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CON1INULD PARAMILI1ARISM AND I1S

IMPLICA1IONS ON 1HL GRP'S COMPLIANCL


WI1H I1S CARHRIHL MANDA1L:
itvativg C.C|. iv tbe egat raveror/ of
vvav Rigbt. ava vvavitariav ar





RYAN HAR1ZLLL C. BALISACAN






















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CON1INULD PARAMILI1ARISM AND I1S IMPLICA1IONS ON 1HL
GRP'S COMPLIANCL WI1H I1S CARHRIHL MANDA1L:
SI1UA1ING CAIGUS IN 1HL LLGAL IRAMLWORK OI
HUMAN RIGH1S AND IN1LRNA1IONAL HUMANI1ARIAN LAW


R,av artett C. ati.acav






Prefatory

In a study made by Kit Collier, a security and strategic studies scholar, at the close o
the 20
th
century, it has been determined that o the existing 168 nations in the world at
present, 12 hae organized and maintained paramilitary orces and other allied units. lrom
a handul o paramilitaries engaged in primarily auxiliary and military support eorts, the
world has steadily seen a marked and progressie increase in these paramilitaries` numbers
and a corresponding increase in their duties and responsibilities within the political and
administratie schema o the armed orces establishment. 1his is so much so that the
aggregate military manpower o some o the largest military powers in the world - like
China, India, and Russia - is already composed o up to one-third to one-hal paramilitary
orces. 1he ten countries reported to hae the largest paramilitary orce - China, India,
Pakistan, Italy, Lgypt, 1urkey, Indonesia, North Korea and Algeria - hae since 1966
doubled or tripled the relatie importance o their paramilitaries is-a-is their country`s total
military strength. As Sunil Dasgupta, the leading expert in paramilitary studies, obseres, the
total ratio o goernment orces per total population in Asian countries has risen steadily in
recent years, rom 1hailand`s 29 percent to Sri Lanka`s 81 percent. Indeed, China, with a
paramilitary orce 1.1 million strong, is considered today as the paramilitary superpower` o
the world.

B.A. Political Science, cvv tavae, Uniersity o the Philippines Diliman ,2005,, Juris Doctor, Uniersity o the
Philippines College o Law ,2009,.
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In examining the phenomenon o paramilitarism across the world, it is important to
take into consideration not only the conditions that cause it to exist, but more importantly
the conditions and causes that make it thrie and maintain its eer-expanding niche in almost
eery nation`s national security ramework. \hy are paramilitary orces created, in the irst
place \hy do they expand both in sheer number and in the substantiality o their bearing in
the conduct o a state`s security and peace-keeping obligation Is there a human rights
dimension to the establishment and continued maintenance o paramilitary orces low do
we situate paramilitary orces in the Philippine legal context low does the existence o
Philippine paramilitary orces, called the Citizen Armed lorce Geographical Units bear on
the oerriding commitment o the Philippine state to respect, protect, and promote human
rights and international humanitarian law, both as a matter o general state obligation and as
a particular mandate that it has assumed under the Comprehensie Agreement on Resspect
or luman Rights and International lumanitarian Law ,CARlRIlL`, with the National
Democratic lront

1his paper will explore the dierent dimensions o paramilitarism, internationally as a
contextual backdrop and Philippines-speciic as a chie line o inquiry, and consider how it
aects the ability and o the Goernment o the Republic o the Philippines ,GRP`, to
comply with its mandate under CARlRIlL. Particularly, this paper will examine how the
continued ailure to disband the CAlGU and reamp existing state policies on
paramilitarism can be measured against the uniersally-accepted standards o human rights
and international humanitarian law whose obligatory prescriptions are deemed binding upon
the Philippine state both under international law and by explicit subscription ia the
CARlRIlL. Ultimately, this paper will be orwarding proposals and recommendations as to
how the issue o paramilitarism can be brought to the ore o the CARlRIlL
implementation dialogues and how the goernment and the community can be most
eectiely engaged in the campaign to adance the precepts o human rights and
international humanitarian law by minimizing incidents o abuse perpetrated by the deense
establishment, both regular and paramilitary.
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1he political theory of paramilitarism

1he term paramilitary` is an abbreiation o the phrase parallel military` which
describes its nature as an entity - it is not part o the ormal or regular military establishment
but exists alongside it. 1he relationship between the two, howeer, is neer absolutely
disjunctie. All oer the world, paramilitaries are regarded as an extension o the deense
machinery and neer an independent body. Indeed, as the State has the exclusie prerogatie
to wield monopolistic power in the legitimate use o orce, the existence o an entity with the
capacity to employ coercie means outside o the ambit o goernmental regulation and
control cannot be countenanced. Paramilitaries are thereore ery much a part o the deense
establishment, and always subject to its superision and control, although the leels to which
these are exercised, and to what extent, ary across states.

Dasgupta proides a taxonomy o the dierent species o paramilitary orces, and the
distinguishing criterion used is the extent to which the state goernment allows them to
operate with relatie independence and latitude. Dasgupta denominated the distinguishing
criterion as `degree o delegation`, which reers directly to the degree o delegation o
power by the State, a relection o the proposition that paramilitaries can operate
autonomously only insoar as the State pleases to allow them. Dasgupta lists ie
classiications o paramilitaries in his typology, and describes each one in this wise:

1. eciat oeratiov. force. exist under military or police commands, but usually in
separate groups, which gies them greater operational independence.

2. ecvrit, ivtettigevce agevcie. are separated rom the regular military, but combine
physical capacity with intelligence gathering powers, potentially making them
the most susceptible instrument o authoritarian abuses.

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3. Cov.tabvtarie. are ormally outside the military command and usually under
ministries o security or interior. 1hey could be o general or speciic use, such
as in counterinsurgency, border security, or riot control.

4. Mititar, covavie. are priate, but depend on state contracts and, contrary to
most expectations, adhere well to their mandate. Priatized military companies
do not claim public authority that other paramilitaries might as public
institutions.

5. Lastly, citiev vititia. are organized by the states or elements within states, but
operate autonomously, they dier rom authoritarian militias, which are not so
much armed orces as rather instruments o social control o their members.
\ith citizen militias, states empower reliable groups, ensure long-term
commitment to policy goals, and distance themseles rom the resulting
iolence. 1he loose agency relationship carries the risks o loss o control.
Militias hae been known to become renegades to assert interests dierent
rom those o their states. Consequently, militias represent the greatest danger
to the quick erosion o the state`s monopoly oer the use o orce.


1he origin and adent o paramilitary orces can be traced to largely political roots,
rather than military exigency. 1he parallel` nature o paramilitary orces relatie to the
regular military can be attributed to the act that although precursors o modern paramilitary
units pursue largely military objecties, they are, compared to their ormal counterparts, less
trained, less equipped, highly ragmented, requently reorganized, and politically ,rather than
proessionally and meritoriously, recruited. In short, they are the less expensie and more
expedient alternatie to the ormation o regular military orces in the pursuit o the same
political goals.

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As a consequence o this, authoritarian and autocratic regimes hae historically
maintained paramilitary orces in order to switly and eectiely gain wide geographical
control oer an entire territory and secure the partisan interests o the regime without haing
to discharge the heay inancial and logistical burdens associated with a structured and
streamlined military orce. 1here is thus born the paramilitary orce as a political entity - one
which owes loyalty to partisan political interests and which wields instruments o orce,
coercion and iolence, with the consent o the state, without undergoing the requisite
training and education that should hae sered as the best and only saeguard against undue
abuse and improper exercise o military power.

Ater the collapse o most major dictatorships and autocracies in the world, remnants
o the paramilitary entities still subsist. 1he reason behind this persistence is the act that
although the need to subdue as wide a segment o the populace as possible is less urgent in
ledgling and een more in established democracies, war and iolence still orms an integral
part o eery state`s political agenda. \hereas in the context o a one-person rule, state
security` is largely deined as the perpetuation and aggrandizement o the preailing regime,
in emergent democracies, security partakes o one o the most undamental prerogaties, i
not rights, o the state - the inherent instinct o sel-deense.

Security establishments are integral in the oer-all schema o goernment, and the
only points o diergence across countries is the leel by which such states are exposed to
peril, both rom within and without. Lery country, by deault, is subject to assault by
another. Lery country, also by deault, has the ability to breed its own class o dissidents,
insurgents, rebels, and secessionists depending only on the leels o its peoples` satisaction
and discontent with their political and economic lies. 1here is thereore the perpetual need
to maintain security institutions and establishments to deend the existence o the state
against external and internal oes. lor as long as this primordial necessity subsists, there will
always be room to accommodate paramilitary entities, chiely because o the acility with
which they can be ormed, the lexibility o their deployment and mobilization, and the

economy by which their operations can be unded and sustained, compared to their
counterparts in the regular orces.

loweer, as Dasgupta explains, modern goernance theory and practice hae already
kept apace with the eolution and deelopment o contemporary political tendencies. 1he
propensity or war among and between states has steadily declined, with the political
community o nations` widespread recognition that the deastation brought by war has
become more and more expensie and irreersible as to become counter-intuitie and
counter-productie. 1here is thereore a gradual but signiicant shit in the mindset o
goernment planners and policy-makers rom one which treats military objecties as
inextricably intertwined with the political pursuits o the state, to one which iews war and
orce as simply one o many instruments to achiee political ends. In the ormer scenario,
war and peace are simultaneous concerns, and the objecties o both are deinitely not
mutually exclusie. In the latter scenario, there is a clear delineation between the objecties
o the state in times o peace ,political stability, economic progress, social cohesion, that do
not, as a general rule, contemplate the employment o the methods o warare, the latter
being resered only or those exceptional circumstances when the country goes to war with
other countries or when internal strie threatens security and stability rom within.

lrom here, thereore, one can clearly see that at least in theory, modern political
deelopments hae led to the relegation o paramilitary entities to a status o relatie
insigniicance: irst, they are there simply because they are inexpensie to maintain and, ater
all, they are needed only or those instances o external and internal threat, which should
supposedly be ew and ar in between, and second, een i they continue to exist, they are
kept under eectie political control, because the peacetime objecties o the state are
pursued through non-military means.

1he obious problem lies, howeer, with the act that the modern tendencies or
subsuming military to political objecties can otentimes oertake the practical easibility o
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actually implementing them on the ground. 1here may be a uniersal acceptance o the
theory that political ends are best achieed through non-military means, but, when tested in
the crucible o practice, or such a theory to hold, one must proceed rom the assumption
that, irst, the military-paramilitary complex is a proessional establishment, and second, that
the state is well-ormed and strong.

