Copyright Ó1998 by the Philippine Peace Center
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Published by the Philippine Peace Center
(This pamphlet may be reproduced in full or in part without prior authorization from the authors of the Philippine Peace Center. Kindly provide the PPC copies of any reprinted material.)
The booklet contains two analytical articles written by Rey Casambre, consultant to the NDFP peace panel and a member of the Board of Trustees of the PPC. The first, “Towards an Agreement on Human Rights and International Humanitarian Law – So Close Yet So Far” reviews the prolonged course of the negotiations, its twists and turns, breakthroughs and deadlocks and the circumstances and reasons underlying these. The second article, “Breaking Through – the Agreement on Human Rights is Signed” delves into the significance of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) and the dynamics which led to its signing by the GRP and NDFP negotiating panels in The Netherlands on March 16, 1998.
The complete text of the CARHRIHL is found in the booklet to afford the reader the opportunity to subject its provisions to closer scrutiny.
A chronology of the current GRP-NDFP peace negotiations (1988-1998) is provided, beginning with the probing efforts of the NDFP to resume peace talks with the Aquino government, through the exploratory talks and the formal negotiations with the Ramos government, to the signing by both negotiating panels of the CARHRIHL and exchange of drafts on Socio-economic Reforms.
The Common Tentative Draft initialed by the Reciprocal Working Committees of both panels on August 5, 1997 is appended for comparison with the final Agreement.
Toward an Agreement on Human Rights and International Humanitarian Law: So Close and Yet so Far
Rey Claro C. Casambre
PHILIPPINE PEACE CENTER
(Paper read at the Karapatan-sponsored Human Rights Fact-finding Mission and National Conference on Dec. 8, 1997 at the Titus Bransma Center, Quezon City.)
When the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP) announced that they were entering into peace negotiations to address and resolve the roots of the armed conflict, few believed that the talks between the two parties would get anywhere near the substantive issues. True enough, the preliminary talks were marked by problems involving the questions of framework, process, venue, representation, and security guarantees, notwithstanding the guidelines and principles defined by The Hague Joint Declaration of 1992. Thus, not a few were surprise when these obstacles were eventually overcome. On June 1995 the GRP and NDFP finally held the opening session of the formal negotiations on the substantive agenda.
Still many remained skeptical that the formal talks could result in any agreement being forged. After all, the opening session would abruptly end a day later with the GRP’s unilateral suspension of the talks over the issue of NDFP panel consultant Sotero Llaman’ continued detention by the GRP. The talks would only resume after one year, with the agreement on human rights and international humanitarian law as the first item in the substantive agenda. Nevertheless these talks would strain and falter as one obstacle after another is encountered and eventually overcome.
On August 5 1996, seemingly against all odds, the GRP and NDFP Reciprocal Working Committees on Human Rights and International Humanitarian Law announced that they had finally crafted a common tentative draft had been crafted and initialled at all is no mean feat. It showed that the NDFP panel and at least some members of the GRP panel are capable of coming to an agreement on a substantive, if quite intractable, matter. Can it be said, then, that the forging of an agreement on the respect for human rights and international humanitarian law is close at hand?
So close and yet so far.
The NDFP panel approved and threw its full support behind the common tentative draft. The GRP panel submitted the draft, along with its reservations to some of the provisions, to a GRP cabinet advisory committee. The GRP committee promptly rejected the draft and instructed the GRP panel to reformulate it. On August 22, the GRP panel submitted to the NDFP as a mutilation and cannibalization of the common tentative draft, the GRP deleting “everything beneficial to the people.” On October 1, 1997, the GRP submitted yet another reformulated draft.
The ups and downs and twists and turns that have so far marked the forging of the agreement on human rights and international humanitarian law reflect the positive and negative factors at work in the entire peace process. These are manifestations of the opposing viewpoints of the GRP and NDFP not only on specific provisions in the agreement but also on the objective, framework and modalities of the entire negotiations. In the final analysis, these are rooted in their diametrically opposed views on the path to genuine and lasting peace.
What are these diametrically opposed views? What are the positive and negative factors in the peace process? Can the positive overcome the negative factors so that a substantive agreement on respect for human rights and international humanitarian law can at last be reached by the GRP and NDFP?
Historical background: 1990-96
As early as September 1990, before the first exploratory talks were held between GRP and NDFP representatives that would lead to the current peace negotiations, the NDFP had proposed the forging of an agreement on respect for human rights and international humanitarian law (HR-IHL).
In a letter to GRP President Aquino, NDFP Chairman Manuel Romero proposed the resumption of peace negotiations between the GRP and NDFP, laid down the NDFP’s comprehensive position and strategic view of the talks, and proposed that the first major item in the agenda be an agreement on HR-IHL:
“Agenda I could concern a limited agreement ensuring mutual respect for human rights and humanitarian norms of war in accordance with the Geneva Conventions, their protocols and other laws of war…”
In particular, the NDFP proposed that Agenda I could result in an agreement on the principles, general methods, mechanisms and procedures pertaining to:
- Respect for human rights of civilians and combatants and humanitarian norms of war in accordance with the Geneva Conventions, their protocols and other laws of war…
- Safe conduct for representatives of the International Committee of the Red Cross (ICRC) and other medical personnel across battle lines and contested areas;
- Respect for personnel and facilities of schools, the medical profession, religious institutions and places of worship…
- Exchange of prisoners and unilateral releases of prisoners…
- Occasional local truces of definite brief duration on humanitarian grounds…
The NDFP set as its minimum goal an agreement with the GRP on the respect for human rights and international humanitarian law. This is “immediately demanded by the Filipino people and all domestic and international organizations concerned with human rights,” the NDFP argued, and it can be forged and implemented whether or not the armed conflict continues or a peace settlement is ultimately reached.
