PATH

MANILA, Philippines -- Former senator Wigberto Tañada and 48 other leaders of non-government organizations have asked the United Nations to recall its highest official in the Philippines for alleged arbitrariness, unilateralism, abuse, and harassment.

In a petition, members of the civil society community said:
“Arbitrariness. Unilateralism. Abuse. Harassment. These are words we do not normally attribute to the UN.”

“Oftentimes we have seen the UN proactively responding to cases involving these. We are alarmed that now, a UN official is associated with the very things that are anathema to UN values,” they said of Nileema Noble, UN resident coordinator and UN development program representative in the Philippines.

“We call upon the UN to deal decisively with the living paradox within its ranks as embodied by its highest official in the country, Ms. Nileema Noble. It is imperative that the UN correct this intolerable situation. We expect far higher standards of ethical conduct and professionalism from its representatives. Otherwise, they must go.”

Noble, who has been at her post for more than a year, is being investigated by the UN for alleged abuse of authority over Filipino employees of the UN office here in Manila.

At least 13 Filipino staffers of the United Nations office here, including two who have left the office, have sought the ouster of the UN-Manila chief for her “autocratic and oppressive behavior,” according to their letter to Kemal Dervis, administrator of the United Nations Development Program in New York, a copy of which was obtained by INQIUIRER.net.

Mary Gemme Montebon, Jennifer Navarro, Amelia D. Supetran, Emmanuel E. Buendia, Morito G. Francisco, Imee F. Manal, Clarissa Arida, Roberto V. Carandang, Anna L. Senga, Frances M. Solinap (former UNDP staff), Francis Gertrud R. Mercado (former UNDP staff), Jay-Ann Arandia, and Elcid C. Pangilinan asked that Nileema be punished for “verbal and physical harassment,” “abuse of authority,” and “violation of the rights” of the staffers, particularly rights to effective remedy and due process.

When asked for comment, Noble’s office said she has been instructed by the UNDP headquarters in New York to refrain from talking about the case.

The petition was preceded by a short note saying: “We hope that you will agree that no international official, no matter if resource-bearing nor how well-intentioned and even progressive, has the right to treat Filipinos shabbily in their own country.”

The petitioners noted that Noble’s behavior to UN staff has been known to them. “We are aware that numerous staff under her, whether temporary or fixed term, have complained and filed cases detailing verbal and physical abuse and arbitrary termination of employment contracts. We are appalled that numerous incidents involving Ms. Noble establish a pattern of systematic abuse of authority and downright harassment,” they said.

The letter said Noble has also been arbitrary in her behavior of lack of consultation, mutual respect, and professionalism toward partner government and academic institutions by invalidating contracts.

“The UN has set historic precedents in human rights observance over the past decades. Ironically now, the human rights and dignity of UN staff in the Philippines are being trampled. We cannot stand idly by,” it said.

The other petitioners are Ana Maria “Princess” R. Nemenzo of the Freedom from Debt Coalition; Rosselynn “Jae” dela Cruz, Initiatives for Dialogue and Empowerment through Alternative Legal Services (IDEALS); Luzviminda “Vim” Santos, People’s Global Exchange (PGX); Mary Aileen D. Bacalso, Asian Federation Against Involuntary Disappearances (AFAD); Maria “Mars” Mendoza, Children's Initiatives for Learning and Development (CHILD) Inc.; Earl Parreno, Altertrade..."

(Note: The list has been updated since. There are 112 names as of 6 September 2007. Please see separate posting below, A Call to Action," for the complete list).

Byline: Matthew Russell Lee of Inner City Press at the UN: News Analysis

UNITED NATIONS, July 31 -- It was 193 days ago that UN Secretary-General Ban Ki-moon called for a comprehensive audit of the North Korea operations of the UN Development Program and certain other UN agencies, to be completed in 90 days.

It was 42 days ago that Deputy Secretary-General Asha-Rose Migiro wrote to the UN Board of Auditors, telling them that the Secretariat wants them to go to North Korea to actually audit UNDP's programs conducted there.