1here is no better context in which these twin assumptions can be proen wrong
than in deeloping countries. In deeloping countries, there is a clear economic incentie to
inest in paramilitary orces than in regular ones. lor a inancially strapped country ,ridden
by corruption, needless to say,, the least expensie alternaties are always the best options.
As a result, the military-paramilitary complex cannot be ully proessionalized because not all
o its members are gien the proper intellectual and material preparation needed to embark
on a career in the security establishment. In the case o paramilitaries, they are able to wield
arms within their respectie territorial jurisdictions without ull awareness o their
responsibilities as adjuncts o the state`s deense machinery, and without consciousness o
their position in the oer-all ramework o national security. lor them, their paramilitary
status is nothing but a source o political power in their communities and much-needed
income or their amilies. In this set-up, political control oer the security institution is
undermined, i not deeated, and so the theory that peacetime means o achieing state goals
must temper methods o orce and iolence is already inalidated, primarily because o lack
o proessionalism in the military-paramilitary establishment.

1here is also a lack o proessionalism when the military-paramilitary complex is
captured by the ruling powers or their sel-gain and sel-perpetuation. \hile, as discussed
aboe, there has already been a steep decline in the existence o authoritarian and autocratic
regimes which irst bred our modern-day conception o paramilitary entities, it did not
completely erase the estiges ill-conceied notions o goernance. \hereas beore,
paramilitary presence in strategic geographic locations are maintained to subdue anti-
goernment elements and to protect against oreign incursions, most deeloping countries
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today use paramilitary orces either to perpetrate corrupt practices or to maintain enclaes o
political inluence in local communities. 1hese objecties may be a little less demanding and
massie than in the case o authoritarian regimes, but the oerriding impact o the continued
use o paramilitary orces in this manner hampers the proessionalization o the military-
paramilitary complex because its elements, rather than regarding the political leaders as their
control and superision oicers, treat them as patrons and inluence-peddlers. As a result,
the desired insulation o the security establishment rom the political machinery o
goernment, as should hae been the case when the military-paramilitary complex is
proessional, is not achieed. 1he State, in a deeloping country scenario, does pursue its
peacetime goals through largely political and non-military means ostensibly, but,
concurrently, it undertakes illicit political actiities in tandem with, inariably, paramilitary
and, in some cases, military elements.

Most importantly, the ideal relationship o political leaders controlling military
elements is not achieed in a weak state, as most deeloping countries can be classiied.
\eak states are those whose machineries o goernance are captured by personalities and are
hostage to alues extraneous to the ormal processes as established in the law. 1hey are the
states whose socio-politico-economic lies are constantly shiting according to the whims
and caprices o ruling powers, whose institutions hae not, in themseles, transcended the
domination and control o political orces, and who hae not acquired an existence and
voav. oeravai independent o those who lead them at any gien time. \ithout this capacity,
states are not able to unction in a stable and deelopmental manner, because setbacks are
brought about or eery regime and administration change. In this luid and olatile
goernance structure, there persists the necessity o the ruling power to utilize orce ,which
should ideally be resered or legitimate uses in times o internal and external conlict and
security threat, either to ill in the gaps o goernance that the ormal structures and
institutions cannot accomplish or to take adantage o those gaps and points o weaknesses
to gain material and political beneits and perquisites. As such, the security establishment is
necessarily merged in the workings o the political branches, rather than being insulated
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thererom as a mere instrument o last resort or dire deense and security threats. 1he
prominence o the military-paramilitary complex is thereore encouraged, instead o being
kept at bay.

By way o summation and restatement, the political theory o paramilitarism as we
know it today consists o the ollowing points o obseration:

ir.t, paramilitarism was conceied because o the need o authoritarian and
autocratic, as well as war powers, to consolidate power and maintain themseles against
internal and external threats. Paramilitary units were ormed because o the inherent ease and
acility with which they can be created, inanced, and deployed, as compared to their
counterparts in the regular and ormal deense establishment.

ecova, despite the adent o democratization, paramilitary units were still maintained
because national security and sel-deense cannot totally be obliterated rom the agenda o
goernance o eery state. lor as long as the state should desire to perpetuate itsel or the
beneit o its citizens, there should always be a deensie orce ready and able to protect it.
Paramilitaries subsist because it makes good economic sense not to commit a large part o
state resources to the maintenance o a regular orce when the employment o irregular
orces would ery well suice and still achiee the same goals with less expense.

1bira, the paramilitaries should ideally be subsumed under close political control and
superision. 1he modern political tendency is to treat the goals o the state as largely neutral
and alue-ree pursuits that do not need the buttressing eect o orce. As such, there is a
realization and recognition o the importance o insulating the deense establishment rom
the workings o the political structure which pursue peacetime objecties. 1he military-
paramilitary complex must be maintained but only or the purpose o responding to dire
security exigencies, both internal and external, i and when they arise. Otherwise, it should be
kept separate rom the political branches as much as possible.
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ovrtb, the ideal relationship between the peacetime and wartime components o
goernment is undermined when applied in the context o deeloping countries, o which
the Philippines is a part. 1he desired mutual exclusiity o political and military pursuits is
deeated because o the prolieration o unproessional paramilitaries in the deense
establishment who are ill-equipped training-wise to undertake the sensitie unctions o
peacekeeping and security maintenance. Because paramilitaries are not career proessionals,
they are more prone to being captured by ruling political inluences or the satisaction o
illicit political goals. Also, since deeloping countries` institutions are weak, they proide
occasion or numerous gaps in goernance that may be illed by the use o orce and
iolence. 1he weakness o institutions is taken adantage o so that corruption and other
unlawul practices can be perpetrated through the employment o orce. Local communities
become enclaes o political inluence and power through the support o paramilitaries. 1his
anomaly cannot be checked and corrected by the political machinery, howeer, because, the
state being weak, it has no capacity to induce its institutions to perorm their aowed
accountability unctions i such institutions are captured by political orces. In this context,
thereore, it is easy to see that paramilitaries in deeloping countries are regarded as adjuncts
o the state`s political departments and who, consequently, are prone to being manipulated
to perorm actiities according to the ruling power`s desires. 1his scenario is obiously an
undesirable state because it creates gaps in the goernance structure and blurs the political-
military boundary.

1he status of paramilitaries in
international humanitarian law

International humanitarian law is that branch o public international law that deals
with the conduct o hostilities and the treatment o special classes o indiiduals beore,
during and ater such hostilities. It proceeds rom the recognition o the act that war,
though undesirable, is, in certain contexts and in iew o political pragmatics, always a
possibility. 1he task o international humanitarian law is thereore to ensure that een
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though war may ineitably break at some point, it should not be conducted in such a manner
as to sanction an unreasonable departure rom the basic standards o humanity ,like causing
unnecessary suering to already-wounded combatants,, and with such undue abandon as to
indiscriminately inlict injury upon innocents caught in the crossire ,like ciilians,
particularly women, children, the disabled, and other ulnerable groups, and other sectors
working or the amelioration o the sick and the wounded during battle ,like medical and
religious personnel, and persons bringing humanitarian aid like ood and medicine,.

1he general rules in the conduct o hostilities are irst embodied in the Law o 1he
lague ,ormerly reerred to as the laws o war,, restated, reormulated and,or supplemented
by succeeding Genea Conentions and Additional Protocols. Incidentally, the body o
international law relating to international humanitarian law currently enjoys the most
uniersal acceptance ,as eidenced by the number o state signatories, as compared to any
other treaty or conention. 1his is no mean eat as international law, by its nature, is binding
only upon states i they so choose to be bound thereto. 1his is because in the present
international legal order, all states are considered equal and soereign in their own right and
within their respectie territories in the absence o a central world goernment. 1he United
Nations, notably, is a mere oluntary association o states and while it can authorize certain
sanctions against erring members or meritorious reasons, it does not make it a supra-
goernment with powers employable against soereign states.

States, thereore, assent to treaties and conentions on a piece-meal basis, and can, in
theory, abrogate een those which they already approed because there is no world police to
enorce their liabilities. 1here are, howeer, certain norms o conduct that the international
community o nations hae already deemed absolutely deplorable, and nations hae also
recognized the need to conduct themseles in a manner depicting good aith compliance
with oluntarily-assumed obligations. In light o these principles, thereore, international law
can be said to be enorceable purely through the collectie moral authority o the community
o states, and a state can only suer non-compliance therewith to the extent that it can risk
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ostracism in the world order. It is in this context that international humanitarian law
operates, and the number o signatories to the Genea Conentions and the Protocols is
eidence that at least in theory, states inariably recognize the obligatory nature and
character o the international law goerning the conduct o hostilities.

1he scope o international humanitarian law is not conined to international armed
conlicts as was traditionally conceied, it also coers situations o non-international armed
conlicts or internal strie as embodied in the Second Protocol.