Aside from mitigating the dislocation and suffering of the population, and reducing damage to property and the disruption of social and economic activity, an agreement on respect for human rights and international humanitarian law could create a more conducive atmosphere for the peace talks. It could thereby pave the way to negotiations on a wider range of issues such as social, economic and political reform, and the end of hostilities.
It will be recalled that at this time, there was a growing disillusionment with the Aquino regime. Many who stood their ground at EDSA had began to conclude that the government they had helped install was not much better than the dictatorship they had helped overthrow. Indeed, the Aquino government continued the Marcos regime’s disastrous economic policies and even overtook it in protecting the interests of both foreign capital and the local ruling classes. The resultant deepening political and economic crisis engendered the people’s protest and resistance in various forms, which the government in turn attempted to suppress.
Economic hardships and political repression fanned the flames of resistance, both armed and unarmed. The armed conflict raged in the countryside and in the cities. And with it, human rights violations increased, surpassing that of the previous fascist regime. Oplan Lambat-Bitag, the infamous counter-insurgency campaign by which the Armed Forces of the Philippines (AFP) sought to deal a death blow to the Communist Party of the Philippines (CPP), the New People’s Army (NPA) and the NDFP was more massive and vicious than any military offensive under Marcos rule. In well documented cases, as many as two million internal refugees were forcibly evacuated from their homes and herded into virtual concentration camps. Thousands more became victims of human rights violations as the AFP attempted to deprive the NPA of its mass base through indiscriminate bombardments, food blockades and strike operations. In the cities, repressive measures were taken against workers, students and other sectors struggling for their political rights and social and economic well-being.
The Aquino government appeared to be of two minds in its response to the NDFP proposal for the resumption of the peace talks. On one hand, there was the minority view that saw the need to reciprocate the offer and explore the possibility of holding peace talks with the NDFP. The dominant view, however, held by Generals Ramos and De Villa, then Defense Secretary and AFP Chief-of-Staff respectively, was that the NDFP forces should first lay down their arms and submit to the authority of the GRP. Only then could peace negotiations begin. It was under the latter framework that the GRP assigned a mission to explore the possibility of entering into peace negotiations with the NDFP in September 1990.
Two years later, on September 1, 1992, the Hague Joint Declaration was signed by NDFP vice chairman Luis Jalandoni and GRP President Fidel V. Ramos’ emissary, Rep. Jose Yap at The Hague, The Netherlands. The Declaration set the obhective of the peace talks that of addressing and resolving the roots of the armed conflict in order to attain genuine peace. It also set the framework of mutually acceptable principles without any precondition which would negate the inherent character and purpose of negotiations. Finally, it set the major items and sequence of the substantive agenda, with human rights and international humanitarian law given first priority.
The formal talks opened on June 26, 1995, close to three years after The Hague Joint Declaration. In this session, both panels signed the Joint Agreement on the Formation, Sequence and Operationalization of the Reciprocal Working Committees (RWC). Both parties announced the formation and operationalization of its RWC on HR and IHL. Unfortunately the talks were unilaterally suspended by the GRP the next day.
When the formal talks resumed in June 1996, the agreement on HR and IHL was on top of the agenda. The NDFP presented a 15-page draft agreement; the GRP panel submitted a 3-page draft. The RWCs on HR-IHL of both GRP and NDFP panels held extensive discussions that resulted in their agreement on and initialling of the Preamble of the Comprehensive Agreement on the Respect for HR-IHL.
Bridging the gap
The Preamble was the first test of the capability and willingness of both parties to seek common ground on the substantive agenda despite the yawning chasm between their respective positions on fundamental issues. The initialling of the Preamble showed that it was possible to bridge this gap, albeit tentatively, and proceed to craft a mutually acceptable document. Yet, it is only the first step in what has so far been a difficult and tortuous process.
A cursory examination of each side’s initial drafts reveals widely divergent positions on the problem of upholding and protecting human rights and international humanitarian law.
The NDFP draft points to the historical roots of the armed conflict, and the specific problems and conditions exacerbating the sufferings of the people. It goes on to propose concrete measures to address these problems and effectively alleviate the people’s plight even as the root causes of the armed conflict remain unresolved.
The GRP draft, on the other hand, enumerates abstract principles and concepts lifted from the Universal Declaration of Human Rights and the GRP Constitution’s Bill of Rights. The draft does not place these principles in the context of Philippine historical experience nor in light of the current realities of serious violations of human rights and international humanitarian law.
For example, the NDFP points to human rights violations during the Marcos regime, the continuation of basic conditions and policies that bring about these violations, and the need to render justice as well as indemnify the victims. The GRP draft, on the other hand, is silent on these. Later it would become evident that the GRP’s omissions were not the result of an oversight or lapse, but of its adamant refusal to acknowledge the occurrence of pas and present human rights violations. The GRP’s untenable position would have rendered the agreement inutile – useless and unenforceable – because it falls short of pinpointing the very problem it seeks to address.
The GRP panel would eventually depart slightly from this position and agree, in the Preamble:
“…that a comprehensive agreement on respect for human rights and international humanitarian law should take into account the current human rights situation in the Philippines and the historical experience of the Filipino people.”
Unfortunately, in the other sections and articles of the agreement, the GRP panel would persist in obfuscating the current human rights situation and refusing to acknowledge the historical experience of the people.
Another contentious point lies in the separate responsibilities, including separate mechanisms, of the GRP and NDFP for ensuring, monitoring, verifying compliance with and implementing the agreement. The early NDFP drafts stipulate and elaborate on the “Sole Responsibilities of the GRP” (Part IV) and “Sole Responsibilities of the NDFP” (Part V). This is actually in accordance with the preambular provision mutually agreed upon:
“…realizing the necessity and significance of assuming separate duties and responsibilities for upholding, protecting and promoting the principles of human rights and the principles of international humanitarian law.”
