human rights watch

Samar Minor in Army Captivity for 4 Years
But Oslo peace talks will set him free

Levi Mabanan was only six years old when his father, a suspected New People’s Army (NPA) guerrilla, died of illness.  He was 10 when, on Dec. 6, 2000, soldiers strafed their house in Barangay (village) Canva-is, Motiong, Samar, a province in eastern Visayas. The shooting changed his life.

By Dabet Castañeda
Bulatlat.com

Based on a paper prepared by the Department of Social Welfare and Development (DSWD) Field Office VIII, Branch 27 of the Regional Trial Court (RTC) of Catbalogan placed Levi under military custody only on April 24, 2001. This means, the human rights Karapatan says, Levi had been illegally detained for at least four months. 

Before the same court, Levi’s eldest brother, Ortis, filed a petition for custody on Nov. 30, 2001.  However, it was only on March 30, 2004 that the court granted Ortis the right for the care and custody of his long lost brother. He is yet to be released effectively at presstime, however.

Meanwhile, Levi has turned aloof from his family. Visiting Levi on April 16, human rights leader Marie Hilao-Enriquez observed that the boy has already identified himself to his military captors.  “Gusto ko na dito, marami na akong kalaro” (I want to stay here, I already have many friends), Enriquez recalls the boy as saying. 

Heated debate

In an interview with Bulatlat.com, Enriquez said Levi’s case was a subject of a heated debate between the negotiating panels of the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP) during their second round of talks held in Oslo, Norway from March 30 to April 2. Enriquez, who is also Karapatan secretary general, was there as an observer to the peace talks.  She was also nominated as an observer for the NDFP-Joint Monitoring Committee (JMC) which seeks to oversee the implementation of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHR-IHL).

She said the GRP panel refused to consider Levi as a political detainee.  But the NDFP insisted that Levi was indeed being detained by the 8th IDPA and should therefore be released in accordance with the Oslo Joint Statement signed by both panels after the first round of talks from Feb. 10 to 14.

The Feb. 14 Oslo Joint Statement stated that as a goodwill measure to the ongoing peace negotiations, the GRP should release political prisoners, including nursing mothers, minors and the elderly.  The GRP has released at least seven political detainees as of April 30.  Three more detainees are to be released on May 3.

Karapatan has been struggling for the release of at least 32 political prisoners from various detentions nationwide.

On the other hand, the transfer of custody of Levi from the military to his brother has been moved to a later date.  The DSWD through lawyer Sionne Aujero Gaspay filed on April 6 an Urgent Ex-Parte Motion for Extension of Time to transfer custody of Levi for the reason “that there is a need to prepare (the) minor emotionally and psychologically” before he is reunited with his family. 

Violations

Enriquez also argued that the illegal detention of Levi for almost four years is a clear violation of a Memorandum of Agreement (MOA) in the Handling and Treatment of Children in Armed Conflict signed between the Department of Health (DoH), the Department of Interior and Local Government (DILG), the Office of the Presidential Adviser on the Peace Process (OPAPP), the National Program for Unification and Development Council (NPUDC), the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). 

The MoA states that any child recovered by the AFP from a military operation should be turned over to the DSWD. 

The Karapatan secretary general further says that Levi’s case also violates CARHR-IHL which in Part III, Article 2 reiterates the “right to liberty, particularly against unwarranted and unjustified arrest and detention.” 

“Levi, being a minor, should have been returned to his family who is his rightful custodians,” Enriquez said.  She adds that the military should have given Levi his right to liberty “especially in this case where a kin is battling for his custody.”

Why uphold CARHR-IHL?

Meanwhile, Coni Ledesma, member of the Reciprocal Working Committee of the Respect for HR-IHL and the NDFP-JMC told Bulatlat.com, that CARHR-IHL seeks “to lessen the violations of human rights and international humanitarian law and to humanize the war.”

CARHR-IHL was signed by NDFP Chair Mariano Orosa in April 1998 and by then President Joseph Estrada in August 1998. Upon signing the agreement, the JMC should have been set up but, according to Ledesma, the GRP has often been apprehensive setting up the JMC.  It is only now that the GRP has extended support to start its operations, she continued.   

