“Belligerency status” concept is obsolete

A specter is haunting the unsigned Government of the Republic of the Philippines (GRP)-Moro Islamic Liberation Front (MILF) Memorandum of Agreement on Ancestral Domain (MOA-AD) – the specter of “status of belligerency.”  It is about time, even long overdue, to lay this obsolete concept to rest in the Philippines, as it is already “resting in peace” in the rest of the civilized world of modern international law.

It is best, for the sanity of the emerging national debate (now necessary) on the MOA-AD, that a non-issue like “belligerency status” be cleared from the muddle of the discussion, where more light rather than heat is needed.  In this way, the way will be clearer in dealing with the real and valid issues (and worst fears) like whether the proposed Bangsamoro Juridical Entity (BJE) is an independent sovereign nation-state separate from the Philippine state, whether the MOA-AD can be sufficient basis for a subsequent unilateral declaration of independence by the Bangsamoro (Moro nation) people led by the MILF, and so on.

Offhand, from the term “belligerency” itself which connotes hostility (and its plural, hostilities), the concept deals with a situation of armed conflict, particularly internal armed conflict, within the territory of a State.  The recognized belligerent force acquires international personality, directly possessed of rights and obligations in international law.  But this is only for the purposes of the hostilities.  Its recognition is provisional in nature and limited to the duration of the hostilities from which it results.  It does not apply to a post-conflict situation as would arise from a peace settlement which the MOA-AD is working towards.  On this score alone, the MOA-AD cannot be the basis for any “belligerency status” – even if this concept is not obsolete (but it is).

“Belligerency status” is an old concept in traditional international law that has basically been superceded by a more recent international legal regime and gone out of use in terms of state practice as well as legal opinion in the modern era of the 20th century (that’s last century yet!).  It is “only in the Philippines” where there is a time-warped adherence to this concept, largely due to the influence of traditionally-oriented textbooks on public international law (PIL) on many generations of Filipino lawyers and to its repeated invocation by the rebel National Democratic Front (NDF) esp. since 1996 (and which has become one of the many banes in the GRP-NDF peace negotiations).  It should be reassuring to note that the MILF, to its credit, has not similarly invoked or spoken of “belligerency status.”

The standard textbooks on PIL in the Philippines, like Salonga & Yap, Paras, Cruz, Coquia, and Defensor-Santiago, reflect the traditional concept of “belligerency status,” along with other classical categories of civil conflict like “insurgency” and “rebellion.”   These represent three different levels of the armed conflict, from highest to lowest in terms of intensity and politico-military capability of the belligerent/insurgent/ rebel force, whichever status must be recognized expressly or impliedly by the State concerned or third states before certain rules and rights apply.   These rules and rights mainly have to do with the application of appropriate rules of war towards the armed opposition force.

According to Eibe H. Riedel in his article on “Recognition of Belligerency” in the Encyclopedia of Public International Law, it is granted primarily for the purpose of bringing the laws of war and in particular the rules of humanitarian law in armed conflict into operation.  For example, captured belligerents (as distinguished from insurgents or rebels) should be treated as enemy combatants with the rights of prisoners of war.  The recognition is also intended to settle relations with third states to the extent necessary for the protection of their own nationals and other vested interests.  Thus, it would be no longer the legitimate government but the belligerent force that is to be held responsible for its own acts affecting foreign nationals and their properties.

The practice of recognizing insurgents as regular belligerents was developed during the 19th Century (two centuries ago!) when an increasing number of civil wars broke out.  After World War I (1914-18), this practice declined to the point of virtual obsolescence, as it became cumbersome under drastically changed (from classical to guerrilla) forms of armed conflict.  After World War II (1941-45), a new approach relying on objective criteria, rather than subjective recognition, had virtually replaced it.  This was the regime of international humanitarian law (IHL) consolidated in the four 1949 Geneva Conventions and, after the Vietnam War ended in 1975, was supplemented with the two 1977 Additional Protocols, including Protocol II for non-international armed conflict.  This regime expressly provides that its application “shall not affect the legal status of the Parties to the conflict,” and thus certainly does not imply recognition of “belligerency status,” the very concept it replaced.

When I was still based in Naga City in 1991, Olivier Durr, Head
of Delegation of the International Committee of the Red Cross (ICRC) in the Philippines, wrote me:  “You will see that the recognition of belligerency is an obsolete legal institution which was not even a generalized and accepted practice, but rather an instrument of the policy of the USA in the Southern American affairs at the turn of the [20th] century…. I have always been amazed at the importance given to this subject by both parties [referring to the GRP and NDF] in the Philippines.  Sad enough, the application and respect of IHL, even in its fundamental principles, have been made more difficult because of this unnecessary political requisite.”  His sense of “belligerency status” as obsolete has been reaffirmed by modern authorities in international law.

Heather A. Wilson, in International Law and the Use of Force by National Liberation Movements (Oxford University Press, 1988) says:  “In practice, the traditional international law on recognition of insurgency and belligerency is more theoretical than real.  Since World War I, the recognition of belligerency has scarcely ever occurred and not at all since World War II.  Even in the Spanish Civil War [1936-39] the insurgents were never recognized as belligerents…”

Long-time International Review of the Red Cross editor Hans-Peter Gasser, in International Humanitarian Law: An Introduction (Paul Haupt Publishers, 1993) says:  “Of mere historical interest is the notion that the government of a State engaged in a conflict may recognize the insurgents as a belligerent party… Such a declaration was last made during the Boer War (1902); recognition of the South as a belligerent in the American War of Secession was only tacit.”

Hilaire McCoubrey and Nigel D. White, in International Organizations and Civil Wars (Dartmouth Publishing Company, 1995), say:  “Much of the case law [on belligerency] derives from wars of independence in South America [in the 19th Century]… In a post-1945 context this model is no longer wholly adequate. “

Ingrid Detter, in The Law of War (Cambridge University Press, 2000), says that the idea that the application of the rules of armed conflict are related to the recognition of belligerency has been “abandoned.”

And most recently, Andrew Clapham, in Human Rights Obligations of Non-State Actors (Oxford University Press, 2006), says:  “Today, these recognition regimes have been replaced by compulsory rules of international humanitarian law which apply when the fighting reaches certain thresholds.”

It is about time that the phantom menace of  “belligerency status” be laid to rest in Philippine discourse.  It should also be reassuring to note that the MILF (and for that matter, the NDF), in several prior agreements it has signed with the GRP before the MOA-AD which reiterates their “non-derogation,” has committed itself to IHL, thus conceptually superceding any notion of “belligerency status,” if any there was at its end.

Atty. Santos is a Bicolano human rights lawyer, peace advocate, legal scholar;  A.B. History cum laude (UP), LL.B. (UNC), LL.M (Melb);  author of The Moro Islamic Challenge: Constitutional Rethinking for the Mindanao Peace Process (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005), and Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005); and co-author of Philippine Human Development Report 2005: Peace, Human Security and Human Development in the Philippines (Human Development Network, 2005).

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