The GRP drafts, however, strongly and consistently insist on a single joint monitoring mechanism within the structure and under the sovereign authority of the GRP. Article VII of the Sept. 20, 1996 GRP draft states:
“The Parties shall agree to the creation of a Presidential Human Rights Committee that shall be attached to the Office of the President of the Philippines…”
“The Committee shall exercise the following functions:
- Receive and assess complaints of alleged violations of human rights arising from the armed conflict;
- Refer these cases to the appropriate bodies, monitor them and push for their speedy resolution;
- Propose procedures and safeguards to ensure that human rights are not violated;
- Perform such other responsibilities as may be necessary to discharge the abovementioned functions for the protection of human rights in the country.”
Further, Article IX of the same draft states:
“The implementation of this Agreement shall be in accordance with Philippine laws…”
Two opposing views on the path to genuine peace
The differences manifested in the two sides’ drafts of the Agreement on HR & IHL are rooted in the two diametrically opposed views of the GRP and NDFP on how to achieve genuine and lasting peace.
From the outset, the NDFP has declared that the only way to achieve genuine peace is to resolve the roots of the armed conflict, that is, resolve what the NDFP calls the basic problems of imperialism, feudalism and bureaucrat capitalism. The NDFP engages in armed and unarmed forms of struggle to achieve this goal. But whatever form of struggle, the strategic line and objective is nothing less than the overthrow of these three “evils” of Philippine society in order to build a truly peaceful, because free and democratic, society.
The NDFP thus enters into peace talks whenever such talks help attain this objective. This is accomplished not only through the propagation of the national democratic position but through actual agreements that can immediately benefit the people. A comprehensive agreement on human rights and international humanitarian law is an example of such an agreement.
The GRP, on the other hand, insists that the roots of the armed conflict can be resolved by instituting reforms well within the framework of the present social system. Reforms should preserve, rather than change, the status quo. Indeed, this is the logic behind the GRP’s insistence that any agreement must be forged and implemented “in accordance with the legal and constitutional processes of the GRP”. The GRP’s idea of peace is basically and primarily a cessation of hostilities – a cease-fire cum amnesty program for the NDFP forces. It aims to end the war by inducing or compelling the NDFP forces to lay down their arms “honorably” and join the mainstream of Philippine society.
The last thing that the GRP wants is for the NDFP to be able to lay claim, through the peace talks, to its own constitution, government, constituency and territory – i.e., to a status of belligerency. As the talks progress, so grows GRP fears that the NDFP is acquiring such a status before the international community. Thus, the GRP panel is constantly on guard against provisions in any agreement that tend to derogate its claims as the exclusive sovereign power. Furthermore the GRP constantly attempts to subsume the NDFP under its authority in the course of the peace negotiations.
The NDFP, on the other hand, argues that it has already attained a status of belligerency through more than two decades of struggle throughout the archipelago, and through international political and diplomatic work. Such status does not depend on the GRP’s recognition, and neither is it subject to negotiations. In announcing the NDFP Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977, the NDFP asserted its belligerency status on the basis of the following:
- the revolutionary people and organizations represented by the NDFP constitute a significant portion of the Philippine territory, and have their own system of government and political principles
- the New People’s Army (NPA) operates on a nationwide scale with a central command and under the political leadership of the CPP
- the armed conflict, which is a protracted civil war, has been of an intensity and scale as to require the GRP’s use of its entire armed forces in the name of national defense from 1969 to the present, and the imposition of martial rule from 1972 to 1986.
Having said this, the NDFP considers the GRP’s insistence on framing the talks within the GRP Constitution and laws tantamount to demanding the capitulation of the NDFP to the GRP, and constitutes a gross violation of The Hague Joint Declaration.
GRP stalls the talks each time it is caught in a bind
Indeed, the GRP has been, from the outset, grappling with The Hague Joint Declaration, seeking ways and means of circumventing and undermining its provisions, short of scrapping the declaration itself. This has resulted in the GRP’s stalling the negotiations each time it needs to extricate itself from a situation where its position does not conform with the provisions of the Declaration or of a subsequent agreement.
Even before the talks could enter the stage of formal negotiations on the substantive agenda, the GRP has had problems in justifying its demands and proposals on the basis of The Hague Joint Declaration. Holding the talks in Manila, agreeing on a cease-fire and amnesty program before talking about reforms, using the GRP Constitution as a framework for the talks, exclusively issuing safe-conduct passes for both Parties, etc. – all these proposals were insisted upon by the GRP but rejected by the NDFP as violations of the Joint Declaration.
The GRP and the NDFP panels inked three other agreements leading to the formal talks: the Joint Agreement on Safety and Immunity Guarantees (JASIG), the Joint Agreement on the Ground Rules of the Formal Meetings Between the GRP and NDFP Negotiating Panels, and the Joint Agreement on the Formation, Sequence and Operationalization of the Reciprocal Working Committees. Again, the GRP would encounter difficulties and problems in abiding by these agreements.
Several times, the GRP Negotiating Panel, apparently under pressure from the military, balked at observing the JASIG particularly in the cases of NDFP Consultants Sotero Llamas & Danilo Borjal. Rather than comply with the GRP’s obligation under JASIG to release Mr. Llamas so he could participate in the talks, GRP Panel Chair Howard Dee unilaterally suspended the talks on June 27, 1995 after the NDFP requested a recess until the arrival of Mr. Llamas. In November 1996, the talks were again stalled four months when the GRP dilly-dallied before releasing Mr. Borjal in March the following year.
