Tentative thoughts on International Humanitarian Law, the Marawi Siege and Lagman v. Medialdea

1. IHL prohibits acts of terrorism on the part of parties to an armed conflict.

2. Parties to an armed conflict are those of sufficient organization and structure as to be able to recognize and observe the laws and rules of war.

3. This goes for both international armed conflicts, where  of course, the parties are states so the question of organization is evidently met  (Fourth Geneva Convention) and non-international armed conflicts ( Two Additional Protocols to the Geneva Conventions), where usually, the parties are non-state actors ranged against the state, or non-state actors fighting one another. The Geneva Conventions are part of Philippine law by way of the Constitution’s treaty clause (as we are parties to them) and by way of the incorporation clause, as they also form part of customary international law.

4. In IHL, terrorism is not defined but acts designed to spread terror among the civilian populace in an armed conflict are tagged as “acts of terror” that are illegal and criminal in nature. In other words, there is a distinction made in IHL between status and act. A group may have the status of a party to an armed conflict, whether non-international or international and yet may be prosecuted for war crimes for engaging in  acts of terror.

5. Generally, IHL is not applied to groups that are considered no more than terrorist in nature.  IHL does not apply to the latter, as in the first place, it rejects the rules and laws of war.To date, the ICRC does not consider ISIS/ISL as a rebel group or as a state  fighting a transnational war (despite its claim that it is waging a war to establish a Caliphate in Iraq and Syria). A briefing paper of  the ICRC puts it thus:

With respect to the phenomenon of armed groups that are perceived as having a global reach, such as al-Qaeda or the Islamic State group, the ICRC does not share the view that an armed conflict of global dimensions is, or has been, taking place. This would require, in the first place, the existence of a ‘unitary’ non-State party opposing one or more States. Based on available facts, there are not sufficient elements to consider the al-Qaeda ‘core’ and its associated groups in other parts of the world as one and the same party within the meaning of IHL. The same reasoning also applies, for the time being, to the Islamic State group and affiliated groups.

Indeed, the Wall Advisory Opinion of the International Court of Justice denies recognition to groups organizing a state that wantonly and openly violate IHL and IHRL.

6. In practice, terrorist groups are often prosecuted for common crimes under domestic law in various jurisdictions.

7. In fact, no other state in the world — not even any Islamic one –has recognized ISIS/ISL as a legitimate political group engaged in a non-international armed conflict or a war for national liberation. Yet admittedly, there is vigorous debate on the continuing relevance of the general rule just mentioned, given the many acts tantamount to war crimes being committed by ISIS and its affiliated groups around the world. It remains to be seen whether the status/act distinction can be extended such that terror groups may be prosecuted for war crimes under IHL but remain classified as terror groups. What ‘s at stake is nothing less than the viability of civilizational norms. Taking off from the ICRC paper, a relevant question is whether the ISIS affiliates in the Philippines such as the Abu Sayaff and the Maute Group have at least achieved such an organized status as being able to meet the threshold for waging a non-international armed conflict. It is worth noting that previous to Marawi, the government has treated these two groups as groups merely engaged in criminality.

8. However, in Lagman v. Medialdea, the Philippine Supreme Court elevated the ISIS-allied Maute group to a group engaged in a non-international armed conflict by agreeing with the Executive Department’s contention that they are a group that has launched a rebellion to establish an Islamic state in Marawi City, although the Mautes, like ISIS, do not recognize IHL. Associate Justice Leonen also pointed to this incongruence in his dissent to the majority opinion with these two trenched paragraphs:

Elevating the acts of a lawless criminal group which uses terrorism as tactic to the constitutional concept of rebellion acknowledges them as a political group. Rebellion is a political crime. We have acknowledged that if rebels are able to capture government, their rebellion, no matter how brutal, will be justified. Also, by acknowledging them as rebels, we elevate their inhuman barbarism as an “armed conflict of a non-international character” protected by International Humanitarian Law. We will be known worldwide as the only country that acknowledges them, not as criminals, but as rebels entitled to protection under international law.

9. Go figure.

(This is a slightly different version of a post I made on my Facebook account. Photo credit, Abante Tonite).

Leave a comment

Filed under Uncategorized

The Kings Two Bodies, E. Kantorowicz’s Political Theology

Thoughts thus far after having intermittently read 300 + pages of E. Kantorowicz’s TKTB:

1. Political theology is understanding how theological concepts are de-sacralized and then re-sacralized in an analogous/analogical sense (not the Thomist kind, mind you!) by politics and/or the study of statecraft.

