By Atty. Angelo Karlo T. Guillen
The author is the Secretary General of the National Union of People’s Lawyers-Panay
There is no universally-accepted definition of terrorism. For decades, a committee created by the United Nations General Assembly has been trying to come up with a draft comprehensive convention on international terrorism, but states could not agree on its parameters.
The word itself can be traced to the phrase Regime de la Terreur (Reign of Terror), which refers to a turbulent period during the French Revolution when the provisional government carried out mass executions. While contemporary usages often suggest violence attributed to non-state actors, the term is, ironically enough, derived from acts of repression perpetrated by the state. This, however, has not stopped states from using it to delegitimize local resistance movements.
In the 20th century, many governments described as “terrorists” armed organizations that threatened social upheaval. During Ireland’s struggle for independence, nationalist groups like the Irish Volunteers and its successor the Irish Republican Army were branded as criminals and terrorists by the British government. A similar label was attached by the South African and United States governments to the African National Congress and its armed wing Umkhonto we Sizwe (Spear of the Nation) which led the anti-apartheid movement in South Africa. The Palestinian Liberation Organization and its member-groups were also designated as terrorists by Israel and the US even though the UN itself considers the PLO as the representative of the Palestinian people and granted it non-member observer state status.
Armed struggle for political purposes is a concept long-recognized and accepted by the international community. In 1982, the UN General Assembly passed Resolution 37/43 reaffirming the legitimacy of peoples’ struggles for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation “by all available means, including armed struggle.”
Counter-terrorism frameworks, however, became a convenient tool for governments to criminalize non-state armed groups and discredit their issues and ideologies. By using the “terrorist” label, governments also aim to deny the existence of armed conflicts within their territories or the applicability of international humanitarian law (IHL).
In the Philippines, the government designated the Communist Party of the Philippines, the New People’s Army, and the National Democratic Front of the Philippines as terrorist groups, notwithstanding the fact that the said organizations have been engaged in a decades-long armed conflict against the Philippine government. Peace talks between the parties have been taking place intermittently since 1992, with multiple joint declarations and formal agreements already concluded, including the 1998 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law. Efforts were under way for a final peace deal – one that included agreements on political, social and economic reforms, end-of-hostilities, and disposition-of-forces – but the negotiations collapsed in 2017 under the Duterte administration.
Using counter-terrorism legislation, governments criminalize all acts performed by parties designated as terrorists even though these may be permitted under IHL. For example, IHL considers attacks against military targets, even those carried out by non-state actors, as a legitimate use of force in the context of an armed conflict. Both customary law and treaty law, such as the Geneva Conventions of 1949 and their Additional Protocols, regulate – but do not ban – hostilities between contending forces in both international and non-international armed conflicts.
Governments tend to reject the application of IHL to armed conflicts within their territories because it would be an acknowledgment that their military forces are proper targets of attack. By designating their opponents as terrorists, governments hope to maintain what Prof. Marco Sassoli refers to as a “monopoly on the legitimate use of force” so that any operation by the enemy is treated as a terrorist offense even if undertaken to achieve a valid military objective and without doing harm to civilians. They also abhor the idea that equality of belligerents – the principle that IHL applies equally to all warring parties, who bear the same obligations and rights – could ever be utilized to view states and non-state armed groups as equals even if it is merely to assess compliance with IHL.
This tendency has significant repercussions. First, it conveys the incorrect notion that IHL does not apply to non-international armed conflicts or that non-state armed groups are not entitled to legal protections under IHL, inevitably creating contradictions between international law and domestic legal regimes. Second, repudiating IHL undermines the proper and, so far, most comprehensive legal framework for war, one that is designed precisely to regulate hostilities, protect civilians, and limit the damage and suffering caused by conflict.
Governments also use counter-terrorism frameworks to deny their obligations under IHL and to evade accountability for violations committed by state forces. The various IHL obligations imposed on conflicting parties are grounded on the principles of distinction (civilians and civilian objects should never be attacked, while military personnel and objects are valid targets), proportionality (attacks against military targets are prohibited if these may result in civilian casualties or excessive damage); and precaution (constantly taking steps to avoid civilian casualties). IHL further requires the insulation of civilians from various forms of abuse as well as the humane treatment of prisoners of war, wounded or sick combatants or those rendered hors de combat.
The application of IHL in non-international armed conflicts would leave government forces open to prosecution for war crimes, something states generally wish to avoid. They include the Philippines where counter-insurgency operations are marked by numerous accounts of extrajudicial killings, indiscriminate or excessive artillery bombardments and airstrikes, and atrocities perpetrated by soldiers against civilians, surrendering or wounded rebels, and other protected persons.
