Equipo Nizkor - Principles and Legal Framework Ruling the Peace Negotiations between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines.

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26Sep98

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Principles and Legal Framework Ruling the Peace Negotiations between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines

INTRODUCTION
It is useful and enlightening for everyone to read this compilation of all major agreements so far reached in the peace negotiations between the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP), up to the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL). This comprehensive agreement is the fulfillment of the first of the four headings of the substantive agenda in said negotiations.
Principle of Noncapitulation in Peace Negotiations
The two contending parties in the civil war, the GRP and the NDFP succeeded in forging the CARHRIHL because they are bound and guided by Paragraph 4 of The Hague Joint Declaration of 1992. This states: "The holding of peace negotiations must be in accordance with mutually acceptable principles, including national sovereignty, democracy and social justice, and no precondition shall be made to negate the inherent character and purpose of the peace negotiations."By this provision, the principle of noncapitulation is established. It is against the inherent character of peace negotiations for any side to impose on the other side such preconditions as that the latter must submit to the former's constitution or end the armed struggle without mutual satisfaction on substantive demands. It would also be violative of The Hague Joint Declaration for any side to render ineffective a mutually approved agreement just because the other side refuses to capitulate.In accordance with the aforesaid declaration, the GRP negotiating panel averred in the Breukelen Joint Statement of 14 June 1994: "...it is clear that GRP's adherence to constitutional processes does not constitute the imposition of the GRP Constitution as framework for the peace talks". The GRP cannot unilaterally impose the GRP constitution on the peace negotiations or on any bilateral agreement resulting therefrom.The Joint Agreement for Safety and Immunity Guarantees (JASIG) and the CARHRIHL as well as the procedural and technical agreements are all formulated in accordance with the framework of "mutually acceptable principles and no capitulation" provided by The Hague Joint Declaration.As contracting parties in the CARHRIHL, the GRP and the NDFP mutually recognize the existence of opposing constitutional frameworks as well as common frames of reference. They mutually reject the imposition of the constitutional and legal processes of either of them upon the other and stipulate common as well as separate duties and responsibilities in accordance with their respective constitutional frameworks and directives of their respective principals.
These underlying fundamental principles of equality, parity, mutuality and reciprocity are clearly expressed in such provisions of the CARHRIHL as the following:

Preamble, paragraph 6: 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,
Article 2, Part I: The Parties uphold the principles of mutuality and reciprocity in the conduct of the peace negotiations in accordance with the Hague Joint Declaration. The Parties likewise affirm the need to assume separate duties and responsibilities in accordance with the letter and intent of this Agreement.
Article 3, Part II: The Parties shall uphold, protect and promote the full scope of human rights, including civil, political, economic, social and cultural rights. In complying with such obligation due consideration shall be accorded the respective political principles and circumstances of the Parties.
Article 1, Part III: In the exercise of their inherent rights, the Parties shall adhere to and be bound by the principles and standards embodied in international instruments on human rights.
Article 1, Part IV: In the exercise of their inherent rights, the Parties to the armed conflict shall adhere to and be bound by the generally accepted principles and standards of international humanitarian law.
Article 1, Part VI: 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 principles, organizations and circumstances until they shall have reached final resolution of the armed conflict and
Article 3, Part VI: Nothing in the provisions of this Agreement nor in its application shall affect the political and legal status of the Parties in accordance with the Hague Joint Declaration. x x x Any reference to the treaties signed by the GRP and to its laws and legal processes in this Agreement shall not in any manner prejudice the political and organizational integrity of the NDFP.

In negotiating with the GRP, the NDFP has always stood up for its revolutionary integrity and the status of belligerency under international law. It has rebuffed any overt or covert attempt of the GRP to put it into a position of capitulation. It is keenly conscious of avoiding the path of capitulation and betrayal of the people's interests. It perseveres on the line of struggle for national liberation and democracy as the line for a just and lasting peace.
The CARHRIHL reflects the principled revolutionary position of the NDFP as the political authority entrusted by the people's democratic government, revolutionary forces and people with the task of negotiating with the GRP. Said agreement respects the political and organizational integrity of the NDFP as a political authority on an equal footing with the GRP. It allows common and separate duties of the GRP and the NDFP as contracting parties with their respective constitutions and areas of political power.
As co-belligerents in the civil war, the GRP and the NDFP override the existence of their conflicting constitutional frameworks by adopting the International Bill of Rights (Universal Declaration of Human Rights and the UN covenants on human rights) and International Humanitarian Law (the Geneva Conventions and its protocols) as their common frame of reference. While the GRP and the NDFP are bound by these international instruments, they can also perform common and separate duties in accordance with their respective constitutions.