2. Political theology is NOT public theology as it is popularized today.

3. One can really sense E. Kantorowicz engage Carl Schmitt here as a conversation partner (well, not in the literal sense, since they weren’t contemporaries). Having read Schmitt ahead of E. Kantorowicz eight years ago, the infamous Nazi constitutional theorist makes more sense to me now. I also understand Dutertismo better, seen from the lenses provided by E. Kantorowicz, Schmitt and Giorgio Agamben (ha!)

4. Reading through E. Kantorowicz’s chapters on the Christ-Centered Kingship, the Law-Centered Kingship and the Polity-Centered Kingship: Corpus Mysticum, I can argue from Dooyeweerdian eyes that what he discusses in these chapters is really what we mean by disciplinary differentiation, if in a rough way. Thus:

Ch. 1: the phrase ‘body politic’ often used by later philosophers (Locke and Hobbes, for instance) apparently finds root in the metaphysical theory of the King’s two bodies familiar to Tudor jurists — the indivisible body natural and the body politic. The theory itself developed out of the Christian doctrine of the incarnation of Christ and the Athanasian two natures. The King is dead, long live the King!

Ch 2. Shakespeare’s King Richard II illustrates the tensions and breakdowns of the theory in a subversive era.

Ch 3. In the Norman tracts, the theory gets further traction, the King becoming, as it were, an imitation of Christ on earth, under the notion of germina persona (something like the Lord President today who could do no wrong for that reason!). It is a liturgical kingship, the earthly ruler as christomimetes, the impersonator and actor of christ no less than priest or bishop celebrating the Eucharist.

Ch. 4 It gets more interesting for lawyers like me — the ground now shifts from liturgy to law, as the King becomes the epitome of equity and justice (as the canon lawyers take over, with their familiarity with Roman and ecclessiastical law). Thus the maxim the King is above the law, but is neverthless servant of the Law. The terms necessarily change –it is now a discussion between privata voluntas and persona publica (or private will as against public person).

Frederick II is its poster boy.

So this secularization is to be taken mostly in a positive sense, also pace Casanova (secularization as societal differentiation, marking out distinct boundaries for each sphere that is sovereign in its own orbit (Kuyper’s sovereignteit in eigen kring). So theologians shouldn’t take it out on jurists/political scientists/philosophers if their ideas were used by the latter in ways different from theirs. Also, they really shouldn’t wish things were back to the time when theology was the Queen of the Sciences.

5. This is what we otherwise understand to be the analogical moments that Dooyeweerd speaks of in the formation of disciplinary concepts as the various spheres open up in the process of societal differentiation (disciplines borrow from other disciplines in forming concepts, without transgressing the integrity of their own disciplinary concerns).

6. If we follow E. Kantorowicz (who was an atheist, by the way) –and now that we’re marking the 500th year of the Protestant Reformation — there’s not much to the often-repeated thesis that modernity (read as BAD secularization) is the fault of Protestants. Well, he does mention the nominalists here, but only in a very tangential way (take that, Milbank et al.) You can blame Dante for that. Or Marselius de Padua, or the Roman jurists. Or Frederick II. Or Paul of Tarsus. Take your pick.  Heck, Roman Catholicism could very well have bred the seeds of secularization, if we follow Kantorowicz’s account! (For an alternative reading of secularization in the BAD sense, see Dooyeweerd’s essay on the Secularization of Science).

7. I wish this book were one of the assigned texts, along with Harold Berman’s  two volumes on the development of law in the Western tradition, when I was reading legal history in law school.

(Nota bene: This is a slightly revised version of a post I earlier made on my Facebook account).

Leave a comment

Filed under Casanova, Dooyeweerd, Kantorowicz, Politics, reformational philosophy, Religion, secularization

The “public interest” and its (mis)use throughout history

 

Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.

The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)

Leave a comment

Filed under Dooyeweerd, Human Rights, International Law, legal theory, Public Interest, reformational philosophy

The True Politician according to Max Weber

Here is H.H. Bruun, in his book Science, Values and Politics in Max Weber’s Methodology (1972) writing of how a true politician would conduct himself according to Weber:

…[T]he precondition which Weber establishes for action in conformity with the ethic of politics is the fundamental willingness to let oneself be guided in certain cases by the value axioms of other spheres than the political one. Only those who can have “Beruf zur Politik” who do not only have this “Beruf”, who in particular situations are able and willing to submit to other value systems.

This precondition again implies that the political ethic as defined by Weber does not only demand knowledge of the laws and regularities of the political sphere; in other words, the “true” politician must not only be aware of the teleological system
surrounding his political goal, but also of the axiological (value or ethical system) one.