Blurring the lines between armed conflict and terrorism also leads to a reduction of civic space and the weakening of democratic institutions and traditions. In the Philippines, for instance, the broad definitions used for terrorism and terrorism-related offenses under its counter-terrorism legal framework (the Human Security Act of 2007, the Terrorism Financing Prevention and Suppression Act of 2012, and the Anti-Terrorism Act of 2020) as well as the extensive powers granted to the government to conduct surveillance, freeze and seize assets, and carry out warrantless arrests and detention all infringe on basic constitutional rights.
Moreover, the encroachment of counter-terrorism legislation into IHL creates considerable restraints on humanitarian work such as medical training, data-gathering, counseling, visiting detainees, IHL education, and delivering material aid to civilians. Proscribing these traditional humanitarian activities, by treating them as a form of “support” for terrorism, and alleging connections between NGOs and so-called terrorists endanger the lives and security of aid workers and burden them with criminal prosecution and sanctions. Terrorism-financing laws also cut off funding for human rights and development NGOs essential for the continuation of their work. A stark example is that of the Rural Missionaries of the Philippines whose financial assets were frozen for years despite the absence of a judicial ruling linking it to any terrorist group. This move by the Philippine government effectively deprived civilians in conflict zones of much-needed aid and services.
IHL, as a matter of fact, protects humanitarian organizations that offer its services to conflicting parties, including non-state actors. This right of initiative, reflected in Common Article 3 of the Geneva Conventions, is negated by domestic counter-terrorism policies that sweepingly ban any form of engagement with groups designated as terrorists. The adverse impact of these policies on humanitarian work had become so pervasive that, in 2017, UN Secretary-General António Guterres reiterated the need to engage with armed groups on humanitarian matters and called on states not to hinder these efforts.
The Philippine government’s policy of obfuscating armed struggle and terrorism was reinforced when the Supreme Court upheld the constitutionality of the Anti-Terrorism Act of 2020. Interestingly, the Court ruled that the law met international standards and cited a draft of the comprehensive convention on international terrorism, even though the said document has not been approved or even voted on by the UN General Assembly.
The Court also referred to foreign instruments dealing with terrorism but, notably, did not discuss the exclusion clauses that have become a standard in these agreements. Such a clause was lacking in the Anti-Terrorism Act of 2020.
An exclusion clause essentially states that the conduct of parties to an armed conflict, which are governed by IHL, will not be included in the definition of terrorism. The rationale is that actions during such conflicts should be assessed using IHL, and not counter-terrorism frameworks. Designating the adverse party as terrorists and all armed operations (even those against military targets) as terrorism, while criminalizing any form of engagement with the opponent, would impede efforts to arrive at a peace settlement, discourage compliance with IHL, and obstruct humanitarian aid and services in conflict zones.
Exclusion clauses are found in conventions adopted by the UN General Assembly such as the 2005 Convention for the Suppression of Acts of Nuclear Terrorism, the 1997 Convention for the Suppression of Terrorist Bombings, and the 1979 Convention against the Taking of Hostages. In its definition of terrorism-financing, the 1999 Convention for the Suppression of the Financing of Terrorism also excludes the act of financing attacks against military targets. European Union Directive 2017/541, one of the instruments referred to by the Supreme Court in its decision upholding the Anti-Terrorism Act, also had an exclusion clause which was drawn from a similar provision in the 2005 Council of Europe Convention on the Prevention of Terrorism.
Multilateral agreements dealing with terrorist threats in aviation, navigation, and nuclear energy also contained exclusion clauses, such as the 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, and the 2005 Convention on the Physical Protection of Nuclear Material and Nuclear Facilities.
Even broader exclusion clauses can be found in regional anti-terrorism instruments which exclude, from the definition of terrorism, armed movements for liberation or self-determination and those against foreign occupation, aggression, colonialism or hegemony. These regional instruments include the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism, the 1999 Organization of African Unity Convention on the Prevention and Combating of Terrorism, and the 1998 Arab Convention for the Suppression of Terrorism.
International and regional instruments clearly distinguish between terrorism and military action in the context of an armed conflict. If the Philippines’ counter-terrorism framework is to meet international standards, then, it must likewise make a similar differentiation and incorporate it into the law.
Governments should recognize the need to implement IHL even in non-international armed conflicts which, incidentally, make up the majority of conflicts around the globe. This would incentivize adherence to IHL among all conflicting parties and help shield protected persons from atrocities and excesses. It would also give humanitarian groups the space needed to provide aid and services in war zones, free from the dangers of criminal prosecution.
The trend, however, is the exact opposite. States generally refuse to accept IHL in conflicts they have with armed groups for fear that this would emasculate the sovereignty they enjoy in their respective territories. Nevertheless, this does not mean that such standards are irrelevant since the applicability of IHL depends on the existence of armed conflict and not how governments label their opponents. Still, respect for IHL, the obligations of conflicting parties, and the rights of protected persons would be greatly enhanced if states themselves upheld and implemented these standards domestically.