I have been asked to address the following questions:

1. What are the human rights implications of the left purge?
2. Are there international and domestic standards or laws that victims can turn to as basis for their quest for justice?
3. Are there similar experiences that victims can find inspiration from to pursue their cases if they decide to? What are its chances?
4. What do you think are proactive steps that can be done to address this issue?
5. What are the lessons that can be drawn from this experience for students of political movements, peace and human rights advocates?

I will try to address these questions now, more or less in that order, in varying degrees and sometimes interrelatedly.

The Left purge or purges I understand refer to the anti-infiltration campaigns of the Communist Party of the Philippines (CPP)-New People’s Army (NPA), notably “Ahos,” “Missing Link” and “Olympia” in the second half of the 1980s, which resulted in prisoner maltreatment, torture and summary execution of several thousand largely innocent CPP and NPA cadres and members suspected of being deep-penetration agents (DPAs) or, in other words, spies or saboteurs. Renewed and intense discussion on this purge has been sparked by the 23 January 2003 assassination of former NPA chief Romulo Kintanar whom the CPP has linked, among others, to “Kampanyang Ahos” and to having “directly connived with the ISAFP [Intelligence Service of the Armed Forces of the Philippines] under Col. Victor Corpus in planning and implementing surveillance operations, psy-ops and sabotage operations and attacking and attempting to destroy NPA units and guerilla zones,” in short, to some, having become a “government military (intelligence) agent.”

Before I proceed, let me try to put some things in perspective. While Anne Frank and her family were said to have also been victims of the Nazi purge, the Holocaust was of such genocidal proportions that it dwarfs several thousands-fold the scale of the Left purge we are talking about which was not genocidal in nature. And while we speak today of the human rights implications of the Left purge, we can just as well speak of the human rights implications of the military assault on the Pentagon Gang and MILF [Moro Islamic Liberation Front] in Central Mindanao. We have to point out that, as regards the Left purge, there is enough responsibility or blame to share among certain leaders of both the reaffirmist (RA) and the rejectionist (RJ) factions of the communist or national democratic Left. It would be short-sighted though to bring out the Left purge’s serious violations of human rights and international humanitarian law (IHL) if it is only in order to put the blame on one’s opponents within the Left. That way, we will be missing the lessons.

Significantly, both Left factions now agree that the Left purge was characterized by grave human rights abuses. For example, the 5 February 2003 statement of the CPP Central Committee said of “Operation Missing Link” (OPML): “In its own investigation into the OPML, the Party central leadership concluded that the indiscriminate arrests, cases of torture and execution of comrades suspected of being enemy infiltrators was hysteria in its extreme and a grave error. It was condemned by the Party’s central leadership as a direct violation of the rights of victims who were upright cadres and members of the Party and fighters of the NPA...” A former CPP Executive Committee member with the pseudonym Paco Arguelles, writing agonizedly in 1995, described “Kampanyang Ahos” as “the biggest human rights tragedy for the Philippine revolutionary or national democratic movement” with “the massive violation of human rights.”

Immediately, one sees here one major human rights implication of the Left purge, and it was already articulated well by a sympathetic but critical FLAG [Free Legal Assistance Group] lady lawyer in 1994. She said: “How can the people be convinced of the genuineness and sincerity of the movement for the social and political changes and alternatives it advocates when it cannot even afford its very own members the respect for their individual rights as human beings? Can the people be convinced that what is offered is really ‘better,’ when the alternative presented falls short of the very basic requirements of a civilized society? For if its justice system is sorely deficient, then it does not really present a better ‘alternative.’”

I happen to be the lead counsel for several years now of the “Abadilla 5,” whose plight in the criminal justice system was serialized by the Inquirer starting on the occasion of Human Rights Day last December 10. The torture they suffered at the hands of police operatives in 1996 was nothing compared to the torture suffered by victims of the Left purge, whose implementors were more sadistic than the martial law torturers in the mold of Abadilla and Aguinaldo. This brings us to another major human rights implication of the Left purge but which goes beyond the Left.

The Left purge is yet another concrete argument for the bold assertion that human rights creates obligations on or can be applied to non-state actors like rebel groups, and not just states or governments. The basis for this is the more dynamic view that human rights are meant not just to regulate the state but, more fundamentally, to assert the inherent rights of individuals as against all forces, whether state or non-state, which would violate them. For example, how can the less grave torture of the “Abadilla 5” be a human rights violation while the graver torture of victims of the Left purge not be a human rights violation? Thus, legal scholars have espoused the view that the legal definition of torture in the 1984 UN Convention Against Torture should be amended to drop the element of “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” as is the case in the 1998 Rome Statute of the International Criminal Court (ICC).

