Don’t put the CASER “cart” before the ceasefire “horse”

By Soliman M. Santos, Jr. Naga City, 2 July 2017 President Duterte most recently publicly asked the Communist Party of the Philippines-New People’s Army-National Democratic Front of the Philippines (CPP-NPA-NDFP, further abbreviated as CNN): “Can we stop fighting for a while?” Yes, indeed, can you two (i.e. the Philippine government and the CNN) stop fighting for a while? And corollary to that, can you two proceed with your peace talks? In other words, can you two just do it, do what you already agreed to do – reinstate a reciprocal or mutual ceasefire and resume the peace talks? The agreements we refer to mainly are the “Agreement on an Interim Joint Ceasefire” (AIJC) of 5 April 2017 and the “Joint Statement on the Successful Fourth Round of Formal Talks” dated April 6, 2017. Less than a month earlier, there was the “Utrecht Joint Statement” of 11 March 2017 where “the Parties agree[d] to reinstate their respective unilateral ceasefires which shall take effect before the scheduled fourth round of talks in April 2017…” It never happened. For some reason, the parties backtracked (there have notably been several backtrackings this year). Ostensibly, they concurred in going instead straight to a bilateral ceasefire which they deemed “more stable and comprehensive.” Thus, the AIJC. But this was not itself a ceasefire agreement, it was only an agreement “to put into effect the [joint or bilateral] ceasefire upon the approval and signing of the guidelines and ground rules. Contrary to the CPP position, a bilateral ceasefire is not “premature” but rather it is overdue. It treats the bilateral ceasefire as a “demand” by the other side when in fact it is an agreement in principle and in writing, signed by both sides. Nearly three months after – which in the meantime saw most notably the Marawi siege and Mindanao martial law – there is still no ceasefire, no bilateral ceasefire agreement, and even no Mindanao ceasefire between the NPA and the Armed Forces of the Philippines (AFP) despite a back-channel agreement in mid-June to have one. The back-channel agreement for a Mindanao ceasefire was meant to (and believed to) bring the peace talks back on track after the Government of the Republic of the Philippines (GRP) side refused to proceed with the fifth round of formal talks scheduled for May 26-June 2. The GRP demanded that the CPP rescind first its May 24 “calls on the NPA to plan and carry out more tactical offensives across Mindanao and the entire archipelago” made right after the May 23 Marawi siege and Mindanao martial law declaration. The rescission of that call has so far not come, despite the NDFP peace panel’s avowed weighty recommendation of it to the CPP leadership. Neither has the supposedly agreed Mindanao ceasefire come, at least on the part of the CPP which contends that there is the “prejudicial question” of whether President Duterte has actually ordered the AFP to refrain from carrying out offensives against the NPA since the June 18 statement of GRP Negotiating Panel Chief Silvestre H. Bello III declaring “not undertaking offensive operations” against the NPA. The CPP contends that “the recommendation of the NDF for the CPP to order the NPA to refrain from carrying out offensives in Mindanao rests on the critical precondition that the AFP will likewise refrain as well from attacking the NPA and the people in the revolutionary base areas in Mindanao. Presently, such conditions do not exist concretely.” So, there is this buck-passing of sorts from the NDFP to the CPP to the NPA, there is a demand for proof of specific presidential orders, and there is “the critical precondition” that no AFP attacks “exist concretely.” Kung gusto, may paraan; kung ayaw, maraming dahilan [Roughly, “If there’s a will, there’s a way; if one refuses, there will be all sorts of reasons.”] Lest we get sidetracked (there is a pattern of side-tracking in this process) by the issue of a side-ceasefire between the NPA and AFP in Mindanao, let us go back to main track of the GRP-NDFP peace process. In the latest CPP statement of 30 June 2017 on the first anniversary of the Duterte administration, it contends that the early April 2017 fourth round of formal talks “proceeded only after both sides agreed to forge a bilateral ceasefire agreement which the NDFP declared unequivocally will be signed after an agreement on socio-economic reforms is forged.” That is the NDFP’s unilateral declaration, but not what was agreed in the AIJC and in the Joint Statement of the fourth round. In fact, such declaration is contrary to the spirit and letter of the AIJC, particularly its stated third objective: “To provide an enabling environment for eventual and early signing of the Comprehensive Agreement on Social and Economic Reforms [CASER].” It is clear that the ceasefire “horse” should come ahead of the CASER “cart” so as to help pull it forward. But the CPP would have us put the cart ahead of the horse – and what is this if not a “disruption” (to use CPP words) of the agreed process? Ceasefire seems to be the hardest word again for the CNN. It cannot seem to appreciate it as a possible, even normal, “specific measure of goodwill and confidence-building to create a favorable climate for peace negotiations,” to quote the 1992 Hague Joint Declaration framework agreement for the peace talks. It misrepresents ceasefire as “end of hostilities and disposition of forces.” Worse, it labels ceasefire as “pacification,” “cooptation,” “capitulation” and “surrender.” It is obviously and understandably wary of a ceasefire’s