In April 1997, an indefinite recess in the talks was declared by GRP Panel Chair Howard Dee after the NDFP rejected the “two options” he proposed regarding the signing and approval of agreements on the substantive agenda. Both options preconditioned the forging of any or all agreements on the major items of the substantive agenda on their implementation “according to the legal and constitutional processes of the GRP.” This was not only an attempt to revise the sequence and procedure laid down in the Joint Agreement on the Formation, Sequence and Operationalization of the RWCs, it was another attempt to impose on the NDFP the GRP Constitution and laws. Coming as it did close on the heels of the Dutch Government’s deliberations on the asylum application of Jose Ma. Sison, NDFP chief political consultant, and his family, it could be construed as an attempt to hostage the Sison’s asylum appeal to the NDFP’s compliance.
Why then, despite the diametrically opposed views and the negative factors that have constantly bogged down the talks, have the talks been able to move forward? How is it possible for the GRP and NDFP to arrive at any agreement at all? Why have both parties always returned to the negotiating table despite all the snags, indefinite recesses, suspensions and declarations of collapse?
For one, neither party wants to be perceived as the reason for the total or final collapse of the talks. Both the GRP and NDFP claim to have the high moral ground insofar as the quest for peace is concerned.
For another, the peace negotiations have a strategic and tactical value to both the GRP and NDFP. The Ramos government has used the peace negotiations in its attempts to co-opt, split and cause the capitulation of the CPP-NPA-NDFP forces and gain the political stability it needs to implement “Philippines 2000,” its economic program. In his 1993 State of the Nation Address, President Ramos boasted that his peace program “has split the communist insurgency to the core.”
True enough, the NDFP risks sending mixed and confusing signals to its forces and the general public in engaging the GRP in peace negotiations. The danger of being projected as a spent and vanquished force negotiating an “honorable surrender” is magnified by the GRP’s edge in manipulating media and the precedents set by the military rebels and the MNLF. On the other hand, the GRP scenario of widespread demoralization and mass surrender of the NDFP forces has not materialized.
The NDFP, for its part, has successfully compelled the GRP to sit across the negotiating table as an equal, warding off the GRP’s attempts to impose the GRP Constitution and laws as the framework for the talks. Whether the GRP likes it or not, the NDFP thereby gains de-facto recognition as a belligerent in the armed conflict, which has in fact become a protracted civil war. Adhering to and consistently invoking The Hague Joint Declaration, the NDFP has been able to use the peace negotiations as a platform not only for propagating the national democratic line but also for pushing for agreements and concessions the NDFP considers beneficial to the people.
Forging the Common Tentative Draft of August 5, 1997
The common tentative draft of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL) is a concrete example of what the peace negotiations can achieve and how it can be achieved by adhering to the principles, framework and modalities set in The Hague Joint Declaration of 1992 and subsequent agreements. It is the result of an earnest desire on the part of the RWCs of both sides to reach a principled and practicable agreement.
Comparing the common tentative draft with the early drafts of both the GRP and the NDFP reveals the extent to which concessions have been given by both sides and the work that had been put into reformulating contentious portions and arriving at mutually acceptable provisions.
To begin with, the NDFP recast its entire draft to remove Part III (Common Duties and Responsibilities), Part IV (Sole Responsibilities of the GRP), and Part V (Sole Responsibilities), which were deemed unacceptable by the GRP.
Both sides agreed on a listing of human rights in the context of Philippine historical experience and current situation, as well as providing for concrete measures to redress the situation and uphold, protect and promote these rights. Among the more important provisions are:”
- Part III (Respect for Human Rights), Articles 3 and 5, acknowledges violations of human rights from the Marcos regime to the present, and provides for rendering justice to and indemnifying victims of these violations:
“The GRP hereby acknowledges the violations of human rights during the Marcos regime. It shall take the necessary measures to remove the conditions for gross and systematic violations of human rights. It shall likewise encourage and ensure the prosecution and trial of the violators and the punishment of those found guilty. For this purpose, investigation shall be conducted and evidence shall be gathered against said violators. (Article 3) “The GRP hereby recognizes the validity of the claims for indemnification of human rights victims during the Marcos regime. In this regard, an agreement shall be entered into between the Parties to settle said claims.” (Article 5)
- Part III, Article 4, acknowledges the practice of unjustly charging political prisoners with criminal offenses, provides for the review of such cases, the release of those so charged, and appropriate measures to stop this practice:
“The GRP shall abide by its doctrine laid down in People vs. Hernandez, as further elaborated in People vs. Geronimo and shall immediately release them. The GRP shall move for the repeal of laws contrary to the aforesaid doctrine.”
- Part III, Article 6, provides for the repeal of all repressive laws promulgated and effective from the Marcos regime to the present and prohibiting the issuance of such laws:
“The GRP shall work for the immediate repeal of any subsisting repressive laws, decrees, or other executive issuances and for this purpose shall forthwith review, among others, the following: General Orders 66 and 67 (authorizing checkpoints and warrantless searches); President Decree 772 (penalizing squatting with imprisonment); Presidential Decree 1866 as amended (allowing the filing of charges of illegal possession of firearms with respect to political offenses); Presidential Decree 169 as amended (requiring physicians to report cases of patients with gunshot wounds to the police/military); Batas Pambansa 880 (restricting and controlling the right to peaceful assembly) Executive Order No. 129 (authorizing the demolition of urban poor communities); Executive Order No. 264 (legalizing the Citizens’ Armed Forces Geographical Units); Executive Order 272 (lengthening the allowable periods of detention); Memorandum Circular 139 (allowing the imposition of food blockades); and Administrative Order 308 (establishing the national identification system). “The GRP shall not allow repressive laws and executive issuances in any form.” “Upon the signing of this Agreement and pending said repeal, the GRP shall not invoke these repressive laws, decrees and order to circumvent or contravene the provisions of this Agreement.” (Article 6)
- Part III, Article 9, provides that the Parties defend national sovereignty and oppose any form of national oppression and foreign domination. In this regard, the GRP shall forthwith review any and all treaties, agreements and arrangements with foreign investments and entities and shall cause the abrogation and repeal of those violative of the national sovereignty of the Filipino people at the soonest possible time.” (Article 9)
- Part III, Article 2, Section 2, provides for the sovereign right of a people to rise up against oppression:
“The right of the people to revolt against oppression, exploitation and tyranny and to effective guarantees and mechanisms against the perpetuation or resurgence of autocracy, tyranny, military rule and other anti-people regimes.”