The CARHRIHL upholds multiple guarantees of respect for human rights and international humanitarian law. These guarantees are provided by the CARHRIHL itself, by the International Bill of Rights and International Humanitarian Law and by the separate constitutional frameworks of the co-belligerents GRP and NDFP, which apply in their respective areas of effective political authority. Ahead of the CARHRIHL, the NDFP issued its Declaration of Adherence to International Humanitarian Law on August 15, 1991 and the Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I on July 5, 1996.
Among the most tangible provisions of the CARHRIHL, whose immediate implementation the NDFP is pressing for, are those pertaining to the following:
1. the formation of a Joint Monitoring Committee for ensuring and verifying the implementation of CARHRIHL,
2. the accelerated release of political prisoners falsely and unjustly convicted by the GRP for common crimes,
3. the indemnification of the victims of human rights violations in accordance with the decisions of the US and Swiss supreme courts,
4. the repeal of repressive laws, decrees and other executive issuances which the GRP has used to carry out arbitrary seizures and detention, torture and summary execution, and
5. the termination of laws, policies, programs, projects and campaigns that cause massive violations of human rights, like forced evacuation and eviction and bombardment of entire communities.
The broad masses of the people demand immediate compliance with the foregoing. The GRP is being tested whether its approval of the CARHRIHL is done in good faith or not. Let us see whether the GRP can comply with this bilateral agreement. GRP noncompliance can only serve to fuel the flames of the people's revolutionary resistance.
The entire CARHRIHL is immediately effective and binding upon the full and unconditional approval by the GRP and the NDFP principals. But there are certain elements of the GRP, who are extremely reactionary, who demand the capitulation and pacification of the people's revolutionary movement as precondition to the implementation of the CARHRIHL. In effect, what they demand is the end of the peace negotiations and the intensification of the civil war. The broad masses of the people must therefore remain vigilant and militant.
GRP Disruptions of the Peace Negotiations
By entering into the CARHRIHL, the NDFP demonstrates its willingness and ability to engage in serious negotiations and forge mutually satisfactory agreements with the GRP on crucial issues in order to create a favorable atmosphere for peace negotiations, address the roots of the civil war and lay the ground for a just and lasting peace.
Even before the start of the formal peace negotiations in 1995, the NDFP was ready with a thoroughgoing draft of a comprehensive agreement on respect for human rights and international humanitarian law. Subsequently, it earnestly pursued the negotiations on the subject. This is a matter of great and urgent concern to the people and the revolutionary forces. But the GRP disrupted the formal talks several times over extended periods.
On the very day after the opening of the formal negotiations in Brussels, Belgium in June 1995, the GRP declared an indefinite suspension of formal meetings. It did so after failing to impose on the NDFP an agenda of "reforms" premised on the capitulation of the NDFP to the GRP constitution and an indefinite ceasefire. These were preconditions violative of The Hague Joint Declaration. Also in violation of the Joint Agreement on Safety and Immunity Guarantees, the GRP refused to release NDFP political consultant Sotero Llamas from military detention. The indefinite suspension lasted for more than 12 months.
The formal meetings could resume only after the GRP ceased to make its unreasonable demands and released Comrade Llamas from military detention. But the formal meetings in the latter half of 1996 could not go beyond discussions of the preamble of the draft CARHRIHL because the GRP refused to acknowledge its record of human rights violations, not even those under the Marcos regime, and resisted any direct reference to the instruments of the International Bill of Rights and International Humanitarian Law.
The GRP objected to the inclusion of General Raymundo Jarque in the list of holders of documents of identification, as an NDFP politico-military consultant enjoying the protection of the JASIG and likewise to the NDFP's Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I. But the GRP threats to suspend the formal meetings did not materialize.
In September 1996, after the GRP had secured the capitulation of the Moro National Liberation Front (MNLF) under Nur Misuari, the GRP again disrupted the peace negotiations by attempting to get the NDFP to enter into a similar capitulationist framework. The GRP offered collaboration to the NDFP under the GRP's socioeconomic program with funding for so-called livelihood projects of "rebel returnees". The offer was accompanied by a threat to intensify "total war" against the revolutionary forces and carry out an "alternative peace plan" without the NDFP.
The NDFP called the bluff and dared the GRP to do whatever it pleased. Then, the GRP's arrest, torture and detention of NDFP consultant Danilo Borjal on November 21, 1996, again in gross violation of the JASIG, aggravated matters and delayed the peace negotiations until February 1997. To break the impasse, GRP President Fidel Ramos wrote a letter to the undersigned and sent a direct emissary. The GRP withdrew its unreasonable demands for the capitulation of the NDFP and agreed to release Comrade Borjal from military detention.