possible adverse or undermining effect on the momentum of the armed struggle as its main form of struggle and on the will to fight of the NPA and its Red fighters. But as President Duterte asks them, “Can we stop fighting for a while?” The point is to give the peace talks a better chance by providing an enabling environment, on the premise that there is still a desire and chance for peace -- yes one that is based on justice, yes one that addresses the root causes of the armed conflict. If we believe that there is still a desire and chance for peace, then another point is to avoid unnecessary sacrifices or loss of life, and also destruction or dissipation of resources. For all these, can you two not stop fighting for a while? The key phrase here may be “for a while.” A ceasefire is normally only interim or temporary, up to a reasonable time of reckoning whether or not a sufficient level of substantive (to start with, socio-economic) reforms have been agreed. In other words, stop fighting while talking. Not anymore the “talking while fighting” modality which has historically proven to be fraught with disruptions and impasses because of side-issues arising from continuing armed hostilities or fighting – as has been happening since the early February breakdown. Contrast this with the fast and major progress in the peace talks from the first to third round during the effectivity and effectiveness of the reciprocal unilateral interim ceasefires from August to January. The terminations, initiated by the CPP-NPA, in early February of those unilateral interim ceasefires were the clear proximate cause of the generally downward spiral of the peace talks since then. Still, the parties were somehow able to agree in early April and again in mid-June (for the Marawi/Mindanao situation) on measures to arrest that downward spiral and get the peace talks back on track. Among others, their respective Ceasefire Committees were supposed “to meet even in-between formal talks, to discuss, formulate, and finalize the guidelines and ground rules” for the bilateral ceasefire before this can be “put into effect,” unfortunately with no agreed schedules or time frame. The parties however agreed on schedules with specific dates even for meetings in April and May of Bilateral Teams under the Reciprocal Working Committees on Social and Economic Reforms (RWCs-SER). By all accounts, these meetings of the Ceasefire Committees and the CASER-related Bilateral Teams never pushed through. More recently, the parties agreed on a Mindanao ceasefire in general terms but it turns out that even this has not been put into effect, at least on the CPP-NPA side which has most recently (on June 30) even reiterated (or reaffirmed, if you prefer): “In the face of the Duterte regime’s all-out war, the NPA must continue to seize the initiative and carry out more and more tactical offensives nationwide in order to derail and blunt the all-out attacks of the AFP, punish the most notorious human rights abusers, defend the interests against the people [sic] and bring forward the people’s war.” The CPP admits that “Since February, the Party has ordered the NPA to carry out widespread tactical offensives nationwide in order to defend the people and counter AFP abuses. The NPA has launched tactical offensives against armed personnel of the reactionary state as well as armed security of local despots and mining companies. It has seized at least 250 firearms, enough for a new battalion of NPA Red fighters.” It does not mention how many have been killed. The CPP will have to decide now what is more important to it at this juncture -- to “bring forward the people’s war” or to engage in meaningful peace negotiations for substantive reforms that address the root causes of the armed conflict? It cannot have its cake and eat it too by “talking while fighting.” What it considers “revolutionary dual tactics” is not a license for duplicity that is contrary to the basic tenet of negotiating in good faith. What might be done now to arrest the downward spiral and get the peace talks back on track, on the premise that parties still want it? The most immediate measure they can take is to go back to the status quo ante of reciprocal unilateral interim ceasefires before the early February breakdown arising from their terminations. After all, they had already agreed to that modality at least twice -- in August 2016 to jump-start the peace talks under the new Duterte administration and in March 2016 with the Utrecht Joint Statement. And most recently, on June 1, NDFP Negotiating Panel Chairperson Fidel V. Agcaoili issued a statement of the panel presaging a contemplated Mindanao ceasefire: “In specific areas of cooperation and coordination, the armed forces of the GRP and NDFP shall be bound by a ceasefire agreement between them, pending the issuance of ceasefire declarations that are unilateral but simultaneous and reciprocal.” (underscoring supplied) Earlier, before the fourth round of formal talks in April, Agcaoili already proposed “that simultaneous and reciprocal declarations of unilateral ceasefire can be agreed upon and bound by the Joint Statement at the end of the fourth round of formal talks.” This is without prejudice to the Ceasefire Committees soonest holding several intensive meetings to discuss, formulate, and finalize the guidelines and ground rules for the agreed bilateral ceasefire, this time with a time frame that may be reasonably fixed at one to two months. The final draft guidelines should be ready by the time the fifth round of formal talks finally pushes through, expectedly in August