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The Recent MILF Agreements, Belligerency Status, International Law and the Philippine Constitution
by Atty. Soliman Santos, Jr

The writer is a lawyer, peace advocate and legal scholar. He is the author of two recent books, The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001) and Peace Advocate: 50 Selected Writings, 1986-1997 (DLSU Press, 2002).

I was at the House Defense Committee hearing last May 22 on the recent peace-related agreements between the Government of the Republic of the Philippines (GRP) and the Moro Islamic Liberation Front (MILF). I was amazed at the zeal with which some lawmakers scrutinized these agreements, a zeal for scrutiny that seemed lacking when it came to President Estrada's all-out war against the MILF two summers ago, or to the more recent Balikatan exercises. In Congress or in this country, peace is controversial, war is not.

That all-out war in mind - we know what they did two summers ago - I was amazed at the emotional invocation by some lawmakers of the sacrifices of our soldiers in capturing all 46 or so MILF camps, without any reference to the sacrifices of our civilians in the conflict-affected areas. There was much praise for the generals responsible for the capture of the MILF camps. President Arroyo herself cited this feat in recently appointing the new Chief of Staff of the Armed Forces of the Philippines. This does not seem consistent with her rejection of the all-out war policy of her predecessor.

All the hullabaloo (as Fr. Jun Mercado puts it) over these recent agreements is reminiscent of the Davao points of consensus between the GRP and the Moro National Liberation Front (MNLF), including the proposed Southern Philippines Council of Peace and Development (SPCPD) six summers ago in 1996. Then, the specter raised was a provisional government for the MNLF (in retrospect, it was the MNLF which could complain that it was naisahan into entering a trap called SPCPD). Now, it is the return of the MILF camps.

I will not go here into the nitty-gritty of the recent agreements with the MILF. That is best left to the ones most competent to explain them - the negotiators on both sides. We should perhaps listen to them more, as well as read ourselves the agreements. The problem with the hearing last May 22 was that it heard more from the committee members than from the resource persons, all of whom were from the government side, including the negotiators. More dangerous than the supposedly "dangerous" terms in the accords is the appointment of one high official in the defense establishment to interpret or implement according to his or the government's own interpretation. Even with presidential clearance, it cannot be a unilateral interpretation or implementation. It must be mutually agreed upon by the parties, if we are still bargaining in good faith. Let us not be condemned to repeat the mistakes of the unilateral implementation of the 1976 Tripoli Agreement by the Marcos and Aquino governments.

Apart from the return of the MILF camps, there were other issues or, more precisely, mindsets that kept coming out in the course of the hearing. Interestingly, such mindsets affected the opponents and supporters of the agreements. These mindsets will manifest themselves again and again and continue to confuse future discussions, if they are not laid to rest.

I am referring to such mindsets as the concept of belligerency status, the aversion to refer to international law and the framework of the Constitution. As a lawyer and legal scholar who has invested much time and work on the Mindanao Peace Process (and who considers Muslim Mindanao as my second region, after Bicol), I wish to share some legal perspectives that may shed light on these matters.

Belligerency Status

Both opponents and supporters of the agreements in question should stop referring to belligerency status because this concept is obsolete, according to modern authorities in international law in the 1990s. True, the concept is still there as part of the classic categories of civil conflict that also include insurgency and rebellion, and found in standard textbooks of public international law. However, it has remained a textbook concept not applied to state practice for perhaps a century already. One might say, it has "prescribed" as a concept.

Unfortunately, we are often in a time warp in the Philippines when it comes to international law. When I was still based in Naga City in 1991, Olivier Durr, head of delegation of the International Committee of the Red Cross (ICRC) in the Philippines, wrote me: "I have always been amazed at the importance given to this subject by both parties (the GRP and the National Democratic Front) in the Philippines. Sad enough, the application and respect of international humanitarian law (IHL), even in its fundamental principles, have been made more difficult because of this unnecessary political requisite."

Further, he wrote: "You will see that the recognition of belligerency is an obsolete legal institution that was not even a generalized and accepted practice, but rather an instrument of the policy of the USA in the Southern American affairs at the turn of the (20th) century." He referred me to the article Recognition of Belligerency by Eibe Riedel in the Encyclopedia of Public International Law.

Hilaire McCoubrey and Nigel White, in International Organizations and Civil Wars state: "Much of the case law (on belligerency) derives from wars of independence in South America (in the 19th Century). In a post-1945 context this model is no longer wholly adequate."

In International Humanitarian Law: An Introduction, Hans-Peter Gasser says: "Of mere historical interest is the notion that the government of a State engaged in a conflict may recognize the insurgents as a belligerent party. Such a declaration was last made during the Boer War (1902); recognition of the South as a belligerent in the American War of Secession was only tacit."

Heather A. Wilson, in International Law and the Use of Force by National Liberation Movements writes: "In practice the traditional international law on recognition of insurgency and belligerency is more theoretical than real. Since World War I the recognition of belligerency has scarcely ever occurred and not at all since World War II. Even in the Spanish Civil War (1936-39) the insurgents were never recognized as belligerents."

It is about time that the phantom menace of belligerency status be laid to rest in Philippine discourse.

International Law

During the committee hearing, a former congressman and peace negotiator said that references in the agreements to IHL should be avoided because this might grant belligerency status to the MILF. He also said that during the all-out war, the government side did not want the ICRC to come in and retrieve the dead because of implications of "internationalization" of the internal armed conflict with the MILF. In the Implementing Guidelines on the Humanitarian, Rehabilitation and Development Aspects of the GRP-MILF Tripoli Agreement on Peace of 2001, there is a provision requiring the parties to cooperate fully with the ICRC to facilitate its humanitarian work in accordance with its mandate.