In international humanitarian law, paramilitaries are considered part o the conduct o
hostilities. In Section 1, Chapter 1, Article 1 o the lague Law, the regulations with regard to
the conduct o hostilities hae been made expressly applicable not only to the regular army
but also to paramilitaries, described in the text o the law as militia and olunteer corps`,
which shall be included in the denomination army` in the case o countries where such
militia and olunteer corps themseles constitute the army. 1his express proision on the
status o paramilitaries is o ar-reaching eect. 1he act that paramilitaries, despite their
inormal establishment and sometimes amorphous structure ,especially when compared to
the regular orces` rigid chain o command,, is subject to the same rules in the conduct o
hostilities will ensure that there will be no impunity when it comes to iolations o the laws
o war simply on account o the irregular status o the combatant orces. Otherwise, there
will be a great incentie or the irregularization o armies and other military components to
est them with irtual immunity rom the duties and responsibilities attached to the lawul
conduct o hostilities. Among others, the consequence o this status o paramilitaries is that
they would hae to comply with the proisions o the Law o 1he lague regarding the
treatment o prisoners o war ,especially with regard to humane treatment and the
prohibition against dispossession,, as well as the treatment o spies, the proisions o the
Genea Conention on the obligation o belligerents with regard to the sick and the
wounded, and the proisions o the lirst and Second Protocols with regard to the general
protection o ciilians and ciilian objects against the eects o hostilities.
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In the eent o non-compliance with these prescriptions o international
humanitarian law, iolators, despite their status as paramilitaries, may be prosecuted either by
domestic courts or the International Criminal Court. Under Article 25 o the Statute o the
International Criminal Court ,popularly known as the Rome Statute`,, the principle o
indiidual criminal responsibility is enunciated, which means that acts amounting to war
crimes, crimes against humanity, and iolations o the laws o war committed by persons can
be prosecuted indiidually. Under the category o war crimes`, the Statute proides serious
or grae breaches o the laws o war ,as embodied in the Genea Conentions and the
Additional Protocols, as war crimes. It is thereore irreleant that the persons who
committed such crimes did so while part o a regular or an irregular orce. Article 25 in act
makes it punishable or persons not only to take a direct part in the commission o the
oense but also to contribute to the commission o the same. As stated earlier, this standard
o culpability is equally applicable to paramilitaries:

In accordance with |the Rome| Statute, a person shall be criminally
responsible and liable or punishment or a crime within the jurisdiction o the
|International Criminal| Court i that person:

,a, Commits such a crime, whether as an indiidual, jointly with another or
through another person, regardless o whether that other person is criminally
responsible,

,b, Orders, solicits or induces the commission o such a crime which in act
occurs or is attempted,

,c, lor the purpose o acilitating the commission o such a crime, aids, abets
or otherwise assists in its commission or its attempted commission, including
proiding the means or its commission,
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,d, In any other way contributes to the commission or attempted commission
o such a crime by a group o persons acting with a common purpose. Such
contribution shall be intentional and shall either:

,i, Be made with the aim o urthering the criminal actiity or criminal
purpose o the group, where such actiity or purpose inoles the
commission o a crime within the jurisdiction o the Court, or

,ii, Be made in the knowledge o the intention o the group to commit
the crime,

,e, In respect o the crime o genocide, directly and publicly incites others to
commit genocide,

,, Attempts to commit such a crime by taking action that commences its
execution by means o a substantial step, but the crime does not occur
because o circumstances independent o the person's intentions. loweer, a
person who abandons the eort to commit the crime or otherwise preents
the completion o the crime shall not be liable or punishment under this
Statute or the attempt to commit that crime i that person completely and
oluntarily gae up the criminal purpose.`


1he proisions o the lague Conention, the Genea Conentions, and the
Additional Protocols, howeer, are not the only sources o rules and laws with regard to the
conduct o hostilities. 1he lirst Protocol to the Genea Conention proides in its Article 1,
Paragraph 2 that: in cases not coered by this Protocol or by other international
agreements, ciilians and combatants remain under the protection and authority o the
16
principles o international law deried rom established custom, rom the principles o
humanity and rom the dictates o public conscience.` 1his clause has come to be known as
the Martens Clause, perhaps the most oundational rule in the entire corv. o international
humanitarian law. It was named ater lyodor lyodoroich Martens who, back in 1899,
spoke beore the lague Peace Conerences as the delegate o Russia and said: Until a more
complete code o the laws o war is issued, the ligh Contracting Parties think it right to
declare that in cases not included in the Regulations adopted by them, populations and
belligerents remain under the protection and empire o the principles o international law, as
they result rom the usages established between ciilized nations, rom the laws o humanity
and the requirements o the public conscience.`

1he Martens Clause reers to an independent and immutable body o laws and norms
by which standards o conduct during hostilities can be measured and protection o ciilian
populations can ind legal basis een in the absence o a speciic rule or law to that eect.
Paramilitaries, thereore, are also bound by the prescriptions ound in custom, humanity, and
public conscience in their engagement in war and other hostilities. 1hey cannot be excused
rom according humane treatment to ciilian populations and to prisoners o war on the
basis o their non-exposure to the agaries o international humanitarian law. Len or their
class o combatants, the community o nations acknowledges that there is an intuitie source
o humanity that eery person should be bound to, and which as a consequence deines the
permissible limits o the conduct o hostilities. Being integral to human nature and
discoerable een by mere instinct, such standards are deemed binding and obligatory to all
persons engaged in war, including, undisputedly, paramilitaries.

Lastly, under international law, states themseles can be held liable and accountable
or breaches o obligations under treaty or under customary norms o international law. 1he
Articles o State Responsibility deine the scope o eery state`s duty to comply with
international legal obligations. A state can seek compensation or damages it suered against
a state which has committed an internationally wrongul act, in turn, there is an
1
internationally wrongul act when conduct that is attributable to the state has been
committed or omitted in breach o an international obligation by that state. Under this
deinition, the more releant segment is the prerequisite o attribution. Attribution under
international law reers to the susceptibility o a particular conduct to be traced back to the
state in such manner and to such an extent that such act can already be considered an act o
the state, regardless o whether it has expressly or tacitly authorized or ratiied the same.

As a general rule, conduct is attributable to the state when it is done or omitted to be
done by an oicial agent o the state. An oicial agent is one clothed with apparent and
incidental powers to carry out a mandate directly gien by the state. 1he executie,
legislatie, and judicial departments o the goernment are already considered agents o the
state. Also, persons or entities empowered by the law o the state to exercise elements o the
goernmental authority are also considered agents o the state under international law. Such
a rule applies to paramilitaries. 1he maintenance o national deense and security is
indubitably an element o goernmental authority, lodged with the executie department o
goernment and exercised, as in the case o the Philippines, by a deense establishment
headed by a ciilian political appointee with cabinet rank. 1he heads o the dierent armed
orce serices also hae deputies and under them the arious elements o the regular and
inormal military. As such, the operations o paramilitaries clearly all within the ambit o
state authority ,in act, een i the entity is priate in nature but is suered to perorm
goernmental unctions, its acts can still be attributed to the state,. As a consequence, the
state shall always take responsibility or the acts o its paramilitaries, on pain o being held
liable under international law or internationally wrongul acts arising rom their acts or
omissions.

CARHRIHL and the GRP's
mandates thereunder

In the next section, the paramilitary entity` that has been discussed extensiely .vra
will be gien a less amorphous image. One must not lose sight o the theoretical context o
18
paramilitaries as proided aboe - how they started, what causes them to subsist within the
deense establishment, their ideal and actual locus in the political scheme o goernance
,both in theory and in practice,, their status in international humanitarian law, and the extent
to which states can be held liable or the conduct o the paramilitary orces that they created.
lereater, these conceptual tools will help in understanding the legal and policy implications
o the continued paramilitarist tendencies o the Philippine goernment, as exempliied in
the Citizen Armed lorce Geographical Units ,CAlGUs`, ,t ritt be votea tbat iv vav, rritivg.,
ava ivaeea iv .ove tar., C.C|. bare beev referrea to a. Citiev. .rvea orce. Ceograbicat |vit.,
bvt tbe vovevctatvre to be v.ea for vro.e. of tbi. aer i. tbe ove girev b, tbe tar rbicb createa tbe
C.C| - ecvtire Oraer ^o. 21,, the Philippines` ery own paramilitary entity. Moreoer,
such legal and policy implications pertaining to the continued ailure o the goernment to
demobilize the CAlGUs will be examined in light o the mandates incumbent upon the
GRP by irtue o the express proisions o the CARlRIlL.

1he CARlRIlL is a document containing both hortatory ,statement o ideals, and
admonitory ,ixing mandates and obligations, proisions applicable and binding on the GRP
and the NDl. It sprang rom the Joint Declaration signed by the parties in September 1992
in 1he lague where they both committed to enter into peace talks to usher in the
conclusion o the decades-old communist struggle. Aside rom the more immediate need to
end hostilities and dispose actie belligerent orces, the Joint Declaration also laid down as
talking points the institution o political and constitutional reorms, social and economic
reorms, and issues o human rights and international humanitarian law. 1his inal item on
the agenda o the peace talks is the subject o the CARlRIlL.

Signed on 16 March 1998 in 1he lague, CARlRIlL spells out its objecties as
ollows: ,1, 1o guarantee the protection o human rights to all lilipinos under all
circumstances, especially the workers, peasants, and other poor people, ,2, 1o airm and
apply the principles o international humanitarian law to protect the ciilian population and
indiidual ciilians, as well as persons who do not take direct part or who hae ceased to take
19
part in the armed hostilities, including persons depried o their liberty or reasons related to
the armed conlict, ,3, 1o establish eectie mechanisms and measures or realizing,
monitoring, eriying, and ensuring compliance with the proisions o this Agreement, and
,4, 1o pae the way or comprehensie agreements on economic, social, and political
reorms that will ensure the attainment o a just and lasting peace. 1he document, on irst
notice, howeer, can easily be dismissed as a superluity, a mere restatement o already-
existing principles and norms. It lists down 2 undamental human rights and reedoms, as
well as 2 general principles recognized under international humanitarian law. 1hese human
rights and principles o international humanitarian law, as summarized and classiied, are as
ollows:

I. HUMAN RIGH1S

.. Cirit ava Potiticat Rigbt.

1. 1he right to lie
2. 1he right to liberty
3. 1he right to be secure in their persons, houses, papers & eects
4. lreedom o thought and expression, o belies and practices
5. 1he right to ree speech, press, association, assembly and association
6. 1he right to priacy o communication and correspondence
. 1he right to mobility within or outside the country.
8. Right to inormation on matters o public concerns & access to records and
papers pertaining to acts o persons in authority
9. 1he right to uniersal surage
10. 1he right to seek justice or iolations o human rights including
compensation, restitutions and rehabilitation
11. 1he right to substantie and procedural due process
12. 1he right to equal protection o the law
20
13. 1he right not to be subjected to physical or mental torture, solitary
coninement, rape, sexual abuse, cruel or degrading treatment, detention and
punishment
14. 1he right not to be held in inoluntary seritude or to perorm orced or
compulsory labor
15. 1he right not to be subjected to orced eacuation, economic blockades,
indiscriminate bombings, gunire and use o landmines

. covovic, ociat ava Cvttvrat Rigbt.

