State Responsibility for Enforced Disappearances

By Angelo Karlo T. Guillen

National Union of Peoples’ Lawyers

Eighteen years ago, on the evening of April 12, activists Luing Posa-Dominado and Nilo Arado were abducted by armed men in Brgy. Cabanbanan, Oton, Iloilo. Their companion, human rights worker Jose Ely Garachico, was shot in the neck and left for dead. Garachico survived and later recounted how their pick-up truck was stopped by heavily armed men, and how Luing and Nilo were taken at gunpoint and forced into other vehicles. The victims’ vehicle was commandeered, driven to a different town, and torched. Luing and Nilo were never seen or heard from again.

Maria Luisa “Luing” Posa-Dominado was a long-time activist, a political prisoner during martial law, and spokesperson of Samahan ng Ex-Detainees Laban sa Detensyon at Aresto (SELDA). Nilo Arado was a land rights advocate, a member of Kilusang Magbubukid ng Pilipinas (KMP), and the Chairperson of Paghugpong sang mga Mangunguma sa Panay kag Guimaras (PAMANGGAS) – organizations pushing for agrarian reform in the country. Before their abduction, both victims were campaigning for the progressive party-list groups Bayan Muna and Anakpawis.

The abductions of Luing and Nilo took place the same month that peasant activist Jonas Burgos was kidnapped from inside a mall in Quezon City, and less than a year after youth activists Sherlyn Cadapan and Karen Empeño were abducted by soldiers in Bulacan in June 2006. They are among the country’s 2,135 desaparecidos – victims of enforced disappearances – under the previous five administrations and the first two years of the administration of Ferdinand Marcos Jr., as documented by human rights monitor KARAPATAN. Eyewitness accounts indicate that, in certain cases, the victims were held for days or even months to be repeatedly interrogated, tortured, and sexually abused, before being killed.

The capacity to abduct people, sometimes publicly and in broad daylight, detain them for long periods, and move them to various locations suggests considerable resources and operational skills available to the perpetrators. These circumstances and the absence of meaningful action by law enforcement agencies to identify and prosecute those responsible reveal the impunity with which enforced disappearances take place in the Philippines.

While some victims have either been surfaced by the government or found dead, the vast majority remain missing, highlighting the justice system’s inability to resolve these incidents. In that regard, the Philippines is not unique as many governments across the world have undertaken to systematically abduct and disappear political dissidents and used their laws to cover up the crimes, protect the perpetrators, and frustrate efforts to locate and secure the victims.

The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), a treaty that entered into force in 2010, defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” The ICPPED draws this definition from the opinions of different international courts and bodies that laid down the constitutive elements of enforced disappearances: (a) deprivation of liberty, (b) direct or indirect involvement of state agents, (c) concealment of the victim’s fate and whereabouts, and (d) placement of the victim beyond legal protection. The enforced disappearance of a person is also an underlying crime under Article 7 of the Rome Statute, which deals with Crimes Against Humanity. In the context of an armed conflict, it may also amount to a war crime even if committed against captured enemy combatants or fighters.

Enforced disappearances are considered among the worst and most complex forms of human rights violations because of the multiplicity of legal norms breached, the severe implications for the victims, their families, and communities, and the participation of the state in the commission, continuation, and cover-up of the crime. While the number of desaparecidos is much lower than that for the victims of extrajudicial killings, the impact of enforced disappearances is just as significant because the crime is designed to inflict maximum damage by neutralizing the victims, terrorizing their families and communities, and nullifying legal remedies that, at least on paper, could potentially address the violation. These effects make it a preferred tool for authoritarian regimes.

Along with extrajudicial killings, enforced disappearances are efficient devices for maintaining control over a population. Criminologists Penny Green and Tony Ward explained that “the pervasive fear induced by state terror can itself be a very effective means of social control.” According to them, the hallmark of enforced disappearances is not secrecy but, rather, denial. Though the direct perpetrators are protected by anonymity, the crime is not meant to be invisible. The public is intended to know – or at least imagine – what horrific fates befell the victims. And although the state will deny authorship for the disappearances to an international audience, “its effect on the local population,” wrote Green and Ward, “is to enforce complicity or acquiescence.”