To be sure, there is still an ongoing legal debate on the applicability of human rights to rebel groups. While this debate is still unresolved, the International Council on Human Rights Policy (ICHRP) has developed a practical concept to continue the work of engaging armed groups on humanitarian norms. This is to use the term “human rights abuses” to refer to conduct or practices that clearly infringe standards of human rights and/or IHL. When it comes to IHL, i.e. the law of armed conflict, there is no doubt about its applicability to rebel groups depending on the level of conflict.

The Left purge happened in the context of a life-and-death armed conflict, where IHL applies. There were several complex factors and reasons for this purge. But one definite explanation was the notion within the CPP-NPA that “spies had no rights.” On the contrary, even war-time spies do have rights under IHL. The 1907 Hague Regulations on the Laws and Customs of War on Land, Art. 30 provides that “A spy taken in the act shall not be punished without previous trial.” The 1949 Geneva Convention No. IV on the Protection of Civilian Persons in Time of War, Art. 5 provides that spies or saboteurs “shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.”

One can only wonder now whether the outcome would have been different if those responsible for the Left purge had been aware of spies rights under IHL. Incidentally, in 1996, the National Democratic Front (NDF), which includes the CPP-NPA, made a unilateral “Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977,” after declaring accession to Protocol II in 1991.

Well, it may be said that the Left purge ended more than a decade ago. The question is: has the grave error been rectified? Are the lessons, particularly in “respect for human rights... being utilized in continually improving the revolutionary justice system”? This is where the Kintanar assassination might be relevant. He has been tagged as a “government military (intelligence) agent,” in which case some say “therefore a combatant in a shooting war.” My reading of IHL is that a government military (intelligence) agent is not necessarily a combatant. Protocol I, Art. 43, para. 2 defines combatants as “Members of the armed forces of a Party to a conflict...,” except for medical and religious personnel.

Was Kintanar a member of the armed forces of the Philippines? From all accounts, he was not killed in combat but while paying his lunch bill at a city restaurant. Under both IHL and human rights, there is an absolute right to all peoples, including soldiers and rebels, to life outside combat, and there is the absolute duty of all combatants not to kill outside combat. There are two other sets of minimum people’s rights and minimum combatant duties in the Code of Combat Conduct called the Manila Declaration of 16 December 1988, and these are both relevant to this discussion: the people’s absolute right to freedom from torture and the combatants’ absolute duty not to torture under any circumstances; and the people’s absolute right to fair trial if under accusation and the combatants’ absolute duty not to convict or punish anyone without a fair trial.

According to the CPP Spokesperson Gregorio “Ka Roger” Rosal in a statement on 25 January 2003, “It was absolutely correct to punish Romulo Kintanar.” According to Rosal, the “people’s court” found Kintanar guilty “beyond reasonable doubt” of charges filed “in 1993” for “serious and heinous crimes against the people and the revolutionary movement.” Rosal has framed this in terms of “revolutionary justice.” This connotes laws of “governance” which deal with criminals, as distinguished from laws of war which deal with combatants. So which is which now as applied to Kintanar? Was he killed as a combatant or was he executed as a criminal? If it is the latter, then there is some burden, in the light of the circumstances, for the CPP to show that it has learned the lessons from the Left purge and has improved its justice system.

I for one, as a legal scholar, more even than as a human rights lawyer, am quite interested to know more about the “people’s court” in this case. How was it constituted? What rules of procedure and evidence did it follow? Is there documentation of the charges filed in 1993? Is there a criminal code defining and penalizing various “crimes against the people and the revolutionary movement”? How was Kintanar’s guilt established “beyond reasonable doubt”? How was evidence and testimony gathered, studied and weighed? How was “the implementation of the correct processes” ensured? How was “respect for human rights” ensured? Was the absolute right to fair trial respected? Is there documentation of the proceedings and evidence? Was there, to use the minimum standard in Common Article 3 of the Geneva Conventions, “judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”?

In the related literature on policies for coping with the past, particularly a past of human rights abuses, all policy choices involve to key questions: whether to remember or forget the abuses, and whether to impose sanctions on the individuals who are responsible. There are five policy options usually lined up in the context of transition from a repressive regime to a democracy, and which all have their pros and cons: 1) amnesty, 2) truth commissions, 3) lustration (disqualification from public office), 4) criminal prosecution, and 5) compensation.

