Rethinking the Issue of Non-Compensability of Civilian Losses Caused by Security Forces During Non-International Armed Conflicts: The Case of the Marawi Crisis in the Philippines

Abstract

The terrorism element attendant in an armed conflict does not alter its destructive nature vis-à-vis civilian properties. One example is the Marawi crisis where the Philippine security forces, in response to the threat to national security, territorial integrity, and sovereignty, resorted to aerial bombings and shelling of private buildings, residential houses, and masajid infiltrated by local terrorists, resulting in the destruction of these civilian properties. This article addresses the issue of non-compensability of these civilian property losses. Arguments in favour of and against non-compensability are presented against the backdrop of the concept of reparations in both international law and Philippine domestic law. Based on existing legal realities in Philippine domestic law and jurisprudence, this article finds that reparations in the form of compensation in the context of the Marawi crisis may not be imposed upon the Philippine government as a legal obligation. However, Philippine domestic law and jurisprudence likewise provides for sufficient grounds that reparations in the form of compensation has become the moral obligation of the Philippine government, which it must pursue in the name of justice under a regime of rule of law. Yet ironically, while justice especially during the transition is the ultimate objective of reparations both in its moral and legal contexts, it is only in the latter context that reparations may be pursued judicially. In the final analysis, the non-compensability issue, though a legal one, is a question of choice on the part of the Philippine government.