acting Commission on Human Rights (CHR) chair Dominador Calamba II:
He said that Palparan could not shun away from the fact that killings were rampant anywhere he is assigned. The retired general failed to initiate inquiries on the alleged extra-judicial killings when it should have been his chance to clear his name, Calamba said.
“As far as the commission is concerned, there is no final finding yet” on the Palparan case, according to Calamba, while the commission is set to review Mallari’s resolution en banc.
The acting CHR chair stressed that he considers the Mallari resolution “a report” subject to the scrutiny of all the other commissioners.
The Mallari mentioned here is a fellow commissioner in the CHR. He was tasked with looking into political killings in Central Luzon where Palparan had been assigned as 7th Infantry Division commander. The allegations were that Palparan should be held responsible for the spate of alleged political killings in the region. Mallari, in his report, said Palparan should not be held responsible, because he unearthed no evidence directly linking Palparan to any such killings.
But then not even Palparan’s harshest critics ever alleged that Palaparan was running around personally liquidating Leftists.
Rather, the question concerning Gen. Palparan is this: to what extent is he, as an officer, liable, for the conduct of their troops? In other words, should our senior generals be held accountable for violations of human rights? In other words, does command responsibility apply to officers like Palparan? Particularly in the light of his fire-breathing statements.? And what should civilians do about it.
Our own government launched investigations, as we know. Some are ongoing and some will hopefully lead to prosecutions. The issue gets complicated when foreigners become interested. Complicated, because at times it seems our own government’s inconsistent. When a UN special rapporteur came here and did his own investigating, our armed forces complained. When a US Senate Committee conducted a hearing on these accusations, some of our own senators complained. But the UN rapporteur’s activities put pressure on the executive branch to release the Melo report which it had wanted to withhold from the public. And now, despite threats from Senators like Miriam Defensor Santiago to investigate the USA for human rights violations, the executive has decided to welcome a rapporteur from the US State Department.
In other words, there seem to be principles at work here, that are so important they become the business of everyone, and not just the locals, to look into. At the heart of all this are the principles we know as human rights. And also, the idea that command responsibility is not something nations can adopt or ignore, but that all modern militaries are obliged to uphold.
More on this, when we return.
II. Beyond the pale
(Amen 26:29 -27:09) “Suppose mass murder is going on….” To “The majority of the faithful are behind Mr. Hitler”
That was a scene from “Amen,” the true story of an S.S. Officer, Kurt Gerstein, who tried to inform Catholic and other authorities, of the extermination of the Jews. In the scene, a pastor warns him that such exterminations even if true, are supported by public opinion, and that to cause trouble would be considered unpatriotic.
AFP chief of staff Hermogenes Esperon, Jr., when asked if officers should be held accountable for cases involving the military murder of civilians, told the Melo Commission he didn’t believe command responsibility should apply. According to the Melo Commission’s report,
When asked about his concept of command responsibility, General
Esperon stated that it means that a commander is responsible for what his men
do or fail to do in terms of accomplishing the mission. It does not include
criminal liability of the superior if his men or subordinates commit an illegal act
that is criminal in nature. Only the subordinate should be liable for the criminal
act and not the superior commander. The commander is responsible only for
acts he authorized.
Melo Report, p. 18
[http://www.news.ops.gov.ph/archives2007/feb26.htm ]
But on February 4, he changed his mind. Why did he do that? A government press release from February 26 tells us why. Court cases and presidential directives mandates the principle of command responsibility:
One of the points stressed by Justice Jose Melo, chairman of the Melo Commission, is the need to ensure that all military officers understand and correctly implement the doctrine of command responsibility. Command responsibility refers to the “accountability or responsibility or answerability of the commander of a Military Force or Unit for the acts of his men, inclusive of the authority to order, to direct, to prevent or control the acts of his men.” (People v. Lucero, G.R. No. 63423-24). Under Executive Order No. 226, dated February 17, 2005, commanders are duty-bound to closely monitor, supervise, direct, coordinate and control the overall activities of his subordinates and to submit an offender to the proper authorities.
To his credit, Gen. Esperon, when it turned out he was wrong, did something about it. Faced by the law and his own opinions on command responsibility, Esperon upheld the principle and not his own opinion. But as we’ll see a bit later, devotion to these principles may be the cause of a big headache not just for the AFP, but for our government as a whole.
But first, let’s refresh our knowledge. We’ve discussed the principle of command responsibility before. Let’s revisit it again.
Specifically,
[http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101_text.html ]
Let’s look at four cases concerning command responsibility. These cases are discussed in an article by Stuart Hendin in the Murdoch University Electronic Journal of Law.
The first is the case of Gen. Tomoyuki Yamashita, tried in Manila.
The second is a case involving the Israeli Army during the Suez crisis of 1956.
The third is the infamous My Lai massacre during the Vietnam War.
And the fourth are the cases of ethnic cleansing that took place in the former Yugoslavia.
In the case of Yamashita, The war crimes trials in laid down the principle that a commander could be found culpable, for things he failed to do.