In Part IV (Respect for International Humanitarian Law), a similar listing is made regarding the respect for and adherence to the principles of international humanitarian law.
In Part V (Ensuing, Monitoring and Verification of Compliance), the GRP provision for a Joint Committee under the Office of the President of the GRP was scrapped. Instead, Article I recognizes the right of either Party to form separate mechanisms for monitoring and implementing the agreement:
“Either Party has the right to form mechanisms and appoint personnel to ensure, monitor and verify compliance with and implementation of this Agreement.” (Article I)
Part VI (Final Provisions), Article I recognizes the Parties’ separate duties and responsibilities in accordance with their respective political capabilities:
“The Parties shall continue to assume separate duties and responsibilities for upholding, protecting and promoting human rights and the principles of international humanitarian law in accordance with their respective political capabilities until they shall have reached final resolution of the armed conflict.”
The manner by which accommodations were made on both sides to remove objectionable formulations is illustrated in Article 3 of Part II (Bases, Scope and Applicability). The September 1996 NDFP draft states Article 3 thus:
“The GRP is guided by its Constitution and the NDFP by its Constitution and Program and by the Guide for Establishing the People’s Democratic Government within their respective jurisdiction. Accordingly, the Parties hold themselves responsible jointly or separately, as the case may be, for upholding, protecting and promoting the full scope of human rights, including civil, political, economic, social and cultural rights. However this agreement seeks primarily to confront, remedy and prevent the most serious human rights violations in terms of civil and political rights.”
The GRP August 22 reformulations: back to square one?
The August 5 common tentative draft was welcomed by the NDFP Negotiating Panel and leadership as a major step towards the signing of a comprehensive agreement on respect for human rights and international humanitarian law. NDFP Panel Member and RWC Chair Fidel Agcaoili was sent to the Philippines to conduct consultations with NDFP forces and other interested individuals and organizations on the significance and content of the common draft. The NDFP looked forward not only to the signing of a comprehensive agreement on HR and IHL by the negotiating panels within the month, but also to its approval by their principals before yearend.
It was not to be.
The GRP Negotiating Panel submitted the common tentative draft, along with its reservations, to a GRP cabinet advisory committee. The cabinet committee, apparently not content with the NDFP’s accommodations to the GRP’s earlier objections, rejected the draft and instructed the GRP Panel to reformulate it. The GRP Panel forwarded to the NDFP, on August 22, its Reformulated Draft.
It is quite evident in this draft that the GRP panel had backtracked on its position. The reformulations wiped out, in one fell swoop, important unities reached in the crafting of the August 5 common tentative draft. The NDFP was prompted to condemn the GRP reformulations for erasing everything in the common draft that is beneficial to the people.
All the important provisions on the respect for human rights listed above were deleted.
Anything that seemed to imply or tended to confer to the NDFP a status of belligerency, and its adherence to international covenants and instruments of international law.
For example, the article earlier used to illustrate how provisions are reworded until a mutually acceptable formulation is arrived at was reformulated. The clause in brackets was deleted to remove any reference even to NDFP “political capabilities.” While it serves the GRP aim of denying the NDFP its integrity as a revolutionary entity, it strips the provision of any value.
“The Parties, [taking into account their respective political capabilities and guided by their respective political principles] shall uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights.” (Part II –Bases, Scope and Applicability, Art 3)
The following were also deleted for the same reason:
“The Parties realize the need for a comprehensive accord on human rights and international humanitarian law based on realities involving violations of human rights and the principles of international humanitarian law… (Part I – Declaration of Principles, Art 3)
“The Parties are aware that the prolonged armed conflict in the Philippines necessitates the application of the principles of human rights and the principles of international humanitarian law and the faithful compliance herewith by both Parties.” Part I, Art 6)
“The Parties recognize the applicability of human rights and principles of international humanitarian law and the continuing force of obligations arising from these principles independently of the outcome of the GRP-NDFP negotiations.” (Part VII – Final Provisions, Art 3)
Furthermore, the entire Part IV: Respect for International Humanitarian Law was deleted and replaced with a watered-down two-article section of abstract statements of international humanitarian law. All fifteen articles in the common draft delineating the concrete measures for upholding and protecting the human rights of civilian population in the context of the armed conflict were deleted in an apparent attempt to erase all reference to the NDFP’s adherence to international law, and to deny the reality of a civil war in the Philippines. It is a classic, if gross, illustration of the GRP throwing away the baby with the bathwater.
The GRP attempt to push the peace negotiations back to square one is further shown in its insistence on restoring the following provisions:
“…This agreement shall take effect upon completion and signing by the negotiating panels of the final peace agreement and its approval by their respective principals.” (Part VI – Final Provisions, Article 1):
“The Application of this agreement shall not affect the legal status of the parties.” (Part VI, Aritcle 2)
The first article is a rehash of the “two options presented by GRP Panel Chair Dee in April 1997. The second seeks to relegate NDFP to a status of a mere insurgent band, implying that it has no territory, government, constituency nor army, and that the armed conflict is a mere internal security or police problem. The GRP knows full well that both provisions are totally unacceptable to the NDFP.