On Monday, Ban Ki-moon met with Kemal Dervis, the Administrator of UNDP. Inner City Press asked for a read-out of the meeting, and on Tuesday one arrived from the Deputy Spokesperson:

"the Secretary-General and UNDP Administrator Kemal Dervis met to discuss issues of mutual concern, including the appointment of UN Resident Coordinators. On UNDP operations in the DPRK, they both agreed that additional measures should be taken in an accountable manner, in consultation with member states and the UNDP Executive Board, to look into new allegations regarding UNDP."

Since it was already decided back in January that at least the UN Board of Auditors, if not outside party, would audit UNDP, and a second phase of the audit was already called for 42 days ago, the read-out appears to move backward. Tuesday Inner City Press sought clarification at the noon briefing:

Inner City Press: yesterday the Secretary-General met with Kemal Dervis, of UNDP and you gave me this readout that says they agreed on additional measures for looking into DPRK that should be taken with Member States and executive boards. I couldn't tell from this, what is the status of this second phase of audit that Deputy Secretary-General Migiro wrote a letter about a month ago? What are the next steps on that or does this replace that?

Deputy Spokesperson: This is the latest on this subject.

Question: So has the second part been done or not been done?

Deputy Spokesperson: This is the latest that we have based on the conversation the Secretary-General had with the UNDP Administrator, which, for the others in this room, did not focus just on UNDP and DPRK, but on a number of other issues of concern.

Inner City Press: You also said they conferred on the appointment of resident coordinators. Who makes the decision choosing who will be the resident coordinator in a country? Is that only UNDP’s decision? Did he confer with the Secretary-General?

Deputy Spokesperson: Yes, with the Secretary-General. That’s why they had the meeting together.

Well, among the resident coordinators which Ban Ki-moon and Kemal Dervis should have discussed, or should still discuss and act on, is Nileema Noble, regarding whom 13 named Filipino staff complained to Dervis.

Kemal Dervis talks global warming on July 31 (while UND Filipino staff burn)

On Monday Inner City Press asked UNDP's spokesman to respond to the Nileema Noble issues, but his response last on Monday was "this is to acknowledge receipt of your questions. We will try to answer them as we are able." Despite Inner City Press having provided a detailed article about the complaints against Ms. Noble and a request for at least some comment, no comment or response was received on Tuesday.
Manila-based Inquirer.net has reported:

In a letter to Kemal Dervis, administrator of the United Nations Development Program (UNDP) in New York, staffers Mary Gemme Montebon, Jennifer Navarro, Amelia D. Supetran, Emmanuel E. Buendia, Morito G. Francisco, Imee F. Manal, Clarissa Arida, Roberto V. Carandang, Anna L. Senga, Jay-Ann Arandia, and Elcid C. Pangilinan, and former staff workers Frances M. Solinap and Francis Gertrud R. Mercado, also asked that Nileema be punished for "verbal and physical harassment," "abuse of authority," and "violation of the rights" of the staffers, particularly to effective remedy and due process.

Despite his agency's failure to answer on the complaint filed with him, Dervis could be seen Tuesday chairing a climate change meeting. (Click here for a related Inner City Press story.) Among the staff's complaints is retaliation and the fear of retaliation. On that, the UN's Ethics Office has still not ruled on a UNDP complainant's filing of June 5, despite the 45 day deadline having expired on July 20. The Ethics Office's Robert Benson extended his time to rule. On July 27, Inner City Press sent Mr. Benson an email asking, among other things, if he

"could explain why the 45 day time period for ruling on the request for whistleblower protection filed with your Office on June 5 (or thereabouts -- the filer has give consent for you to speak) -- why was the time extended? And, separately, is OIOS' activity at UNDP related to seeing if the filer complied with the requirements of whistleblower status?"

As of yet, there was been no answer at all. Nor to Inner City Press' questions to UNDP on Monday, nor (yet) to the follow-up to Tuesday's noon briefing:

"question about the second phase of DPRK audit / Board of Auditors visit to DPRK (which were reportedly re-requested by DSG Migiro in a June 19 letter) -- the question is, since the Secretariat's request was made 42 days about, what's up? Will the Board of Auditors be visiting the DPRK? Have they made a request? And, what is up with the Ethics Office waiving the 45 day timeline in ruling on the whistleblower? These are Secretariat questions -- DSG's June 19 request, Secretariat's Ethics Office's 45 day deadline expired on July 20 -- time for an update?"

