Naga City, “All Saints Day,” 1 November 2011
Theirs[is] not to reason why.
Theirs [is] but to do and die.
— ALFRED, LORD TENNYSON,
The Charge of the Light Brigade
Go, tell the Spartans, thou who passeth by:
Carrying out their orders, here we lie.
epitaph for the Spartan dead at Thermopylae
Gentlemen, we are being killed on the beaches.
Let’s go inland and be killed.
— GEN. NORMAN COTA,
Omaha Beach, 1944
The current discourse, especially from some senators of the Republic and newspaper columnists, on the fall-out from the “casus belli” that was the 18 October 2011 Al-Barka, Basilan incident, where Moro Islamic Liberation Front (MILF) rebels killed 19 Armed Forces of the Philippines (AFP) soldiers, has reached the relatively high plane of discussion about “failed states.” Sen. Miriam Defensor-Santiago has said that the nation risked “flirting with the status of a failed state” if the MILF is allowed to abuse the so-called “area of temporary stay” (ATS). Sen. Panfilo Lacson traced the ATS to an agreement signed in Indonesia between the government and the MILF during the Ramos administration, while Sen. Antonio Trillanes says it was the Arroyo administration which gave this concession. Sen. Francis Escudero warned that the agreement on the ATS – which he says refers to safe havens for the MILF – could lead to another accord like the failed Memorandum of Agreement on Ancestral Domain (MOA-AD) in 2008. Sen. Gregorio Honasan says that “While this [ATS] issue is probably best left to constitutionalists and lawyers, there remains the question of why we would allow rebels to carve out a piece of our national patrimony.” Stated otherwise, does it constitute a diminution of the nation’s sovereignty?
Part I: Of ATS and other spaces
The issues of the ATS and of the Philippines “flirting with the status of a failed state” are related but the discussion of the two issues is perhaps best “disaggregated,” i.e. treated separately, because the first issue can be more easily disposed of largely by getting the facts right about it. In the process, it might turn out to even be a non-issue, at least in terms of fears about diminution of the nation’s sovereignty. As a long-time non-governmental peace advocate-researcher following closely the Moro front from 1993 until joining the judiciary in 2010, I can say that the truth of the matter is that there is no peace agreement between the Government of the [Republic of] the Philippines (GRP/GPH) and the MILF on the ATS since the GRP-MILF peace talks started in early 1997. There is no agreement signed in Indonesia between the GRP and the MILF during the Ramos administration (1992-98), as those were with the Moro National Liberation Front (MNLF).
On 6 May 2002 in Malaysia, during the Arroyo administration, the GRP and MILF entered into an agreement by way of a Joint Communique on coordinated and joint isolation and interdiction of all criminal syndicates and kidnap-for-ranson groups, including so-called “lost commands” operating in Mindanao, particularly as may be found in “MILF areas/communities.” On 9 December 2009, the Interim Implementing Guidelines of that Joint Communique defined the latter as “refer(ing) to places in Mindanao identified by the GRP and MILF Peace Panels where the MILF elements are situated.” There has been no mention or definition of the ATS in any relevant peace document, much less peace agreement. Reliable long-time ceasefire committee sources indicate that the GRP side wanted an agreement document on the ATS but the MILF side declined for various reasons. The ATS however developed as an interim or ad hoc practical arrangement on the ground whereby the concerned MILF forces and families would move from their MILF area/community to a designated area like a barangay to give way to an AFP operation against lawless elements, such as notably the Abu Sayyaf Group (ASG), in the vicinity of that MILF area/community. This arrangement and operation would be time-bound and coordinated with the GRP-MILF Coordinating Committees on Cessation of Hostilities (CCCH) and Ad Hoc Joint Action Group (AHJAG), the latter created by the aforesaid Joint Communique. The ATS would be considered “dissolved” after the AFP operation and the return of the MILF forces and families to their MILF area/community.
That was the arrangement for an ATS in highway-proximate Barangay Guinanta soon after the 2007 Al-Barka beheadings of Marines by the ASG apparently right after the Marines were killed in an encounter with the MILF. In fact, that is said to have been the last ever ATS, with none other since established or existing. That old, former and since “dissolved” Guinanta ATS is therefore a non-issue as far as the 18 October 2011 Al-Barka, Basilan incident, which occurred several kilometers distant from it (particularly at the further inland Barangay Cambug where it happened), is concerned. The real issues appear to be lack of coordination in certain AFP operations in the vicinity of a MILF area/community and otherwise observance of the letter and spirit of the several existing security, including ceasefire, agreements in the GRP/GPH-MILF peace process. Among other questions for investigation and study, even assuming lack of coordination in certain AFP operations in the vicinity of a MILF area/community, could the 114th Base Command of the Bangsamoro Islamic Armed Forces (BIAF) not have avoided firing on the AFP elements operating there? Was it a justifiable act of self-defense or a state of necessity kind of situation that faced the MILF forces vis-à-vis the AFP elements operating there? Was there no room for restraint in their application of lethal force? What about atrocities and barbarities like beheadings, hackings and mutilation that are violations of the Code of Conduct of the BIAF, particularly the rules of engagement in Islam (Nidhamul harb fil Islam), if not also the generally accepted rules of war?
