Presentation of Atty. Edre Olalio last February 8, 2023 on Peace Negotiations or Terrorist Designation? A forum on the current stumbling blocks to a lasting peace.
The National Democratic Front of the Philippines (NDFP) describes itself as the “political authority representing the people and organized political forces that are waging an armed revolutionary struggle for national liberation and democracy.”
The issue of whether the Communist Party of the Philippines-New People’s Army- National Democratic Front of the Philippines (CPP-NPA-NDFP) represent a national liberation movement (NLM) is assumed in this academic paper cum legal opinion.
This view is based on a legal assessment that they qualify as such. Ultimately though, it is a question of fact and only empirical history and independent and credible analysts will validate this.
Liberation movements have locus standi in international law
International humanitarian law (IHL) views national liberation movements and their actors as belligerents who are governed by the laws of armed conflict, i.e. their actions are measured against the necessary requirements of distinction and precaution as to the objects of attack and of necessity and proportionality as to the means and methods of warfare.
Various United Nations (UN) General Assembly (GA) resolutions, intergovernmental and non-governmental declarations, and learned progressive legal opinions have affirmed that NLMs have a legitimate status in international law and have recognized the legitimacy of their use of armed force, particularly against colonial domination, racist regimes and alien occupation in the exercise of the right to self-determination.
The applicability of these situations have been extended by progressive views based on the law on treaties and the rationale behind IHL to apply to armed movements represented by a responsible political authority and willing, ready, and able to abide by it.
Indeed, there is cogent legal basis to support the proposition that the right to self-determination may be exercised if there is a consistent pattern of gross and proven violations of human rights amounting to a denial of the people’s right to freely determine its internal and external political and economic status.
The principle of effective implementation in the law on treaties i.e. a treaty is interpreted in the light of its object and purpose, favor as far as possible the upholding of the human spirit of the provisions of the Geneva Conventions and its Protocols.
The said principles and resolutions of the UN as well as the history and development of IHL unanimously show that the intention is to bring in liberation movements within its ambit.
There are strong bases – backed up by existing international instruments, international reality and practice and increasingly liberal and progressive views and trends in international law and international humanitarian law – that would support the proposition that NLMs have acquired and possess a level of legitimacy and accorded a locus standi (legal standing) in international law.
Use of armed force by liberation movements is legitimate under IHL
Various UN General Assembly Resolutions and Declarations over the years quite categorically reaffirm the legitimacy of peoples’ struggles for independence, territorial integrity, and liberation from such domination and occupation in the exercise of the basic right to self-determination “by all available means, including armed struggle” or “by any means at their disposal.”
IHL conventions and these international instruments, apart from other parallel documents and the history of peoples’ struggles in many parts of the world from time immemorial, have been construed to have “legalized the use of armed means to assert the right to self-determination” by NLMs.
By parity of reasoning, their use of armed force can also be recognized as a legitimate means in pursuit of their right to self-determination not only against the traditional colonial domination, alien occupation, and racist regimes but against all other forms of neo-colonialism, systemic and systematic oppression and repression of peoples.
It can be said that both the real terrorists and legitimate freedom fighters employ some form of violence and rationalize their actions on political and ideological justifications. But the fundamental difference between one and the other is adherence and compliance with the laws of armed conflict or IHL particularly in terms of not targeting innocent unarmed civilians as victims in violation of the principle of distinction and precaution, something that the latter should not engage in as a matter of principle and practice.
Should there be errors, mistakes or divergences with such principles and standards in the conduct of war that are aimed to “humanize the armed conflict,” the responsible political authority must be willing to investigate, admit, take full responsibility, make amends and impose the appropriate internal sanctions on top of its accountability in international law.
Freedom fighters are not terrorists
Having recognized their locus standi (legal standing) in international law and their use of armed force in the context and framework of IHL, these NLM entities and their actors – as well as, and even more importantly, those who do not take part in the armed hostilities like civilians and hors d’ combat – consequently have rights and are protected by instruments, principles and standards of IHL. NLM and their actors – revolutionaries or belligerents, as it were – cannot be regarded as “terrorists.”
It is also in such context and framework that we can say that one’s genuine freedom fighter cannot be another’s terrorist.
After all, “terrorism” is almost always determined by the ruling structures. It is cynical, therefore, to treat the struggle against terrorism as ‘terrorism’.”
The progressive view is that actions taken by NLMs against legitimate objects of attack in an armed conflict under IHL cannot be treated or labeled as terrorism. Otherwise, it allows such actions to be criminalized under counterterrorism frameworks even though they are clearly valid under IHL. This tendency appears to give rise to conflict of laws questions between domestic legislation and States’ obligations under international law.