If the recent past is any guide, these should be answered on Wednesday. Watch this space.

Mr. Kemal Dervis

Administrator

United Nations Development Programme

UN Plaza, New York

cc: Mr. Ad Melkert, UNDP Associate Administrator

Mr. Hafiz Pasha, UNDP RBAP Director

Office of Human Resources

Office of the Ombudsperson

UNDP/UNFPA/UNOPS Staff Council

23 July 2007

Dear Mr. Dervis,

Subject: Mrs. Nileema Noble

It took this long for us to bring certain untenable things to your attention because we gave Mrs. Nileema Noble what she asked for a year ago when she assumed the post of the Resident Representative of UNDP: the benefit of the doubt. Although we already saw the forebodings of trouble, we shrugged off some of her troubling behaviour as mere eccentricities which we can live with and even overcome in time. But the longer we worked with her, the faster we came to the conclusion that her autocratic and oppressive behaviour will not change; that the longer she stays here, the faster the erosion of UNDP’s and even the UN’s credibility in the Philippines .

Furthermore, many of us can no longer function optimally because of the almost daily harassment and abusive treatment we receive from her. Such abusive behavior, which has resulted to a hostile working environment and demoralization of staff, should not be tolerated in any form by the United Nations and United Nations Development Programme, as stated in the Charter of the United Nations, the Staff Rules and the Standards of Conduct for the International Civil Service. As you know, Staff Rule 101.2 (d) indicates that “any form of discrimination or harassment, as well as physical or verbal abuse at the workplace or in connection with work, is prohibited. Harassment in any shape or form is an affront to human dignity and international civil servants must avoid it. They should not engage in any form of harassment and must be above any suspicion of it. Further, Article 15 of Standards of Conduct

for the International Civil Service states that, “Managers and supervisors are in positions of leadership and it is their responsibility to ensure a harmonious workplace based on mutual respect. They must act impartially, without intimidation and favouritism.”

Mrs. Noble has been, and continue to be culpable of verbal and physical harassment and abuse of authority and has violated the rights of staff members, especially the right to effective remedy and due process. Specifically, she has exhibited improper and abusive behavior, unthinkable from a high-standing UN official, as manifested in the following incidents:

Verbal and Physical Harassment. According to the UNDP Guidelines on Harassment and Abuse of Authority, harassment is understood to be any improper and unwelcome conduct that has or might reasonably be expected or be perceived to cause offence or humiliation to another. Harassment may be present in the form of words, gestures, or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, or cause personal humiliation or embarrassment to another or that causes an intimidating, hostile or offensive work environment. Harassment normally implies a series of incidents.

Ø Most recently, she insulted and embarrassed staff in front of high ranking government officials, publicly berating them with rude language for supposedly not undertaking a task which she committed to the government without even consulting and formally informing the staff concerned.

Ø Poked a staff member’s chest and forcefully slapped another’s back to emphasize a point because she is angry or frustrated.

Ø Rebuffed a staff who was so happy because Mrs. Noble already signed a contract (after several weeks of the document being with the latter). When the said staff slightly touched Mrs. Noble on the shoulder and quipped that it was finally over, Mrs. Noble physically shoved her hand away and responded in a loud voice, “What are you suggesting- that I’m pending documents in this office… “.

Ø Meetings where she often raises her voice and nit-picks on managers and staff members, embarrassing and denigrating them unnecessarily. Several incidents of one-on-one meetings with staff where she raised her voice caused further intimidation and fear among them.

Ø High-handed behavior with staff members, treating them with not a bit of respect. In one incident, a staff witnessed Mrs. Noble’s ordering another staff to fetch a pen under her table, which she can very well do on her own.

Ø Several incidents with staff where she would nakedly point out their supposed rudeness in front of colleagues for not immediately greeting her good morning or good afternoon while she does not even observe it herself. In fact, she would rudely interrupt meetings of staff with the Deputy Resident Representative and not even apologize for the rude intrusion. There was one incident where she was not satisfied with the workshop flow and accused the UN staff in-charge of the activity of sabotaging the Office, in front of everyone.

