“Enemy of the People”. PNP discloses “recovery” of Fr. Bossi – ABS-CBN

ABS-CBN’s Ces Oreña-Drilon broke the story at about 6:30 am (Photo of a study/replica of Diana; U.P. College of Fine Arts)

today in “Umagang Kay Ganda” (What a Beautiful Morning) of Channel 2: that the PNP Regional Command had disclosed that Fr. Gian Carlo Bossi had been “recovered” and had now been transported from Lanao del Norte to Zamboanga. According to Ces Oreña-Drilon, Fr. Bossi had the sense that he was held in one place only.

The kidnappers have perfect timing, coming as it does on a slow Friday and coming on the last weekday before President Gloria Macapagal-Arroyo’s State of the Nation Address. So, she has something to show for it on Monday, despite the ambush of the 1^st IB of the Marines and the death/ murder and decapitation of 10 of the 14 soldiers and her one-week indecision on what course of action to take; and despite the sudden unexplained jacking-up in the prices of chicken and pork this week.

In a timeline produced by ABS-CBN News, the staff traced how Fr. Bossi was kidnapped on June 10, 2007 in Payao, Zamboanga; how the MILF denied it was behind the kidnapping and promised to help locate the priest; and how the MILF provided information on sightings of Fr. Bossi and his captors.

The PNP identified three suspects behind the kidnapping.

Their acts of seizing and coercing and keeping/ holding Fr. Bossi against his will is punishable under Art. 267 of the Revised Penal Code; it is a capital offense punishable with life term to death (except that the death penalty had been revoked).

“Revised Penal Code. Chapter One. Crimes Against Liberty

“Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer.The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.”

The perpetrators of the decapitation and mutilation of the 14 Marines are liable for: either murder (depending on circumstances) and/ or war crimes under Protocol II (depending on circumstances and parties).

The MILF owned up to the “encounter” or “ambush” but denied they had anything to do with the decapitation and mutilation.

Under the Hernandez doctrine (People vs. Amado Hernandez), acts committed in pursuit of the rebellious purpose (e.g., physical injuries, deaths, burned bridges) are deemed absorbed in the crime of rebellion (Revised Penal Code; capital offense for leaders and prision mayor or 12 years for followers); if the deaths resulted from a “legitimate encounter” for example, the parties to the armed conflict ran into each other and suddenly there was firing; the “crime” is still rebellion (except that acts such as rape, intentional mutilation, torture, etc., and, in my opinion, intentional decapitation, are not considered absorbed or cannot be considered “in pursuit of the rebellious purpose”; these are punished as common crimes)

The decapitation and mutilation of the dead can be punished as a war crime under provisions that require the parties to the armed conflict to treat the dead with respect whether or not they are combatants, or under Protocol II, as follows:

Protocol II (Additional Protocol to the Geneva Conventions) relating to the Protection of Victims of Non-International Armed Conflicts

“Part III. Wounded, Sick and Shipwrecked

“Art 7. Protection and care “1. All the wounded, sick and shipwrecked, whether or not they have taken part in the armed conflict, shall be respected and protected. “ 2. In all circumstances they shall be treated humanely and shall receive to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.

Relating to the dead, the following:

“Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked. xxx “Art 18. After each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. “Whenever circumstances permit, the Parties to the conflict shall conclude local arrangements for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment on their way to that area. “Art 19. The Parties to the conflict shall record as soon as possible, in respect of each shipwrecked, wounded, sick or dead person of the adverse Party falling into their hands, any particulars which may assist in his identification. These records should if possible include:
(a) designation of the Power on which he depends;
(b) army, regimental, personal or serial number;
(c) surname;
(d) first name or names;
(e) date of birth;
(f) any other particulars shown on his identity card or disc;
(g) date and place of capture or death;
(h) particulars concerning wounds or illness, or cause of death.
As soon as possible the above-mentioned information shall be forwarded to the information bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949, which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency.

“Parties to the conflict shall prepare and forward to each other through the same bureau, certificates of death or duly authenticated lists of the dead. They shall likewise collect and forward through the same bureau one half of the double identity disc, or the identity disc itself if it is a single disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead. These articles, together with unidentified articles, shall be sent in sealed packets, accompanied by statements giving all particulars necessary for the identification of the deceased owners, as well as by a complete list of the contents of the parcel. Art 20. xxxIf dead persons are landed, the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 shall be applicable.”

If the decapitation and mutilation were perpetrated while the combatants were still alive and rendered hors de combat (“out of the fight”; incapacitated) not only is it punishable under those provisions on war crimes analogous to murder, in my opinion, that also takes it out of the ambit of the Hernandez doctrine because there is no way one could argue that beheading a wounded/ hors de combat combatant is in pursuit of the rebellious purpose; the State would be able to prosecute those as murders (but that’s just my individual legal opinion, i am not representing any group.)

On the other hand, if the perpetrators are not covered by the guarantees of Protocol II (i.e., they are not parties to the armed conflict), the perpetrators of the decapitation and mutilation of the soldiers can also be charged with murder; it is a matter of defense for them if they allege that the soldiers were already dead when they decapitated and mutilated them. No one except those who might have checked the bodies for their pulse would be able to say with 100% certainty that the soldiers were already dead from the gunshot wounds when they were decapitated and mutilated; unless the MILF itself asserts that they are 100% certain that the soldiers were dead when they left them, that they were sure because they checked the bodies, that they walked to them and checked them; but that puts them in an awkward situation.

(TO SUMMARIZE:)

In other words: deaths and physical injuries arising from legitimate encounters are deemed absorbed in the act of rebellion under the Hernandez doctrine and covered by the guarantees of the Geneva Conventions. Except that, beheadings are, in my opinion, not within the ambit of the Hernandez doctrine; these are punishable as common crimes, as murders (it is a matter of defense whether the combatants were dead).

a) If the perpetratos were non-parties to the armed conflict, i.e., non-MILF, they can be charged with murders; if the combatants were already dead when they were decapitated, that is a matter of defense in a murder case;

b) If the perpetrators are members of any unit of the MILF, deaths resulting from the decapitation are punishable as murders, not rebellion; and can be punished as war crimes too. If the combatants were already dead, it is a defense in murder and in the war crime analogous to murder but it is still punishable under the aforequoted provisions of the Geneva conventions on the treatment of the dead.

Again: What if the beheadings occurred after deaths in an encounter and not perpetrated by the parties to the armed conflict? The fact that one occurred right after the other (death in an encounter, then beheading by another group) is very problematic in evidence.

MILF chief negotiator Mohagher Iqbal said today (Inquirer.net) that had the government listened to them that Bossi was not in Basilan but in Lanao del Norte, an intel info that was proven correct today, then the bloody encounter in Basilan would not have happened.

 

 

But what can be said with certainty today and on Monday, at the President’s State of the Nation Address is that: This nation was never one, that in those territories where Fr. Bossi was kidnapped and where the ambushes occurred, the MILF and unidentified lawless elements were and are the government, and the Gloria administration: the insurgency.