In practice, Ledesma explained that the operationalization of the JMC to monitor the implementation of the CARHR-IHL could prevent the case such as Levi’s from happening. 

CARHR-IHL also describes as violation “the desecration of the remains of those who have died in the course of the armed conflict or while under detention, and breach of duty to tender immediately such remains to their families or to give them decent burial.” 

In its own documentation, the human rights group Ecumenical Movement for Justice and Peace (EMJP) found that the AFP has been guilty of such violations. EMJP specifically cited the following cases:

1. On Aug. 1, 2001, Erwin Bacarra, was killed by soldiers belonging to the 2nd Scout Rangers Company headed by 1st Lt. Philip Paul Fortuno.  Multiple blisters and abrasions in different parts of his body were proof to witnesses’ accounts that the body of Bacarra was left under the heat of the sun for three hours while the soldiers played billiards. 

2. On Oct. 8, 2001, five fishermen from Pantabangan, Nueva Ecija were extra-judicially executed allegedly by soldiers from the Army’s 54th Infantry Battalion led by Capt. Rogelio Eligino.  A Fact Finding Mission found traces of torture in the victims’ remains.  Jose Martin, one of the victims, had a slash wound in the neck. Another, Gertrude Curamen’s eyes, had his eyes gouged out. 

Other significant provisions of the CARHR-IHL are the protection of the inherent rights of persons involved in the armed conflict such as those placed hors de combat by sickness, wounds or any other cause, those who have surrendered or laid down their arms, or persons deprived of their liberty for reasons related to the armed conflict.  It also maintains the protection of the third parties involved such the International Red Cross and other medical teams.  

“If the GRP’s armed forces should take the CARHR-IHL seriously, these barbaric acts should not continue,” Ledesma said. 

How shall the JMC work?

The JMC shall receive complaints of violations of human rights and humanitarian law from individuals, families, communities or organizations.  The GRP-JMC office will be put up in Manila while the NDFP-JMC office will be set up in Utrecht, the Netherlands where the NDFP also holds office. “Makakatrabaho kami ng mas maluwag kung duon kami naka-base,” said Ledesma. 

The JMC shall meet every three months unless an urgent issue urges the both committees to meet.  Venue may be in the country, the Netherlands or any place that would be agreed upon by both parties. 

Investigations of cases will be done independently by both the GRP and the NDFP.  Complaints against the GRP shall be investigated by the GRP and vice versa.  A joint investigation shall occur only when both parties agree that there should be so. 

Ledesma clarified however that the JMC does not the power to prosecute.  If an investigation yields positive results of violations of HR and IHL, it would be “up to each side to undertake measures” against the violators. 

The Joint Secretariat

It is the Joint Secretariat of the JMC that shall hold offices in Manila.  Both the GRP and NDFP have each nominated five members who shall compose the Joint Secretariat. 

“It is this team that is the workhorse of the JMC,” said Ledesma.  Members of the Joint Secretariat shall be the ones to receive complaints.

Ledesma clarified that the members of the NDFP-JMC Secretariat are not members of the NDFP but were nominated by the NDFP based on their integral work on human rights.  Members of the Joint Secretariat are given the Joint Agreement on Safety and Immunity Guarantees (JASIG). 

The complaints that shall be accepted are violations committed since the signing of the CARHR-IHL which was on Aug. 7, 1998. 

Positive note

Ledesma happily notes that it is the first time the GRP and NDFP secretariats will hold office together to receive complaints of human rights and international humanitarian law. 

“At first we were surprised that the GRP has finally agreed to put up the JMC but we are definitely happy that we are realizing this now,” said Ledesma. 

“We hope that the GRP and its armed forces will be sincere in respecting human rights and adheres to humanize the war that has been going on for the last three and a half decades.  This development also presents bigger challenges for the revolutionary movement in its continuous campaign to uphold human rights and international humanitarian law,” Ledesma said.

With the operationalization of the JMC to monitor the implementation of the CARHR-IHL, Ledesma hopes that no other child like Levi will be illegally detained and forced to be away from his family. Bulatlat.com

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