Ø Mrs. Noble questioned one staff for not immediately informing of her plans to go n a special leave without pay (SLWOP), and accused her of not being ransparent. When the staff attempted to explain that it was premature to advise he office of her plans at that time, she was told by Mrs. Noble that if this happened in another organization, she would have been kicked out immediately and would seriously damage her career. As a result of this incident with the staff, Mrs. Noble called her supervisor and berated her regarding the kind of relationship with her staff, saying that as the supervisor, she should know in advance all of their individual plans, including personal.

Ø Several incidents where staff were too afraid to speak or question her decisions even if such will clearly compromise the organization for fear of retaliation. Whenever staff muster enough courage to speak their minds on certain issues which clearly contravene her own, she would intimidate these staff until they give up. By her actuations, Mrs.Noble always presumes herself to be correct and no one should, therefore, question her actions. In one of the staff meeting, Mrs. Noble announced staff movements and claimed that she has informed the particular staff of his re-assignment to another unit, where he allegedly agreed on. The concerned staff responded that it was the first time that he has heard of the re-assignment.

Ø Often exhibiting unnecessary frustration, rage and intimidation if an outcome is not to her liking, accusing staff of perceived hidden motivation, imaginary errors and incomplete staff work. She often accuses staff of hiding things from her and not providing her enough information, no matter how many briefings, briefing papers and other information materials are provided her. She does not listen to staff explanation and makes oft-repeated accusations which are baseless and untrue.

Ø One incident where she almost tore a letter apart when she erased her signature in front of a staff, implying that the staff was trying to trick her into signing that document.

Ø She also has the habit of throwing papers back to the persons submitting them, if she is not satisfied with such papers.

Abuse of Authority. According to the UNDP Guidelines on Harassment and Abuse of Authority, abuse of authority implies the improper use of a position of influence, power, or authority by a staff member or non-staff personnel against another staff member or non-staff personnel or a group thereof. This is particularly serious when a staff member or non-staff personnel uses his or her influence, power or authority to negatively influence the career or employment conditions (including, but not limited to, appointment, assignment, contract renewal, performance evaluation or promotion) of another staff member or non-staff personnel. It can include a one-time incident or a series of incidents. Abuse of authority may also consist of conduct that creates a hostile or offensive work environment, which includes, but is limited to, the use of intimidation,

threats, blackmails or coercion.

Ø Recent arbitrary (and forcible) termination of two staff without due process. Further, the manner in which she handed out the decision and her ensuing instructions for its implementation, such as the terminated staff’s leaving the UN premises immediately, packing their belongings and turn-over of keys and IDs within the hour) showed how little her respect is for common decency and dignity of a human person, treating them like common criminals. Staff members who witnessed these incidents were left in shock and fear. If these could happen to high-ranking national staff in the UNDP/UN, then it can very well happen to them, or even much worse. These incidents of arbitrary termination happened in a span of only two weeks.

Ø Adding insult to injury, one of them was told not to contest the decision of his termination. If he did, then Mrs. Noble said that she will have to state a reason for the termination that will tarnish his record which, in effect, would deprive him of possible UN employment opportunities in the future..

Ø Several verbal threats to staff that their contracts will not be renewed if targets are not achieved or performance is not acceptable to her. She even made a threat to withhold a staff member’s salary if performance is not up to her standards.

Ø In staff meetings, she often emphasized and justified her micro-management approach to her lack of trust in the unit mangers’ capacity and ability to perform their assigned tasks. This led to several incidents where she arbitrarily decided on operational and programmatic issues, disregarding programme recommendations such as: which consultant contract gets signed, who gets to go on leave, etc.

Ø Her arbitrary decisions on programme management modalities and strategies led to delay in the implementation of projects, delivery of resources and much confusion on how programmes are to be managed and implemented by partners. One classic example is her arbitrary removal of Project Management Offices and the change of an Implementing Partner, without due process, rational basis and against the objections of her managers and staff.

