Monthly Archives: July 2017

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 political group 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. The question of course is whether this also means characterizing the rebellion as a non-international armed conflict. Associate Justice Leonen also pointed to this apparent incongruence in his dissent to the majority opinion with these two trenchant 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.  The next question is whether characterizing the siege of Marawi as an NIAC could mean the reverse; that is, also granting the Mautes legitimacy as a group with political aims.

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

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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).

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