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The Human Rights Blog of the Leitner Center for International Law and Justice


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Inadequate justice: the case of Jennifer Laude and the call to end unequal military agreements

By Rodrigo Bacus

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: U.S. Pacific Fleet/Creative Commons

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The case of Andrea Rosal: political prisoners and detention conditions in the Philippines

By Rodrigo Bacus

Andrea Rosal, a political prisoner arrested for her community and human rights activism in the Philippines, was finally released from prison on Sept. 7 when the Regional Trial Court dismissed all the charges brought against her due to lack of probable cause. While in prison, she was subjected to harsh prison conditions and denied medical care. Her arrest and detention were especially problematic since she was seven months pregnant at the time of her arrest and faced two months of sub-standard conditions while carrying a baby. Her arrest and treatment while in state custody highlight the terrible detention conditions and the experiences of political prisoners in the Philippines. Since her release, Rosal has expressed a strong conviction to pursue justice for herself and other political prisoners in the Philippines. The egregiousness of Rosal’s detention exemplifies why human rights activists and defenders continue to decry the Philippine government’s policy of detaining political prisoners.

RED TAGGING OF ACTIVISTS AND HUMAN RIGHTS DEFENDERS

The Philippine police and military arrested Rosal on March 27, 2014 and charged her for kidnapping and murder. News sources suggest that the real reason Rosal was arrested was because the Philippine government tagged her as a member of the New People’s Army (NPA), the armed segment of the Communist Party of the Philippines. Red tagging is the practice of publicly labeling organizations or individual human rights defenders and activists as terrorists, communists or rebels by government actors, for the most part. Rosal is the daughter of the late Gregorio “Ka Roger” Rosal, who was the spokesperson for the Communist Party of the Philippines. Rosal’s mother may have also been a member of the NPA, and left Rosal to be raised by her relatives.

Rosal chose to live a different life from her parents and became a peasant community organizer with the Pagkakaisa at Ugnayan ng mga Magsasaka sa Laguna (PUMALAG, Unity of Farmers in Laguna). PUMALAG asserts the rights of farmers to their land and defends human rights issues of farmers, in general. Laying low was the only option for Rosal, who had been kidnapped by the government when she was just 5 years old in a ploy by the government to lure her father out of hiding. The government continues to tag Rosal because of her parents, and even before her arrest, the military had been surveilling her activities. Rosal herself believes that she was arrested solely on the suspicion that she was a member of the NPA. No charges against Rosal were filed in relation to government’s suspicion of her membership with that group.

Rosal’s arrest is an example of how the Philippine government uses red tagging to target its critics. The labeling is used to justify and legitimize human rights violations against human rights activists and defenders, including abuses like extrajudicial killings and enforced disappearances. In this case, the red tagging of Rosal resulted in her detention for a year, in difficult conditions, and the loss of a life she held dear to her.

ARREST AND INHUMANE DETENTION CONDITIONS

At the time of her arrest, Rosal was seven months pregnant. She was first detained in a small and hot cell run by the National Bureau of Investigation, the police sub-unit that had arrested her. While in jail, she complained of abdominal cramps, but was just told to fill out medical forms. She was only able to see her doctor two days later, and was prescribed hospital detention along with other procedures. Her request to be transferred to hospital detention was ignored, and she was transferred to a shared cell with 24 other female detainees. The cell was about 16 by 32 feet in size, with a window that did not allow enough fresh air or sunlight to stream in. Since Rosal’s arrest was so sudden, she was not able to bring any supplements relating to her pregnancy and had to eat prison rations that consisted of rice and a boiled fish or vegetable. Although Rosal is allergic to fish, she was neither allowed to cook her own food nor provided with alternate dining options. She also had to sleep on the floor because the bunk assigned to her was too high.

Article 10(1) of the International Covenant on Civil and Political Rights guarantees that persons arrested or detained must be treated with dignity. Article 12 of the International Covenant on Economic and Social Rights protects the right to the highest standard of physical and mental health. Since the Philippines is a state party to both these conventions, the Filipino human rights group, KARAPATAN, suggests that the treatment of prisoners in general in the Philippines implicates these two provisions. In particular, the overemphasis in Philippine prisons on punitive punishment makes detainees vulnerable to inhumane treatment and conditions. The U.N. Basic Principles for the Treatment of Prisoners and the U.N. Standard Minimum Rules for the Treatment of Prisoners both detail the rights of prisoners and how prison conditions can meet acceptable international standards. The Philippines should incorporate this guidance to ensure prisoners’ rights.

For pregnant women in detention such as Rosal, the World Health Organization (WHO) suggests that even more careful treatment needs to be contemplated. The WHO recommends that women should be imprisoned only when other alternatives are unavailable, particularly in the case of pregnant women. They also recommend that prison staff undergo gender-sensitivity training on various issues, including on adequate nutrition for pregnant detainees, breastfeeding and other types of care. Finally, the WHO emphasizes the importance of individualized health care for women. The detention conditions Rosal faced run counter to such recommendations and effectively punished her as a person held in pre-trial detention.