Ø Numerous delayed appointments, abrupt termination of contracts and refusal to sign contracts and documents, which affected much of the staff’s workload (which are already burdensome) and performance and delivery of programs and projects. At present, the RCA process (personnel evaluation) of some staff are being delayed for months when contract expiration is fast approaching. In a previous instance, this resulted in arbitrary termination of staff while his RCA rebuttal process was still in progress.

Ø Unreasonable delay or non-approval of official travel and staff leaves (well within the delegated authority of managers) which caused non-participation in important meetings and conferences locally/abroad, loss of opportunities for learning and staff development, and unfulfilled monitoring obligations of UNDP to its donors. There was an incident where one staff resigned due to the delayed approval of her one-month leave, which she filed two months earlier. She has worked for UNDP for eight years and never took any long-term leave except for that one instance and was let go just like that.

Ø Mrs. Noble’s impossible, whimsical requests and demands to be included in certain high-level meetings and conferences have led to incidents where staff had to push themselves to the limit to satisfy her. There was an incident where a staff had to stay late at night for two days just to enable her to get into an event she, for some reason, craved to be in. When everything has been arranged, she decided last minute not to go anymore, without any explanation or apologies.

Ø Abolition of a very important Unit: the Programme Monitoring Unit and its staff (whom she unreasonably judged to be incompetent and ineffective) which led to the distribution of that Unit’s workload to already overloaded staff in the office. More than 17 staff left during her term due to non-renewal of contracts, forced resignation and staff demoralization. Only a handful of staff are left and continue to leave due to the hostile working environment. Increased incidence of stress-related illnesses is prevalent among staff nowadays.

Ø Former staff and SSAs who left or resigned have been banned from visiting the CO or being hired again. In one incident, under instructions from Mrs. Noble, DRR Naka informed the former supervisor of one staff that resigned not to visit or show herself in the CO since this would upset Mrs. Noble. Further, one SSA’s contract has been terminated within 10 days without reason or explanation.

Ø A very grave infraction committed by Mrs. Noble was her incursion into staff privacy in communications. She had one of the staff member’s office cellphone seized, its contents downloaded, on mere unfounded accusation of a PMO staff that the staff member was spreading malicious messages about her. Mrs. Noble made no amends nor even offered an apology even when the exercise did not yield information incriminating the staff whose cellphone was seized.

We are also aware of Mrs. Noble’s retort that these allegations are mere complaints from “incompetent and non-performing staff”, as she would call those who would go against her whims and caprices. This is totally untrue as shown in our previous performance appraisals for the last 5 years. Most of us have worked here for several years and this is the only time that we experienced such oppressiveness, callousness and total disregard of our rights and dignity especially coming from a high-ranking UN official.

These are but some of the incidents, showing without a doubt, the abusive character of Mrs. Noble. We have been forced to seek your help because, unfortunately, we cannot see the light at the end of the tunnel and are afraid that this oppressive situation will continue.

In order to prevent further verbal and physical harassment and abuse of authority, resulting in violations of UN rules and our rights as international civil servants, and in order to prevent further prejudice to the work of UNDP and the UN in relation to its partners, we ask that Mrs. Nileema Noble be immediately relieved as Resident Representative of UNDP and UN Resident Coordinator in the Philippines . We also ask that disciplinary action be immediately commenced against Mrs. Noble for violation of UN regulations and our human rights as UN staff.

We would like to serve notice that we reserve our right to seek recourse through other avenues for legitimate grievances.

We hope that this plea will not be in vain.

Sincerely,

Concerned UNDP Staff and other UN Staff

Mary Gemme Montebon

Jennifer Navarro

Amelia D. Supetran

Emmanuel E. Buendia

Francisco G. Morito

Imee F. Manal

Clarissa Arida

Roberto V. Carandang

Anna L. Senga

Frances M. Solinap (former UNDP Staff)

Francis Gertrud R. Mercado (former UNDP Staff)

Jay-Ann Arandia

Elcid C. Pangilinan

Justice Reynato S. Puno

SOLIMAN M. SANTOS, JR., Esq.

