The recent calls for the U.S. to return the bells of Balangiga, Samar, just like the Scarborough shoal dispute with China in the West Philippine Sea/South China Sea, tend to show that the Philippine side is in the right, international law-wise, but does not have the requisite politico-military might to assert its rights. We focus here on the renewed calls for the return of the Balangiga bells, particularly on the international humanitarian law (IHL, the law of armed conflict) underpinnings for this.

The basic facts of the case arise from what is usually referred to in history as the “Balangiga massacre” during the Filipino-American War of 1899-1902. The 2004 book The Untold People’s History: Samar, Philippines by Ricco Alejandro M. Santos and Bonifacio O. Lagos rightly refer to it, however, as the “Balangiga raid,” thus: “The American colonizers and traditional Filipino historians would call the raid the Balangiga massacre to demonize the Balangiga revolutionaries, as if the raiders were attacking unarmed civilians, not occupation troops engaged in atrocities and simply caught off guard.” Without going through all the details, for lack of space here, of the raid that occurred in the morning of 28 September 1901, we further quote from the book: “… while the [American] soldiers were eating breakfast, church bells rang out together with the booming sound of conch shells blown. The [Balangiga] men in women’s clothes rushed out of the church with their bolos and attacked the main [American] barracks and the kitchen…the assault had inflicted the greatest damage to American forces in terms of casualties in a single operation, 48 killed…”

The book goes on about the American reprisals after the Balangiga raid: “As collective punishment, the American colonizers inflicted a host of atrocities not just against Samar combatants but also against unarmed civilians in a wave of terrorism designed to cripple the resistance…. Accompanied by some survivors of the Raid, Captain Bookmiller, head of the American garrison in Basey, burned the deserted town [of Balangiga] and carted away the Balangiga bells as war trophies.” A century hence, the two bigger of the three bells are in the highly restricted F.E. Warren Air Force Base in Cheyenne, Wyoming, U.S.A., while the third smaller one is in another American military base Camp Red Cloud in South Korea.

It is clear from the facts that the bells were private property of the Catholic Church (Franciscan Order) and that they were used for the military purpose of signaling the attack by Filipino insurrectos (under the Philippine Revolutionary Government) in Balangiga against American soldiers of Company C of the 9^th Infantry of the U.S. Army. But such military use does not matter much in the case of private property, as far as IHL is concerned. Our main reference for this is the comprehensive study of customary IHL rules and state practice published by the International Committee of the Red Cross (ICRC) in 2005. Customary international law refers to generally accepted principles and rules of international law binding on all, particularly on all parties to armed conflicts in the case of customary IHL. In the Filipino-American War, those parties were two states — the Philippines and the U.S. – in fact making it an international armed conflict.

In what the ICRC denominates as Rule 51 of customary IHL, “In occupied territory… private property must be respected and may not be confiscated except where destruction or seizure of such property is required by imperative military necessity.” Such necessity, say to prevent even the unlikely reuse of the Balangiga bells to signal further Filipino insurrecto attacks, certainly ended with the end of the Filipino-American War in 1902. That “Private property cannot be confiscated” was codified in the 1907 Hague Regulations respecting the laws and customs of war on land [Hague Regulations, for short], Art. 46, second paragraph. And per Art. 56, first paragraph, thereof, “The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.” The aforesaid Rule 51 on private property is also contained in the military manual of the U.S.

The Balangiga bells (all bearing the emblem of the Franciscan Order and dated 1853, 1889 and 1896, respectively) are not just private property in general but specifically the property of an institution dedicated to religion, the Catholic Church. And they are not just the property of a religious institution but may also be said to be “property of great importance to the cultural heritage of every people,” in this case the Filipino people. In sponsoring the Philippine House of Representatives Resolution 112 calling on the U.S. to return the three church bells and a cannon taken by U.S. troops as war booty from Balangiga, Bayan Muna party-list Rep. Teddy Casiño rightly said “The Filipino people regard the said bells not as tools or spoils of war that should be kept as war trophy but as historic and religious treasures made for the people of Samar that have become a significant part of Philippine heritage – not unlike how the Americans regard their own Liberty Bell enshrined in Philadelphia.”

ICRC Rule 40 of customary IHL is thus most to the point: “A. All seizure of or destruction or willful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited. B. Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited.” Rule 40-A was codified in the Hague Regulations, Art. 56, second paragraph, while Rule 40-B was codified in the 1954 Hague Convention for the protection of cultural property in the event of armed conflict [Hague Convention, for short], Art. 4.3, first sentence. These provisions are also incorporated in the U.S. military manual.