Given the foregoing clarification of facts about the ATS, it is misleading to characterize it as a “safe haven” for the MILF as if to make it perpetually immune from attack by the AFP. That is not at all the concept of the ATS as explained above. It is/was a very temporary arrangement so that the AFP could ensure for itself that MILF areas/communities do not become real safe havens for lawless and especially terrorist elements. This with the cooperation of the MILF, either by itself conducting operations against them inside the MILF areas or by stepping aside for the AFP to conduct anti-criminal/terrorist operations there (You will never get that kind of cooperation from the New People’s Army [NPA] with its guerrilla fronts). That ATS arrangement, assuming it continues, should be seen not as a diminution, but instead as a contribution, to the nation’s sovereignty in its law enforcement, maintenance of peace and order, and its legitimate fight against terrorism. To repeat, the ATS is/was a very temporary and tactical arrangement to facilitate criminal interdiction in the vicinity of MILF areas/communities. It should not be likened or placed on the same level as the strategic question of Bangsamoro ancestral domain, especially when posed as a MOA-AD scare tactic.
Certain laws of physics also govern an ATS and MILF areas/communities, which is that two object or forces — an “irresistible force” like the AFP and an “immovable object” like the MILF — cannot occupy the same space. Thus, the ATS is actually a very practical ground arrangement where the AFP would like to pursue lawless elements who may have gone into MILF areas/communities. As for the latter, the MILF forces and families are also people who need a place or space to stay and live life, to farm, to eat, drink, sleep and do personal necessities like all of us who are human beings. These are real people, which the Philippine government considers part of the Filipino people. Is there no space for them in the Philippine State, which would instead treat them as a diminution of national sovereignty? Is this abstract concept more important than real people? In a perfect world, why should AFP soldiers be constrained from entering MILF areas/communities? The fact of the matter is that the AFP and the MILF are technically still in a state of war, albeit with a general ceasefire while a peace process is on-going (precisely to resolve the war in a non-military way). AFP soldiers entering MILF areas/communities, especially in hostile mode, are seen there as “occupation forces” – the same way most Filipino communities and guerrillas viewed the conquering Japanese Imperial Army during the Japanese Occupation. Thus, the crucial need for a ceasefire agreement pending a real and lasting peace. The peace process on the Moro front, with both the MNLF and MILF, has at least had the benefit of a general ceasefire (which has held for the most part), something absent between the AFP and NPA in the peace process on the Communist front.
A related issue (or perhaps another non-issue) was raised by Sen. Santiago when she contended that “military necessity trumps any ceasefire agreement,” so as to “apply the doctrine of fresh pursuit. This rule allows government soldiers to cross jurisdictional lines in fresh pursuit of rebel guerrillas who have committed war crimes.” She cites for this the definition of “military necessity” in the Philippine Act on Crimes Against International Humanitarian Law (R.A. 9851, not 9871) as “the necessity of employing measures which are indispensable to achieve a legitimate aim of the conflict and are not otherwise prohibited by International Humanitarian law [IHL, i.e. the generally accepted rules of war].” With due respect to the Senate’s resident expert in international law, it is clear that IHL and “military necessity” apply to situations of armed conflict and hostilities, not where there is a ceasefire (cessation of hostilities) governed by a specific ceasefire agreement and its mechanisms. Otherwise, what will prevent either side, including the MILF, from invoking “military necessity” as a cover or excuse to breach the ceasefire? Is the tactical pursuit of rebel guerrillas who have committed war crimes more important than, so as to even undermine or imperil, the strategic peace process and its general ceasefire? The AFP policy since 2003 of primacy of the peace process is the best policy. The killing of 19 soldiers in the recent Al-Barka, Basilan incident could have been avoided by faithful compliance with the letter and spirit of the ceasefire agreement, not by a questionable application of “military necessity” and “the doctrine of fresh pursuit” — which has since only caused more casualties on both sides and massive displacement of civilians, itself a serious violation of their human rights and of IHL.
SOLIMAN M. SANTOS, JR. has been a long-time Bicolano human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer especially for and on the Mindanao peace process, with several books on this, among them The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001; with 2nd printing, 2009), Dynamics and Directions of the GRP-MILF Peace Negotiations (AFRIM, 2005), and In Defense of and Thinking Beyond the GRP-MILF MOA-AD (AFRIM, 2011). He is presently Presiding Judge of the 9th Municipal Circuit Trial Court (MCTC) of Nabua-Bato, and Acting Presiding Judge of the Municipal Trial Court (MTC) of Balatan, both in Camarines Sur.