But this awareness again destroys the possibility referred to above of a relative harmony inside the political sphere. The possibilities of axiological conflict which were in the first instance absorbed by the definition of power as an instrument of politics, are resuscitated by Weber’s demand that the politician should be aware of the relationship between political calculation of ends and means and those of the non-political value spheres.

Axiological value analysis becomes necessary to the politician. On the one hand, Weber’s description of the responsible ethic of conviction means a rejection of the pure ethic of conviction, where the axiological analysis is the only relevant one: the acceptance of the responsibility for the consequences of one’s actions demanded by the responsible ethic of conviction implies a knowledge of the consequences for which the responsibility is taken, i.e., a need for teleological value analysis.

A person committed to the responsible ethic of conviction, whether his actions be guided by the axioms of the political or of other value spheres, i.e., whether they be guided by the teleological or by the purely axiological considerations, should know the “cost” of these axioms (in the form of tensions arising in relation to other spheres).

He has to make it clear to himself what ethical (religious,aesthetic, etc.) norms he is violating by, for instance, declaring war in the name of (political) national interest; and conversely, he must know what political demands he neglects by refusing on (for instance) ethical grounds to declare war or to use force at all in the situation. Since he is a politician, it is natural to assume that his starting point is political, i.e., that he is striving to attain a supraindividual goal.

But even inside this chain of ends and means, he must constantly try to supplement the teleological relations, i.e., that he is not justified in assimilating the axiological  system to the teleological one;  this acknowledgment will force him to examine the intrinsic axiological value of the means, the side effects and the goal according to the value system or systems to which he also remains committed outside the political sphere; and finally, he must recognize that his knowledge cannot reach beyond a certain point: that the paradox of consequences attaches to both end and means.

Only after having elucidated all these points may he decide whether he can still accept working within the political sphere and submitting to its demands; only then can he take the responsibility for his decision and claim to have fulfilled the demands of the responsible ethic of conviction ( italics in the original, pp. 284-285)

Well, sounds like a Dooyeweerdian modal analysis of the intersection of the political with other spheres, right? (with some amendments because of sphere sovereignty)

*inset photo of Weber from this blog.

1 Comment

Filed under Politics, Principled Pluralism, Public Interest, reformational philosophy, Sociology

Republic’s Interregnum: Legal Lacunae in the State of Exception

Going over Republic v. Sandiganbayan’s ponencia by J. Carpio in class last night, I was struck by the abnormal situation it had to cope with and the way in which the Court dealt with it. For one, we have to realize that the 1987 Charter is a constitution that expressly carves out a state of exception for a series of acts committed by the revolutionary government — through Jovito Salonga no less! –in the constitutional interregnum.

The interregnum was our Schmittian moment in a deeply paradoxical way: we ousted the martial law regime but resorted to some of its tactics to make sure the political gains already won will not be lost again. Indeed, in the 1987 Charter, we have a constitution that expressly sanctions unconstitutional acts committed in the space of the interregnum s when there was no operative constitution!

Section 26, Article XVIII,  states:

SECTION 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the ratification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

A sequestration or freeze order shall be issued only upon showing of a prima facie case. The order and the list of the sequestered or frozen properties shall forthwith be registered with the proper court. For orders issued before the ratification of this Constitution, the corresponding judicial action or proceeding shall be filed within six months from its ratification. For those issued after such ratification, the judicial action or proceeding shall be commenced within six months from the issuance thereof.

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is commenced as herein provided.

As it were, it co-exists happily with Art. III, the Bill of Rights.

Second, the way in which J. Carpio directly applied international law into a domestic question of unreasonable search and seizure, purportedly because there was no Bill of Rights to speak of, with the throwing out of the 1973 Marcos constitution by the People Power Revolution.

It’s as if –among other things — nearly nine decades of jurisprudence laying down due process protections did not exist, the doctrine of stare decisis ceased to apply,  and Art. 8 of the Civil Code also went out the window along with the 1973 Constitution. Dean Magallona’s critique of this decision was spot on, if only it wasn’t cryptic in parts. Nevertheless, that offending clause in the 1987 Charter is more Agamben than Schmitt to me.

1 Comment

Filed under Human Rights, Impunity, International Law, martial law, Philippines, Public Interest, State, Tyranny

Alternative Facts of Dialectical Thought (Brandys Redux, No. 2)

0327-06-brandys-kazimierz-1982I first posted about my re-reading of the journals of the late Polish dissident Kazimierz Brandys here.

In this day and age of “alternative facts”, it’s interesting to read an entry in his journals (p. 96-97) about what passed for such in his own time. In 1948, as a young Socialist, he and other Polish writer, the poet Konstanty Galczynski, were invited to Russia to attend a commemoration of the October Revolution.