Informal meetings were held in the Netherlands from February 1 to 4, 1997 to pave the way for his release under a memorandum of understanding. Formal meetings of the GRP and NDFP negotiating panels from February 5 to 8 resulted in the initialing of the Additional Implementing Rules of the JASIG Pertinent to Security of Consultations and Personnel Involved in the Peace Negotiations and the Supplemental Agreement to the Joint Agreement on the Formation, Sequence and Operationalization of the Reciprocal Working Committees.
Formal meetings from March 18-24 resulted in the signing of the aforesaid supplemental agreement. There was no progress in the negotiation on respect for human rights and international humanitarian law because the GRP adamantly denied the violation of human rights under the Marcos regime.
The GRP negotiating panel came back to the Netherlands on April 18, 1997 only to backtrack on the aforesaid supplemental agreement which requires that negotiations on the third heading of the substantive agenda (political and constitutional reforms) can be negotiated only after the approval of the comprehensive agreements on the first (respect for human rights and international humanitarian law) and second headings (social and economic reforms).
The GRP demanded that a "single peace accord", wrapping up all four headings of the substantive agenda, be drafted within the GRP constitutional framework. After failing to have its way, the GRP declared an indefinite recess and threatened to "suspend" the effectivity of the JASIG in violation of the provision that JASIG can only be terminated by a formal written notice by either side.
Full blast drafting work on the CAR HR&IHL could proceed only from July 31 to August 5, 1997 after the GRP president sent to the undersigned a letter assuring "step-by-step approach". The GRP relented in making threats and unreasonable demands. Within six days, the drafting work of the reciprocal working committees on human rights and international humanitarian law (RWC-HR&IHL) was basically completed. The two RWCs initialed a common draft of the CARHRIHL on August 5, 1997.
However, on August 22, 1997, the GRP tried to do away with this tentative common draft and replace it with a mutilated version within the exclusive framework of the GRP constitution. It deleted or substantially changed most of the provisions. Provisions on the repeal of repressive GRP decrees and references to human rights violations by the GRP were deleted. Two-thirds of the provisions on international humanitarian law were removed.
Efforts to resolve the new impasse caused by the mutilation of the common draft were disrupted in November 1997 when the GRP again declared the suspension of the formal talks because of the NDFP's announcement that it would release its military and police captives as prisoners of war in accordance with the Geneva Conventions and its protocols. Eventually, the GRP agreed to the release of the prisoners of war to the International Committee of the Red Cross as intermediary and expressed gratitude for said release.
Finally, the GRP came around to taking up the tentative common draft agreement on respect for human rights and international humanitarian law. It agreed to the final provisions of the CARHRIHL which stipulate common and separate duties of the contracting parties and which recognize the NDFP's right to uphold its own political principles and political and organizational integrity. There were no further debates on earlier mutually agreed provisions that require the application of the principles and standards of human rights and international humanitarian law.
Marathon sessions of the GRP and the NDFP negotiating panels and their respective reciprocal working committees on January 10 and 30, 1998 resulted in the finalization of the CARHRIHL, with the exception of Article 5, Part III (indemnification of victims of human rights violations) which would be finalized through correspondence between the negotiating panels. The GRP and the NDFP negotiating panels signed the CARHRIHL, together with the agreements on the security of consultations and on private development organizations, on March 16, 1998.
NDFP National Council Chairman Mariano Orosa, as the principal of the NDFP negotiating panel, promptly approved the CARHRIHL and the aforesaid two other agreements on April 10, 1998. But the GRP renewed demands for the capitulation of the NDFP and for an "indefinite ceasefire" and delayed its approval of the CARHRIHL. At the same time, the GRP refused to release the political prisoners and flagrantly violated its own "suspension of military
offensives" (SOMO).
A special ceremony for the exchange of approvals of the CARHRIHL which had been agreed upon and scheduled for April could not be held. The GRP principal (then President Fidel Ramos) failed to approve the CARHRIHL before the end of his term on June 30, 1998. The new GRP principal (President Joseph Estrada) approved it on August 7, 1998, four months after NDFP principal Mariano Orosa.
Sequence of Headings in the Substantive Agenda
The NDFP has complied faithfully with all the bilateral agreements which stipulate that one comprehensive agreement after another has to be signed by the negotiating panels and approved by their respective principals. With GRP principal President Joseph Estrada approving the CARHRIHL for immediate implementation, the GRP appears to comply with the aforesaid bilateral agreements.
