Bolívar’s Sword

“Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass.”

Venezuelan President Hugo Chavez took the world by surprise last week when he asked the Colombian government to stop calling the FARC and ELN terrorists. Chavez then appealed to the international community to formally recognize the belligerent status of the two insurgent groups. Then came a resolution of the Venezuelan National Assembly backing the President’s statement. It comes very close to the legal recognition of the FARC and ELN by the Venezuelan government. Not quite as exciting as the recent release of two hostages by the FARC, to be sure, but far more significant.

The Colombian government reacted to the Venezuelan declarations by panicking. Reinforcements were called in from the U.S.A. Admiral Michael Mullin, Chairman of the Joints Chiefs of Staff, flew to Bogotá to publicly affirm that, indeed, the Colombian guerrillas are terrorists. Then yesterday, Colombian President Alvaro Uribe flew to Europe to launch a “diplomatic offensive,” fearing that the European Union will consider removing the guerrillas from their official terrorist list. Yet the implications go well beyond labeling and name-calling.

First of all, recognition of the FARC and ELN as belligerents would provide Venezuela with a legal basis it could use to intervene in the Colombian conflict, either by arming the guerrillas, or more directly. There is no indication that Venezuela would want to do that, but legal recognition is a step in this direction. Venezuela can treat the government and the insurgents on equal terms. This is quite threatening to the Colombian government.

On a more positive note, recognition of belligerent status brings with it the responsibility of the guerrillas to act in accordance with the Geneva Conventions, which among other things, prohibit kidnapping, killing civilians, and using indiscriminate weapons. Opening this door for the FARC might, for the first time in 50 years, offer an incentive for the group to mend its ways. For the ELN, decimated by the murder of thousands of its cadre over the last decade, it could offer a way to get out of this live. The ELN is already in negotiations with the Colombian government, which are being mediated by Cuba. They are slow moving and the ELN is not demobilizing. That could change.

While Colombian politicians are busy wringing their hands over what they anticipate will be a debate over this in Europe, and some conservative politicians are even warning that Venezuela may intervene in the Colombian conflict militarily, it’s far more productive, and President Chavez’ intent, I believe, to consider that this is probably the best way to bring the insurgency under control. Colombia’s relentless media campaign, the goal of which is always to denounce the guerrillas as terrorists, may stimulate the troops, but it has an equal and opposite effect on the guerrillas. The repeated use of this term, terrorist, is calculated to inflame the conflict, not resolve it. It is pointless to talk about negotiations when one of the parties won’t tone down its rhetoric.

So how can recognition of the belligerent status of the guerrillas help to bring peace? First of all, there will no longer be any excuse for not engaging in a dialog with the guerrillas. The Colombian government will be forced to negotiate, and that is the only way the conflict can ever end. Secondly, the guerrillas will have an incentive to not engage in the kinds of behaviors that the Colombian government is so quick to point out. These are two good reasons for supporting Chavez’ position.

It’s useful to take a look at the laws that apply here, to understand what is at stake and where things may be heading in Colombia. Let’s digress for a moment and consider how the term terrorist is used to equate one’s enemies with the people responsible for blowing up the World Trade Center. That’s the comparison people using the term want to make.

War has always been an awful business. It’s the ultimate expression of man’s capacity for barbarism. Efforts to rein in the worst of it reached their zenith following the horrors of World War II, in the form of multilateral treaties making it clear that humanity would no longer tolerate torture, genocide, and the wholesale bombing of cities. The wars of the future would be conducted by humanitarians, it was believed. Unfortunately, the tactics of war have become more, not less, brutal.

Today’s wars are not, as a rule, waged across the national borders of the opponent. They are waged in homes, streets, universities, and meeting places, through subversion, infiltration, and guerrilla warfare. Today’s combatants include civilians, guerrillas, special operations forces, and paramilitary death squads. That’s an unfortunate but undeniable fact. Whether they’re home grown revolutions, or proxy wars for global domination, the modern day combatant could easily be described as a terrorist.

The traditional laws of war are entirely too chivalrous and impractical for the modern day warrior. Revolutionaries lack the capacity for regular warfare or the facilities to take care of prisoners, whereas the government often lacks the popular support needed to separate the revolutionary cadre from the civilian population. The reality is often that both sides engage in terrorism to discourage the civilian population from supporting the other. Governments don’t respond to insurgencies according to legal rules and procedures, but on the basis of prudential calculations, despite the fact that their citizens value the avoidance of gratuitous suffering and destruction. Likewise, insurgents promise a better society while justifying the brutal methods of guerrilla warfare on the basis that they have no other way to win. For both, the laws of war are seen as somewhat sentimental and naïve when applied to their own side. Human rights finds its use in the moral justification of war propaganda and the denunciation of attrocities committed by the enemy. It’s rare indeed for human rights defenders to criticize their own. Yet this was the noble intention of the founders of the League of Nations and the United Nations who sought to create a more humane world.

