On the Alston Report

Was writing this brief comment on the Final Report of UN Special Rapporteur Philip Alston — my professor at NYU as it so happens — when the Manila Peninsula “incident” took place. Distractions and all, it came out in the Inquirer on Saturday, December 1.

Earlier this week, Philip Alston, the United Nations Special Rapporteur on Extrajudicial Executions, released his final report on the extrajudicial killings in the Philippines. Consistent with Alston’s earlier public pronouncements on the issue, the report concluded that responsibility for most of the killings, particularly those of leftist activists, could be laid at the doorstep of the military.

According to the report, these extrajudicial executions were carried out as part of a military counter-insurgency strategy which targets leaders and members of “front” organizations of the CPP-NPA. The “official line” of the AFP that the killings were the result of internal purges within the ranks of the communist insurgency was dismissed as being “strikingly unconvincing.”

The report, however, did not stop there. While dismissing the military’s theory of internal purge, it nonetheless recognized the responsibility of the CPP-NPA for some extrajudicial executions, most notably the murder of civilians under the guise of “revolutionary justice,” and the killing of peasants in the course of agrarian reform disputes. The report was just as firm in characterizing these CPP-NPA killings as being clear violations of international law.

Responses to the report have thus far run along predictable lines. A spokesperson for the President was quick to deny that there was an official “policy” supporting the killings. The PNP doggedly insisted that the report was merely an “opinion” and that any of its findings should be supported by “evidence which could stand in a court of law.” On the other side, the party-list groups Bayan Muna, Anakpawis, and Gabriela immediately called for the sacking of top defense officials for their culpability in the killings, while remaining silent on the report’s similarly firm indictment of the CPP-NPA.

These initial reactions, anchored as they are on the vested political interests of these various groups, fail to adequately grasp the purpose and full import of the Alston report.

To begin with, the principal objective of a report by a special rapporteur is to assess a State’s compliance with its legal obligations in a given area under international law. Hence, the report opens with an enumeration of applicable treaties that the Philippines has ratified, namely the International Covenant on Civil and Political Rights and the Geneva Conventions. These form the legal basis for Philippine obligations with respect to the issue of extrajudicial killings.

These obligations, according to a familiar mantra, are those to respect, protect, and fulfill, in this specific case the right of persons to life and to judicial process. The obligation to “respect” requires government to refrain from engaging in extrajudicial killings. The obligation to “protect” mandates government to prevent third parties, whether rogue soldiers or armed insurgents, from doing the same. The obligation to “fulfill” compels government to put in place the necessary mechanisms, such as courts clothed with adequate powers, to ensure enjoyment of the rights.

Under this framework, it does not matter if government does not formally adopt a policy condoning the killings. It still is in breach of its obligations so long as the killings are perpetrated by its agents, in this case the military, and it fails to take appropriate actions to stop them and enforce liability on the perpetrators.

Similarly, as the report is concerned with the larger issue of State compliance, it should not be characterized in the same manner as a criminal investigation. Insistence on the report following the formal rules of evidence observed by courts is misplaced, since what is at issue is not individual criminal culpability, but the adequacy of State action with respect to its obligations under international human rights law.

The fairness or validity of the report, rather, should be assessed by the methodology utilized in collecting the information on which it was based. In the case of the Alston report, it was anchored on extensive interviews from the government, military, and civil society, as well as documents provided by these same groups. In other words, its conclusions are derived from weighing of the information from various, undoubtedly contradictory, sources.

That the report paints a grim picture of the Philippine situation cannot be denied. But rather than viewing it as a public relations dilemma that has to be “handled” or dismissed, government should take up the real challenge of acting on the recommendations set forth in the report. After all, Alston’s investigation was done at the behest of the Philippine government itself. It would be the height of obtuseness, not to mention absurdity, for the government to dismiss the selfsame findings it sought.