1. Right to own a property and means o production obtained through land
reorm and honest mean and to use such means or the common good
2. 1he right to gainul employment, to work and equal pay, to orm unions, to
strike and to participate in the policy and decision-making processes aecting
their rights and interests
3. lree and uniersal elementary and secondary education, basic serices and
health care
4. Right to engage in scientiic research, inentions, literary and artistic creation
and other cultural pursuits
5. 1o orm marital unions, & ound a amily

C. Rigbt. of articvtar .ector.

1. Lqual rights o women
2. 1he rights o children and the disabled to protection, care and home, against
all orms o abuse, exploitation and oppression
3. Rights o the minority communities to autonomy and ancestral lands and
natural resources, & equal representation in economic, political and social lie
and institutions
21
4. 1he GRP shall respect basic workers` rights guaranteed by the International
Labor Conention on lreedom o Association & Protection o the Right to
Organize & the standards o the International Labor Organization
5. 1he GRP shall respect the basic rights o peasants to land tenure and land
reorm, the rights o IPsin public domains, the rights o the isherolk to ish
in the waters o the Philippines

D. Otber rigbt.

1. Protection o lies and properties against incursions rom mining, real estate,
logging, tourism & other similar projects
2. 1he right to sel determination o the lilipino nation
3. 1he inherent and inalienable right o the people to establish a just, democratic
and peaceul society


B. IN1LRNA1IONAL HUMANI1ARIAN LAW

1. Ciilians should be distinguished rom combatants, and their lie and property
protected.
2. luman rights iolations especially o the right to lie, against physical or
mental torture, ill treatment, reenge, and hostage taking are not allowed.
3. lorced eacuation, internal displacement, zoning, arson, bulldozing are not
allowed.
4. Indiscriminate bombings, shooting, use o landmines are prohibited.
5. Ciilians must be protected against the danger due to the presence o military
camps
6. Protection should be gien to all regardless o race, color, belie, sex, class or
other criteria.
22
. 1he wounded and the sick ,their collection and care,, and ulnerable sectors
like women and children are to be gien special protection
8. lorced eacuation, zoning,concentration o residents unless demanded by
saety concerns, destruction o lielihood are not allowed.
9. Goernment should reiew policies that cause internal displacement and all its
consequences like loss o lielihood.
10. IDPs hae the right to return to their places o origin and lielihood, to ask
or goernment assistance to be able to recoer losses and return to normal.
11. Children should not be inoled in the armed conlict.
12. 1he rights o children to protection, care and home, against all orms o
abuse, exploitation and oppression
13. 1he parties must proide inormation on the identity, reason or detention, &
condition o the detained person.
14. Parties are responsible o the care and saety o detained persons in their
custody
15. lorceul extraction o inormation other than the person`s identity is not
allowed.
16. 1he parties must proide protection, and sae passages to relie,medical
personnel and their equipment
1. 1he symbols o the ICRC must not be misused. 1hose who hae surrendered
should not be killed, combatants become non-combatant,out-o-combat once
they show intent to surrender and are gien protection as prisoners o war`
18. Combatants who are no longer ighting because they are sick, hae been
wounded, shipwrecked, allen rom aircrat, or distressed are considered out-
o-combat and enjoy protection as ciilians
19. lealth, religious and other humanitarian organizations & personnel enjoy
protected status
23
20. Schools, religious establishments, projects & programs or the community
welare, cultural sites and historical monuments may not be the object o
attack.
21. 1he remains o the dead due to the armed conlict or in detention, should be
respected and gien decent burial.
22. 1heir return to their amily should not be blocked or preented.
23. Conlict parties should exert all eorts to recoer the dead.
24. Reiew policies and practices on the creation o the CAlGUs, CVOs, and
similar groups
25. Prohibit support,consent or paramilitary groups like armed religious cults,
priate armies o businessmen and land owners, and priate security irms
used against workers and armers
26. Prohibit participation o ciilians and ciilian oicials in military operations
2. Reduce military expenditure and gie priority to social, economic,
deelopment and cultural programs


1he aboe rights and principles, howeer, are already embodied in the 198
Constitution, in the Uniersal Declaration o luman Rights ,as well as its protocols - the
International Coenant on Lconomic, Social and Cultural Rights and the International
Coenant on Ciil and Political Rights,, and in the Genea Conentions ,as well as its
Second Protocol,. In act, Part II, Article 4 o the Agreement explicitly recognized that such
rights and principles are also embodied in the instruments signed by the Philippines and
deemed to be mutually applicable and acceptable by both Parties`. And so, i one is to
examine the intrinsic alue o CARlRIlL, one will not ind its enumeration o rights and
principles particularly useul, because notwithstanding their inclusion or non-inclusion in the
document, they would still hae been binding on the GRP and the NDl as a matter o
domestic constitutional and international law. 1he reolutionary contribution o the
CARlRIlL lies in its other proisions like the ollowing:
24

1. 1he recognition in Part I, Article 3 o the document that there is a need or a
comprehensie accord on human rights and international humanitarian law
based on realities o iolations o human rights and the principles o
international humanitarian law`. 1his article, ound in CARlRIlL`s
Declaration o Principles, represents one o the rare instances where the
Philippine goernment and the NDl hae acknowledged that human rights
abuses and iolations o the laws o war hae indeed been committed in the
past. 1his acknowledgement is reiterated in Part II, Article 1 where the
Agreement again recognizes that its existence owes much to the concrete
conditions o the lilipino people concerning iolations o human rights and
the principles o international humanitarian law`.

2. 1he Agreement is also monumental because it expressly recognized that
human rights abuses hae indeed been perpetrated during the martial law era.
CARlRIlL also proides in Part III, Article 5 that the GRP is committed to
support the ictims and heirs o ictims during the martial law regime to be
compensated either through the judgment o the American and Swiss oreign
courts or by way o settlement, in any case, the GRP binds itsel to see to it
that whateer reparations may be had by the ictims and their heirs, it shall be
the quickest and most direct possible.

3. CARlRIlL also mandates the goernment to reiew all pending cases o
political detainees and prisoners, in light o the ruling o the Philippine
Supreme Court in the Peote r. ervavae and Peote r. Cerovivo cases.

4. 1here is also a rare admonition against the goernment on account o seeral
laws, decrees and executie issuances that hae been explicitly characterized in
Part III, Article o the Agreement as repressie`. Going by CARlRIlL,
25
the GRP should undertake to reiew the policies behind these laws and een
rerain rom inoking them i it would mean circumenting or contraening
the objecties o the Agreement. Some o these repressie laws include the
restrictions on the right to peaceul assembly, the mandatory reporting
requirement addressed to physicians who treat patients with gunshot wounds,
the law allowing ood blockades and the proposed law establishing the
national identiication system.

5. 1he same goes with decisional rules established in jurisprudence with regard
to warrantless arrests, warrantless searches, and the criminalization o political
oenses, among others. 1he Agreement expressly recognized that the rulings
in the cases which established these doctrines should be subjected to
appropriate remedies` that should be adopted by the GRP. In the meantime,
the goernment should rerain rom inoking these doctrines i doing so
would deeat the principles underlying the CARlRIlL.

6. Under the international humanitarian law` part o the Agreement, the GRP
is also charged with the mandate o reiewing and reorming laws, programs,
projects, campaigns, and practices that cause or allow the orcible eacuation
and reconcentration o ciilians, the emergence and increase o internally
displaced amilies and communities and the destruction o the lies and
property o the ciilian population on account o hostilities.

. 1he Agreement also proides a mechanism or the monitoring and
enorcement o the undertakings o the Parties thereunder. Part V o the
CARlRIlL establishes the Joint Monitoring Committee composed o three
representaties each rom both Parties, two human rights organization
members each or both Parties to act as obserers and to sere at the pleasure
o the nominating Party, to be headed by co-chairpersons representing both
26
Parties. 1he task o the Joint Monitoring Committee is to receie complaints,
order inestigations, and issue recommendations with regard to reported
iolations o the proisions o the Agreement, inariably human rights abuses
and iolations o the laws applicable during hostilities.


!bat rori.iov. of tbe .greevevt, tbev, tac/te tbe vavaate of tbe CRP ritb regara to C.C|..

At the outset, it is important to point out that all the proisions o the Genea
Conentions and the Protocols thereto are deemed incorporated into the CARlRIlL by
express proision in Part II, Article 4 which state that the uniersally applicable principles
and standards o human rights and o humanitarian law contemplated in this Agreement
include those embodied in the instruments signed by the Philippines.` As such, all the
rules applicable to the lawul conduct o hostilities, including those which deine the status
o paramilitaries in international law and those which delineate the responsibility o states or
the acts o paramilitaries which they hae created and maintained, complement and
supplement by reerence the object and spirit o the Agreement as contemplated by the
Parties to the CARlRIlL.

Going by this initial premise, it is easy to arrie at the proposition that CAlGUs are
the Philippines goernment`s charges and responsibilities. \hateer acts may be committed
by paramilitary operaties under the auspices o the CAlGU are deemed sanctioned by the
State. 1his proposition gains heaier graity when one considers that the respect or human
rights and international humanitarian law sought to be pursued by the CARlRIlL is
binding on the GRP and the NDl, as well as all the agents acting under their authority. It
should neer be lost sight o that by irtue o international humanitarian law which i.o ;vre is
incorporated in the CARlRIlL, iolations o human rights and o principles o
international humanitarian law committed by paramilitary CAlGUs can be attributed to the
State, and so eery such iolation are also deemed committed by the GRP itsel. 1he entire
2
CARlRIlL is thereore releant to CAlGUs themseles because, as part o the state`s
deense establishment, the mandates laid down therein are equally applicable to them.

Part IV, Article 3 o the Agreement enumerates acts which are and shall remain
prohibited at any time and in any place whatsoeer with respect to |ciilians, combatants
who hae surrendered, combatants placed hors de combat, persons depried o liberty by
reason o armed hostilities, and the relaties and representaties o such persons|.` Among
these acts contemplated are those stated in Paragraph 8. In Paragraph 8, the Agreement
makes it unlawul to maintain, support, and tolerate paramilitary groups such as armed
religious anatical groups, igilante groups, priate armed groups o businessmen, landlords,
and politicians, and priate security agencies which are being used in land and labor
disputes`. \hile this paragraph reers to the enumerated classes o persons as paramilitary`,
by the character and nature o the groups identiied, it can be seen that what the Agreement
contemplates is in the nature o priate armies` and armed groups employing extra-legal
means or priate interests. 1his paragraph may not expressly be making allusions to
CAlGUs, but, arguably, i CAlGUs undertake actiities or allow themseles to be used or
the urtherance o objecties equialent to those enumerated, then the prohibition would
apply and such actiities can be deemed a iolation o the spirit and intent o the
CARlRIlL.