In their comprehensive study of enforced disappearances, legal scholars Tullio Scovazzi and Gabriella Citroni traced the practice back to the forcible taking and transfer of persons under the Nacht und Nebel (Night and Fog) decree in Germany and territories occupied by the Nazis during the Second World War. It was implemented as a measure of deterrence and intimidation against the civilian population, avoiding lengthy legal proceedings and keeping the victim’s family and the whole community uncertain of his or her fate.

Decades later, enforced disappearances became systemic in Latin America where US-backed dictatorships in Argentina, Bolivia, Brazil, Chile, Paraguay, and Uruguay abducted thousands of activists. Enforced disappearances became a tool to eliminate so-called terrorists or subversives. and to intimidate the population by forcing everyone, according to Scovazzi and Citroni, “to live in a climate of physical and psychological submission to the benefit of those who, while violating the most basic laws of human coexistence, enjoyed a condition of total impunity.” The lack of information, the psychological effects on the victims’ families and the community, the fear and uncertainty created by the abductions, the absence of genuine investigations, and the subsequent reprisals and threats faced by the families, witnesses, and human rights defenders ensure impunity for those responsible and turn enforced disappearance into what they described as “the perfect crime.”

In the Philippines, enforced disappearances form part of the government’s counterinsurgency strategy. Progressive organizations have, for decades, been labeled by the government as “fronts” of the revolutionary movement led by the Communist Party of the Philippines. As a result, its counterinsurgency efforts have led to the persecution, imprisonment, killing, and disappearance of thousands of activists, peasant leaders, human rights defenders, aid and development workers, journalists, and student leaders.

Even as the Philippine government denies responsibility for enforced disappearances, some of the activists abducted would later surface in the custody of state forces. The Armed Forces of the Philippines, the Philippine National Police, and other agencies under the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) promote the narrative that these victims are NPA rebels who were either “captured” or “voluntarily surrendered”. Yet many survivors of state-perpetrated abductions gave harrowing accounts of how they were kidnapped, detained in military facilities, interrogated under torture, and forced to sign documents falsely claiming that they were rebels.

In September 2019, KARAPATAN reported the abduction of 23-year-old activist Alexandrea Pacalda by soldiers from the 201^st Infantry Brigade. Pacalda’s account reflected a similar pattern of abduction and detention in a military camp where she underwent more than 24 hours of sleep deprivation and, through threats and psychological abuse, was forced to execute documents against her will.

The Pacalda case is also emblematic of how domestic law not only leaves abductions and arbitrary detention unremedied but can also facilitate them. When Pacalda’s family sought to compel her release through a judicial application for habeas corpus, the AFP and the Department of Justice rushed to file criminal cases against Pacalda for illegal possession of firearms and explosives. The court then dismissed the habeas corpus petition, holding that the indictment rendered issues surrounding the legality of detention moot and academic. The victim was later convicted and sentenced to life imprisonment, while no one has been held accountable for her abduction.

The tactic of hurrying to file criminal charges against detainees in order to negate habeas corpus proceedings and prevent their release is grounded on jurisprudence dating back to the Marcos dictatorship. Rolled out by the Supreme Court in Ilagan v. Enrile (1985), the doctrine has since been reiterated and applied in future cases to justify the continued detention of activists arrested and held by police and military forces without the benefit of judicial warrants. Despite condemnation by human rights advocates, the Ilagan doctrine remains in the state’s legal arsenal and has proven to be an effective weapon against members of progressive groups.

Even when the victims are released, they still face threats of attack, red-tagging, and persecution through trumped-up charges. A recent illustration involves two female environmentalists, Jonila Castro and Jhed Tamano, who were abducted by armed men in Bataan in September 2023.