Attorney’s Roll No. 32334

Lawyer, Legislative Consultant, Legal Scholar

18 Mariposa St., Cubao, Quezon City

Tel. 7252153, Fax 4138821

98 Albatross St., RJ Vil., Canaman, Cam. Sur (currently here)

Tel. (054) 4744659, Cel. (0920) 29036xx

Email: gavroche@info.com.ph

Naga City

07-07-07

Hon. Reynato S. Puno

Chief Justice

Supreme Court

Dear Mr. Chief Justice,

Re: National Consultative Summit on Extrajudicial Killings

and Enforced Disappearances – Searching for Solutions

Greetings of Peace and Justice!

I am writing you on the above-indicated subject in various capacities but, first of all, as a member of the bar and thus officer of the court. As a human rights lawyer, I join others in commending you on this initiative as well as your earlier administrative order designating RTC branches nationwide to handle such cases. Allow me to proceed to some points for consideration in relation to your planned Summit, for some of which points I mention my relevant capacity.

(1) I wish to share with you the enclosed “Joint SSN-PATH Reaction to Prof. Philip Alston’s Philippine Mission Press Statement of 21 February 2007” to which I was a co-signatory as Regional Focal Point for Asia of the South-South Network (SSN) for Non-State Armed Group Engagement. The main point of this reaction is that it may help to place the current extrajudicial executions (EJE) issue in perspective by noting that it swirls around the facts (and propaganda) involving at least three types of EJE with different sets of victims of human rights violations:

a) state/military-inspired or anti-Left EJE, esp. killings of legal Left activists and media persons from 2000 to 2006 -- which is what the Task Force Usig, the Melo Commission, the Alston Mission, some other international missions, and local human rights groups like Karapatan have focused on

b) ongoing NPA liquidations or summary executions of civilians outside combat e.g. civilian informers or spies, criminal “bad elements” like rapists and cattle rustlers, policemen who do not have combat duties but are killed for their weapons, “despotic” landlords and “abusive” local officials/politicians -- regarding which the AFP claims to have listed 1,227 liquidations, also for 2000-2006

c) CPP-NPA internal purges of many of its own members suspected of being military “deep penetration agents” in the 1980s -- which has been PATH's advocacy issue as victims, survivors and relatives

Any inquiry into the current EJE issue in the Philippines should be informed by this local context of an internal armed conflict which involves two sides. Political violence in the Philippines is both state and non-state.
There must therefore be no mixing up of or confusion about the three types of EJE as outlined above, so that correspondingly appropriate measures for justice can be laid out whereby the victims of all types, not just one type, of EJE are given their due. In a state-oriented legal and human rights system, there mechanisms and processes for responsibility and accountability are much more developed for states and state actors than they are for non-state actors like rebel groups. This asymmetry has to be reckoned with in the search for solutions and justice.

(2) In a context of armed conflict, as we mentioned, international humanitarian law (IHL) is of particular relevance as a term of reference, not just constitutional and human rights. For while human rights have been traditionally invoked against the state and state actors (though there is a recent trend to invoke it also against non-state actors), IHL can be invoked against both state and non-state actors, more precisely government and rebel forces which are parties to an armed conflict. Thus, human rights instruments on EJE largely deal with the state and state actors, while IHL provisions on EJE cover both/all parties to an armed conflict.

Regarding IHL, it bears noting that in the case of Kuroda vs. Jalandoni [83 Phil. 171 (1949)], it was ruled that “the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law… Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them.” (italics supplied) In fact, the same decision referred to “generally accepted principles and policies of international law which are part of our Constitution.” (italics supplied)

With regard in particular to enforced disappearances, we should therefore factor in whatever relevant guidance not only from the new human rights instrument which is the International (UN) Convention for the Protection of All Persons from Enforced Disappearances but also from the IHL regime on the missing or unaccounted for as a result of armed conflict or internal violence. Aside from the relevant codal provisions of key IHL treaties like the 1949 Geneva Conventions and their 1977 Additional Protocols I & II (30^th anniversary this year!), there is much developed guide material on this particular area of IHL based on many years of experience in handling the matter by the International Committee of the Red Cross (ICRC). The most developed material is known as the ICRC Report: The Missing and Their Families. The Court and/or the Summit can avail of this from the ICRC-Manila Delegation Office.