Back to the negotiating table
The GRP Panel has since submitted to the NDFP another reformulated draft, dated October 1, 1997. The NDFP Panel, for its part, perseveres in the task of reviewing the drafts and searching for an acceptable middle ground. Meanwhile both panels have expressed their desire and intention to return to the negotiating table.
On October 30, an NPA unit captured a police officer and an army enlisted man in a military action in Rodriguez, Rizal, half an hour away from the capital city. GRP Panel Chairman Howard Dee announced another suspension of the talks are going on. The NDFP countered that the armed conflict continues and that the AFP has in fact conducted much bigger military offensives against the NPA. Nonetheless, the NDFP expressed its readiness to release the captives, but in a manner the GRP and NDFP will have to discuss and agree upon.
This incident in the field comes as a dramatic, if timely, reminder of the reality of the continuing civil war. It also underscores the fact that the armed conflict is not the simple internal security of police problem that the GRP claims it to be. It is not surprising that the GRP panel now faces in the field the same predicament that has hounded it in the negotiations. It wishes to impose on the NDFP an absolute and superior authority which is belied precisely by the ongoing war and peace negotiations.
The peace negotiations may be stalled, recessed or suspended every now and then. They may even be collapsed by either side. In the meantime, the problems of Philippine society fester, the social crisis deepens, and more and more people are pushed to rise up against the system they increasingly perceive as oppressive and exploitative.
As the GRP and the NDFP panels return to the negotiating table, they do so with a fresh reminder that the negotiations can only succeed insofar as these reflect and confront the true situation in the battlefield and in the entire Philippine society.
BREAKING THROUGH – The Agreement on Human Rights is Signed
by Rey Claro Casambre
PHILIPPINE PEACE CENTER
After nearly two years of tough negotiations, the peace panels of the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP) achieved the seemingly impossible when they finalized and signed last March 16, 1998 the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL). On the same day, the panels also signed two short agreements, on the security of personnel and consultations and on support for private development organizations and insttitutes.
The signing of the CARHRIHL, the first agreement on the substantive agenda, marks a major breakthrough in the peace negotiations. In a joint statement issued by both panels, the Agreement was described as having “historic significance and… far-reaching benefit to the Filipino people. It drives the peace process forward.”
Indeed, the event was not without euphoria that comes in those rare moments when bitter foes temporarily set aside their animosities, if not yet their weapons, and embrace each other in friendship. But even as the GRP and NDFP hail the Agreement as a big step towards peace, both do so guardedly, and point to more hard work ahead. First of all, the CARHRIHL must be approved by their principals and implemented if it is to be of any real value. Second, the talks should now proceed to the next and potentially most contentious item of the substantive agenda: social and economic reform.
At once, beneath the veneer of unity and goodwill that permeates the occasion of th signing, the differences between the two sides becomes apparent. These are manifest in how each side views the significance of the Agreement, and corollarily, how the peace process must proceed. Closer scrutiny would reveal that these differences are no less deeply rooted now in the diametrically opposed positions of the GRP and NDFP with regard to the object and conduct of the peace negotiations than when the talks began.
From the outset, the GRP and the NDFP held two seemingly irreconcilable positions on respect for human rights and international humanitarian law, and for that matter on the other three substantive agenda as well. At the same time, they hold diametrically opposing views on how to proceed with the talks and what kind of agreements to produce. The process of forging the agreement would be determined by how each side would seek to maintain its basic position even as it bends and concedes to the other’s objections or counterproposals. (For a more detailed discussion, see “Toward an Agreement on Respect for Human Rights and International Humanitarian Law – So Close Yet So Far”)
On one hand, the GRP held as non-negotiable its being the sole sovereign national power. Thus, any agreement would have to be done in accordance with the GRP constitution and legal process. It should contain nothing that would imply or grant to the NDFP equal sovereign power, such as references to the NDFP constitution, territory, army and constituency. Even the mere mention of adherence to covenants and instruments of international humanitarian law, the GRP argues, would confer on the NDFP a status of belligerency, in contraposition to the GRP’s sovereign power.
Further, the GRP wanted to limit the CARHRIHL to abstractions and motherhood statements on human rights, objecting to provisions that concretely describe the human rights problem and outline the measures to address and resolve this. In short, the GRP wanted an agreement replete with the rhetoric of human rights and international humanitarian law but devoid of its substance. This in fact was what the GRP submitted as its proposed draft at the outset, and it is to this that the GRP reduced the August 5 Common Tentative Draft when it submitted its emasculated August 22 Reformulated Draft.
On the other hand, the NDFP persisted in asserting its integrity as a revolutionary organization, arguing that it has atteined a status of belligency through decades of struggle and thus has no need nor intent to seek the GRP’s recognition of such status through negotiations. The NDFP opposes the GRP’s insistence on using the GRP constitution and legal processes as the framework for the negotiations and condemns this as an attempt to effect the capitulation of th NDFP to the GRP.
More important, the NDFP proposed and strove for a substantive Agreement that draws an accurate picture of the human rights situation, unflattering as this may be to the GRP, and delineates the joint and separate duties and responsibilities of both parties in upholding, protecting and promoting human rights in the Philippines. The NDFP consistently pushed for provisions it deemed in the interest of the people, especially the toiling masses of workers and peasants, since the time it articulated these in its 1990 proposal for the resumption of peace talks with the GRP (see “Chronology of the Current GRP-NDFP Peace Negotiations” and “Toward an Agreement…”).