Paragraph 9 prohibits allowing ciilians and ciilian oicials in military ield
operations and campaigns. 1his proision is a restatement o the intuitie notion that the
undertaking o armed operations requiring military skills and training cannot be entrusted to
ciilians who hae not acquired the ormal discipline o staging a ield operation. CAlGUs
all under this category, and Paragraph 9 is explicit when it reers not only to ciilians` but
also to ciilian oicials`. 1his can only mean that the presence o a structured command
like that in the case o CAlGUs and the leel o responsibility entrusted to the CAlGU
operaties do not make any dierence: the prohibition seeks to address the anomalous
situation where military oensies are participated in by indiiduals not trained in combat. In
28
such cases, the lies o the ciilians who took part in the ield operations will be imperiled.
lurther, their lack o training and expertise will render them liable to commit errors that
would, in turn, imperil the lies o the members o the community and might prejudice the
lawul and proper prosecution o the armed hostilities. 1his proision is particularly targeted
toward Ciilian Volunteer Organizations ,CVOs`, which are organized as a paramilitary
orce counting as members the citizens in the communities. Although, in some dire
circumstances and when so warranted by the leel o security threats, citizens can, by law, be
asked to render serices in deense o the state, they should not be allowed to do so by way
o directly participating in the ield operations o the military on account o their lack o
training.

1he proision most releant to CAlGUs in the Agreement is Part IV, Article 8,
which states that the GRP shall continue to reiew its policy or practice o creating,
maintaining, supporting, or allowing paramilitary orces like the Ciilian Armed lorces
Geographical Units ,CAlGUs, and Ciilian Volunteers` Organizations ,CVOs, or any other
similar groups`. Going by the tenor o this proision, it can be readily seen that the Parties
to the CARlRIlL contemplated that the continued presence o CAlGUs is a matter o
state policy that needs serious re-examination. lor this, there can be no other inerence that
can be drawn but that the continued presence and prolieration o paramilitary entities are
inconsistent with the ery spirit and objectie o the Agreement, i.e., respect or human
rights and the principles o international humanitarian law. It is thereore a mandate
incumbent on the GRP to progressiely reconigure its policy and gradually work towards
the demobilization o the CAlGUs on account o their being inconsistent with the lawul
conduct o hostilities. 1o conclude otherwise would be illogical and unreasonable: what else
would the parties hae contemplated by mandating a reiew o the policy regarding
CAlGUs i there are no complications with its operations and ery existence in the irst
place, at least as ar as human rights and international humanitarian law are concerned


29
1he evolving legal framework of
paramilitarism in the Philippines

1he paramilitary entity known today as the CAlGU started out as an outit with 3,
360 elements in 1988. It has steadily gained strength as ar as membership is concerned, with
the peak recruitment o 5, 461 being reached in 1992. During the time o President Ramos,
the membership experienced a steady decline, reaching a low o 32, 48 up until the irst two
years o President Lstrada`s administration in 2000. lrom then on, the numbers again rose,
until as o last count in 200, the numbers hae reached another relatiely high mark at 61,
148. 1hese elements are those ormally attached to the Armed lorce o the Philippines with
the designation CAlGU Actie Auxiliary` ,CAA`,. 1his designation sets apart those
ormally deemed incorporated in the military hierarchy and their counterparts who are
working as CAlGUs on a purely oluntary basis and in the concept o a purely ciilian
olunteer.

CAAs attached to the Armed lorces are organized into separate Inantry Diisions
composed o a number o companies. Statistics prepared by researcher Purple S. Romero
rom ABS-CBN, Newsbreak reeals that the largest concentration o CAAs in the country
can be ound in the \estern Mindanao region ,also the base o the AlP Southern
Command,, where the CAA 1
st
Diision composed o 8 companies are staed by 10, 103
CAAs. Also in Mindanao are the second and third largest CAA Inantry Diisions - , 06
CAA elements in Lastern Mindanao ,Compostela Valley, the Daao Proinces, Sarangani
and South Cotabato, and , 189 CAAs in Northern Mindanao ,Misamis Oriental, Agusan
Proinces, Surigao Proinces, Bukidnon, and Lanao Del Norte,. Central Mindanao ,North
Cotabato, Sultan Kudarat, and Maguindanao, ollows closely with , 18 CAA elements
organized into 65 companies that make up the 6
th
Inantry Diision. 1wenty CAA
companies are assigned in Basilan, staed by 2, 400 CAlGUs.

In Northern Luzon, which includes the Ilocos, Cagayan, and Cordillera Regions,
there are 52 CAA companies with 5, 448 elements. In Central Luzon, the
th
Inantry
30
Diision has 30 companies manned by 3, 049 CAAs, and this makes up the smallest
CAlGU contingency in the country. In the Southern 1agalog region, known widely as a
hotbed o communist insurgency, there are 44 CAA companies composed o 5, 180
elements ,with 15 companies concentrated in Quezon Proince,. In the Bicol Region, 4, 434
CAAs are on actie duty with the 9
th
Inantry Diision.

1here are 46 CAA companies in the \estern and Central Visayas, which make up the
CAA 3
rd
Inantry Diision, and it has 5, 208 CAAs on actie duty. Lastern Visayas, home to
the 8
th
Inantry Diision, has 3, 215 CAA elements.

\here did all these numbers originate low is this 61,000-strong armed collectiity
goerned, superised, and controlled under the law \ho is accountable or its elements`
conduct, and on what legal moorings are the standards o such conduct anchored


Precursor o the paramilitary entity
in the Philippines

1he CAlGUs that we know today ind their ancestral lineage in another paramilitary
entity named the Integrated Ciilian lome Deense lorces ,ClDl`,. Created by irtue o
Presidential Decree No. 1016, issued by then President Marcos in 22 September 196, the
ClDl was enisioned to be the ciilian olunteer ront liners in the maintenance o peace
and order at the grassroots and community leels. 1he ClDl was to be controlled and
superised policy-wise by the Department o National Deense and operations and training-
wise by the Armed lorces. 1his entity was created according to the constitutional duty to
render aid and serice to the country in times o security threats ,Article V, Section 1 o the
193 Constitution then in orce, and what President Marcos classiied as the right o
citizens, singly or collectiely, to sel-deense`. 1he mandate o the ClDl is clear: it is to
proide security to the respectie communities o their elements, help protect the lies and
31
properties o the people against lawless elements, and assist in the law enorcement agencies`
peace-and-order maintenance duties.

Under the ClDl Law, the ormation o ClDl units in the proince, municipality,
city, or barangay, will be justiied wheneer there threats o subersion, insurgency, rebellion,
criminality, and, or disorder. 1he units will be composed o able-bodied ciilian olunteers,
guards and watchmen o priate and goernment security agencies, special security orces
already administered by the AlP, proincial guards, and ciilians with license to hold
irearms. 1he units will be superised by their respectie local goernment oicials, who
should all act in close coordination with the AlP commanders in the area as well as receie
orders o deployment, mobilization, and employment rom the armed orces and the deense
departments in general.

1he ClDl Law was amended in 15 Noember 19 through Presidential Decree
No. 1242. 1he amendment was directed at Section 4 o the Law, which speciies the
measures by which elements o the ClDl units will be recruited and screened. Under the
ormer law, screening o potential members shall be undertaken by Proincial Commanders,
in consultation with the local goernment leaders, and recommended to the Chie o the
Philippine Constabulary or appointment. Under the amendment, the same screening,
recruitment, and appointment process was ollowed, but an exception was cared out: in
areas which the Deense Secretary may identiy when the situation warrants`, screening
shall be done by the military commander, in consultation with the local goernment leaders,
and recommended or appointment to the Commander o the Uniied Command o the
Armed lorces or the Commander o any o the Major Serices.

listorically, the ClDls under President Marcos gained nothing less than inamy and
notoriety. 1he ciilian paramilitaries, once appointed, began to wield such power and
inluence in their respectie communities that it was not long beore human rights abuses
and iolations o the laws o war were reported ev va..e. 1he ery ambiguity and
32
amorphousness o the language o the law, let alone the standards or its implementation,
created many opportunities or the abuse and misuse o orce. 1he creation o ClDl
contingencies in the communities was in itsel an exercise in abuse o power. By and large,
contingencies were created in areas where there are pockets o political opposition, and such
was justiied under the generic rubric o threats o criminality and, or disorder`.
Oppositionists were quickly labeled by the national administration as enemies o the state or
being insurgents and rebels, this the ClDl elements on the ground quickly took a cue rom.
1he need to saturate the rural areas with military orce cannot be actualized with the limited
staing resources o the armed orces back then, especially in relation to the enormity o the
political opposition to the dictatorship. 1here thereore arose the need to recruit willing and
able olunteers to act as agents o the dictator in obliterating opposition. In exchange, the
goernment gae them a irtual license to employ orce when necessary without clear
parameters on what assistance to the law enorcement agencies` would entail. As a result,
the rural areas were suocated by armed ClDl elements who eected arrests, executions,
and countless other human rights abuses without due process o law. As the dictator which
empowered them was considered the law back then, ClDl paramilitaries also acted in eery
respect as extensions and agents o that illimitable power.

Adeptly tweaking legal principles to his adantage, President Marcos inoked the
constitutional duty to deend the state as one o the justiications or the creation o the
country`s irst ormal paramilitary entity. 1his duty, howeer, presupposes a threat to security
so large and so insurmountable that the regular orces trained or the purpose o deending
the state can no longer mount a iable ront and had to resort to the conscription o all able-
bodied citizens. Note should be taken that the constitutional duty to render serice is or the
beneit o the state and not the goernment. 1he state is threatened only by a oreign power
poised to occupy the country, or when a massie entity is about to topple the state to
establish another. 1he goernment is not the state, the ormer is but an instrumentality or
the actualization o the will o the latter. Opposition to the incumbent goernment has or
its objectie the institution o reorms or, at the extreme, the assumption o another leader
33
into oice. 1his is not the same threat contemplated by the lramers o the Constitution
when they enshrined the constitutional duty to deend the state in that document. 1he
prerequisite must always be an insurmountable orce that would induce all reasonable
assumptions that citizens are already desperately needed to augment the regular orces, this is
not the situation when the ClDl Law speaks o maintenance o peace and order`, because
such unction can ably be undertaken by the regular orces unless lawlessness descend to
massie and unmanageable leels.