or September. It should not take that much time. As early as the third round of formal talks in January, both Ceasefire Committees had provided each other with their respective draft agreements for an interim bilateral ceasefire. In fact, the independent civil society peace advocacy group Sulong CARHRIHL Network (SCN) has also provided them with its draft bilateral ceasefire agreement. There should be no excuses for delay. This is unlike the much more complex substantive agenda of socio-economic reforms. A bilateral ceasefire can be expected to address what the CPP refers to as “unabated all-out war” against the NPA, the forward deployment and occupation of at least 500 barangays by AFP troops, the release of “political prisoners,” and other issues and concerns which led to the termination of the unilateral interim ceasefires. And if there would still be no unilateral interim ceasefires before a bilateral ceasefire is put into effect, then the parties should consider an addendum clause to the AIJC, adapted from the 1969 Vienna Convention on the Law of Treaties, to this effect: “The parties are obliged to refrain from acts which would defeat the object and purpose of this interim joint ceasefire agreement prior to its being put into effect.” If followed, this could amount to undeclared or de facto reciprocal unilateral interim ceasefires. The envisioned bilateral ceasefire agreement is supposed to include ceasefire monitoring and verification mechanisms. Based on experience in this peace process and in the Mindanao peace process, these mechanisms should not be limited to the parties themselves or their allied organizations like in the current set-up with the Joint Monitoring Committee (JMC) for the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law (CARHRIHL). Rather, these mechanisms should provide a significant role for independent civil society organizations with demonstrated competence, neutrality and impartiality in monitoring, verifying and reporting violations of ceasefires, human rights and IHL. This will help ensure that ceasefire monitoring will not be used for a propaganda war by either or both sides. Excessive propaganda statements, just like the use of excessive force in the field, also tend to disrupt the peace talks. The peace talks should resume, with the work and meetings of the Bilateral Teams under the RWCs-SER on various sections of the CASER re-starting at about the same time as the Ceasefire Committees, and also time-bound. As we said, the work on the complex CASER can be expected to take longer than the work on the bilateral ceasefire guidelines and ground rules. NDFP Chief Political Consultant Prof. Jose Maria Sison has envisioned a CASER and a Comprehensive Agreement on Political and Constitutional Reforms (CAPCR) approved within the first two years of the Duterte administration so that these agreements can be implemented for at least two years before the end of his term. This for Sison would “lay the full basis” of the last substantive agenda item agreement on the end of hostilities and disposition of forces (CAEHDF) “as early as 2020-21.” Well, one year of the Duterte administration has gone. Would one more year (till mid-2018) be a fair reckoning time on whether or not the negotiations on the CASER are satisfactory? How about two years, till mid-2019 with its mid-term elections? Would one or two years be a reasonable period “for a while” which President Duterte is asking the CNN for a stop to their fighting? AND at the end of that reasonable period, IF good faith negotiations still fail to achieve substantive reform agreements, THEN it can be granted to the CNN that a return to armed struggle would be understandable or even justified since substantive reforms apparently or ostensibly cannot be achieved peacefully, depending also on the circumstances. Assuming that the CNN finally agrees to a definite time-bound “for a while” to stop its fighting, agrees to put into effect an interim joint ceasefire, what does or can the NPA do in the meantime? Well, Prof. Sison had already answered that this way to a Davao media forum one year ago: “The people’s army will not be idle even if it is in a mode of self-defense and does not actively carry out offensive military campaigns and operations against the AFP and PNP. It can continue to engage in mass work, land reform, production, health care, cultural work, politico-military training, defense and protection of the environment and natural resources against illegal mining, logging and land-grabbing and it can continue to suppress drug dealing, cattle rustling, robbery, kidnapping and other criminal acts as well as despotic acts of local tyrants.” So, who’s afraid of a ceasefire? And who’s afraid of peace talks? Just do it, as you’ve already agreed. And then let’s see if it will work. Trying is at least better than the current downward spiral – which some say could be “towards the abyss.” ------------------------- SOLIMAN M. SANTOS, JR. is presently a Judge of the Regional Trial Court (RTC) of Naga City, Camarines Sur. He is a long-time human rights and IHL lawyer; legislative consultant and legal scholar; peace advocate, researcher and writer, whose initial engagement with the peace process was with the first GRP-NDFP nationwide ceasefire in 1986, particularly in his home region of Bicol, a long-time rural hotbed of the communist-led insurgency. He is the author of a number of books on Philippine peace processes, including his latest How do you solve a problem like the GPH-NDFP peace process? (Siem Reap, Cambodia: The Centre for Peace and Conflict Studies, 2016).