Given these opposing standpoints, the process by which the agreement was forged is aptly described by Ms. Coni Ledesma of the NDFP panel:
We were always conscious of articulating and defending the demands and the rights of the people, as well as upholding the principles and policies of the NDFP.
This was a big challenge for us, especially when we would come to contentious portions of the draft. Whenever these arise, the stock solution which the GRP would propose is to delete the contentious article. Theis was their method of solving the problem.
On our part, we would look for alternative formulations, other words, other expressions, to say the same thing while overcoming the objections posed by the GRP.
A close scrutiny of the final CARHRIHL, the drafts and particular provisions proposed by either side and the entire process by which the Agreement was forged will bear Ms. Ledesma’s statement out.
The GRP’s propensity for proposing the deletion of provisions it deemed objectionable, regardless of merit or substance, tended to validate the NDFP’s claim that the GRP is more interested in using the talks (including any agreement which may be reached) as a bait to lure the NDFP forces to capitulation, or as a cosmetic to cover up the deteriorating economic and political situation in the country.
Concluding the Agreement
It will be recalled that a Common Tentative Draft was initialed by both panels’ Reciprocal Working Committees on Human Rights on August 5, 1997. But the GRP practically flung the talks back to square one when it submitted on August 22, 1997 its Reformulated Draft. Substantial portions of the Common Tentative Draft were emasculated, if not deleted wholesale, including major provisions of Part III (Respect for Human Rights) and practically the entire Part IV (International Humanitarian Law).
“The GRP has erased everything that is beneficial to the people!” the NDFP decried as it rejected the GRP Reformulations as a mutilation and cannibalization of the Common Tentative Draft. The GRP, by reverting to formulations previously rejected by the NDFP, appeared to be laying the ground for scuttling the talks for good.
But the worsening economic and political crises punctuated by the plummeting value of the peso an the rising outcry against schemes to amend the GRP Constitution pushed the Ramos government back to the negotiating table if only to shore up its sagging popularity and stature and restore a semblance of peace and order in the country.
After unilaterally suspending the formal talks and initially refusing to negotiate with the NDFP, a reluctant GRP panel would eventually do so first to secure the release, on December 5, 1997 and January 2, 1998, of three GRP military personnel captured by the NPA in its tactical offensives, and then to resume formal talks on the HR-IHL agenda. The predominant sentiment on both sides to accelerate the negotiations and reach an agreement became evident with the unprecedented holding of two rounds of talks within a single month. The two panels met January 6-10 in The Hague, and then from January 28-31 in Breukelen, both in The Netherlands.
In both rounds, the GRP’s stubborn objections to any reference or language associated to Protocol I of the Geneva Conventions stalled the talks. Nonetheless, the patience, flexibility and tenacity displayed by the NDFP and some members of the GRP panel in finding mutually acceptable reformulations to the contentious provisions without sacrificing substance would eventually pay off.
The first round ended in the initialing by both panels of the first three parts of the Comprehensive Agreement, including all but one article of Part III (Respect for Human Rights). In the second round, agreement was reached on the remaining Part IV (Respect for International Humanitarian Law), Part V (Joint Monitoring Committee), and Part VI (Final Provisions). While worded much differently from the initial NDFP drafts, the provisions agreed upon essentially retained the substance the NDFP had proposed to include in the document.
Only Article 5 of Part III remained to be tackled. This provided for the recognition of the right to indemnification of the victims of human rights violations during the Marcos regime. The article aimed to uphold, in particular, the validity of the claims of said victims to the Marcos-linked assets recovered in the Philippines and abroad and stipulated the particular measures and GRP’s responsibility in addressing this problem. The GRP’s obduracy in repeatedly rejecting the NDFP’s proposals and reformulations for Article 5 epitomized the GRP’s resistance to provisions that deal with concrete problems and solutions with regard to the human rights situation.
The second round ended with the understanding that both panels would work for a mutually acceptable formulation of Article 5 in consultation with the Philippine Commission on Government (PCGG) while the talks were adjourned. The talks were to resume and the Agreement signed as soon as this is reached. However, in what appears to be a last ditch effort to delay, if not prevent outright the signing of the Agreement, the GRP panel proposed the deletion of Article 5 of Part III, once again displaying unreasonable obstinacy and threatening to throw a monkey wrench at the ectire negotiations.
Undaunted, the NDFP moved to resolve the issue by seeking and activating other channels to key GRP officials and consulting directly with the PCGG chairman, bypassing the obstacles sprung up by some members of the GRP panel. Subsequently, a mutually acceptable reformulation of Article 5 was reached. With the last stumbling block out of the way, both sides signed the CARHRIHL and two short agreemetns on the security of consultations and private development organizations on 16 March 1998. The two panels also exchanged drafts for the next substantive agenda, Socio-Economic Reforms.
Significance of the Agreement
The CARHRIHL is concrete proof that despite diametrically opposed standpoints, viewpoints and practice on respect for human rights and international humanitarian law, it is possible for the GRP and the NDFP to arrive at a substantial agreement that truly upholds the people’s rights.
The Agreement is based on mutually acceptable principles such as national freedom, democracy, and the sovereignty of the people. These principles are embodied in international human rights and international humanitarian law conventions, as well as in the GRP Constitution and in the NDFP Guide for Establishing the People’s Democratic Government and the NDFP Program and Constitution.
NDFP Panel Chair Luis Jalandoni proudly describes the CARHRIHL, despite its limitations,
- Firmly takes the standpoint of the toiling masses…
- Is founded on the interests, aspirations and concrete situation of the Filipino people, expecially the workers, peasants, urban poor, women, youth fisherfolk, national minorities, and other struggling sectors of Philippine society…
- Expresses those interests, aspirations and current realities of the Filipino people…
- Is grounded on the past, present and continuing realities of violations of the human rights of the Filipino people.
