Philippine National Legislation on International Humanitarian Law Should Address Problems Particular to Filipinos

Ad Litem Judge
International Criminal Tribunalfor the former Yugoslavia

(Presented at the Forum to Commemorate International Humanitarian Law Day, August 16, 2001 held at Carlos P. Garcia Conference Hall, Department of Foreign Affairs)

It is not very well known that on September 1, 1992 the two parties in the GRP-NDFP Peacerebelynpitao Negotiations made a breakthrough in their talks in the landmark document called The Hague Joint Declaration by including in their substantive agenda international humanitarian law. Six years later, after painstaking efforts, the two parties achieved a more significant breakthrough by forging an accord known as the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian (CARHRIHL), a bilateral agreement that was signed by the two Negotiating Panels and approved by their respective principals, namely, the Chairman of the National Democratic Front of the Philippines and the President of the Republic of the Philippines.

To be candid, CARHRIHL, as the agreement is now popularly known among peace advocates, has sparked controversies and debates among the legal experts of the GRP. As a consequence, it remains a frozen instrument despite its strong merits and relevance. As a human rights lawyer and now a member of a UN bench, and one who actively participated in the discussions and crafting of CARHRIHL, I have my partisan views about the legal merits and the moral and humanitarian bases for advocating that it be immediately implemented even while the two parties in the armed conflict continue to discuss and agree on the political, social and economic agenda of the peace negotiations. But that is not my piece in this program. I mentioned CARHRIHL to highlight the fact that today, IHL is beginning to be recognized as a necessary part of our legal system that may soon hopefully evolve also as part of our national consciousness.

Not so long ago, the mere mention of International Humanitarian Law evoked such comments as “humanizing the conduct of war” and, therefore, legitimizing it as a means to effect societal reforms or giving legal recognition to violence as a permanent feature of our national life——indeed, an unacceptable if not a dreadful position if we follow this line of reasoning. Some legal experts from the government side even went further by arguing in the negotiating table that any agreement on International Humanitarian Law between the parties in the armed conflict automatically vests the status of a co-belligerent to the revolutionary movement. I take it that today’s topic of our forum—- National Legislation on International Humanitarian Law—– will finally lay to rest all these illogical, erroneous and anachronistic views about IHL. More significantly, today’s forum shows that there is now a growing awareness by many sectors of our society, including the government, that unredressed social inequities and unjust economic structures will continue to breed both political and armed conflicts. And finally, contemporary events in other parts of the world and our own historical experience especially under the Marcos dictatorship have highlighted the imperative of effective means, mechanisms and sanctions to implement International Humanitarian Law.

I mentioned CARHRIHL as the starting point of my brief presentation. As a part of government initiative akin to national legislation, I propose that the present administration take the appropriate steps to implement CARHRIHL by forming jointly with the NDFP the Joint Monitoring Committee in accordance with Part V of the said agreement.

CARHRIHL is a rich and vibrant document, being the product of the joint effort not only of the peace negotiators and experts on both sides but also the top leaders and policy-makers of the parties to the three-and-a-half decade-long armed conflict. As such, it addresses problems and violations particular to the Philippine situation and concretely experienced or suffered by innocent civilians and non-combatants. Let me cite some significant provisions of CARHRIHL.

“The Parties shall promote and carry out campaigns of education on international humanitarian law, especially among the people involved in the armed conflict and in areas affected by such conflict”. (Article 14)

“The following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the persons enumerated in the preceding Article 2:

practices that cause or allow the forcible evacuations or forcible reconcentration of civilians, unless the security of the civilians involved or imperative military reasons so demand;the emergence and increase of internally displaced families and communities, and the destruction of the lives and property of the civilian population;

“maintaining, supporting and tolerating paramilitary groups such as armed religious fanatical groups, vigilante groups, private armed groups of businessmen, landlords and politicians, and private security agencies which are being used in land and labor disputes and the incursions in Article 9, Part III of this Agreement”. (Article 3)

“The GRP shall review and undertake to change policies, laws, programs, campaigns and practices that cause or allow the forcible evacuation and reconcentration of civilians, the emergence and increase of internally displaced families and communities and the destruction of the lives and property of the civilian population”. (Article 7)

“Internally displaced families and communities shall have the right to return to their places of abode and livelihood, to demand all possible assistance necessary to restore them to their normal lives and to be indemnified for damages suffered due to injuries and loss of lives”. (Article 9)

Substantively, I only have a few simple but significant suggestions on the essential requirements of an effective National Legislation on IHL. And in making these suggestions I must confess partiality to CARHRIHL whose significant provisions may be similar to my own ideas.

First, the national law on IHL should take into account the current human rights situation in the Philippines and the historical experience of the Filipino people. In this way, the national legislation on IHL will be based on realities and not a mere theoretical formulation existing in a vacuum.

Second, the national law should be able to render justice to all victims of violations of IHL, address problems of impunity and provide adequate compensation to the victims.

Third, the legislation must provide for effective mechanisms for implementation and adequate measures for upholding and promoting International Humanitarian Law.

Fourth, while sanctions are important deterrence and an essential component of justice, I submit that education on IHL for combatants of both parties and the general public should be given priority consideration.

And lastly, but most important of all: government should vigorously address the roots of the armed conflict, take all necessary measures to remove the conditions that breed IHL violations and lay the ground for a just and lasting peace.