Anti-Terror Bill and the International Humanitarian Law

By Farah Decano

 

The State has no reason to sit and watch things go by as hundreds and hundreds of innocent people are killed due to terror attacks.  It must shield itself from these violent elements that threaten the nation’s very existence. Governments are pushed to the wall and must engage these groups in various scenarios, whether in peaceful avenues or in combat.   However, in the process of protecting itself, the State’s guarantee to respect, promote, and safeguard human rights, more particularly the right to life, had been put to question.  We experience grave collateral damage, so to speak, in terms of lives lost and properties destroyed.

We have a set of rules that promotes a more civilized warfare and, in effect, minimizes the incidence of collateral damage.  The 1949 Geneva Conventions, otherwise known as the International Humanitarian Law (IHL), aims for restriction of war methods and limitation of war target to combatants.  IHL protects those who are wounded and sick, the shipwrecked, civilians, and prisoners of war. It constrains the means and methods of warfare to those that result to least destruction of lives and property. In fact, under the IHL, the use of toxic chemicals and nuclear weapons is unlawful.

As regards its applicability, the IHL governs international and non-international armed conflict under some conditions. Under non-international armed conflict,  the IHL could be put in operation when the following elements are present:   1)  hostilities are by force of arms and of such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces; 2) hostilities are of a collective character with a minimum amount of organization under one command; 3) territorial control by  dissident forces; and 4) adherence by the latter to international humanitarian law.

Can IHL be applied to terror groups?   While the IHL prohibits acts of terrorism, the International Committee of the Red Cross is of the opinion that IHL cannot be used by terror groups for their protection. They cannot demand State soldiers be identifiable during combat and that they be treated like prisoners of war when captured.   The aim of the enemies of the State in international or non-international armed conflict is different from terrorists.  Unlike the former whose aim is to prevail over the State, the goal of the latter is to merely inspire fear by destruction and carnage in order to achieve demands or recognition. In the eyes of international and domestic laws, terrorists are criminals.

The Philippines is no different from other countries in treating terrorists.  Under the 2007 Human Security’s Act, a certain group may be judicially proscribed as a terror group after a full-blown hearing.  The branding carries the stigma of a dishonorable organization with an abnormal appetite for blood and destruction. This declaration will greatly cripple the organizations’ relations with other groups, including its funding sources. The new Anti-Terror Bill, however, seeks to allow the preliminary declaration of organizations as terrorists within three days from application. The proposal is dangerous because this restricts other liberties and may be subject to abuse.

Perhaps, we should explore the possibility of amending the Human Security’s Act by providing similar judicial declaration of groups who are willing to adhere to IHL and are compliant with the standards of the law.  This way, we are offering armed groups of different ideals a way out of a dishonorable stigma. We are actually enticing them to drop their barbaric activities and persuade them to engage in a more civilized war regulated by the IHL.  The policy of giving all armed groups no option but possibly be branded as terrorists is similar to fighting terror with terror. It would result to adding more players to an unruly, ferocious armed conflict and, thus, multiplying the “collateral damage.”    Make them come within the fold of IHL and let us see how this law works.

In maintaining the more honorable status of a civilized enemy of the State, armed groups will realize that IHL makes the engagement in war very challenging and difficult.  Peace talks and negotiations will appear as better options.

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