It’s increasingly becoming clear that Malaysian authorities have no regard whatsoever for their duty under international human rights law to protect and promote the right to life of the Filipinos in Sabah, and their right to a judicial determination of guilt before the imposition of the death penalty. To date, the death toll has reached 63, while the number of individuals who have been apprehended on mere suspicions that they are sympathizers of the Sultanate of Sulu has reached almost 100. And yet, there does not appear to be any sign that Malaysian authorities will even slow down in their resolve to crack down on the historical owners of Sabah.
The little good news that we have is at long last, the Philippine government has sent a diplomatic note to Kuala Lampur asking Malaysian authorities to “clarify” reports about human rights violations. Media has been reporting wide- scale violations of human rights violations against Filipino nationals in Sabah including resort to pre-trial detentions, torture, and inhumane treatment. Even without dwelling on the Philippine title to Sabah, the Philippines should never abdicate its obligations to its nationals when reports of wide-scale violation of their rights become rampant. Hence it was correct for our authorities to send this note verbale.
But Malaysia appears hell bent on clamping down on the rights of all Filipinos in Sabah, whether or not they are involved in the current standoff. Even before this latest Sabah incursion, Malaysia has been afflicted with extreme paranoia that Filipinos may physically constitute a majority of the population in Sabah. This has led to regular mass deportations of Filipinos from Sabah, almost all of which have been characterized as inhumane. One incident stands out in terms of barbarity. In 2002, when Malaysia deported no less than 62,000 Filipinos from Sabah, the country was shocked to know that in addition to the inhumane nature of the deportations, a Malaysian guard added salt to open wounds by raping a 13-year-old girl in one of the Malaysian immigration facilities. That incident has all been forgotten.
But Malaysia better think twice before it proceeds to commit further criminal acts under international law. While there is still a dispute on whether the current stand-off is now governed by international humanitarian law—the 200 individuals sent by the sultanate of Sulu to reclaim Sabah are not state agents -- international law still penalizes acts which are systematic or widespread attacks against civilians. This is known as crimes against humanity. Unlike war crimes, crimes against humanity do not require a nexus with armed conflicts. It suffices that the inhumane acts, be it deportation, arrest, or inhumane treatment, be widespread or systematic.
While murder remains the most frequent manner by which this crime may be committed, it is by no means the only way to commit it. Under international law, it may also be committed, among others, through extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, persecution against an identifiable group on national (against Filipinos, for instance) or other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury. The list appears tailor made for the inhumane acts that Malaysian authorities have been committing against our countrymen in Sabah.
The beauty of international criminal law is that unlike human rights law, it utilizes penology as a means of enforcement. This means that while the enforcement of human rights is through a shaming machinery where countries in breach of their human rights obligations are shamed into compliance either through the periodic reviews of the UN Human Rights Council or the treaty monitoring bodies, international criminal law actually provides for imprisonment for those who will breach the law. And unlike domestic legal systems, these international crimes are not subject to prescription, may be tried by any court regardless of where they may have been committed, and does not recognize sovereign immunity as a defense. Simply put, Malaysian authorities who committed these crimes against our nationals will end up in jail. If not in Malaysia, then in the Philippines, at the Hague, or in the territory of any state that is duty-bound to prosecute them for their acts.
Interestingly enough, no less than Malaysian Prime Minister Najib Razak may incur liability for these crimes if it is proven that he knew or should have known about these crimes being committed and he did nothing to prevent them or to investigate, prosecute and punish the perpetrators of these crimes. This is known as Superior Responsibility. It may not be today, it may not be in Malaysia, but surely sometime in the future and somewhere in this planet, he will be held responsible for these crimes on the basis of superior responsibility. This was the lesson that the Nazis learned in Nuremberg. This too was the lesson learned by Saddam Hussein, Slobodan Milosevic, Charles Taylor and Tomoyuki Yamashita.
Najib should stop these crimes lest he join the roster of the infamous.