Following a bourgeoning public campaign for their release, Castro and Tamano were surfaced by the government 17 days later. During a press conference organized by the military and the NTF-ELCAC, state officials presented the victims and claimed that they were rebels voluntarily seeking government protection. The victims, however, deviated from the written statements prepared for them and, instead, narrated how they were abducted, detained in safehouses and a military camp, threatened, and forced to sign affidavits prepared by their captors. The publicity of the event compelled the government to release them, but they now face criminal charges brought by the AFP and the DOJ. Castro and Tamano represent the very few who were surfaced and managed to secure their liberty but still suffer from the ever-present threat of retaliation.

To address widespread criticisms from domestic and international civil society organizations concerning its abysmal human rights record, the Philippine government recurrently refers to various laws and legal procedures that supposedly back its claim that the legal system offers adequate protection against enforced disappearances. It often cites the 2007 Rule on the Writ of Amparo adopted by the Supreme Court to address the rapid rise in extrajudicial killings and enforced disappearances, as well as Republic Act No. 10353 or the Anti-Enforced or Involuntary Disappearance Act of 2012. What the government glosses over is the fact that it actively resists any attempt by victims’ families and human rights advocates to avail of these remedies.

Whenever amparo petitions are filed in enforced disappearance cases, government lawyers, usually from the Office of the Solicitor General, reflexively seek the dismissal of these petitions and oppose motions to obtain information and evidence that could be used to locate the victims, secure their release, or investigate officials suspected of involvement in the abductions. In instances when victims or their families gather the courage to file complaints against the suspected perpetrators, these complaints are often thrown out by government investigators, who accept vague denials submitted by state officials, refuse to compel these officials to disclose information, and simply rely on misapplied legal concepts like the “presumption of regularity”. In effect, rather than complying with its international legal obligation to investigate gross human rights violations in good faith, the government undermines the few remedies available to the victims.

In select cases that saw some measure of success, the reliefs provided were distressingly inadequate. In Luing and Nilo’s case, for instance, their families were able to obtain a favorable judgment from a Regional Trial Court granting the privilege of the writ of amparo. The court required the Commission on Human Rights to investigate the abductions and directed the police and the military to assist in the investigation. In the case of Jonas Burgos, no less than the Supreme Court granted the petition for amparo and ordered the PNP and the AFP to conduct their respective investigations into the matter. Almost two decades later, none of these investigations have yielded positive outcomes, further underscoring the impunity in these crimes.

Even recent efforts by the Burgos family to bring greater public attention to enforced disappearances were met with hostility by the state. In 2024, when JL Burgos released Alipato at Muog – a documentary about his brother’s abduction and the struggles faced by the family in its aftermath – the Movie and Television Review and Classification Board (MTRCB) gave the film an “X” rating, declaring it “not suitable for public viewing” and, thus, limiting its distribution. According to the MTRCB, the film “tends to undermine the faith and confidence of the people in their government and/or duly constituted authorities.” Beyond issues concerning censorship and infringements on constitutionally protected speech, this effort by the government to prevent the dissemination of information and to stifle public discourse on the matter is consistent with the state’s refusal to acknowledge crimes for which it is primarily responsible.

Such refusal is likewise demonstrated by the country’s reluctance to be a party to the ICPPED, to the detriment of the victims. The treaty contains provisions that require state parties to submit reports to a Committee on Enforced Disappearances and allow individual victims or their families to directly communicate and report possible violations to the Committee. The Philippines, regardless of the administration in power, has consistently refused to ratify the ICPPED, closing a potential avenue for truth-seeking and accountability.

If the phenomenon of enforced disappearances is to be properly addressed, it ought to begin with an appreciation of the state’s principal role in their occurrence and the rationale and motivation behind them. Measures like the Rule on Amparo and the Anti-Enforced or Involuntary Disappearance Act, while meaningful, are not sufficient to solve the problem, unless they come with the recognition of state complicity and the government’s commitment to cease the practice and to act transparently in investigating and prosecuting cases of enforced disappearances. Until then, the thousands of desaparecidos, like Luing and Nilo, will continue to serve as tragic reminders of the limitations inherent in a legal system that, having been designed and used largely to suppress dissent, cannot be expected to put an end to its abuses.