COMMENTARY: The Mamasapano Incident 10 Years Hence: “Declassifying” an Unsolicited Legal Memo to (then) DOJ Sec. de Lima

NAGA CITY (MindaNews / 25 January) – On the 10^th anniversary of the Mamasapano Incident of 25-26 January 2015, I am “declassifying” my attached Unsolicited Legal Memo dated 15 May 2015 to the Department of Justice (DOJ) Secretary Leila M. de Lima on the International Humanitarian Law (IHL) Aspect of the DOJ Report on the Mamasapano Incident.  The DOJ Report was submitted by a Joint National Bureau of Investigation (NBI)-National Prosecution Service (NPS) Special Investgation Team to Sec. de Lima on 16 April 2015 and released publicly in redacted version on 22 April 2015.  It took the view that IHL and its domestic law Republic Act No. 9851 (the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and  Other Crimes Against Humanity”) were inapplicable to the Mamasapano Incident as far as the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF) are concerned.  

The DOJ however opted to file charges of direct assault with murder under Articles 148 and 248 the Revised Penal Code against about 90 accused, most of whom were MILF commanders and fighters, for the killing of thirty-five (35) Philippine National Police (PNP)-Special Action Force (SAF) officers and troopers.  Eventually, only last 16 December 2024, of the six (6) accused who were arrested and arraigned for trial, two (2) MILF commanders were convicted for the lesser offenses of 35 counts of homicide, three (3) other MILF elements were acquitted of the crimes charged against them, while one (1) MILF element earlier had the charge (the Information) against him quashed or dropped, by the Regional Trial Court (RTC) Branch 153 Taguig City Consolidated Judgment in 35 separate Crim. Cases Nos. 2173-2207.   

Those charges stemmed from the incident in Barangay Tukanalipao, Mamasapano, Maguindanao (then an undivided province) where forty-four (44) SAF commandoes were killed in a clash with several armed groups there, while on night operations to capture or kill two (2) high-value Jemaah Islamiyah (JI)-affiliated bomb makers Zulkifli bin Hir a.k.a. Marwan (successfully) and Abdul Basit Usman (unsuccessfully) there as part of Oplan Exodus. This was not coordinated with the concerned MILF 118th Base Command or for that matter the Armed Forces of the Philippines (AFP) units in the area.  The operation also resulted in the killings or deaths of eighteen 18 MILF fighters, five (5) Bangsamoro Islamic Freedom Fighters (BIFF) fighters, and seven (7) civilians.  According to the MILF, a SAF operative killed four (4) sleeping MILF fighters, among their 18 casualties.  But all these other (non-SAF 44) casualties were not covered by the aforesaid RTC Taguig cases.   

Last Wednesday, 22 January 2024, the MILF 114th Base Command fighters staged an ambush against the Philippine Army (PA) 32nd Infantry Battalion in Barangay Lower Cabengbeng, Sumisip, Basilan, resulting in two (2) soldiers killed and twelve (12) wounded, and also at least one (1) MILF fighter wounded.  An MILF official with the Ad Hoc Joint Action Group (AHJAG) said the “unfortunate incident” occurred because the Army soldiers did not coordinate their entry into “the barangay, which is an MILF community,” and “insisted” despite being advised to coordinate, so “the encounter erupted.”  But higher AFP officials of the Western Mindanao Command (WesMinCom) belied that, saying that the Army-escorted activities of the United Nations Development Program (UNDP) were communicated to the MILF beforehand through the Joint Normalization Committee (JNC).  It seems that some of the lessons of the “Mamasapano Misencounter” for “Avoiding Pintakasi and Spillovers”  (see the book WE CHOSE PEACE: An Insider’s Story of the Bangsamoro Peace Talks by former GPH peace panel chair and 2023 Ramon Magsaysay Awardee Prof. Miriam Coronel Ferrer) have not yet been learned well enough.      

Here follows attached is my above-said “declassified” unsolicited legal memo to then DOJ Sec. de Lima on IHL aspects of the Mamasapano Incident in 2015. Ten years hence, perhaps some parts of this memo are still relevant for current quest(ion)s of justice and peace.  

(Soliman M. Santos, Jr. is a retired  Judge of the RTC of Naga City, Camarines Sur, serving in the judiciary there from 2010 to 2022.  He has an A.B. in History cum laude from U.P. in 1975, a Bachelor of Laws from the University of Nueva Caceres (UNC) in Naga City in 1982, and a Master of Laws from the University of Melbourne in 2000.  He is a long-time human rights and international humanitarian lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer;  and author of a number of books, including on the Moro and Communist fronts of war and peace.  Among his authored books are The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001);   How do you solve a problem like the GRP-NDFP peace process? Part 2 (Sulong Peace, 2022); and his latest, Tigaon 1969: Untold Stories of the CPP-NPA, KM and SDK (Ateneo Press, 2023). He also has a trilogy of books on his court work and practice:  Justice of the Peace (2015), Drug Cases (2022), and Judicial Activist (2023), all published by Central Books, Inc., Quezon City.)