As consistently incorporated in existing international instruments on the terrorism and human rights, the conduct of parties to an armed conflict, which are governed by IHL, is excluded in the definition of terrorism. The rationale is that any action during such conflicts should be assessed using IHL, and not counter-terrorism frameworks.
In the first place, however, the almost universal principle in political, constitutional and criminal law, adopted doctrinally in our local jurisprudence, recognizes the unique nature and purpose of those who rise up in arms against governmental authority for political objectives.
Parenthetically, but most noteworthy, a local trial court has categorically declared recently the nobility of the objectives and programs of the CPP and NPA in a case which the Philippine government had sought to proscribe them under a previous anti-terror law. The said court dismissed the sloppy and contrived petition while upholding the political offense doctrine that considers all acts in pursuit of one’s political beliefs as being subsumed in one single case of rebellion.
Those who take up arms in rebellion have hitherto never been regarded as “terrorists” under domestic law or slapped with weaponized or politicized charges of common crimes which undermine and insult the intent and motivations of those who wage just wars of liberation.
Having said these, let it be crystal clear though: our legal understanding is that acknowledging, recognizing or even respecting the fundamental, historical and legitimate right to rise up in armed resistance against tyranny and other forms of systemic oppression and exploitation is not identical to rising up in such armed resistance. The latter is an overt act while the former is just a state of mind. Unless a political belief is translated into concrete action, no one may be penalized.
Thus, freedom fighters and human rights defenders alike need not be defensive in the context and framework of the above premises.
Regrettably, of late and particularly after 911, in what is characterized as the weaponization and politicization of the law, there is a flurry of “anti-terrorism” and national security laws and measures in many parts of the globe to justify “anti-terrorism.” The “terrorist” label has become a tool used by governments to delegitimize NLMs and other perceived enemies. By using the “terrorist” label, governments aim to deny the existence of armed conflicts within their territories or the applicability of IHL. It is imperative to challenge these and other similar narratives that aim to negate the root causes of armed conflicts.
IHL applicable to the Philippine armed conflict
The Philippines is a State Party to major conventions and other instruments on human rights (HR) and IHL.
The NDFP for its part has publicly asserted that that it has highly responsible political organizations and the NPA is bound by its own strict rules of discipline. It says that it has its own Bill of Rights and has assumed responsibilities for upholding HR rights and IHL through several publicly available documents on the subject.
It is a matter of public record that the NDFP has adhered to many major international conventions on IHL regarding protection of civilians and civilian communities, and on rights and protection of those who take direct part in armed hostilities as well as those who do not take part or cease to do so, and the humane treatment of prisoners of war. And of course it is the other Party to the Government of the Republic of the Philippines (GRP)-NDFP Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL).
As a matter of fact, the bilateral documents so far reached and initialed in the peace negotiations between the GRP and NDFP are characterized and replete with explicit and implicit recognition of the applicability of IHL principles, standards and instruments to the present armed conflict.
These solemn agreements starting from The Hague Joint Declaration confirm the parity, reciprocity and mutuality of the Parties’ common and separate rights and duties both in terms of HR and IHL. Arguably, there are also provisions in these agreements and bilateral statements during the peace negotiations that not only implicitly recognize the NDFP as a separate political authority but also the fundamental right of the people to oppose oppression and tyranny.
Prof. Joma Sison’s push back vs. “terrorist” labels and false charges
The “terrorist” label and attribution have of course been tagged for the longest time on perceived leaders and suspected members of NLMs and even peace consultants and other participants in the peace process.
In the particular case for instance of Prof. Jose Ma. Sison, the NDFP’s Chief Political Consultant, he was able to successfully defeat his designation as a ‘terrorist” and the freezing of his assets by the member States of the European Union upon the behest of the Philippine government by vigorously contesting the same before a European court principally because of the violations of his right to due process, his right of defence and to effective judicial protection. In the last trumped-up murder charges against him in the Netherlands, the same was also junked because of the baselessness of the case. Much earlier on, Prof. Sison was also implicated in the Plaza Miranda bombing decades ago but the charges which were based on multiple hearsay evidence were dismissed summarily even at the prosecutor’s level for “lack of sufficient basis” as they were merely based on “sheer speculations.”
The inevitable subtext of these successful legal and other pushbacks is the consistent assertion by revolutionaries like Prof. Sison on the legitimacy and even legality of just wars of liberation as a means to a just peace. His consistency in advocating faithful adherence and compliance to the laws of armed conflict are benchmarks of terrorists they do not make.