DEATH OF A CHILD AND A MOTHER’S GRIEF

Rosal’s experiences in detention would lead to even more tragic consequences as her case dragged on and her detention continued. On May 15, 2014, the Regional Trial Court granted Rosal’s request for hospitalization so that Rosal could deliver her baby. This request had been pending since Rosal’s doctor prescribed hospital detention two days after she was arrested. While Rosal was undergoing labor contractions, the police brought Rosal back and forth between the prison and the hospital in Manila. The police claimed that there was no available room for her. The distance Rosal traveled each time was around nine miles. She was not admitted to the hospital until May 16, 2014, a day after the court granted her request. On May 17, 2014, Rosal gave birth to her daughter, Diona Andrea Rosal. The very next day, on May 18, 2014, baby Diona died due to oxygen deficiency as a result of a lung infection (pneumonia) that had caused injury to her brain while on an artificial breathing machine. Rosal held her baby for the first time after she had already died

Dr. Beng Rivera-Reyes of the Health Alliance for Democracy suggests that prison conditions and failure to provide regular pre-natal checkups may have contributed to the baby’s health condition. In a statement to the press, KARAPATAN secretary general, Cristina Palabay said that “[The Philippine government’s] blatant disregard of the rights of Andrea, including her right to receive immediate medical care and be in an environment conducive for conceiving and delivering a healthy child, are apparent in this case.”

After the tragic death of her daughter, Rosal’s request to be temporarily released to bury her child was denied due to security reasons. Baby Diona was buried without the presence of her mother.

CONTEMPLATING CHANGE IN THE PHILIPPINE JUSTICE SYSTEM

In the shadow of Rosal’s arrest and the death of her child, criticism of the Philippine jail and justice system has been mounting. Yet these abuses continue. Another woman, Maria Miradel Torres, was red tagged and arrested while she was sick and four months pregnant. A spokesman for the Bureau of Jail Management and Penology said, “Well, the BJMP facility is really not fit for pregnant women. But we are giving them the most comfortable accommodation and we send them to nearby government hospital if necessary.” Given the experience of Andrea Rosal, human rights organizations were skeptical. Similarly, Torres was sent to a female dormitory in a city jail even though a court ordered to transfer her to a hospital. She was able to deliver her baby in the past year without complications, but is now in danger of being separated from her child.

Although she had chosen a life of quiet activism, it is no surprise then that Rosal’s recent release only strengthened her conviction to continue fighting for the rights of prisoners and political prisoners in particular. Although acquitted of all charges, Rosal’s experiences in detention and the loss she had experienced amount to unjust punishments without a conviction, which is especially problematic for a person who had the right to be presumed innocent. Moreover, the Philippines continues to detain 527 political prisoners on trumped up charges. Political prisoners are targeted by the government and robbed of their right to speak out against the government and defend human rights. Other political prisoners facing the same detention conditions risk consequences similar to those of Rosal. Activists continue to call on the Philippine government to end red-tagging and counterinsurgency campaign as a tactic to undermine critical voices. They also call on the government to observe human rights laws, particularly those standards in treaties to which the Philippines is a state party, with respect to prison conditions and the treatment of female and pregnant prisoners.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit:  Aapo Haapanen/Creative Commons


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Standing in solidarity with indigenous people impacted by human rights violations in Mindanao

By Rodrigo Bacus

Recent killings of indigenous people in the region of Mindanao in the Philippines have shed light on the ongoing human rights violations in the region, leading to international calls for solidarity and demands for justice. In the early morning of Sept. 1, a paramilitary group of the Armed Forces of the Philippines (AFP), the Magahat Bagani Force, also known as the Marcos Bocales Group, shot and killed cousins Dionel Campos and Juvello Sinzo in Mindanao. Both of these men were members of an indigenous people’s rights organization, the Mahalutayong Pakigbisog Alang sa Sumusunod (MAPASU). On the same day, witnesses found the body of Emerito Samarca, Executive Director of Alternative Learning Center for Agricultural and Livelihood Development (ALCADEV), in one of the center’s classrooms. Samarca’s body showed signs of torture before the paramilitary group either shot him to death or left him for dead. The same paramilitary group also set fire to a community cooperative store and part of another indigenous people school, the Tribal Filipino Program of Surigao del Sur (TRIFPSS). These murders and abuses are part of a larger pattern of human rights violations by the AFP and its paramilitaries against indigenous people in Mindanao, who are called the “Lumad,” meaning “people of the earth.”

INCREASING MILITARIZATION, INCREASING VIOLENCE

Human rights activists link the Magahat Bagani Force paramilitary group with the Eastern Mindanao Command of the AFP, and see increased militarization in Mindanao as part of what is spurring the violence. Paramilitary groups in Mindanao are private armies of people recruited from the local community, including “datus,” the honorific title referring to tribal leaders. The AFP and the Philippine government deny direct or indirect involvement with paramilitary groups. However, the AFP’s and the paramilitaries’ harassment, displacement, and extrajudicial killings of the Lumad and human rights defenders in the area is undeniable and was recently highlighted by the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons. The pattern of human rights violations, according to the special rapporteur, is directly linked to either the militarization of the area or the increasing presence of industrial mining companies, which have been criticized for displacing indigenous people from their land. Moreover, the special rapporteur added that Lumads and their datus have been killed specifically for their activities in protest of mining companies.

