Of failed states and sub-states, of ATS and other spaces

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.

   —  SIMONIDES,

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 more than 20 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?  “This is war,” but 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, not to situations of “law enforcement.”  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 more than 20 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.

 

Part II:  Of failed states and sub-states

 

Sen. Santiago warned that if the rule against invasion of ATS continued to be observed (though we have pointed out above the error in this premise), “the Philippine military would be severely hampered in its law enforcement functions that the Philippines would be flirting with the status of a failed state.”  Philippine Daily Inquirer columnists Ramon J. Farolan, Rigoberto Tiglao and Randy David have all relevantly made reference to the notion of a failed state, with the first two making reference to and invoking the basic definition of a state by sociologist Max Weber as that organization which has the monopoly of the legitimate use of force over a particular territory.  The first two columnists posit that the Philippines is in danger of becoming a failed state by failing to meet up to the standard of that definition, as shown by the so-called MILF-controlled areas or territories, even recognized to some extent by the peace process.  The third columnist, the sociologist David, on the other hand, says that the Philippines is a failed state in so far as it has, from its inception, never been in full control of Muslim Mindanao precisely because it has used all the violent means at the disposal of the state to pacify the Moro people to no avail, and because the latter have in turn all the more resisted in kind through the leadership of the MNLF and then the MILF.

 

This actually brings us to what we really should be discussing more in media for the better understanding of the Filipino Christian majority and its leaders:  Why is the MILF (and before them the MNLF) fighting in armed rebellion against the Philippine government in the first place?   What are they fighting for?  What is the so-called Bangsamoro problem that they say should be solved by the peace talks?  Why bother negotiating with them on this?  What is the solution to the problem?  What does this solution entail?  These are some of the basic questions that should also be addressed in the wake of the shrill and predominant blood-thirsty calls for “all-out war,” including for the AFP to “occupy” certain MILF areas/communities in the Zamboanga peninsula and Basilan.

 

The Bangsamoro problem is of course a complex, multi-dimensional and even evolving centuries-old problem.  At the risk of over-simplifying this problem as well as its solution, it has to do with the Bangsamoro identity, way of life and longing for self-rule.  It has to do, as explained by MILF senior negotiator Datu Michael Mastura to still another Inquirer columnist surnamed David, Rina Jimenez David, with respect for and recognition of their identity as a people with a proud history of never having been colonized;  with recognition of a territorial homeland within Mindanao where Moro culture and their Islamic religion hold sway;  with control over their own resources and income;  and with freedom to decide their own local policies without being subject to the politics and dictates of “Imperial Manila.”   An editorial in the MILF website (www.luwaran.com) boiled it down even more simply:  “The MILF’s formula to solve the Moro question in Mindanao is very simple… Let the Moros run their affairs.  Let them succeed or self-destruct.  Gone [are] the days when the government in Manila designed everything for them.”

 

To be sure, it is not as simple as that at the negotiating table, where the MILF’s formula has taken the form of what it calls a “sub-state” within the Philippine state and national territory. It is not Bangsamoro independence from and territorial dismemberment of the Philippines.  But it purports a qualitatively higher and better degree or level of self-governance than the existing Autonomous Region in Muslim Mindanao (ARMM) under the present provisions of the Philippine Constitution.  That ARMM has been proven over more than 20 years, capped on its 20th year by the Maguindanao Massacre under the Ampatuan dynasty, to be a “failed experiment” in terms of its promised peace, development and even autonomy.  Stated otherwise, it is a failed “subs-state.”  It has been a low-intensity autonomy very much subject to the highly-centralized unitary system of the Philippine State under its Constitution.  The recent Supreme Court decision upholding the constitutionality of R.A. 10153 postponing the ARMM elections and allowing the President to appoint Officers-in-Charge only confirms and reinforces the National Government’s tight control over its own creation and creature, the ARMM.  This is stifling to the Bangsamoro people’s aspiration and right of self-determination. But is there constitutional breathing space for something instead like the MILF-proposed “sub-state”?

 

A Bangsamoro “sub-state” (used generically, without necessarily referring to the specifics of the MILF proposal), or by whatever name it is finally called (I propose “self-governing region”), has the real potential of helping the Philippines avoid the danger of  becoming a failed state in Muslim Mindanao.  How?  By sharing and more effectively undertaking in partnership with the Philippine State the burdens of governance as far as the Bangsamoro people are concerned.  In the process, we can re-define and improve the Philippine State and Filipino nation-building in a way that accommodates and does better social justice to the culturally diverse peoples of Mindanao and the Philippines, in turn serving as a more solid foundation for national unity, as common ground is found between Filipino and Moro national interests. A key concept in the MILF-proposed “sub-state” is that of shared sovereignty, authority and responsibility.  This includes the notion of shared security.  The preservation of peace and order within the Bangsamoro “sub-state” shall be its responsibility which shall be exercised through its police and internal security force, which will not be seen as an “occupation force” aside from being most familiar with its own people and the geographical terrain.  The external defense and security of the “sub-state” shall be the responsibility of the National Government which shall exercise it through the AFP which, as the constitutionally-mandated protector of the people and the State, is also a protector of the Bangsamoro people, since the AFP is supposed to exist to protect the human rights of every Filipino citizen.