Under the National Deense Act o the Philippines ,Commonwealth Act No. 1,, the
preseration o the state is the obligation o all citizens` ,Section 2-a,. National deense as
contemplated in the Act is pertinent to cases o threatened or actual aggression ,Section 2-e,.
1he Act mandates the compulsory military training o all able-bodied men known as the
Resere Oicers 1raining Corps ,RO1C, Units. 1his ramework has since changed, as will
be discussed ivfra, but the main premise o tapping the citizens to be part o the deense
establishment in the country still remains - such a measure should not be employed to
supplant the duties o duly-trained law enorcement and military bodies. 1he inolement o
citizens in the employment o orce under the auspices o the state should still be guided by
the principles o imminence and the graity o the security threat. In short, engaging
paramilitary entities should be a measure o last resort, and their status should be that o
resere` elements which, by deinition, should remain inactie and on stand-by` until and
unless instances o aggression and other analogous grae and imminent perils directed
against the state should arise. Paramilitaries, een under the National Deense Act
ramework, are not expected to be on actie duty absent such grae and imminent peril, and
are deinitely not expected to ill the role o complementary, irregular or shadow` law
enorcement elements perorming similar unctions without the requisite ormal training and
preparation or doing so.

It is also misleading that the ClDl Law ests legitimacy on the paramilitaries by
inoking the right to single or collectie sel-deense`. 1he doctrine o sel-deense is
34
releant in ciil and criminal law, and it is aailable only when the indiidual`s lie or
property is in imminent danger o being injured such that the law can reasonably allow him,
her to take necessary and proportionate measures to presere such lie and property. In these
contexts, waiting or the aid and succor o the law enorcement agencies would already be
unreasonable and contrary to the basic instinct o sel-preseration. 1he context, howeer, is
dierent under the ClDl Law. 1he law speaks o the maintenance o peace and order and
the preention o lawlessness. 1his is a geverat covaitiov or .tate of tbe covvvvit, and not the
irresistible and imminent orce contemplated by the doctrine o sel-deense. 1here must be
the element o imminence beore the sel-deense doctrine can be inoked, and it would be
highly absurd and inconsistent to use it against a threat that is generic, continuing, and long-
term.

Also, the concept o collectie sel-deense is a concept releant only in international
law, and it partakes o the right o vatiov. in one gien strategic geographical location to act
in concert against a threat to the security o any one o them, on the presupposition that
insecurity in one area would necessarily result in insecurity in others. It has neer been
applied by analogy to communities, especially when, as in the case o the ClDl Law, the
threat contemplated originates rom the community members themseles. In short, what the
ClDl Law wants is to arm the ciilians in the community and empower them to apprehend
insurgents, rebels and subersies in the area, this is a ar departure rom the notion o
collectie sel-deense under the law.


1he current legal ramework

1he abuses committed by the ClDl elements were not lost on the people,
particularly the Aquino goernment which assumed power ater the abbreiation o the
Marcos dictatorship. 1he 198 Constitution, which was adopted and promulgated with the
desire to correct the martial law errors o the past, expressly proided in Article XVIII,
35
Section 24 that |p|riate armies and other armed groups not recognized by duly constituted
authority shall be dismantled. All paramilitary orces including Ciilian lome Deense
lorces not consistent with the citizen armed orce established in this Constitution, shall be
dissoled or, where appropriate, conerted into the regular orce.` 1his proision signaled
the disbandment o the ClDl and the express illegalization o all other paramilitary orces
similar to it. loweer, the same proision also expressly sanctioned the creation o a citizen
armed orce` which was also expounded on elsewhere in the Constitution: in Article XVI,
Section 4 o the Constitution, it was proided that |t|he Armed lorces o the Philippines
shall be composed o a citizen armed orce which shall undergo military training and sere as
may be proided by law. It shall keep a regular orce necessary or the security o the State.`
,emphasis supplied, 1his proision has become the basis or the continued paramilitarism in
the country - by merely reclassiying paramilitaries as a citizen armed orce`, but
perorming largely similar unctions. 1he term citizen armed orce` has been interpreted to
mean that ciilians, being part o the deault armed orce o the country, can at any time be
called to sere or the military in deense o the country.

1he proisions aboe-quoted on the establishment o the citizen armed orce and the
demobilization and dismantlement o the ClDl were proposed during the 1986
Constitutional Conention by the Committee on General Proisions Chaired by
Commissioner Rosario Braid. Notably, the original wording o the proision, as proposed on
the loor o the Conention, reads:

,a, 1he Armed lorces o the Philippines shall be a citizen armed orce
composed o able-bodied citizens o the Philippines who shall undergo
military training as may be proided by law. It shall keep a regular orce
necessary or the security o the State.

36
,b, 1he citizen armed orce shall hae a corps o trained oicers and men on
actie duty status as may be necessary to train, serice, and keep it in
reasonable preparedness at all times.

,c, 1he citizen armed orce may be employed or the internal security o the
State as may be proided or by law.


As originally proposed, the ision o the lramers is or the Armed lorces o the
Philippines itsel to be the citizen armed orce o the country. It only means that the Armed
lorces shall come rom the ranks o lilipinos and shall owe its allegiance to the lilipino
people. 1he mention o a citizen armed orce` apart rom the regular orce` both in the
proposal and in the inal adopted ersion was sought to be clariied by then Commissioner
Guingona. In response, Commissioner De Castro expounded:

\hen we talk o the citizen armed orce, we are talking o the whole Armed
lorces o the Philippines. \hen we talk o the regular orce |.| this is only a
necessary orce to ight insurgency in our country. I there will be no more
insurgency should our President be successul in talking with the NPAs and
the NDl and Mr. Misuari, then this regular orce shall eentually be reduced
considerably and then our appropriations shall be concentrated in building up
a citizen armed orce. \hen we talk o a citizen armed orce, we are talking o
the citizen armed orce o the army, the nay and the air orce.` ,Records o
the Constitutional Commission,

Commissioner De Castro urther explained that the citizen armed orce are really
the trainees, the RO1Cs, who are being trained by a cadre o regular oicers and enlisted
men`. In short, when the Constitution says that there shall be a citizens armed orce, it
merely means that all able-bodied citizens shall receie military training in preparation or the
3
eent that their serices shall be needed in the deense o the state. 1hese citizens shall be on
resere status and shall not be required to perorm military unctions in the mean time. In
act, as Commissioner De Castro clariies, we do not gie guns to the members o the
resered orce because it is also dangerous under the circumstances here in our country. \e
put these in storage we call mobilization centers in many places in the Philippines |which
shall be accessed only when the resere orces are called to actie duty|`.

1here is also ample eidence rom the proceedings o the Constitutional Conention
that the lramers themseles are concerned that untrained and unskilled indiiduals will be
tasked to perorm military unctions. Responding to the suggestion that the police be
integrated with the armed orces, Commissioner Natiidad replied adamantly:

. |1|hat will be ery tragic or the nation because that is precisely what we
are aoiding to integrate the military with the police |.| All oer the world
there is a postulate that the police orce is ciilian in nature because the police
is created to serice the people, to preent crime and to help them protect lie
and property. 1he army, the military is an agent o orce to ight in deense o
the country. 1heir training is completely dierent, Mr. Presiding Oicer. \e
train the military to ight, we train the police to sere. 1he police is under the
Ciil Serice Law, the military is under the Articles o \ar. \e train the army
with weapons and tactics and deelop in them the instinct to kill lest they be
killed. \e train the police to ollow the law. \e teach them criminal law,
criminal procedure, the Bill o Rights, the rights o the accused, ballistics, et
cetera.` ,Records o the Constitutional Conention,

1he lramers clearly intended that military operations be conined to military
personnel trained in the area. I the lramers clearly disagreed that police orces cannot be on
the same ooting with the military, the ormer being o ciilian character, how much more
equating ciilian olunteers to military personnel 1he concern o the lramers were raised
38
repeatedly on the loor o the Conention, and the responses elicited rom the sponsors o
the proisions aboe-quoted all point to the unanimous iew that paramilitaries cannot be
created to counter internal security threats. laced with a shortage o sta, the Armed lorces
can call to actie duty all the resere oicers and elements which hae been duly trained and
awaiting deployment. 1his measure will suice, and it will still be consistent with the
principle o a citizen armed orce. 1his, howeer, and it should be emphasized clearly, is
always a measure o last resort and shall be employed only when circumstances become so
dire that the proessional armed orces can no longer proide all necessary security needs.
1his certainly does not justiy the creation o a parallel military unit that perorms shadow
unctions o the armed orces on a regular and continuing basis. Otherwise, this would
amount to the paramilitary orces` outlawed by the Constitution. Commissioner Sarmiento
obseres:

I think this section will bar the creation o paramilitary troops or orces in
the uture. Our experience in the past and up to the present is that these
orces do not contribute to the peace and order situation in our country. It is
actually a liability. Many complaints are being raised about the existence o
these orces. 1he mere mention o paramilitary shows that they will always be
second class orces.

Considering that we hae these sections on the armed orces and the citizen
armed orce, I think they will be suicient enough to counteract any threat
against national security in the uture.`

Commissioner De Castro also maintains that although the ight against insurgency is
a matter o paramount importance or the state` security, still there is a need to explore other
options or pursuing it apart rom the creation o paramilitary orces:

39
I I were a member o the Armed lorces o the Philippines and I hae this
proision disallowing me to use paramilitary orces and other armed groups,
particularly in the campaign against insurgency, the irst thing I would do is to
request or additional unds to increase our regular orce and at the same time
request or more unds so that our citizen armed orce may be used in the
campaign against insurgency. \e cannot allow ourseles to be at the mercy o
our enemy. \e must do eerything within our means to protect this country.
\ith this kind o proision, certainly, it is dismissing or dismantling our
ciilian home deense orces but their dismantling should not allow our armed
orces to hae more room or additional means with which to ight
insurgency.`

As to leae no doubt that the lramers intended that a paramilitary entity like the
ClDl will not be reied again, een i under a new name, the interpellations between
Commissioner De Castro and Commissioner Garcia are instructie:

MR. DL CAS1RO: Suppose ater we pass this the President changes its
name, thereore, our Constitution is no longer applicable because the ClDl
has been dismantled.