In our episode on the execution of Saddam Hussein, we quoted the famous dissenting opinion of Us Supreme Court Justice Frank Murphy warning of the dangers of victor’s justice. But this time, let’s quote the majority opinion of the US Supreme Court which explained why Yamashita should be hanged:
The question is then whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of specified acts which are violations of a lot of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.
It is evident from the conduct of military operations by troops whose excesses are unrestrained by the orders of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence, the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent (emphasis) responsible for their subordinates.
The word that concerns us here, as pointed out by the US Supreme Court, is impunity. Commanding officers, it said, should not enjoy impunity, or the feeling they have freedom without accountability. Failure to control your troops is not an option, and won’t excuse you from being held accountable for what your troops do.
Let’s go to our second example. During the Suez Crisis, some civilians were killed when they tried to return to their village in violation of a curfew order. Here’s Stuart Hendin’s summary of the case involving a junior officer tried for his involvement in the case:
While the military Court noted that even though he was not with his men when shooting took place that nevertheless he was in the general area, and not only did he know that the incident was taking place he took no steps to intervene or stop it. The Court found that the failure of the junior officer in this case was equivalent to him acting as an accomplice.
The Court accepted evidence that the order in question had come down through the chain of command, and, in particular, it attached culpability to the officer of field grade. The Court specifically found, in attaching culpability for murder that this officer either knew, or had to have known that the people out and about this village would likely be civilians, and in all probability would be Arab and not Israeli.
The Court specifically commented that, “a reasonable soldier can distinguish a manifestly illegal order on the face of it, without requiring legal counsel and without using the law books” and of further significance is the notation that, “a commander of any rank must consider the order he issues and also its legality”
Simply put, an officer was accountable for abuses even if he wasn’t physically present at the crime, but had authority over the area where the crime took place; and that officers were bound to give only lawful orders, and all soldiers were bound to disobey obviously illegal orders.
Let’s go to the third case, the My Lai massacre in Vietnam. On or around March 16, 1968, American troops entering the village of My Lai, ended up with a Lieutenant named William Calley firing on unarmed civilians. He ordered a soldier to do the same. The soldier obeyed, but two others disobeyed the order. Calley later on argued a superior officer named Medina had previously ordered him to kill any living thing in that village. Medina was charged with command responsibility for the massacre: when his troops started the massacre, Medina did nothing to stop it. As the charges against him put it,
It is the prosecution’s contention that the accused was capable of controlling his troops …. but once learning he had lost control of his unit, he declined to regain control for a substantial period of time during which the deaths of unidentified Vietnamese civilians occurred. It is finally the prosecution’s contention that as a commander the accused, had a duty to interfere (and) he may be held personally responsible because his unlawful inaction was the proximate cause of unlawful homicides by his men.
Then fourth case involves one of the many trials involved in the ethnic cleansing that took place in the former Yugoslavia. In 1996 the international tribunal tasked with trying the cases, considered Drazen Erdemovic, who argued he was not only obeying superior’s orders, but that he had to comply when order to murder civilians, because his commanders threatened him. The court said it had been well established that simply obeying orders was no excuse; but that furthermore, even when threatened, a soldier could not use being threatened by his superiors as an excuse: the best that could happen is that it might result in a lighter sentence, but not prevent conviction for murdering civilians.
These four cases tell us that command responsibility means an officer is liable for the conduct of troops under his command; that he doesn’t have to be present when crimes are committed, to be liable for crimes; that he can’t say he was obeying superior orders, because his duty is to disobey obviously illegal orders; that if his troops get out of control, he is duty bound to reimpose his authority; and that finally, his authority compels him to always exercise it in a lawful manner, even if he is threatened with punishment if he doesn’t obey.
When we return, a former military officer’s views on command responsibility and the question of impunity.
My view
Who will guard the guardians, the ancient Romans asked. Every society with a military eventually ends up asking itself the same thing. As well we should. The armed forces are our armed forces: they fight for us, they are paid by us, they are supposed to represent what is best in us. Unlike you and I, they are called upon to consecrate themselves to a life of heroic dedication. We expect our armed forces to die for us, and to kill for us, if necessary.
But Sun Tzu advised that true achievement lies not in waging war brilliantly, but in avoiding war altogether. The general is greatest when he wins without having fired a single shot. As civilians, this is something we should always remind our soldiers about.
We all know how the otherwise glorious career of Douglas MacArthur came to an end. As his UN command was forced back with the entry of Chinese troops into the Korean War, MacArthur publicly said atomic bombs should be dropped on the Chinese border with Korea. President Harry Truman fired MacArthur. Civilians command, the generals obey; Truman was not prepared to unleash a nuclear war.
Gen. Esperon is free to have his own opinions, whether on the innocence of his men when it comes to allegations of human rights violations, or his wanting the CPP-NPA declared illegal. I don’t think he should be free to express his opinions. And let me tell you why. Those are policy statements, and those are for the civilians, not the officers of our AFP, to craft. What if he had a commander in chief who refused to criminalize the CPP-NPA? What then? You would have a situation in which an old maxim would then apply: when the guns speak, the laws fall silent; when a general speaks, must then the civilians fall silent? Civilians here and abroad say no.