(3) While we are speaking of international legal references, it might also be relevant to any effort of the Court to enhance the rules of court or promulgate new ones, to refer to the Rules of Procedure and Evidence of the International Criminal Court, which is considered the highest development of international criminal procedure. Of course, this procedural instrument is tied to or is in the context of a substantive international treaty, the Rome Statute of the International Criminal Court, not yet ratified by the Philippines [see Senator Aquilino Pimentel, Jr., et al. vs. Office of the Executive Secretary, et al., G.R. No. 158088, 6 July 2005]. But this should not necessarily deter your Court from adopting or adapting good rules from an international model, such as in the procedural protection of victims and witnesses.

(4) In connection with the coming Summit, you were reported as speaking of the possibility of altering the scope of command responsibility. As you know, there was extensive discussion of this concept, including its historical legal antecedents, in the Melo Commission Report (at pp. 63-71). Though the latest precise definition of command responsibility is that found in the Rome Statute’s Article 28, the general concept (not necessarily the Rome Statute definition) of command responsibility can already be considered as part of binding customary international law. Still, it is in the realm of substantive law (principles of criminal responsibility) rather than procedural rules.

For the information of the Court and of the Summit, there have been bills filed in Congress which define command responsibility in the accordance with the latest international criminal legal definition per the Rome Statute. It is found in what the proponent Philippine National Red Cross (PNRC) calls the “IHL Bill,” or more precisely “An Act Defining and Penalizing Crimes Against International Humanitarian Law and Other Serious International Crimes, Operationalizing Universal Jurisdiction, Designating Special Courts, and for Related Purposes.” The leading example of this in the defunct 13^th Congress was the enclosed Senate Bill No. 2511 (see Sec. 10) introduced by Senator Richard J. Gordon who happens to also be the PNRC Chair. I in turn happen to be the PNRC legislative consultant for this IHL Bill. This will be re-filed in both legislative chambers of the coming 14^th Congress.

(5) It has also been reported that the coming Summit might tackle the problem of false charges/fabricated cases which are politically motivated by the government against Leftist personalities and activists. I wish to bring up another matter of false charges/fabricated cases especially for murder – those filed, prosecuted, tried and decided against innocent fall guys despite rebel group (e.g. NPA) claims of responsibility for the extrajudicial killings in question. There have already been a number of cases of this sort over the years. I can speak with personal knowledge of one such case which has reached the Court wherein I was a defense counsel. I am referring to the Abadilla murder case of 11 years which reached the Supreme Court in 2000 on automatic review as G.R. No. 141660-64 (People vs. Fortuna, et al. but transferred to the Court of Appeals in 2005) and on certiorari petition as G.R. No. 142065 (with a Decision on 7 September 2001, see Lumanog vs. Salazar, 364 SCRA 719).

In that Abadilla murder case, both the RTC first and then the Supreme Court twice later rejected motions/petitions of the “Abadilla 5” death convicts to present new/additional evidence showing Alex Boncayao Brigade (ABB of the NPA then) responsibility for the extrajudicial killing of a former military officer turned civilian politician and businessman Rolando Abadilla, including his taken Omega wrist watch which an ABB personality had turned over to “Running Priest” Fr. Robert Reyes to back up the ABB’s claim in several written and verbal media statements that it was responsible for the killing, so as to exculpate the innocent death convicts. There must be a way to receive, test/cross-check and appreciate various forms of evidence that underground rebel sources who cannot come out might proffer in relation to extrajudicial killings and enforced disappearances which they have had a hand in or have intimate knowledge of, if only to spare the innocent from false charges/fabricated cases.

This is relevant to our early point in paragraph (1) above about the problem of existing mechanisms and processes, including judicial ones, when it comes to non-state actors like rebel groups which cannot just surface from their underground status – lest they themselves become victims of extrajudicial killings and enforced disappearances. There is an element of vicious cycle here – killing and counter-killing - that must be broken.

Again, you and the Court must be commended for doing your/its part in breaking that cycle. The coming Summit, together with the earlier catalyzing Alston Mission, have emerged as key parts of a counter-cycle of searching for and finding solutions. Thank you for your efforts, and for your attention to this letter.

Sincerely yours,

SOLIMAN M. SANTOS, JR.