[Blogger] Demanding Human Rights Obligation Beyond the State – Carpe Diem

by Darwin Mendiola [Carpe Diem]

The accountability of non-state actors for human rights abuses has been the subject of discussion by experts and human rights advocates alike for the past two decades. It arises from the premise that actors other than the state are in fact equally capable of carrying out the worst forms of human rights violations.

It is beyond cavil that the human rights abuses which have been committed, are still being committed and can possibly be committed by non-state actors especially the armed groups evoke strong passions for culpability.

People are bound to disagree on whether it is legitimate or not to engage in armed violence in order to bring about change, even when the motive is to end injustice. It is perhaps an understatement to say that our views are usually colored by our political bias in relation of armed groups to the application of human rights.

It invites more controversy when the opinion comes from Chairperson Loretta Ann Rosales of the Commission on Human Rights, who has been the subject of media attention in the past couple of weeks for her vocal censure on extreme and unjustifiable violence committed by both state and non-state actors. She even professed when asked by one reporter to define human rights during the media briefing on the formal signing of the Memorandum of Agreement between the Medical Action Group and its partners, the Commission on Human Rights (CHR), the Association of Municipal Health Officers of the Philippines (AMHOP) and the British Embassy on August 8, 2011 that because, “everyone is endowed with human rights and as a result we all have the duty and responsibility to respect and make sure that everyone can exercise their rights.”

In ordinary discourse, this statement may be accepted as an aphorism but applying it in a particular context is where different interpretations come in contention. Given the fact that Chair Etta was already being accused by militant groups of using her position to pursue her personal vendetta against alleged erstwhile comrades in the national democratic movement and by using the Commission on Human Rights as an inquisition arm of the Aquino regime against the left, this statement may be construed as a justification.

With due respect to Chair Rosales, there is no question about her integrity, knowledge and dedication for human rights. Besides, the CHR even before her appointment has already been working to address the abuses of non-State actors as part of its mandate to ensure human rights are respected.

But Chair Rosales and the CHR should be aware of their own institutional limitation as well as the strict application of human rights principles. They should clearly determine when human rights are violated and when is not. Contrary to what have been said, the distinction between human rights violation and abuses is not simply technical nor political but rather legal, logical and practical.

For the human rights community, the accepted wisdom was that human rights principles and law applied only, or mainly, to the mediation of the relationship between citizens and the State. Under this classical interpretation of rights, only States violated human rights and anyone else who acted inappropriately was a criminal. States have a great responsibility in terms of accountability and remedy. It is a matter of social contract between the state and the people and not between private individuals.

Human rights are basically the protection and preservation of human dignity. It is a shield of protection against the “sword-bearing” power-that-be. Thus, Human rights are not within the individual private sphere but on the public and social sphere of power relation.

Even the international humanitarian law is clear with its convergence with human rights. That is when it involves the violations of the rights of civilians and not the atrocities committed by warring combatants against each other. Humanitarian law is obviously based only on the balance between military necessity and humanitarian considerations. The best argument for this is the “Boxing Ring” analogy which states that when a boxer (warring parties/combatants) enters the ring, he or she renounces his or her right not to be hit. Yet, a boxer is expected to follow some rules like no hitting below the belt or no-head butting. However, this is not equal when the boxer punches someone outside the ring.

Following this analogy, it is safe to conclude that the beheading of soldiers in Basilan by suspected Abu Sayyaf is not a human rights violation but a criminal act, plain and simple. Madam Etta should not confuse human rights from brutal atrocities.

Although, there is now a growing recognition on human rights abuses of non-state actors through the doctrine of drittwirkung which provides the idea that the human rights obligation is equally applied in relations between private parties and with that of the horizontal duty of states to ensure human rights (indirect drittwirkung).

But pursuing direct responsibility of non-state actors will only lead to confusion especially about what rules to apply, if there is any. A thin border exists between a group regarded as a criminal threat to be dealt with through law enforcement mechanisms, and a political opponent to be dealt with in the context of political negotiations.

Even strategies to ensure respect for human rights directed at highly sophisticated organizations with clearly delineated channels of leadership are unlikely to be effective in preventing or much less ending human rights abuses. The leadership of an armed group, for example, will often deny any criticism and claim that certain acts do not reflect official policy and are simply errors committed by rogue members. It may point to the difficulties faced by an underground organization, or one fighting on different fronts. They may also quick to dismiss it as mere back propaganda which aims to discredit their legitimate revolutionary agenda. If the military used to claim lack of effective control within its politicized ranks whenever human rights violations came into spotlight, interestingly this same excuse is also used by their non-state counterparts.

More so, that there are many practical and security constraints exist in relation to non-State actors, which make investigations and fact finding much more difficult. It is easier to subpoena a police officer, than to subpoena a rebel soldier. There is a greater chance that a government official will attend a court hearing, than a guerrilla leader. Even just the act of finding a rebel soldier is complicated, and the probability of bringing one in is slim, if not nil.

Clearly, some armed groups have carried out horrifying human rights abuses that deserve to be condemned in the strongest terms. I believe that everyone recognize the need to limit if it is not possible at this time to completely eliminate such abuses.

The moral obligation to stand against any forms of human rights violation may be beyond the state but ensuring accountability remains at the hand of the state. It is inevitably entailed state responsibility through the effective discharge of the state’s duty to protect human rights and to exercise due diligence.

Madam Etta should know that invoking the respect for human rights is more of dealing with the principle not by political conviction.