Anti-terrorism framework counters FVR peace legacy

A proposal was made recently by the peace adviser of Ferdinand Marcos Jr., purportedly to provide a cornerstone to the President’s national unity call and to honor the memory of Fidel V. Ramos, the 12th Philippine president who died on July 31.

The idea of the adviser, Carlito Galvez Jr., was to create a National Amnesty Commission and grant amnesty for both Bangsamoro and communist rebels.

“Under the Marcos administration’s banner of national unity, we seek inspiration from the legacy of peace that has been left behind by (FVR). We will honor his memory by continuing what he had started,” Galvez said. “What made FVR remarkable as a leader was his invaluable contribution to the comprehensive peace process,” he added, by jumpstarting peace processes with various rebel groups “because he believed that genuine peace can only be achieved through open and honest dialogues.”

“More importantly,” Galvez continued, “the national government would like to send a clear and strong message that through the grant of amnesty, it is determined to address the roots of the armed conflict in the country and provide a better life for the former combatants.”

But why should the grant of amnesty be proof of the government’s determination to “address the roots of the armed conflict”? This principle, enunciated by former president Cory Aquino during the initial GRP-NDFP peace talks in 1986-87, stood as the guideline for the subsequent negotiations under president Ramos (1992-1998) and thereafter.

The talks under Ramos’ watch produced at least 10 major agreements and joint statements. Most significant of these is the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL). The European Parliament hailed it as a “landmark agreement.” Sadly, it has remained unimplemented due to GRP’s stonewalling. (Later in this piece you’ll know why).

When president Duterte revived the peace process in 2016, it was unduly sabotaged by Galvez (his peace adviser) and Hermogenes Esperon Jr. (national security adviser). The two – both former AFP chiefs – intervened when the negotiating panels were heading towards major agreements on social and economic reforms.

Egged on by the duo and other militarist advisers, Duterte arbitrarily stopped the negotiations. On Nov. 23, 2017, he issued Proclamation 360 declaring GRP’s official termination of the peace negotiations (which wasn’t in accord with the agreed-on procedure).

Then on Dec. 5, 2017 he issued Proclamation 374, designating the CPP and the NPA as terrorist organizations. Last year, the Anti-Terrorism Council, created by the Antiterrorism Act of 2020, also designated the National Democratic Front as a terrorist organization. Note: it’s an unwritten policy that the government would not engage in peace negotiations with terrorists.

Duterte’s moves have practically rendered frozen in print the major agreements and joint statements – forged through “open and honest dialogues” and which constitute a major part of FVR’s “legacy of peace.”

How would Galvez now go about seeking inspiration from that legacy and honoring Ramos “by continuing what he had started?” The amnesty he proposes – outside the context of peace negotiations – has been consistently rejected by the CPP-NPA and the NDFP. Last Thursday Galvez said up to 10,000 “communist rebel surrenderees” may avail of the proposed amnesty.

The GRP turnabout in the peace negotiations stemmed from the Duterte regime’s having adopted the counterterrorism framework in seeking to end the more than 50 years of armed conflict.

In the essay “Why governments should stop branding armed struggle as ‘terrorism’,” (quoted in this space last week), the young lawyer Angelo Karlo Guillen pointed out that the counterterrorism framework became a convenient tool for governments to criminalize non-state armed groups and discredit their issues and ideologies.

“By using the ‘terrorist’ label, governments also aim to deny the existence of armed conflicts within their territories or the applicability of international humanitarian law (IHL),” wrote Guillen, secretary general of the Union of People’s Lawyers-Panay chapter. He has been awarded by the US-based Human Rights First the 2022 Roger N. Baldwin Medal of Liberty for “advancing the protection of human rights at great personal risk.” (He survived an attempt on his life in March 2021.)

“The application of IHL in non-international armed conflicts [such as shown in the CARHRIHL] would leave government forces open to prosecution for common crimes, something states generally wish to avoid,” Guillen explained. “They include the Philippines where counterinsurgency operations are marked by numerous accounts of extrajudicial killings, indiscriminate or excessive artillery bombardments and air strikes and atrocities perpetrated by soldiers against civilians, surrendering or wounded rebels and other [IHL] protected persons.”

The Philippine government’s policy of deliberately equating armed struggle and terrorism was reinforced when the Supreme Court upheld the constitutionality of the Anti-Terrorism Act (ATA) of 2020, Guillen wrote. “Interestingly, the Court ruled that the law met international standards and cited a draft of the comprehensive convention on international terrorism,” he noted, “even though the said document has not been approved or even voted upon by the United Nations General Assembly.”

The SC also referred to foreign instruments dealing with terrorism, he further noted, “but, notably, did not discuss the exclusion clauses that have become a standard in these agreements.” He observed that such a clause is lacking in the ATA.

What’s an “exclusion clause”? Essentially, Guillen explained, it states that “the conduct of parties in an armed conflict, which are governed by IHL, will not be included in the definition of terrorism.” The rationale is that “actions during such conflicts should be assessed using IHL and not counterterrorism frameworks.”

“International and regional instruments [conventions/agreements] clearly distinguish between terrorism and military action in the context of an armed conflict. If the Philippines’ counterterrorism framework is to meet international standards, then it must likewise make a similar differentiation and incorporate it into the law,” Guillen emphasized.

“Respect for IHL, the obligations of conflicting parties and the rights of protected persons would be greatly enhanced if states themselves upheld and implemented these standards domestically,” he concluded.

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