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Privilege speech on the killing of Leonardo Co, et al. Rep. Antonio L.

Tinio ACT Teachers Party-List January 26, 2011

I stand before you to express my grave concerns regarding the report of the Department of Justice panel investigating the deaths of noted botanist Leonardo Co and his two companions in an incident involving the Philippine Army in Kananga, Leyte last November 2010. ACT Teachers Party-List denounces this report as nothing less than a shameful official whitewash of the possible culpability of the Philippine Army in the killing of Leonardo Co and his companions. First, let me recap the relevant facts. On November 15, 2010, Leonardo Co, Sofronio Cortez and Julio Borromeo along with two others were conducting field-work research for the Energy Development Corporation, gathering wild tree seedlings in the forests of Kananga within the property of EDC. They were fired upon by armed individuals, resulting in the death of the three. Their two companions survived. Elements of the 19th Infantry Battalion of the 8th Infantry Division of the Philippine Army, who were involved in the shooting, claimed that the three were killed in the crossfire in an encounter with New People s Army guerrillas. On November 22, 2010, Sec. Leila De Lima of the Department of Justice constituted a Fact-Finding Investigation Panel to investigate the incident. The panel was composed of Assistant State Prosecutor Diosdado B. Solidum, Jr., Assistant State Prosecutor Bryan Jacinto S. Cacha and Atty. Romulo Z. Asis. The panel duly conducted its investigation, which included the gathering of documentary and other evidence as well as a site visit on December 13, 2010. The panel submitted its report to the DOJ Secretary and made its findings public on January 19, 2011. The DOJ panel found that 1) a legitimate military operation took place in the area of the incident; 2) that in the course of the operation a firefight between the military and NPA guerrillas occurred; 3) that this led to the death of Co and his companions; and 4) that the shots that killed the three were not fired by the military but by the NPA. Based on these conclusions of fact, the panel recommended that the EDC be held liable for reckless imprudence resulting in the deaths of Co and company.

Consequently, the DOJ report also absolves the military of any liability for the killings. There are three sets of issues and concerns arising from the Kananga incident and the DOJ report that I would like to address. These are 1) support for the victims families and the survivors in their search for justice (it also happens that one of the victims, Leonardo Co, was an internationally-renowned academic and therefore belonged to the sector I represent); 2) how can human rights of civilians and non-combatants be upheld and protected particularly during legitimate military operations in the context of an armed internal conflict or civil war; and 3) are civilian agencies sufficiently empowered to effectively investigate the military for possible violations of human rights committed during legitimate military operations? 1. Now, what are the victims families and all those who eagerly await and expect justice for this case, to make of this DOJ report and its recommendations? A review of the report shows that it is riddled throughout with glaring contradictions, logical fallacies, selective appreciation of eyewitness testimony and physical evidence, which, for purposes of brevity I will not enumerate one by one. Its conclusions are based on assertions unsubstantiated by fact. It is all too clear that the report bends backwards to accommodate the military s self-serving account of the incident. Let me cite two examples to illustrate the point. By its own admission, the panel is predisposed towards exonerating the military of culpability. In the section on Determination of Liability, the panel says: On the other hand, the military or state forces could not be charged with criminal acts because their activities in the area were due to legitimate military action. This is an outrageous statement coming from a team of state prosecutors whose responsibility it is to determine whether or not the military unit in question acted in accordance with law. It appears that this DOJ panel believes that, for as long a unit or an individual soldier s actions fall within the scope of legitimate military action, then they are beyond criminal prosecution, i.e., they are above the law. This betrays a dangerous mindset that turns a blind eye to abuses committed by the military in the field, and contributes greatly to the culture of impunity that allows human rights violations to thrive. Is the AFP immune from criminal prosecution for actions committed by its forces in the field during legitimate military operations? It is not. Not only in international law, but also in Philippine law, there is such a thing as a war crime. Let me cite Republic Act 9851, the Philippine Act on Crimes Against