But there are exceedingly reactionary elements on the GRP side who keep on reverting to the groundless argument that no comprehensive agreement, even if already mutually approved and is binding and effective, can be implemented unless the NDFP capitulate to the GRP constitutional framework and accept terms of surrender and pacification under the guise of an indefinite ceasefire.
The NDFP ceaselessly calls the attention of these ultra reactionary elements to The Hague Joint Declaration as the framework of the peace negotiations and to the binding and effective character of such agreements as the JASIG and CARHRIHL which have already been mutually approved for immediate implementation. By demanding the capitulation of the NDFP and in effect declaring that the agreements so far reached amount to nothing, such reactionary elements can only disrupt and obstruct the peace negotiations and alert the revolutionary forces against the malicious intentions of the GRP.
Since March 18, 1997, the Supplemental Agreement to the Joint Agreement on the Formation, Sequence and Operationalization of the Reciprocal Working Committees has stipulated that the negotiations on the third heading on political and constitutional reforms cannot be started unless the comprehensive agreements on the first and second headings are signed by the GRP and the NDFP negotiating panels and approved by their respective principals. Incidentally, the agreement frustrated the attempt of then President Ramos to use negotiations on political and constitutional reforms as a kind of endorsement for his scheme to change the GRP constitution for the purpose of prolonging his presidency.
Indeed, it is necessary to forge a comprehensive agreement on respect for human rights and international humanitarian law and then on social and economic reforms before addressing the question of political and constitutional reforms and the question of ending hostilities and redisposing the armed forces on both sides.
There must first be guarantees for the respect of human rights and international humanitarian law in view of the longrunning record of human rights violations by the GRP. We must also see how far the peace negotiations can address the basic social and economic problems of the people.
Only thereafter will it be possible to address the question of what kind of political power shall carry out the basic reforms agreed upon under the second and third heading. Shall there be a common political authority between the GRP and the NDFP or shall there be separate political powers in a truce or in alliance?
The NDFP cannot be rushed into the third heading on political and constitutional reforms by GRP threats of reneging on the CARHRIHL, by obstructions and delays of the negotiations on social and economic reforms or by any GRP offer for the NDFP to participate in a new GRP constitutional convention. Such a convention is dominated by the agents of foreign monopoly capitalism and the local exploiting classes and is intended to constitutionalize the further denationalization, deregulation, privatization and liberalization of the economy and the conversion of the entire archipelago into a US military base.
Neither can the NDFP be rushed to the fourth heading on ending hostilities and disposition of forces. It has always rebuffed the GRP offer of prolonged mutual ceasefire because this leaps over the second and third headings of the substantive agenda and thereby allows the GRP to achieve the reactionary objectives of putting the NDFP in a position of capitulation and pacification. The question of truce and indefinite ceasefire may be raised by the GRP under the fourth heading if and when its time comes.
NDFP Status of Belligerency and Diplomatic Work
The status of belligerency of the totality of the revolutionary forces in the Philippines has been acquired through revolutionary struggle. By revolutionary forces, we mean the revolutionary organs of democratic political power, the Communist Party of the Philippines (CPP) as the ruling party, the New People's Army (NPA) as main component of state power, the organized masses of the people in the territory of the people's democratic government. All these forces are represented by the NDFP in the GRP-NDFP peace negotiations and in diplomatic work.
The present reality in the Philippines is that there are two contending political powers engaged in a civil war. One is a revolutionary government of the broad masses of the people, especially the toiling masses, and the other is a counterrevolutionary government of the exploiting classes of big compradors and landlords, which is propped up by the imperialists, chiefly the US.
Within the constitutional framework of the Guide for Establishing the People's Democratic Government, the National Democratic Front of the Philippines has been authorized to conduct negotiations with the GRP, and beyond these negotiations, to seek the international or diplomatic recognition of the aforesaid status of belligerency, through relations with individual foreign states and multilateral organizations of states, independently of the GRP-NDFP peace negotiations.
The NDFP expects neither status of belligerency nor recognition of such status from the GRP. It enjoys the inherent status of belligerency because of the revolutionary struggle. It carries out diplomatic work for the international recognition of such status.
On August 15, 1991, long before the current peace negotiations, then NDFP national council chairman Manuel Romero issued the NDFP Declaration of Adherence to International Humanitarian Law. Subsequently, independent of the ongoing GRP-NDFP peace negotiations, the NDFP deposited with the Swiss Federal Council the NDFP Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I on July 5, 1996.
The two aforementioned documents carry the assertion of the status of belligerency by the NDFP in representation of the revolutionary forces and organs of political power. They shed light on the diplomatic efforts of the NDFP to acquire international recognition of said status.