So how should insurgent groups such as the FARC, ELN, Hezbollah, Hamas, and the Popular Front for the Liberation of Palestine (PLFP) be treated by the international community? Should we make a list of groups using irregular warfare methods – a list that could include practically every insurgency in world history – and call them terrorists? It seems wildly unrealistic to try to impose order in the world by labeling insurgents as the enemies of mankind. Simón Bolívar and George Washington would, by today’s standards, be candidates for the terrorist list. So how does international law treat insurgent groups?

Traditionally, the legal status of an insurgent group depended on their degree of success. When an insurgent group was able to maintain a sustained campaign and control a substantial portion of the national territory, the counter-government could be accorded insurgent status by third states, which would thereafter be obligated to take into account the condition of warfare in their relations with the state. If the hostilities persisted, it was permissible, and perhaps even obligatory, to recognize the condition of belligerency, provided that insurgent forces acting under responsible authority observed the rules of warfare, and that there was some need for the third state to define its attitude towards the conflict. This need could occur if the rebels became so strong in some geographical area that the third government found it necessary to deal with them as well as with the established government. Recognition was simply made by public declaration. Formal procedures for third party recognition have never existed, except in the very rare cases where the parties agreed to submit their disputes to a tribunal for settlement.

The classic example of a belligerency is the American Civil War. The North, through the U.S. Supreme Court, declared the North and South to be in a state of belligerency, for the purpose of asking European nations to respect a blockade of Southern ports. In The Prize Cases, Justice Grier held that large scale insurrection constitutes war in the legal sense:

Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents – the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign; the world acknowledges them as belligerents, and the contest is war. Therefore, we are of opinion that the President had a right jure belli, to institute a blockade of ports in possession of the states in rebellion, which neutrals are bound to regard.

This was a rare example of a nation formally declaring a state of belligerency within its borders, for the purpose of obtaining foreign assistance in blockading the rebels. Such declarations are rarely made, because the recognition of belligerency also implies the formal recognition of other legal rights of the insurgents. Any government would be ill-advised to acknowledge that such rights exist. In fact, no government has formally recognized the belligerent status of insurgents within its territory since World War II.

In today’s world, there is almost no reliance by third states on the traditional legal definitions of rebellion, insurgency, and belligerence. Instead, governments normally determine their relations with the competing factions on the basis of their own foreign policy goals. This often translates into supporting the forces of “law and order” in allied states, and the forces of “self-determination” in rival states. Nevertheless, the legal status of insurgents should be a matter of serious concern to the courts, which are supposed to decide cases based on objective legal standards, rather than on whether the defendant is a member of an official enemies list. That is the rule of guilt by association. The new crime of providing material support to a terrorist organization takes us back to the days of the inquisition. It is the crime of helping a group on the official enemies list of the United States or the European Union.

Recently, a court in Copenhagen dismissed charges against persons selling t-shirts bearing FARC and PFLP logos. The defendants had advertised that five Euros from each sale would be donated to those organizations. The court made factual findings that the FARC and PLFP are not, under Danish law, terrorist organizations because their actions are intended to overthrow their governments, not to terrorize civilians.

In the United States, this kind of political designation is not reviewable by the courts, even though it determines the rights of the individual “terrorists.” When FARC guerrilla Simom Trinidad was put on trial for conspiracy to commit hostage taking for his admitted role as a prisoner exchange negotiator for the group, the court not only did not review the FARC’s status as a terrorist organization, but also held that Trinidad could not be a prisoner of war, because the United States and Colombia are not at war. Trinidad is the first “international terrorist” ever extradited and tried in the US under the new law prohibiting the provision of material support to an officially designated terrorist organization.

Chavez’ call to the international community will have wide-ranging implications, for foreign insurgents being tried as ordinary criminals in places like Washington, D.C., for ordinary Colombians who should not have to fear being kidnapped or blown up by a land mine, and for the irrational and war-mongering “global war on terrorism,” whatever that is. It could begin to undo the immense damage this one word–terrorist–has inflicted on the world in recent years.

PAUL WOLF is an attorney in Washington D.C. practicing international human rights law.





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