International Humanitarian Law, Genocide, and Other Crimes Against Humanity," which governs the conduct of the military during military operations. I am not at this point suggesting that what happened in Kananga was a war crime. I am saying that that was precisely what the DOJ team was supposed to determine. They could have used this law as a reference point for their investigation, but, obviously did not. By its own admission, predisposed to clear the military of any criminal liability once it was established that the soldiers involved were taking part in a legitimate military operation. Another example is the way in which the DOJ panel discounts or disregards testimonial and physical evidence in order to accommodate the military s version of events. Contrary to the military s version that they engaged armed NPA guerrilas in a firefight and the civilians were caught in the crossfire, the sworn eyewitness testimony of the two survivors, Ronino Gibe and Policarpio Balute, clearly indicates that their 5-person team was the target of sustained fire lasting for 15 to 20 minutes from the outset, that the fire was concentrated on their position causing them to be pinned down to the ground, that the fire came from the direction of the high ground occupied by the military, and that there were no other armed groups firing in the vicinity. The testimonies of the two survivors strongly suggest that what took place was a case of mistaken identity, with the army unit firing at Co s research team in the belief that they were an NPA unit, with fatal consequences. Unfortunately, the DOJ report devotes not a single sentence to this line of inquiry. The survivors accounts are supported by physical evidence, cited by the panel itself in their report, namely the findings of the Ballistics Trajectory examination on the bullet marks found on the tree trunks in the area conducted by the NBIDID, which states that more than thirty (30) bullet trajectories came from the higher grounds down to the lower grounds on the area of the incident. In spite of this, the DOJ panel stubbornly makes a contrary conclusion. From that particular position, the panel concluded that it was not possible for the state forces to hit the research team. Setting aside all discussions, one should be there on top of the cliff to fully understand. We believe that the families of the victims are fully justified in rejecting the conclusions and recommendations of the DOJ panel and in filing murder charges against the soldiers involved in the shooting.

For our part, we view the DOJ report as indicative of the sorely inadequate capacity of our civilian agencies to investigate possible human rights violations by the military. 2. Now to my second concern: what are the rules, regulations, and protocols, if any, are in place governing the conduct of legitimate military operations? are these adequate to ensure that the human rights of civilians and non-combatants are protected? did the elements of the 19th IB of the 8th ID question, act in accordance with international humanitarian law, which, with the passage of RA 9851, is now part of Philippine law? Were war crimes committed in the Kananga incident? Questions along this line would include the following: Given that the military was aware that it was going to conduct military operations within the property of a privately-owned, civilian facility, where the possibility of encountering civilian employees and thereby endangering their lives exists, what efforts were made by the 18th IB to ensure that civilian casualties could be avoided? It appears that the military has a free hand in conducting its operations and was under no obligation to inform the EDC management that they would be conducting offensive military operations within their property. Clearly, such an arrangement is inadequate, and led to the deaths of Co and his companions. Another concern centers on the death of the 24-year old farmer Julius Borromeo, who served as one of the assistants of Co. Did the soldiers exert every effort to save his life? There are strong indications that they did not. According to Gibe s sworn testimony, Borromeo sustained a gunshot wound to the chest during the sustained volley of fire, but was still alive and able to speak when the soldiers closed in on them. Despite the lack of an imminent threat to the soldiers, and despite the continued pleading of Gibe, two hours elapsed before the soldiers gave Borromeo first aid and evacuated him from the site together. Borromeo was dead by the time he was brought down to the waiting vehicles of the EDC.

3. Finally, my last concern. What are the rules, protocols, and procedures in place governing civilian investigation of military conduct, especially during military operations? Are the legal, administrative, and other conditions in place to enable civilian agencies to effectively investigate the military for possible war crimes in the context of the internal armed conflicts in our country?

A review of the experience of the various investigations made by civilian agencies It is clear into the Kananga incident reveals some of the serious limitations and constraints that they may face. These include access to the crime scene. Twenty hours elapsed before the PNP Regional SOCO could gain access to the crime scene, ostensibly because military clearing operations were still ongoing. Furthermore, the military was present during the SOCO crime scene investigation in order to provide assistance. How can an independent investigation be possible when access to the crime scene is controlled by one of the parties involved in the crime being investigated? Similar questions can be raised regarding access of civilian authorities to the firearms of the soldiers involved in the shooting. The identification, selection, and turning over of firearms for ballistic examination was totally in the hands of the military itself, thereby casting doubt on the validity of the NBI findings that none of the bullet fragments recovered from the victims matched the firearms of the soldiers involved in the incident.

In view of all of the above, I call on Congress, through the Committee on Human Rights, to immediately conduct an investigation in aid of legislation into the killing of Leonardo Co, Sofronio Cortez, and Julius Borromeo. Justice for Leonardo Co and his companions! Uphold human rights! #

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