Marwan could be most successful terrorist
Ambassador Hermenegildo C. Cruz (Ret.) (The Philippine Star) - February 17, 2015 - 12:00am

Terrorists have the grandiose dream of sowing fear, toppling governments and ultimately destroying the very fabric that binds a nation together. In death, Zulkifli bin Hir aka Marwan, may be able to accomplish these goals, thanks to the various sectors in our country calling for the resignation of President Benigno Aquino.

The present Mamapasano disaster reveals the immaturity of our democracy. There are two reasons why we are enmeshed in the current controversy :

1) The misinterpretation of the Constitutional provision naming the President as the Commander-in-Chief of the armed forces, and

2) The wrong application of the doctrine of command responsibility. 

 The provision in Article VII, Section 18 of the Constitution stating that “The President shall be the Commander-in-Chief of all the armed forces of the Philippines x x x, “ is wrongly interpreted to include all military operations. The correct interpretation of this phrase is that a President should be held accountable for blunders in military matters only at the policy level. He cannot be held accountable for the blunders of the military at the strategic, tactical or operational level.

 President Lyndon B. Johnson’s involvement of the US in the Vietnam War is both a policy and strategic blunder. The outcome is Vietnam was the first time in history that the US lost a war.

 The way we are applying the above article, will lead to absurd results. If democratic leaders are held accountable for military blunders below the policy level, then no democratic leader will approve a special operation. He will lose his job if the special operations fail. Or put it another way, there will be a constant change of leaders.

To cite an example, the period 1941-1942 is a string of allied debacles at the strategic and tactical levels. Meaning, that Franklin Delano Roosevelt and Winston Churchill would have been booted out of office and replaced by new leaders each time a special operations fail. The long established doctrine is that in military operations, the relevant decisions are left to the discretion of the commanding officer in charge of the operations. They are the ones accountable for the success or failure of a mission. The head of state or commander in chief is too far removed from the scene to be held responsible for the outcome of the operations.

 The disaster at Mamapasano is a blunder at the operational level. It is inappropriate to ask for the resignation of Aquino under the circumstances. The military officers who designed and led the SAF operation, are the ones accountable. In April 1982, President Jimmy Carter had ordered the rescue of the Americans diplomats held hostage in Iran. The operation ended in disaster, but nobody asked for the resignation of Carter.

 The second line used by the critics of the operation is the doctrine of “ command responsibility.” This is a doctrine with many facets and is not as simple as it seems. The proceedings in the International Criminal Court are actually based on the Yamashita doctrine of command responsibility. Crime is committed by troops on the ground supposedly on their own volition, without orders from above. The question is how high up in the hierarchy will responsibility for the crime accrue? This was the major point of contention in the war crimes trial of General Tomuyuki Yamashita. He was the commanding officer of the Japanese Imperial Army in the Philippines in the last years of WW II. The US Military Court in Manila held him accountable for the atrocities committed by the Imperial Army.

 Those who criticized the verdict pointed out that during the Battle of Manila, Yamashita was already isolated from other portions of his command. In addition, the troops who committed the atrocities were under the Imperial Navy. Yamashita had actually ordered all Japanese forces to evacuate Manila. This order was ignored by the Imperial Navy. The US Supreme Court which reviewed the decision of the military court, ruled that Yamashita has the “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” On the other hand, those who uphold the verdict point out that the Japanese atrocities in the Philippines happened over a prolonged period of time and was directed not only against individuals but whole communities. Given the scale of the atrocities, with whole towns being destroyed by the Imperial Army, it would be difficult to conceal such information. 

 The key element, therefore, in the application of the command responsibility doctrine under the current ICC proceedings is that war crimes are committed by troops without any explicit orders coming from above. Those in command positions however, can be held accountable just the same under the “ x x x knew, or should have known x x x “ standard especially when the atrocities are not isolated cases but are widespread.

 From this perspective Aquino cannot be held accountable of command responsibility. The SAF did not commit any crime, they were in a lawful mission to arrest an international terrorist. In fact it appears to be a neat surgical operation with no collateral damage ( civilian casualties) until the MILF/BIFF forces intervened.

  The Nuremberg doctrine which turned upside down the issue of command responsibility, does not also apply in the instant case. Aquino and the top PNP officials did not issue any order for the SAF troopers to commit any criminal acts.

 The third facet of the doctrine of command responsibility is commonly used and applied in any organization. In a large bureaucracy like the government, the person exercising direct supervision over the action officer, cannot escape command responsibility if any operation goes haywire. Direct supervision requires constant check up of the progress of an operation in all its phases. Thus, a Brigadier General who is the direct supervisor of a colonel in a military operation, cannot escape responsibility if the operation in question goes haywire. In the Mamapasano disaster, it appears that Gen. Alan Purisima was one of the authors of the operation to whom Gen. Getulio Lapenas was reporting. Purisima had resigned, perhaps because he saw the handwriting on the wall.

 The problem, however, is the effort to hold Aquino responsible when there are so many layers of supervision between him and Lapenas. Under the circumstances, Aquino could be held accountable under the command responsibility doctrine, only if it could be shown that he micro-managed the operations and made key decisions which resulted in its failure.

 The problem is our fellow country are too impatient for results when our Constitutional processes have not yet even been exhausted. The accountability of Aquino will arise if he allows the case to be white washed because of the Public Accountability Provision in Our Constitution which under Article XI, Section 1 states that “ x x x Public officers must at all times be accountable to the people x x x “ In addition, PD 807, The Civil Service Decree of 1975, provides in Section 37 (b) that the heads of departments have the power “ x x x to decide matters involving disciplinary matters against officers and employees under their jurisdiction.“ The laws are thus in place to deal with the issue at hand and the administrative procedures must be exhausted before pulling the trigger.

  Our countrymen asking for the resignation of Aquino on the other hand, are short circuiting our democratic processes. They do not want the issue to be settled at the polls, neither do they want to exhaust the administrative remedies embodied in our laws.

Thus, some of our countrymen are wittingly or unwittingly, doing to our country what Marwan and other terrorists are trying to do, that is to dismantle our democratic system of government and tear our society apart. So Marwan may yet be able to accomplish in death what he had failed to do in life, dismantle a country, something which no terrorist have accomplished thus far.


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