The NDFP has assiduously followed the Unilateral Declaration of Undertaking to Apply the Geneva Conventions and Protocol I in protecting the civilian population and the hors de combat and in correctly handling and releasing prisoners of war. It has done so also in conjunction with creating the favorable atmosphere for the GRP-NDFP peace negotiations.
In releasing the prisoners of war under the custody of the New People's Army (NPA) to the intermediary custody of the International Committee of the Red Cross in 1997 and 1998, the NDFP acted in accordance with the aforesaid unilateral declaration in addition to the Guide for Establishing the People's Democratic Government and the NPA Code of Conduct.
The July 18, 1997 resolution of the European Parliament in support of the GRP-NDFP peace negotiations recognizes the NDFP and its acts of good intention under international humanitarian law and extends support and assistance to the GRP and NDFP in carrying out the peace negotiations in a neutral venue abroad and in undertaking development, relief and rehabilitation, and projects to lay the ground for a just and lasting peace.
In accordance with said resolution, it is worthwhile for the NDFP to seek support and assistance from the European Council and Commission and particular governments of member-states of the European Union for pursuing the GRP-NDFP peace negotiations, for implementing the CARHRIHL and for undertaking programs and projects of economic and social benefit to the Filipino people.
The GRP is also allowed by the resolution to seek similar assistance. The GRP is quite absurd whenever it claims to have no funds for conducting the peace negotiations in a neutral venue abroad, for implementation of the CARHRIHL and for undertaking programs and projects of economic and social reforms. But it has ample funds for the most antipeople and counterproductive bureaucratic and military purposes and for attracting foreign investors and creditors that rob the people of their social wealth.
Forthcoming Negotiations on Social and Economic Reforms
The NDFP is ready for the resumption of formal meetings in the peace negotiations and for the start of negotiations on social and economic reforms. Since 1997, the NDFP has been ready with a draft of the Comprehensive Agreement on Social and Economic Reforms. On March 16, 1998, it exchanged this draft with that of the GRP.
The Estrada regime expressed at one time the wish to accelerate the progress of the peace negotiations and finish these within one year. Whether the expressed wish is a manifestation of optimism or a notice of ultimatum or both, the NDFP must always be vigilant and ready to take initiative and act accordingly in the peace negotiations along the general line of struggle for national liberation and democracy against foreign monopoly capitalism, domestic feudalism and bureaucrat-capitalism.
The negotiations on social and economic reforms will not be an easy process. The positions of the GRP and the NDFP on social and economic issues are so diametrically opposed to each other that it would take a lot of struggle across the table to arrive at mutually satisfactory terms of agreement.
The negotiating position of the NDFP is far stronger now than at any time since the start of the formal peace negotiations in 1995. Circumstances reinforce the just and reasonable position of the NDFP and the broad masses of the people against the semicolonial and semifeudal ruling system and the escalation of oppression and exploitation.
The revolutionary forces have been strengthened by the rectification movement since 1992. In contrast, the current Estrada regime itself admits the bankruptcy of the GRP. Imperialist "globalization", using the dogma and jargon of the "free market", has proven to be totally bankrupt. The chronic socioeconomic crisis of the ruling system has become so grave and acute since 1997, inflicting terrible suffering on the people and inciting them to wage revolutionary resistance.
Claiming to wish the acceleration of the progress of the peace negotiations, the GRP might propose that the three remaining headings in the substantive agenda be negotiated simultaneously or one after the other in quick succession. It is just and reasonable for the NDFP to demand that there be ample proof first of substantial benefit for the people in the results of negotiations on social and economic reforms. Moreover, it would be too costly for the NDFP to be attending to negotiations on two or three headings at the same time.
It is necessary to concentrate first on the negotiations on social and economic reforms. Let us see first how the basic social and economic demands of the people can be answered. Let us see how the social and economic contradictions between the imperialists and the local exploiting classes of big compradors and landlords on the one hand and the toiling masses of workers and peasants and the middle social strata on the other hand can be resolved in favor of the latter through the peace negotiations. The attempt of the GRP to leap over issues that must priorly be resolved can only bring about obstacles to the progress of the peace negotiations.
In the course of the peace negotiations, the NDFP has always raised the just and reasonable demands of the people. It has assumed responsibilities and duties arising from all bilateral agreements. At the same time, it is ever vigilant against the bad faith, breaches of agreement and obstacles from the GRP side, whose oppressive and exploitative character runs counter to the people's demand for a just and lasting peace.
Jose Maria Sison
NDFP Chief Political Consultant
26 September 1998

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Peace Negotiations in the Philippines
This document has been published on 31Jul15 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.