There is a standard phrase in Common Article 3 of the 1949 Geneva Conventions: "The application of the preceding provisions (minimum humanitarian rules in internal armed conflicts) shall not affect the legal status of the parties to the conflict." The discussion on this phrase in the 1995 ruling of the Colombia Constitutional Court on constitutional conformity of 1977 Additional Protocol II on internal armed conflicts has been upheld by the ICRC as a model and is so relevant to us:

"From the legal standpoint this short phrase was of revolutionary import at the time, because it meant that, in internal conflicts, application of the humanitarian rules ceased to be dependent on the recognition of insurgents as belligerents. The phrase quoted above consequently removes any doubt that humanitarian law might erode the sovereignty of a State. In practice, it means that application of the humanitarian rules by a State in an internal conflict does not imply recognition of belligerent status for those who have taken up arms."

As for the ICRC, Gasser in the same work I have cited says: "The activities of the ICRC have no effect on the legal status of the insurgents, and in particular, the presence of ICRC delegates does not internationalize the conflict."

One gets the impression of the Philippines priding itself as a champion of the international rule of law, human rights and IHL but not applying those in its own backyard of armed conflict. The Philippines has ratified a number of IHL treaties, notably the four 1949 Geneva Conventions and their Protocol II. But it has not passed a corresponding law. The point is not to internationalize our conflicts, but to internalize the international law on armed conflict or IHL.

Aside from legislation, another way to do this is through special agreements like the ones with the MILF. One practical reason is that rebel groups, being outside the legal system, will not ordinarily subject to domestic legislation which they are not party to. They will presumably respect special agreements which they are party to. Credit goes to the negotiators of the recent GRP-MILF agreements for using the tools of international law, particularly IHL, to address the humanitarian problems of evacuees and communities in conflict-affected areas.

Special agreements are specifically encouraged under Common Article 3. It has the status of absolutely binding and non-derogable international law (jus cogens), containing generally accepted principles of international law adopted as part of the Constitution.

Another essential principle of contemporary international law considered binding for all (erga omnes) is the right of peoples to self-determination. That is, to freely determine their political status and freely pursue their economic, social and cultural development. References to this principle in the agreements with the MILF have drawn knee-jerk reactions from some lawmakers who thought of it as an allusion to secession. It does not follow. The forms of self-determination are many, ranging from integration to secession.

What is important is that the final outcome is not imposed but negotiated under the guidance of such principles as mutual recognition, consent and cultural continuity. Even secession, separation or independence can be negotiated based on the will of the peoples concerned as shown by experiences like those of Czechoslovakia (into the Czech Republic and Slovakia), Quebec (still with potential to secede from Canada in the next referendum), East Timor (from Indonesia), and yes, let us not forget, our own country (from the US of A). Ironically, from the Bangsamoro perspective, Philippine independence meant Bangsamoro annexation.

Incidentally, our Constitution specifically recognizes the right to self-determination, albeit in the State's "relations with other States." It seems hypocritical for the Philippines to invoke this right in its external relations (external self-determination) but deny the same from its own constituent peoples or nations like the Bangsamoro (internal self-determination). This brings us to a constitutional framework in relation to the recent peace agreements with the MILF.

Philippine Constitution

During the hearing I attended, one congressman, who ironically used to sit in the MNLF peace panel as its legal counsel, made much of the fact that no reference to the Constitution can be found in the agreements with the MILF. In defense of these agreements, the Presidential Adviser on the Peace Process said that these were only interim agreements and promised that the final peace agreement, like the MNLF's, will have a reference to the Constitution. Within the government, therefore, both the opponents and supporters of the agreements consider the Constitution as the ultimate reference.

That sounds logical in our constitutional system. As it turned out, aside from the presidential directive to the government negotiators that there will be no return of the MILF camps, the only other directive was the framework of the Constitution, national sovereignty and territorial integrity.

But to insist on the constitutional framework confirms a misunderstanding of the Bangsamoro problem. Part of the problem is the Constitution itself, especially in terms of the structure of the political relationship between the central government and the Bangsamoro people in the South. Under the present highly centralized structure by which the influence of the elite is enforced, the Bangsamoro identity, way of life and longing for self-rule are severely constrained. The Constitution is probably the best embodiment of Filipino values and aspirations. But how about Moro Islamic values and aspirations?

To insist on the constitutional framework also defeats the purpose of the peace negotiations. What is there to negotiate other than terms of surrender if the government won't budge on the Constitution? Does it serve the purpose of solving the Bangsamoro problem to insist on retaining a big part (the constitutional part) of that problem?

In the Hague Joint Declaration that serves as the framework for the GRP-NDF peace negotiations, one of the substantive agenda major headings is "political and constitutional reforms." With more reason are constitutional reforms relevant to "the end in view of establishing a system of life and governance suitable and acceptable to the Bangsamoro people." A negotiated constitutional (not just political) settlement sums up what has been missing so far in the intermittent peace negotiations with the Moro liberation fronts since 1975 under five presidents.

This constitutional settlement must be negotiated, and follow from the peace negotiations between the parties. It cannot come from another process involving other parties, no matter how good the intentions. Moves for charter change, including by leaders of Congress, in fact militate against insisting on the Constitution as the ultimate term of reference for the peace negotiations with the MILF.

A former congressman, a 1971 Constitutional Convention delegate, a Muslim Filipino lawyer, a long-time scholar and now a peace negotiator for the MILF, Datu Michael Mastura, said it succinctly: "The context of the Philippine Constitution is a narrow framework in which to argue for self-determination and only an international frame of reference - one involving universal rights - can be the context for negotiated settlement of the Bangsamoro problem."