For human rights activists and people directly impacted by the Philippine government’s counterinsurgency tactics, officially known as Oplan Bayanihan, the increased militarization to protect the interests of mining companies is very real, and has placed many of them at serious risk of physical harm and other human rights violations. For example, Samarca ran a human rights-based alternative learning center, and was actively involved in activist farmer organizations. Similarly, Sinzo and Campos were members of Lumad rights organizations. The paramilitary groups specifically targeted these three victims because of their association with Lumad organizations and alternative schools. In a process known as “red tagging,” the AFP and its paramilitary groups have historically targeted innocent human rights defenders with threats of death and accusations that they are members of the New People’s Army, a military group in the Philippines waging a protracted people’s war against the government. These red tagging incidents can result in the death or injury of the targeted person. Witnesses have testified that the same red tagging occurred with Samarca, Sinzo and Campos before they were killed by paramilitary group.

SEEKING ACCOUNTABILITY UNDER THE LAW

The three deaths represent deplorable extrajudicial killings that must be condemned. The Human Rights Committee has explicitly identified “arbitrary killings” in the hands of government security forces as a violation of the right to life under Article 6 of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is a party. Since red tagging identifies someone as a criminal and often results in the death of that person without a proper trial or sentencing by a competent court, these red tagging killings are a violation of Article 9 of the ICCPR, which protects the liberty and security of persons. Moreover, the deaths of Samarca, Sinzo and Campos are only the tip of the iceberg. Human rights violations committed by the Philippine government are rampant in Mindanao, and there must be accountability.

The targeting of Lumad school leaders and activists coupled with the burning of the schools themselves deny the Lumad their right to education and right to cultural life under the International Covenant on Economic, Social, and Cultural Rights (ICESCR), to which the Philippines is a party. ALCADEV, the alternative learning center that Samarca headed, was created to fill a void in educational access for the Lumad who live in rural areas of Mindanao. ALCADEV provides secondary education to Lumad children, and teaches classes on sustainable agriculture, Lumad culture and human rights. ALCADEV was so successful in its curriculum and in reaching students from remote areas that it received an award for its efforts from the Philippine Department of Education. However, the mission of ALCADEV to promote self-determined and sustainable growth and to oppose industrial mining companies is at odds with the Philippine government’s interests in opening up the Philippines to industrial agriculture, logging and mining companies. The targeting of community leaders, human rights activists and schools—including through arson—represents a deliberate act by the Philippine government to retrogress the educational rights of Lumad children. The government is seeking to cut off their ability to learn and to deny their rights to cultural life and to self-determination over development. The Philippines, which is a state party to the ICCPR, the ICESCR and many other human rights treaties, must meet their legal obligations immediately. The Philippine government must ensure that these human rights abuses stop and that the AFP and its associated paramilitary groups are held accountable.

ROLE OF ECONOMIC INCENTIVES

The interests in acquiring the land of the Lumad to monetize its wealth are very strong. The Philippines is one of the largest depositories of gold and has similarly large deposits of nickel and copper. These deposits lie within regions that are home to the Lumad, who regard the flora, fauna and land as part of their heritage and cultural life. The terror spread by the AFP and paramilitary groups have displaced the Lumad from their home, paving the way for industrial mining companies to establish their foothold in these lands, and to disregard the principle of free, prior and informed consent. The deaths of Samarca, Sinzo and Campos as well as the targeting of the schools have resulted in the displacement of 2,000 Lumad who have evacuated the area for fear of their safety. In addition, the attacks on schools in general have kept almost 3,000 children from enjoying their right to education.

All of this highlights the horrifying reality of what some have described as the “ugly face of our current rapacious global material and energy consumption.” As the international community stands with the Lumad and these three recent victims of paramilitary attacks, it must also strive to recognize a broader system of development that promotes participation, and respects and centralizes the fundamental human rights of all, particularly those who are directly impacted.

SHOWING SOLIDARITY

Local people demonstrated their overwhelming support of the Lumad school leaders by arriving in the tens of thousands for Samarca’s funeral. I regret being unable to personally pay respects to this dedicated and friendly man, who I had seen co-participating in the International People’s Conference on Mining. Furthermore, under the hashtag #StopLumadKillings, directly impacted people, activists and their solidarity networks have continued to send updates about human rights violations in Mindanao and highlight the abuses of the Armed Forces of the Philippines (AFP) and its paramilitary groups. The international community must continue to call for justice and accountability: the Philippine government must abide by its international human rights obligations and address the killings and abuses perpetrated by the AFP and its paramilitary groups.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Keith Bacongco/Creative Commons