MR. GARCIA: I the President creates a dierent orce to meet a dierent
problem, it is a dierent entity. 1he point I am trying to make is that
historically we hae been burdened with the paramilitary orce which has
operated under the cloak o legality and legitimacy and thereore has created
haoc in the countryside. \e are trying to meet a historical problem that is
why it is in the 1ransitory Proisions. 1he President or Congress can in act
create other orces to meet other problems with new manpower, with a
dierent orientation and dierent direction. 1hat is ine. \e are meeting a
particular historical problem, that is all.
40

MR. DL CAS1RO: So i the ClDl is dismantled and another name is gien
in its place, will the Commissioner hae no objection

MR. GARCIA: I will hae an objection i it iolates the spirit o this
proision. I they create a completely new orce, it is a dierent story. But i
they simply change the name, then it iolates the Constitution.`


On 15 July 198, shortly ater the 198 Constitution was ratiied by the people in a
plebiscite, President Aquino issued Lxecutie Order No. 25 which ordered the gradual and
orderly dissolution o the ClDl within 180 days. Qualiied personnel rom the disbanded
paramilitary groups was gien priileged status in the hiring o new goernment employees,
including in the Armed lorces, and those ound to be bona ide members o authorized
paramilitary units were gien a separation pay equialent to two months` allowance.

1en days ater, on 25 July 198, President Aquino issued Lxecutie Order No. 264,
which is the parent law o the CAlGU. 1he Order constituted the Armed lorces as a citizen
armed orce as contemplated in the Constitution and authorized the Secretary o Deense to
organize the citizen armed orce into geographical units ,hence the term CAlGU, which
shall be composed o all able-bodied citizens` who hae all been designated by the Order
as Reserists. 1he CAlGU owes its existence to the proision o the order which states that
|a|ll reserists in a particular locality shall be organized into resere geographical units
subject to call and mobilization as the need arises, indiidually or as a unit. Reserists called
to actie duty shall sere with the regular troops as part o the standing orce. 1he Secretary
o National Deense shall prescribe and implement a continuing program o recruitment and
training or the Citizen Armed lorce to enable it to respond to all types o threats to
national security.` ,Section 1,

41
lurther, howeer, the Order also decreed that i military necessity requires it:

.the Citizens Armed lorce may be called or mobilized to complement the
operations o the regular orce o the Armed lorces o the Philippines or to
support the regular orce ormations or units. lor this purpose, Actie
Auxiliary Units which shall be part o the Citizen Armed lorce Geographical
Units, may be utilized, to be constituted out o olunteers to be screened in
consultation with the local executies and ciic,business leaders. 1hese Actie
Auxiliary Units shall mean a degree o actiation o military reserists short o
ull actie duty status. 1hey shall not be ested with law-enorcement or police
unctions.` ,Section 4,

1he proision authorized the recruitment o paramilitaries to complement` the
operations o the regular Armed lorces. 1his has become a primary bone o contention in
the enorcement o the constitutional proision regarding the establishment o a citizen
armed orce. 1he proision o the Constitution disbanding paramilitary units, as amply
supported by documentation o the Constitutional Conention quoted aboe, clearly
contemplate that in no instance shall paramilitary units be constituted to perorm military
unctions, be it chiely or complementarily. 1he danger sought to be aoided is or a ciilian
indiidual to be ested with quasi-military powers despite lack o training, because it is in
these instances that opportunities or abuse and iolations o human rights present
themseles.

1he Actie Auxiliary Units o the CAlGU ,CAA`,, as created by the Order, is akin
to the ClDl o the martial law era, albeit with a dierent name, because they sere as a
standing orce ,not a resere orce, as contemplated in the Constitution, that regularly
participates in the conduct o military unctions ,not in extraordinary circumstances where
the State can legitimately call its citizens to render military serice in its deense, without the
proper training. As can be attested to by history and experience, this opening is enough to
42
usher in another onslaught o abuse by the CAlGUs, notwithstanding the rather diluted
admonition o Section 4 o the Order that they shall not be ested with law-enorcement or
police unctions`. In reality, this is exactly what has happened - the State sanctioning the
ormation o a paramilitary unit that has exercised, on a regular and not extraordinary basis
as contemplated in the law, military and law enorcement powers in their respectie
communities.

1hat the CAA elements created under LO 264 are allowed to directly be inoled in
military operations as a complementary orce despite the absence o an imminent and grae
peril to the national security is belied by the eentual passage o the Reserist Act ,Republic
Act No. 0, in 1991. Under Section 2 o the law it was stated: It is the policy o the State
to maintain a standing orce or regular military orce in times o peace consonant to its
adequate and actual needs or the security o the State but which may be rapidly expanded by
the well-disciplined Citizen Armed lorce in the eent o war, inasion, or rebellion.` It
would appear that the concept o a resere orce contemplated in the Reserist Act is the
one more consistent with the intention o the lramers o the Constitution which proposed
the proisions quoted at the start o this section. CAlGUs, and other paramilitary groups
or that matter, are not intended to be standing orces but resere orces that will be called
to actie duty only in the eent o dire need to deend the soereignty o the state and the
integrity o the national territory.

1rue, under Section 13 o the said law, the Ready Resere may be called to actie
duty not only in times o war and other national emergency, but the exception cared out by
the said proision still alls squarely within the category o perils and security threats that are
analogous to war or national emergency. In Section 13, it was stipulated that the Ready
Resere.shall be subject to call at any time to augment the regular armed orce o the AlP
not only in times o war or national emergency but also to meet local emergencies arising
rom calamities, disasters, and threats to peace, order, security, and stability in any locality,
43
including the need to proide assistance in relie and rescue work and other ciil assistance
actiities.` 1he instances enumerated all occupy the same league.

1he terms peace, order, security and stability` should not be interpreted out o
context and independent o the terms with which they were associated by express
enumeration. Under the law, there is a doctrine called vo.citvr a.ocii. which mandates that in
reading the proisions o law, words should not be gien a signiication that would result in
an interpretation that detaches them rom the particular context in which they were
mentioned, as based on the character and import o the words with which they were
associated in the plain text o the law. 1here is also a doctrine called e;v.aev geveri. which
mandates that an enumeration o terms in a gien sequence should be deemed as exclusie
in nature and that the enumeration a. a rbote must be interpreted as orming a uniied intent,
as such, the words in the enumeration should not be interpreted singly or autonomously.

Going by these doctrines o statutory construction, it can hardly be argued that
peace, order, security and stability` could be deemed to include the common peace, order,
security and stability` that is the business o the regular law enorcement orces as to justiy
the creation o a paramilitary orce engaged in complementing the operations o the military
on a continuing and regular basis. Peace, order, security and stability` was used in the law in
the context o local emergencies` and were in act lumped together with disasters and other
immediate needs or humanitarian aid and succor. In short, these terms do not contemplate
a continuing concern but sporadic, extraordinary and episodic incidents partaking o a grae,
cataclysmic and imminent character. 1he stand-by orce contemplated by the law and the
Constitution should respond only to such immediate exigencies. 1he extraordinary nature o
these exigencies runs inconsistent and inconsonant with the idea o a standing,
complementary auxiliary orce attached to the military as proided in LO 264.

1his is, howeer, where things currently stand: we know or a act that based on the
intention o the lramers o the Constitution, paramilitary orces are to be disbanded and
44
neer reied. 1hese paramilitary orces as contemplated by the Constitutional Conention
would coer any entity gien quasi-military status and unctions without the proper training.
Under the present scheme o the law, all citizens are deemed part o the citizen armed orce
by deault and may be called to actie duty in deense o the state when dire security threats
and other grae and imminent perils arise. 1raining and preparation or such incidents are to
be gien the ciilian resere orces. Beore, under the Reserist Act, military training is
compulsory among male students at all tertiary institutions o learning, but this was made
optional under Republic Act 9163 or the National Serice 1raining Program Act which
included ciic welare training and literacy training as part o the options aailable to male
ava fevate college students aside rom the military component. loweer, it is clear that unless
the circumstances o grae and imminent peril actually transpire, these resere orces
composed o lilipino citizens who are able-bodied and who hae receied basic training
must remain as they are - resere orces - and should not be allowed to perorm military or
een quasi-military unctions on a complementary and regular basis. 1his, howeer, has been
modiied by LO 264 when it authorized the creation o the CAA.

1he CAA is currently accorded the status o reserists on actie duty under the
Reserist Act and constitute their own companies and inantry diisions. Operationally, they
are attached to Philippine Army Inantry Battalions composed o regular military elements
also called Cadre Battalions`. CAAs report or duty to the commanders o these cadre
battalions and perorm unctions which complement` the actiities o the military in their
area, inariably counter-insurgency and maintenance o peace and order. 1he CAAs and
their cadre battalions report directly to the Armed lorces o the Philippines Deputy Chie o
Sta or Reserist and Resere lorce Deelopment. 1he CAAs orm part o the totality o
the Resere lorce o the Armed lorces ,which include RO1C graduates, ex-sericemen and
retired oicers o the AlP, recognized \orld \ar II guerillas, etc., which are jointly
administered operationally by the Deputy Chie o Sta or Reserist and Resere lorce
Deelopment ,J8,, the Major Serices Resere Command, and the AlP Resere Command.
45
1he CAA elements are issued small irearms like M-14 or M-16 riles and receie a monthly
stipend o P 2,00.

As a consequence o the act that CAAs are considered on actie duty, they are
subject to military discipline under the Articles o \ar ,Commonwealth Act No. 408,, as
also stipulated in Section 5 o LO 264. 1he Articles o \ar is a comprehensie document
dealing with the requisites or proper conduct and deportment applicable to all elements o
the Armed lorces. 1he Articles proide or the mechanism o a court martial to try and
decide cases brought against alleged perpetrators o war oenses or those whose conduct is
unbecoming an oicer and a gentleman`.


1he Way Iorward:
CAIGUs, paramilitarism, and CARHRIHL

In 2002, a report written by Merliza Makinano reealed that CAlGUs, especially in
the early 1990s, heaily recruited children and teenagers into their old in many rural areas.
1he reasons gien by the children were aried, but most o them primarily attribute the act
o their joining the ranks o CAlGUs to economic hardship.

In a statement issued by the Commission on luman Rights on 23 March 2000, it was
pointed out that lack o training on the part o the CAlGU elements contribute to the
tendency that they will be committing abuses and iolations o human rights during their
tours o duty in their localities. In act, as the Commission points out, 853 cases o murder,
execution, torture, disappearance, illegal arrest, and detention were iled with it at the time
the statement was released, all o them against around 1,00 members o the CAlGU.