 

But how do the Filipino Christian majority and its leaders react to ideas like this?  Well, there is Senate President Juan Ponce Enrile for one, who may be representative of the thinking of most  when he says:  “If the MILF continues to demand a sub-state, that means war.   They  are not talking of peace.  In effect, they are challenging government.  This is because the MILF knows the government cannot accommodate that request.  It is unconstitutional.  Many of its members studied law.  They know that.”  This is precisely the kind of majority thinking that Randy David had criticized as early as in  a 1999 column piece as “the constant invocation of constitutional limits as a warning against insolent initiatives” instead of  “the readiness on the part of government to allow a wide latitude for institutional experimentation in the region.”  The challenge here for now is primarily in the constitutional rather than the military realm. In fact, no less than  the Supreme Court decision on the MOA-AD in 2008, even as it declared the same to be unconstitutional for certain reasons, also stated just the same that:    “As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply pursuing a military solution.  Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation’s constitutional structure is required….  the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional structures addressing governance, elections, and legal and human rights institutions…. The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any [way] it wants…”

 

How come then is the “unconstitutional!” hue and cry immediately raised against the MILF-proposed “sub-state” while nothing of the sort met then Sen. Aquilino Pimentel, Jr.’s proposed “Federal Republic of the Philippines” with no less than 11 “States” (mind you, not even just “sub-states”) nationwide from North to South, including “The State of BangsaMoro”?   Is the answer to that question the same as that to the following one?  How come the ABS-CBN “TV Patrol” text-in poll of the viewing public soon after the big news on “19 soldiers slain in Basilan” resulted in 97% in favor of ending the peace talks and launching an “all-out war” against the MILF, and only 3% against?   The answer clearly lies in the considerable 33-39% anti-Muslim bias among Filipinos across the country, as surveyed by Pulse Asia in 2005.  This bias and discrimination is actually much part of the Bangsamoro problem.

 

Would news on say “19 Moro civilians slain by soldiers in Basilan” get the same kind of screaming headline treatment?  And would there be the same kind of outrage and outcry for “justice!” (read “vengeance!”) from the general public?  Is there any outrage about the 30,000 (and counting) mostly Moro civilians displaced (with the inevitable evacuation center deaths of infants and young children) by the “all-out justice” military operations in Zamboanga peninsula, with Basilan coming soon?  Do they not also have “dreams, promises gone”?  Are MILF mujahideen slain in battle not also “heroes” to their own children and people?  Are perhaps some of them not also set to marry their girlfriends?   But we have only outrage for the 19 or so soldiers slain.  This is our failed state… of the hearts, souls and minds of the Filipino Christian majority.

 

That is why the best part of the current GPH peace panel “3-for-1” proposal is that which “meets the need to acknowledge a distinct identity and history of the Moros as part of the Philippine mosaic… recognizes their legitimate grievances and provides, where possible, appropriate forms of reconciliation and restorative justice… symbolic measures like a heroes’ memorial and concrete steps like reviewing history books for misrepresentations of the Bangsamoro… to build mutual respect for religious, historical and cultural differences.”  The MILF should not undervalue this aspect and leave it to the unilateral action of the GPH. The Bansamoro know their own history, have their own national narrative. Historico-cultural consciousness-raising, which also addresses the anti-Moro bias, is part of the much needed public constituency-building to support the peace process and its outcome.  It is the historical injustice that calls for or justifies the right politico-constitutional solution, the latter must be commensurate to the former.  Acknowledging the historical injustices will just be empty words if not redressed or corrected by the right solution.

 

Let there be no more dilly-dallying on both sides and deliberate going around in circles (“paikutin”) regarding the substantive peace negotiations.  Speed kills but slowness also kills.  The issues are, after all, already joined, even if one side does not like the proposal of the other side.  That is precisely why there are negotiations.  It is a process of mutual problem solving and reaching an acceptable compromise settlement.  As it is, the already formidable substantive agenda has now to be coupled with the immediate matter of the 18 October 2011 Al-Barka, Basilan incident fallout, including a review of the ceasefire and AHJAG agreements and mechanisms.  From the experience of the peace talks, there is a danger of getting bogged down in the tactical to the detriment of the strategic.  But the tactical is also important for the strategic, as the most recent events have shown.  There is no more time to waste for both concerns.  Get on with the talks, no matter how “tough, still tough, and tougher.” There is no substitute for this.  Some say there is “no substitute for victory.”  But the real victory is to win-win the peace.

 

Naga City, “All Saints Day,” 1 November 2011

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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.

 

 

 

 

 

 

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