Tuesday, 03 February 2015 11:34
(BY: CLEM M. BASCAR) This article is written with utmost neutrality and impartiality and is not intented or meant to side with or favor any group, institution, or individual. It is purely an academic attempt, as a concerned and morally obliged educator, to explain in order for our people to gain operational knowledge and understanding as to how and when an armed rebel group attains a status of belligerence, a legal standing under international law equal to the political status as that of the sovereign state it is rebelling against or at war with. Factual examples are the Moro National Liberation Front (MNLF), Moro Islamic Liberation Front (MILF), and the Communist Party of the Philippines with the National People’s Army as its revolutionary arm (CPP-NPA). I do not claim expertise or professional competence in this subject matter for which reason, citations of authorities and experts are creditably made. I wish also to make it absolutely clear to everyone, that this academic discussion, does not bear the slightest advocacy or encouragement for the use of belligerence or other forms of violence as a modality to achieve peace or other political aspirations such as autonomy, secession, liberation, or independence. On the contrary, I have always adhered to my personal conviction that the best methods for civilized countries to attain peace anywhere on earth are diplomacy, legal and judicial processes, and other non-violent initiatives. Proofs of this are the following articles I published both locally and nationally: “PEACE AND GUNS DON’T MIX,” “NEGOTIATED PEACE IS SUSPENDED WAR”, and “THE BEST ROADMAP TO PEACE IS PEACE.”
Having been officially recognized by the Republic of the Philippines and the international community as belligerent armed organizations, the Moro Islamic Liberation Front (MILF), the Moro National Liberation Front (MNLF), and the Communist Party of the Philippines (CPP-NPA), are already states who enjoy the same political status and rights as any independent and sovereign country. While they are still in a state of war against the Republic of the Philippines, by virtue of the existening ceasefire agreements, they can carry on their governmental affairs and operations within their respective defined and controlled territorial jurisdictions just like any independent and sovereign state as long as they strictly adhere to and uphold the terms and conditions of the pacts they forged for the cessation of hostilities. As authorities underscore, being belligerent states, their relations with the Republic of the Philippines are determined and governed by the applicable international laws of armed conflicts and not by our Basic Law, the Constitution of 1987.
For the educational benefit of those who do not possess the functional understanding and knowledge as to how belligerent status is attained by any rebel group, may I enumerate the following criteria as cited in an article jointly authored by Ewen Allison and Robert Goldman:
1. When it controls a territory in a state against which it is rebelling;
2. When it declares independence and its goal is secession;
3. When it has well-organized armed forces;
4. and most importantly, the government recognizes it as belligerent.
As expounded by the authors cited above, the overriding justification for the grant of belligerent status to armed groups rebelling against a state, is to prevent serious legal and humanitarian consequences. They explain that without belligerent status, a government would not be bound to treat insurgents according to the law of international armed conflicts, which could result in savage and inhuman incidents.
On account of the fact that in our contemporary times, many sovereign states are hesitant to grant recognition to groups waging insurrection, liberation or secessionist wars against them for fear that they would lose control of their territories, as a counter mechanism, the international community has arranged for minimum standards of international humanitarian law to be triggered by facts on the ground without waiting for governments to recognize belligerent or a state of belligerency, according to the same authors. They assert that a confrontation is deemed to be an international conflict when the fighting is so intense, organized, and protracted enough to go beyond temporal disturbances and tensons. Moreover, the conflict must be confined within a state borders and generally not involving foreign parties. The moment the situation on the ground meets these criteria, the parties are expected to conform to a distinct body of international law cryztallized most notably in Common Article 3 of the Geneva Convention of 1949 and in addition, Protocol II. The cited authors further explain that these rules apply regardless of the legal standing of the parties at war. “In effect, humanitarian law sidesteps the sensitive issue of recognition.”
With respect to the MILF, it is my personal opinion that at any point in time, it is at liberty to terminate its peace negotiations with the GPH for the establishment of a New Bangsamoro Juridical Entity (BJE) if all it wants is the status of statehood which has already been attained within the areas it exercises effective operational control. As long as it does not violate the existing ceasefire agreements with the Republic of the Philippines, it can continue to exercise the governmental powers, rights, obligations, duties, and perform all the essential functions and activities needed for its belligerent statehood existence with full guarantee of protection under the pertinent and applicable international laws governing states engaged in war.
