Lex Talionis: in a time of a shooting war

President Rodrigo Duterte’s order to the Armed Forces of the Philippines (AFP) to give the New People’s Army (NPA) tit for tat” is notable on several levels. It is perhaps the first time in the Philippines since American General Jacob Smith and Japanese Geneneral Masaharu Homma were here, that a commander-in-chief or a military commander has ordered “tit for tat,” “Do it to them also,” and “give them what they deserve” against the enemy. Whatever way this is interpreted and implemented by the military, and counter-attacked by the NPA, the result can only be an unfortunate further escalation of the armed conflict and (counter-)insurgency-related killings.

It actually conjurs something the President wants to avoid per his last State of the Nation Address, although said in a different context: “A shooting war is grief and misery multiplier. War leaves widows and orphans in its wake. I am not ready or inclined to accept the occurrence of more destruction, more widows and more orphans, should war, even on a limited scale, break out.” The thing is, the NPA probably feels the same way as he did when he also said — but again in a different context — “It is also exasperating that there are times when I think that perhaps it is blood that we need to cleanse and rinse away the dirt and the muck that stick to the flesh like leeches.”

The sad reality is that both sides of our shooting war already made a decision in late 2018 to primarily pursue such a kind of a war. The Duterte administration has decided on what it calls a “paradigm shift,” embodied in Executive Order No. 70, not to negotiate with the Communist Party of the Philippines (CPP)-NPA-National Democratic Front of the Philippines (NDF) top leadership but to instead defeat or neutralize it politically and militarily at sub-national levels — ironically, based on the security establishment’s assessment of the CPP-NPA-NDF’s strategy with the peace negotiations “not to pursue real peace but to meet their objective of overthrowing the legitimate government.”

Given what it considers to be the “US-Duterte fascist regime,” the CPP-NPA-NDF strategy under his remaining term is to reprise the largely successful CPP-NPA-NDF armed resistance against the “US-Marcos dictatorship.” CPP founder and NDF Chief Political Consultant Jose Ma. Sison said last April: “There can be no genuine peace negotiations… while Duterte remains in power… It is obvious to the Filipino people and their revolutionary forces that they have no choice but to concentrate on intensifying the people’s war for a people’s democratic revolution.” So, a shooting war it will be for at least three more years. But even war has its limits — believe it or not — though easier said than done.

President Duterte appears to recognize this, even with his order to the AFP to give the NPA “tit for tat.” This is reflected in his statement to the NPA referring to its apparent torture and summary execution of four captured police intelligence operatives on July 18 in Ayungon, Negros Oriental, which has become his casus belli (an event justifying war): “You have gone too far… You cannot do it unrestrained, unbridled, uncontrolled… I will not allow it.” Neither should he allow, much less order, it to be done by his security forces. And with more reason for any legitimate government with professional military and police forces. The President seems to have caught himself in time by also saying “Maybe we wanted [to] as a revenge. But since we are government and you have to have morals to prop us up. Otherwise, we are no different from the barbarians like them.”

Well, President Duterte is not a “barbarian” but a fratman (some say, the real barbarians), a member of Lex Talionis Fraternitas, Inc. Sodalitas Ducum Futurorum of the San Beda College of Law (today’s politically correct law school). It is uncanny because Lex Talionis happens to be “the law of retaliation” developed in early Babylonian law, particularly the Code of King Hamurabbi (1792-1750 B.C.), and present in both biblical and early Roman law that punishment should resemble the offense committed in kind and degree. It is referred to in the Bible’s Old Testament three times as “An eye for an eye, and a tooth for a tooth,” but is repudiated by Jesus in the New Testament. It is so obviously morally wrong because you cannot right a wrong by committing another wrong. It is also morally and legally wrong to follow illegal orders — like an order to torture and summarily execute (extra-judicially kill, or “salvage”) captured enemy combatants. There is an arguable right for soldiers or even rebels to refuse to obey any illegal military orders of their commanders.

There is no place for Lex Talionis or “tit for tat” in the modern world. What we already have instead is international humanitarian law (IHL) or the law of armed conflict or war, the core of which is the 1949 Geneva Conventions, the 70^th anniversary of which we commemorated on Aug. 12. The President is aware of this, as shown when he referred again to the NPA: “They are not fighting a conventional war. They are not obeying the Geneva Convention.” While the NPA is not fighting a conventional but instead a guerrilla war, it is still bound by IHL, particularly on non-international armed conflict, just like the AFP is in its counter-guerrilla war. As it is, both sides are on record to say they adhere to IHL and human rights in general and to the Geneva Conventions in particular. Let your continuing shooting war then be also a contest, if you will, in adherence in both word and deed, in both letter and spirit, to the Geneva Conventions, in the best interests of the civilian population caught in your crossfire AND of your respective causes.

Stated otherwise, real adherence to IHL serves not only civilian protection but also enhances your military discipline and popular support. Your shooting war is ultimately not about body count but rather about winning hearts and minds. Take to heart and mind this first among The Soldier’s Rules: “Be a disciplined soldier. Disobedience of the laws of war dishonors your army and yourself, and causes unnecessary suffering; far from weakening the enemy’s will to fight, it often strengthens it.” Barbaric, including “tit for tat,” behavior in war is counter-productive and self-defeating.

On the other hand, the renowned IHL scholar Hans-Peter Gasser teaches us: “… humanity in time of war… respect for IHL helps lay the foundations on which a peaceful settlement can be built… The chances for a lasting peace are much better if a feeling of mutual trust can be maintained between the belligerents during war. By respecting the basic rights and dignity of [fellow humans], the belligerents help maintain that trust… IHL helps pave the road to peace.” Ironic though it may seem, following the rules of war is one of the paths to peace.

Soliman M. Santos, Jr. is 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-NDF 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).