Arriving in the nick of time to the Bolshoi Theater where the ceremonies were being held, he and his compatriot were shown to their seats as the flashbulbs of cameras burst one after the other; he could very well remember that there were four rows of seats up on the stage, with 12 people on them. Stalin was absent, but for his huge portrait in the backdrop. Molotov was presiding on the podium. Brandys recognized a few Politburo men on the first row — Mikoyan, Boroshilov. On the second row, he could not miss Marshal Budeny’s distinctive black moustache. The third and fourth rows were occupied by less familiar faces, “people wearing dark suits and uniforms.”

He writes on:

I saw it all quite clearly with Molotov standing  at the podium, lit by flashbulbs. He spoke for over an hour, stuttering each time he said Stalin’s name: “St-St-Stalin.” During the entire speech, the stage, the red table, and the four rows of the presidium were before my eyes…after the meeting, we were taken back to our hotel. We ate dinner; then Galcznyski and I fell asleep on the wide double bed. I was up first in the morning, awakened by a rustling sound at the door. Still Sleepy, I jumped out of bed and noticed the edge of a paper that had been slipped under the door. It was a copy of Pravda, redolent of fresh ink.

Most of the front page was taken up by a photo showing the opening of the commemorative meeting: Molotov at the podium, the presidium table with Malenkov in the middle….I scrutinized the photograph. There were only two rows of chairs behind the table; the third and the fourth had vanished, replaced by a uniformly dark background. I was unable to grasp what the photograph was presenting. The truth? A fiction? both? Or was I seeing things?

I finally woke up Galcynzski and handed him the paper. Neither of us knew what to think.

When the two of them returned to Poland, they went to see the poet Adam Wazyk, to seek his counsel. Wazyk had spent the war in Russia; surely he knew more about the Russian mindset than both of the. And so, they handed to them the offending copy of Pravda as the poet sat in the editorial offices of the newspaper Kuznica (The Forge).

The poet’s response:

He looked at me with all the dignity of a Siamese cat and asked me just what I wanted to know and what I did find so surprising. I told him that there had been a third and fourth row, and so why weren’t they in the picture?

“That’s simple,” said Wazyk. “The people in the third and fourth rows still don’t deserve to be seen in an edition of several million copies.”

All right then, I persisted, but that means that the photograph isn’t true.

“Politically it is true,” Wazyk cut me short dryly.

That ended our conversation.

One of my first lessons in dialectical thinking.

In case you forgot, Pravda is the Russian word for truth.

Leave a comment

Filed under Free Expression, Post-Truth, Alternative Facts, Communism, Brandys,, Uncategorized

Kazimierz Brandys Redux, No. 1

0327-06-brandys-kazimierz-1982I’ve taken recently to re-reading the journals of the late Polish dissident writer Kazimierz Brandys (A Warsaw Diary, 1978-1981). 

An entry from October 1978, p. 11-12:

The contemporary world does not belong to the Age of Reason; it is convulsed by a desire for faith. As a layman living outside the church, my epoch ages me. I feel an anachronism in it, sometimes alien, superfluous. Especially since I usually felt distaste for the type of person and the kind of life that express themselves through religion. I was a student when I halted in front of the steps of a rather old temple, asking myself, Should I turn back or enter? I entered. For me socialism was not a confession of dogmatic faith; I went in because it was battling against a barbaric church that was hostile to me — fascism. Socialism’s nineteenth-century past had earned my respect, attracted me to its legends, the lives of it heroes, its ethical tension. And also by its modest liturgy, it’s simple ways. A table, a chair, a speaker, a discussion. And so, I thought I professed no dogmas. Already I had a gospel. It is without irony that I think of this today. And I have no intention of reducing the significance of socialism in my life. And not only in my life. In history, culture. If i had to name the most important phenomena in our era, I would say the Roma Catholic Church, the Reformation, and socialism. I would further add that these constitute the historical trinity that delineates my understanding of Christianity.

Thus, when saying”church”, I am using the word in a broader sense. For me, it includes ideological orders and organized state religions. Today, the universal Catholic Church is carrying out its mission in a world terrorized by new inquisitions and crusades. The churches of anarchism and nationalism are killing people. The churches of the totalitarian states are killing life itself. Both the former and the latter use torture. And both have their believers and unbelievers. Society seems to be conscious of the religious character of contemporary life [emphasis supplied].

————-

Human beings are, in the most fundamental of senses, religious. We are homo adorans. We exhibit, possess, are oriented and answer to, ultimate commitments.

*inset photo by Czeslaw Czplinski

2 Comments

Filed under reformational philosophy, Religion, Uncategorized