And yet, the Philippine government has routinely and predictably included his name as either a respondent or accused in criminal cases for practically every alleged encounter, every tactical offensive or just about anything it attributes to the NPA all over the country even for acts purportedly committed while he was in forced exile abroad.
Terrorist designations obstruct peace negotiations
The bigger implication as a consequence of the above legal context and framework under IHL is that any designation, prosecution, conviction, proscription or other punitive administrative, legal, judicial and political proceeding for purported acts by NLMs like the CPP-NPA-NDFP, their members, combatants, or supporters – whether alleged, suspected, labelled or publicly acknowledged – is contrary to IHL and is a regression of international and domestic law principles on legitimate political action.
But more concretely, such “terrorist” designations or labelling also undermine the prospects for possible solutions to the armed conflict and to meaningful efforts to reach an honorable political solution with the end in view of genuinely addressing the roots of the conflict and the reasons why peoples are compelled to bear up arms against what is objectively and subjectively regarded as persistent oppression, exploitation, persecution and injustice by both domestic and even foreign forces.
In particular, terrorist designations under increasingly national security-centric laws and measures over the years all over the world like the overbroad and omnipotent Anti-Terrorism Act (ATA), with its current, inadequate, even illusory administrative remedies to legally contest designation; and the creation of powerful executive super bodies like the Anti-Terrorism Council (ATC), among many others, are matters which even several Special Rapporteurs of the UN Human Rights Council have raised serious concerns about due to their discriminatory tendencies.
They have also pointed out the incompatibility of the ATA’s major provisions with various UN Security Council, General Assembly and Human Rights Council Resolutions impacting on the issue of “counter-terrorism” measures vis-a-vis international human rights law in general as well as the government’s commitments under international instruments on the matter.
With due respect to our Supreme Court, it was our legal contention that designation under the ATA through the ATC’s sole and unilateral determination violates the constitutional right to due process, the right to be presumed innocent, the right to property, freedom of association, and usurps judicial prerogatives.
Designating the adverse party in an armed conflict as “terrorists” and all armed operations including those against legitimate military targets as “terrorism” would not only frustrate efforts to reach at a peace settlement but also discourage compliance with IHL and even obstruct humanitarian aid in conflict zones.
This is not to mention the vicious and mindless red-tagging of civilians which in itself is also a violation of IHL as it violates the principle of distinction between combatants and non-combatants and open the latter to hostile action; the filing of common crimes rather than political charges, let alone false or trumped up cases through irregular or sham preliminary investigations and allegations that suggest an accused of being in two places at the same time; as well as reprisal nuisance and harassment suits including shotgun blocking of progressive websites and resurrection of travelling skeletons to prop up dubious murder charges; the continued and indefinite incarceration and protracted trials of peace consultants; the orchestrated dubious and contrived searches and arrests; the freezing and confiscation of assets of targeted individuals and organizations; the fake and forced surrenders and even fake encounters; and worse, the outright summary executions of civilians and hor’s d combat, and all other hostile attacks on civilians and civilian populations through aerial bombardments and drones, are outstanding issues of paramount and urgent importance that must be taken up in the peace negotiations.
Without removing these prejudicial questions of terrorist designations and the like and the consequent immobilization of and danger to consultants, resource persons and even other peace advocates and human rights defenders, the peace talks or negotiations in particular and the peace process in general will be a Sisyphean exercise, with the burden of this criminalization and demonization weighing down repeatedly every step of the way.
Who would after all wish to openly help and contribute in the peace process and negotiations if in the future they run the risk of punishment and reprisals for doing so?
In fact, this issue of “terrorist” listing of the CPP-NPA and Prof. Sison as the NDFP’s Chief Political Consultant has been an outstanding issue and prejudicial question at several junctures in the peace negotiations in the past. But it has been previously addressed by a mutual commitment to undertake “effective measures” to resolve it, thereby paving the way for the resumption of the peace talks then. This only proves that the Gordian knot of “terrorist” designation or labelling can still be untied in the future.
Give peace every chance
In the end, history has proven that the “terrorist” spectre is but another lazy yet malicious and vain tool to frustrate struggles of peoples exercising their inherent right to self-determination instead of addressing the reasons why they consider all options to achieve a just and lasting peace for the oppressed and exploited majority.
But as Prof. Sison often said, with a subtle tinge of positive criticism and inspiring exhortation: if the oppressors and exploiters do not get tired oppressing and exploiting the people, why should the oppressed and exploited get tired and give up the good fight and noble struggle for national liberation and social freedom?
So what are we saying? It is not only to give peace a chance but to give a just and lasting peace every chance. And terrorist designation, labelling and other similar acts against those yearning for such peace is shooting the dove of peace pointblank. #
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