In fact, some survivors of the Left purge like Robert Francis Garcia and his group called Peace Advocates for Truth, Justice and Healing (PATH) are pursuing the appropriate form of a truth commission on the Left purge. I will not add much more to what Bobby has said on this except for a few notes also from the related literature. One of several possible functions of a truth commission is the examination of the context under which abuses occurred and analysis of what made such events possible, in order to lessen the likelihood of their recurrence. And there are several more angles and examples of similar experiences to look into.

In Chile, a “National Commission for Truth and Reconciliation” was established in 1990 at the urging of NGOs. The creation of the “Commission on the Truth for El Salvador” was written into the peace settlement ending the 12-year civil war. In South Africa, President Nelson Mandela created a “Commission of Enquiry” in 1992 to investigate treatment of prisoners at African National Congress (ANC) detention camps, a rare example of a political party establishing a commission to investigate its own abuses. In 1995, he set up a two-year “Truth and Reconciliation Commission” chaired by Archbishop Desmond Tutu. Its task included the investigation of crimes by both the government and the opposition during the struggle against apartheid, as well as consideration of amnesty for perpetrators and reparations to victims.

And so, some of the aforementioned policy choices can be combined or can follow one another. In particular, a truth commission can work quite effectively in with a special court (some would specify the form of a war crimes tribunal) as well as the national human rights institution (a permanent human rights monitoring body). A truth commission is not intended as a prosecutorial body but its findings may be used in separate judicial proceedings. Special courts may be created at the international and/or national level and can also work in conjunction with each other. In any case, the recommendation is to focus prosecutorial efforts on the central core of individuals who planned and organized the systematic violations of humanitarian law as opposed to everyone who may have committed abuses.

Incidentally, there is in international jurisprudence already at least one case dealing with the responsibility of a leader of an armed opposition group in an internal armed conflict, the Aleksovski case of the International Criminal Tribunal for the former Yugoslavia (ICTY). Aleksovski belonged to a Bosnian Croat armed opposition group and was commander of one of its prisons with Bosnian Muslim detainees. He was indicted and convicted for failure to prevent or repress crimes committed against the detainees, applying the principle of command responsibility.

These are options or choices for coping with the past but of course with implications for the future. In any case, especially for a truth commission and/or special court on the Left purge somewhere down the road, the Philippine government would be well-advised not to exploit the situation for cheap propaganda against the communist or national democratic Left. That would be counter-productive and just as unfair to the victims as the short-sighted agenda of bringing out the serious violations of human rights and IHL only to put the blame on one’s opponents in the other faction. If these happen, instead of remembering, we can forget about truth, justice, healing, closure, reconciliation and peace.

This is where other non-state actors, namely impartial, credible and competent humanitarian, human rights and peace NGOs and international organizations, and even broader civil society, can come in and play a positive role. Aside from the policy choices presented earlier which ordinarily and even largely involve the government, there is a whole range of possible proactive steps by NGOs, international organizations and civil society to approach rebel groups on human rights. The International Committee of the Red Cross (ICRC) has a framework of three main types of action: 1) responsive action (in the wake of an emerging or established pattern of abuse), 2) remedial action (rehabilitation, reparation, restitution and compensation required as a result of the pattern of abuse), and 3) environment-building (permanently required action with a view to creating an environment conducive to the prevention of abuse, and appropriate response to any pattern of abuse). The ICHRP speaks of two basic human rights approaches to armed groups: 1) shaming or persuading (especially when abusive practices reflect the group’s policy), and 2) engaging and assisting (especially when the armed group recognizes that a practice is abusive and wishes to reform but does not have the means to do so).

Among the many possible specific activities under either the ICRC or ICHRP framework is legal and judicial counselling to assist rebel groups to establish “judicial” mechanisms to deal with insubordination and dissent. Is this kind of action relevant to the CPP’s avowed desire of “continually improving the revolutionary justice system”? Those who do not necessarily agree with this system, nor with the ideology and program of the CPP, may yet concede that it will remain a reality in many parts of the country for the foreseeable future. Might as well do what can be done to ensure respect for human rights on that front, as should be done also on the government and Moro rebel fronts. Indeed, the work of engaging and assisting as well as shaming or persuading for human rights needs to open up new fronts which should mean new tasks, new forces, new perspectives.

Finally, I don’t know how relevant this quotation is as a lesson for our discussion. The context was post-communist Poland where prosecution was proposed to serve as a sort of ritual cleansing process, paving the way for a moral and political renaissance. Asked by Adam Michnik, a prominent leader of the Polish opposition to communist rule, what he thought of such cleansing, The German writer Jurgen Fuchs answered: “If we do not solve this problem in a definite way, it will haunt us as Nazism did. We did not denazify ourselves, and this weighed on us for years.” Thank you.

Atty. Soliman M. Santos, Jr.