In 2002, United Nations Special Rapporteur Rodolo Staenhagen prepared a report
on the human rights situations in indigenous cultural communities in the country and ound
that one o the chie causes or the iolations o indigenous peoples` rights is the
46
phenomenon o deelopment aggression - the practice o encouraging economic actiities in
ancestral domains and other indigenous cultural communities without the peoples` ree, prior
and inormed consent. In the context o deelopment aggression, indigenous peoples who
attempt to mount a iable opposition to the destructie and intrusie projects were oten
countered by brute military orce in the orm o human rights abuses like arbitrary detention,
persecution, killings o community representaties, coercion, torture, demolition o houses,
destruction o property, and rape. In all these unlawul actiities designed to subdue local
opposition to the deelopment project, CAlGUs igured prominently and ictims o human
rights abuses testiy that the iolence inlicted upon them were oten preceded by unjustiied
allegations by CAlGUs o their ailiation with insurgent groups.

\hile the Deense Undersecretary reported to the Special Rapporteur upon inquiry
that CAlGUs are treated as mere resere orces who carry out military duties only sparingly
and only as the need arises`, members o indigenous cultural communities belie such a
contention, and reported contrarily that CAlGUs in their areas are not regularly trained
military personnel but elements empowered to carry and use arms or the purpose o
controlling the social and political lie o their communities. In the end, the Staenhagen
Report recommended that irregular armed orces and other paramilitary units in the
indigenous cultural communities be demobilized or withdrawn, because their continued
presence in the area represents a threat to the human rights o indigenous peoples.

1he presence o reports such as these in the public records proide ample eidence
that CAlGUs hae been liing up to the ear o the lramers o the Constitution with regard
to the pernicious eects o the state`s ormation o a paramilitary entity exercising quasi-
military unctions on a permanent and regular basis at the local communities. 1he logic o
the premise laid down by the lramers more than twenty years ago still rings alid and sound:
an untrained armed group let loose in the countryside will always augur well or the creation
o little pockets and strongholds o coercie power and inluence in the rural areas. Little
kingdoms will be established and maintained by indiiduals whose lack o education and
4
training in the proper conduct o military lie will inest them with the alse sense o power
that ineitably breeds contempt towards the legal order. In such a chaotic context, human
rights and the principles o international humanitarian law can hardly be expected to be
accorded proper respect and obserance.

It is clear under the preailing circumstances that the ery existence o CAlGUs in
the rural areas resulted rom a misapprehension and misinterpretation o the law, as well as
the ailure to ascertain the objecties and intentions o the Constitution when it mandated
that a citizen armed orce` shall be created and that all citizens are required to render
military duty when called upon by the state in order to deend its soereignty and integrity.
1he illegalization o paramilitary units, which was mandated along with the demobilization
and dissolution o the erstwhile ClDl, contemplated a complete halt to the deleterious
practice o the state in recruiting ciilians or military duty, arming them, and allowing them
to sere as illers` in the gaps created by lack o military and police personnel capable o
maintaining law and order in ar-lung areas and in areas designated as hotbeds o
insurgency. 1he extraordinary power o the state to call its citizens to deend it during
instances o grae and imminent peril is simply inconsistent with the idea that ciilians, in
the meantime and on a regular basis, can be tasked to perorm quasi-military unctions to
respond to a concern as general and as continuing as maintenance o peace and order.

loweer, een assuming without necessarily conceding that the law creating the
CAlGUs and the CAAs does not iolate any legal precept and that the current ramework
or the regulation o paramilitaries within the Armed lorces establishment is alid under the
law, history and practice would still point to the undeniable act that the continued existence
and deployment o CAlGUs hae proided opportunity or human rights abuses to be
committed. Reports and complaints receied by the Commission on luman Rights indicate
substantially that human rights abuses prolierate in areas saturated by orce, both military
and paramilitary. In a regime where power is reposed upon those who are unprepared to
48
wield it, ineitable errors in judgment and abuses o discretion arise, causing injury and
suering to innocent bystanders.

\hen the continued paramilitarism in the countryside is examined in light o the
GRP`s mandates under CARlRIlL, it becomes apparent that the objecties sought to be
subsered by the Agreement - respect or human rights and international humanitarian law
- will always be imperiled and threatened. As earlier discussed, the iolations being reported
to the Commission on luman Rights allegedly committed by CAlGUs ineitably result
rom the twin maladies that beset the orderly insulation o the military rom the political
aairs o the country - an unproessional deense establishment and a weak state. Because
o these two complications, CAlGUs are liable to be captured by parochial interests,
political and ideological orces, and een priate interests ,i.e., warlords, landowners,
politicians, to be used or illicit purposes. It is this ulnerability that makes paramilitaries,
particularly in the deeloping countries, susceptible to degenerating into a group o armed
renegades owing allegiance to no law within their little enclaes. In turn, it is this
susceptibility that renders the GRP incapable o complying with its mandates under
CARlRIlL rbite at tbe .ave tive insisting on the continued operation o the CAlGU
paramilitary unit.

!bat are tbe oivt. of ivterrevtiov for grov. ava ivairiavat. ivtere.tea iv va/ivg tbe
C.RR ror/.

ir.t, there is a need to actiely campaign or the demobilization and dissolution o
CAlGUs at all ronts o law and policy-making. 1his is the most eectie solution to ensure
that human rights abuses and iolations o international humanitarian law will no longer be
committed by paramilitaries. Lawmakers must be coninced that continued paramilitarism is
conceptually and practically inconsistent with respect or human rights.

49
ecova, there is a need to orient local communities regarding their human rights and
basic rights in the context o armed hostilities. Communities must be taught how to assert
their rights in the dierent orums or redress and how to take adantage o the grieance
procedures under the law to exact accountability rom erring paramilitaries. Assisting
communities in being pro-actie and in being sel-suicient in the protection o their rights
is the best antidote to the saturation o orce that they are currently experiencing rom both
military and paramilitary quarters. Any such educatie measure, howeer, must take into
account the peculiar circumstances o eery case and locality ,e.g., CAlGUs may be brazen
in their conduct in one area because they enjoy the patronage o inluential local leaders, etc.,
so that the most appropriate and eectie remedies aailable under the circumstances may
be identiied.

1bira, there must be a conscious eort to identiy the primary causes that account or
the continued and successul recruitment o CAlGUs in an area. Lconomic actors may
ineitably crop up, as well as the general desire to gain some leerage in terms o protecting
one`s amily rom equally armed orces rom either the goernment or the rebel ront. In
short, the continued iability o CAlGUs might be not only a unction o the state policy
tolerating ,or encouraging, it but also o the necessities, paucity o options, and exigencies o
the people residing in the community. Once the root cause or CAlGU membership is
identiied, it can then be targeted through the most appropriate and eectie means possible
,e.g., lielihood enhancement, education, tempering o the political inluence o a local
political in the area through appropriate channels,.

ovrtb, the CAlRIlL must be eleated to mainstream collectie consciousness.
Lducatie measures and inormation campaigns among concerned sectors will strengthen
and consolidate the monitoring and eedback mechanism inherent in eery measure that
purports to impose upon the goernment a number o positie commitments and
obligations. 1he seeming lack o interest on the part o the GRP to comply ully with its
CARlRIlL mandates may be partly due to the general iew that it can hardly be held
50
accountable and exposed to scrutiny and critique or a commitment that not too many
people may know about. 1he duty to progressiely reiew state policies on paramilitarism is
but a small segment o the entire GRP mandate under CARlRIlL, but compliance
therewith can be demanded with more acility i more sectors actually clamor or it on the
basis o their intimate knowledge and understanding o the express obligation imposed upon
the GRP to do so.

1he only way orward or the GRP is to immediately moe to demobilize and
eentually dissole CAlGUs. 1he task o complying with its CARlRIlL mandates is in
itsel a mammoth one as respects the regular armed orces ,which, needless to say, hae also
been charged with human rights iolations or the longest time,, matters will not be made
any less diicult by the act that the GRP would also hae to account or the conduct o its
paramilitaries, which, under international law, it is bound to do. 1he GRP must proceed
rom the almost intuitie proposition that an irregular armed orce lacking the discipline and
training o a proessional military will more oten than not be a liability in the general
campaign to respect, protect, and promote human rights. \hen it comes to matters o
power, orce, and the legitimate use o iolence, all manner o saeguards must be employed
to temper the inherent attraction o human beings to the dictates o superiority and
dominance. A legal order that does not proide such saeguards will be liable to expose its
citizens to abuse and ictimization.









51
References consulted:

Privar, tet.

Commonwealth Act No. 1
Commonwealth Act No. 408
Comprehensie Agreement on Respect or luman Rights and International lumanitarian
Law
Lxecutie Order No. 18
Lxecutie Order No. 264
Lxecutie Order No. 25
Presidential Decree 1016
Presidential Decree 1166
Presidential Decree 1242
Presidential Decree 1968
Republic Act No. 516
Republic Act No. 0
Republic Act No. 9163



ecovaar, ovrce.

Alexander Linn, 1he Just \ar Doctrine and State Liability or Paramilitary \ar Crimes, 34
Georgia Journal o Int`l and Comparatie Law 619 ,2006,.
Commission on luman Rights, On luman Rights Violations Committed by CAlGUs and
Other Para-Military Groups Against Indigenous People: Statement o the
Commission, 12 September 2005.
Commission on luman Rights, On the Reial o the CAlGUs: Statement by the
Commission, 23 March 2000.
Daid Spencer, Colombia`s Paramilitaries: Criminals or Political lorce ,2001,
Gemma Bagayaua and Purple Romero, last lacts about the CAlGU and Paramilitary
lorces ,2008,
International Committee o the Red Cross, Rules o International lumanitarian Law and
Other Laws Relating to the Conduct o lostilities: Collection o 1reaties and Other
Instruments ,2005,
Kit Collier, 1he Armed lorces and Internal Security in Asia: Preenting the Abuse o
Power,` Last-\est Center Occasional Papers, Politics and Security Series No. 2
,1999,
Margaret Lei, 1he Predatory 1heory o Rule, 4 Politics and Society 10 ,1981,
Merliza Makinano, Child Soldiers in the Philippines ,2002,
52
Nathan Gilbert Quimpo, 1he Use o luman Rights or the Protraction o \ar, 21
Kasarinlan 34 ,2006,.
Oicial \ebsite o the Deputy Chie o Sta or Reserist and Resere lorce Deelopment.
Purple Romero, Statistics on CAlGU ,2008,
Robert Bates, Aner Grie, and Smita Singh, Organizing Violence, 5 Journal o Conlict
Resolution 46 ,2002,.
Sulong CARlRIlL Module
Sulong Update, Issue No. 1 ,June-July 2005,.
Sunil Dasgupta, Paramilitary lorces and Security Reorganization, 12 GSC Quarterly 1
,2004,.