This is actually the present case of the Moro National Liberation Front (MNLF) which still exists and will continue to exist as a belligerent state even after the Autonomous Region in Muslim Mindanao (ARMM) will be abolished and replaced by the proposed New Bangsamoro Political Entity (BJE) as mutually agreed by the MILF and GPH Peace Panels in pursuit of genuine, lasting, and sustainable peace and the development in Mindanao and Sulu. However, the dissolution or abolition of the ARMM by act of Philippine Congress does not affect or dissolve the belligerent statehood of the MNLF.
In my personal point of view, there are five (5) ways by which a belligerent organization can lose its statehood status, namely (1) on its own accord, dissolves itself and renounces its belligerent status (2) voluntarily surrenders to the state with which it is at war and pledges allegiance to its government, constitution, and flag, (3 total military defeat by the state it is at war with, (4) self-destruction due to incapicity to sustain its existence or mass defection of members (combat troops) to other belligerent organizations, and (5) it enters into a treaty or agreement of peace for its incorpation or integration into the body politic of the state it is at war with under certain mutually acceptable and beneficial terms and conditions as what the MILF is currently pursuing with the GPH.
For as long as the MNLF, MILF, and the CPP-NPA maintain their hard-line position and organizational determination to uphold their bellierent status, they cannot be forced to come under the ambit of the 1987 Philippine Constitution and be subject to its supremacy and applicability.
As diplomatically expressed, the MILF wants a bigger area of territory for the BJE which includes places over which it does not have effective operational control, most particularly the territory in Mindanao and Sulu which was constituted as the Autonomous Region in Muslim Mindanao (ARMM) by virtue of an Organic Law enacted by Philippine Congress for such purpose to address the revolutionary struggle for self-determination led by the Moro National Liberation Front (MNLF) under the Chairmanship of Prof. Nur P. Misuari.
This geographical overlap or superimposition could pose a formidable obstacle to overcome by both the GPH and MILF Peace Panels since such territory had been legally set aside specifically for the Autonomous Region in Muslim Mindanao (ARMM) pursuant to the Tripoli Agreement of 1976 under President Ferdinand E. Marcos, the Final Peace Agreement during the Presidency of Fidel Ramos, and finally in actual implementation of Republic Act 9054, the Organc Act in 1989 which lapsed into law on March 31, 2001 without the signature of the former President, Gloria Macapagal-Arroyo for the expansion of the present Autonomous Region in Muslim Mindanao (ARMM).
The situation is made more complicated and contentious by the fact that the MNLF has remained a belligerent state up to the present with rights and political status equal to any independent and sovereign state. Adding more intricacies and obstacles to the present on- going peace negotiations between the MILF and the GPH, are the royal heirs, traditional leaders, and adherents of the two ancient Sultanates who by right of blood, ancestry, and ancient statehood still claim to possess de jure sovereignty and proprietary ownership of these two ancient monarchies but have not been principally involved in the Peace Process. And what about the Lumads, where will they be in the future political realities of Mindanao and Sulu?
Complicating further, is the breakaway faction of the MILF, the Bangsamoro Islamic Freedom Fighters (BIFF) which at present is already attracting considerable attention, recognition, and publicity world-wide as another formidable revolutionary front that the Philippine government has to deal with. In fact, there are already observable indications that they are being given by the GPH the status of another belligerent group consciously or unconsciously. When the GPH formally grants the BIFF the legal standing as another belligerent front, there will four other states that will be operating in Mindanao and Sulu whose relations with the Republic of the Philippines will be determined and governed by the laws and customs of war and other applicable international laws. This is not to discount the high probability that the BIFF might attain belligerent status automatically when the conditions on the ground set by the international community would be satisfied for the international humanitarian law to sidestep the “sensitive issue of recognition.”
It would be of utmost educational value to the general public if an expert on the subject of belligerence and international laws governing the relations of countries in a state of war, would further elucidate, expound, enrich, or clarify the ambiguities, inadequacies, and shortcomings that this article of mine contain.
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