The CARHRIHL affirms the justness of the people’s struggle for national freedom and social emancipation. The document states that:
…fundamental and collective freedoms and human rights in the political, social and cultural sphere can only be realized and flourish under conditions of national and social freedoms of the people…
Moreover, the Agreement stipulates that the GRP and NDFP uphold
“The inherent and inalienable right of the people to extablish a just, democratic and peaceful society, to adopt effective safeguards against, and to oppose oppression and tyranny similar to that of the past dictatorial regime.”
In other words, the people’s right to revolt against and overthrow an oppressive and tyrannical rule is recognized.
Not only have both parties agreed to jointly uphold, defend, and promote these rights, they have also agreed on separate duties and responsibilities to address specific problem areas with concrete measures.
This being so, the Filipino people, especially the toiling masses, now have a written instrument affirming the legitimacy of thir aspirations and solemnly committing both the GRP and NDFP, jointly and separately, to take measures to uphold, defend and promote these interests at all times, not merely in the abstract but in the concrete.
Looking back, it is no mean feat for the NDFP to have been able to persuade the GRP panel that it is to everybody’s interest, and primarily that of the toiling masses who constitute a large majority of the Filipino people, to agree on document whose contents the GRP had from the very beginning balked at and had adamantly opposed.
In the final analysis, the CARHRIHL, the implementation of its provisions and for that matter, the implementation of any agreement forged in the peace negotiations, rests largely on the people’s own vigilance and continuing struggle.
Both GRP and NDFP have expressed satisfaction with the final Agreement, pleased that with its signing, the next items in the substantive agenda can thereafter be pursued. Beyond this, the GRP and NDFP have entirely different views on how the peace process must now proceed.
The GRP pursues its line that with the CARHRIHL, an indefinite ceasefire is next on the agenda. GRP Panel Chair Howard Dee declared in his opening statement at the signing ceremony:
The first fruit of this agreement must be a marked reduction, or, better yet, a total suspension of armed hostilities as both sides refocus their energies from annihilative offesives against one another to the promotion and protection of human rights and the pursuit of reforms…
The ceasefire, Dee continues, should preferably precede the negotiations and implementation of social, economic and political reforms:
As we congratulate one another, let us hasten to address the social, economic and political reforms and attain these agreements to form our final peace accord. While it is true that these reforms are needed to bring about a lasting peace, it is equally true that reforms are best attained in a time of peace…”
The GRP has also remained silent on whether or not Gen. Ramos would approve the CARHRIHL, much less implement it. Time and again, GRP Panel Chair Cee would insist that agreement should first be reached on at least three, if not all four substantive agenda. The GRP President would then approve all these as a single accord, and then and only then will a “final” accord be implemented.
This scenario only reinforces the view that Gen. Ramos may be interested merely in the form, not the substance, of an agreement on one or any number of the substantive agenda. A semblance of peace and stability may be all he thinks he needs to polish his tarnished image and keep afloat his floundering “Philippines 2000” program, at least until his term draws to an end, and improve the chances of his Lakas Party in the coming elections.
In sum, the GRP calls for an immediate cessation of hostilities while putting off the implementation of any substantive agreement until the so-called final accord is attained.
In contrast, the NDFP strives and calls for the immediate implementation of substantive agreements as they are concluded, thereby building up the foundation for addressing the root causes of the armed conflict and attaining genuine peace.
The NDFP has called for the immediate exchange of approvals by the principals, Gen. Ramos of the GRP and Chairman Orosa of the NDFP. It lookds forward to the immediate formation of the committee needed to implement the provisions, even as it eagerly awaits the start of the talks on Social and Economic Reform, or SER. This, the NDFP argues, is in accordance with the Joint Agreement on the Formation, Sequence and Operationalization of the Reciprocal Working Committees (June 26, 1995) and the March 18, 1997 agreement to accelerate the talks.
NDFP Chair Mariano Orosa formally approved the CARHRIHL April 10, 1998. It remains to be seen whether GRP President Ramos will approve the Agreement.
 “Joint Press Statement On the Signing of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law,” Rep. Jose V. Yap and Luis G. Jalandoni, The Hague, Netherlands, March 16, 1998.
 “The Making of the CARHRIHL,” Coni K. Ledesma, speech delivered in a multisectoral forum on the CARHRIHL at Mt. Carmel Auditorium, QC, April 14, 1998.
 See “Toward an Agreement on Human Rights and International Humanitarian Law – So Close Yet So Far,” section “The GRP August 22 Reformulations: back to square one?,” by Rey C. Casambre, presented at Human Rights Fact-Fondong Mission and National Conference, Titus Bransma Center, Q.C., December 8, 1997.
 “The Interests of the People are Firmly Upheld by the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law,” Luis G. Jalandoni, speech delivered in a multisectoral forum on the CARHRIHL at Mt. Carmel Auditorium, QC, April 14, 1998.
 “Opening Speech at the Formal Signing of the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law,” Luis G. Jalandoni, The Hague, The Netherlands, March 16, 1998.
 “The Interests of the People are Firmly Upheld by the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law,” Luis G. Jalandoni, speech delivered in a multisectoral forum on the CARHRIHL at Mt. Carmel Auditorium, QC, April 14, 1998.
 Par 1, Article 2, Part III, Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law.
 Par 2, Article 2, Part III, Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law.
 “The Spirit of Peace Has Prevailed,” GRP Peace Panel Statement by Howard Q. Dee, on the occasion of the signing of the CARHRIHL, The Hague, the Netherlands, March 16, 1998.