The U.S. military manual explicitly prohibits its soldiers from taking home “war trophies.” But the cannon taken by U.S. troops as war booty from Balangiga – an old English-made Falcon cannon dated 1557 (and now also displayed at Trophy Park in Warren Air Base) – appears to be valid war booty. ICRC Rule 49 of customary IHL provides: “The parties to the conflict may seize military equipment belonging to an adverse party as war booty.” As the ICRC study says, “This reflects a long-standing practice in international armed conflicts.”

The said cannon and the three Balangiga bells were not only seized or confiscated but transported abroad (exported, in other words). As far as the bells are concerned, under ICRC Rule 41 on customary IHL, “The occupying power must prevent the illicit export of cultural property from occupied territory…” This obligation was codified in paragraph 1 of the 1954 First Protocol of the aforesaid Hague Convention.

And so, what is to be done, as far as customary IHL is concerned? Basically, private property must be returned to its rightful owner, even if it was used for a military purpose during the war. We can refer by analogy (as in church bells used to transmit attack signals) to Art. 53 of the Hague Regulations, “All appliances… adapted for the transmission of news… may be seized, even if they belong to private individuals, but they must be restored and compensation fixed when peace is made.” This rule is also contained in the U.S. military manual. As explained in Australia’s Defence Force Manual, “these objects may be seized by, but they do not become property of, the occupying power. The seizure operates merely as a transfer of possession of the object to the occupying power while ownership remains with the private owner.”

As for the bells as cultural property, the second part of the afore-cited Rule 41 is: “… and [the occupying power] must return illicitly exported property to the competent territories of the occupied territory.” Says the ICRC study: “If cultural property may not be seized or pillaged, then a fortiori it may not be held back in case it has been illegally exported. Restitution of illegally exported property would also constitute an appropriate form of reparation.” And the second paragraph of Art. 56 of the afore-cited Hague Regulations provides: “All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.”

And so, the Philippine side is clearly in the legal right in calling on the U.S. for the return of the Balangiga bells. As for what legal proceedings and forum this can be brought to for the enforcement of this right, it is not so clear. For one, “seizing the property of an adversary unless such seizure be imperatively demanded by the necessities of the conflict” is a war crime under the 1998 Statute of the International Criminal Court (ICC), Art. 8(2)(e)(xii). Hale the U.S. to the ICC? Aside from several legal obstacles per the Statute itself (which we need not get into here), just tell that to the U.S. Marines! It will have to be a Plan B.

At least in the case of the Scarborough shoal dispute with China, it could be feasibly haled to the International Tribunal on the Law of the Sea (ITLOS) in the context of the U.N. Convention on the Law of the Sea (UNCLOS). But even that may be unavailing or an exercise futility without China’s cooperation. It thus seems very much like a case of “might is right” both in the case of the Scarborough Shoal dispute and the return of the Balangiga bells. Of course, the nature of, and relations with, each of the two bullies that the Philippines is confronted with are different, and are best dealt with on a case-to-case basis. While in both cases, soft power may be more effective for us than hard power (which hardly exists, pun intended), and there are political and diplomatic channels, there is in the case of the Balangiga bells an additional “special (inc. people-to-people) relations” and religious channel.

After all, it is the Catholic Church which is the private owner of those bells, even if it might be said that they have already become part of the national patrimony of the Filipino people (recall the Philippine Supreme Court decision on the grand old Manila Hotel as such). Perhaps, the best way was shown in the case of the return of the two small Meycauayan (also Franciscan) church bells by the Sisters of Mercy (SOM) in Omaha, Nebraska to Philippine Consul-General Leo Herrera-Lim in Chicago on 8 October 2011. They were originally taken from the Meycauayan Church by P.O. Thomas Co., a battalion of engineers, after bombardment by the Utah Battery on 29 March 1899. They somehow found their way to a SOM convent and then archives. Sister Judith Frikker, president of the SOM’s West-Midwest Community, told Consul Lim and his wife Fidelis during the turn-over, in the best simplest terms, that the SOM was “very pleased to return (the box containing the bells) to its people.” What better example can there be of the efficacy of people-to-people diplomacy and the moral impetus of doing the right thing. The case of the Balangiga bells should eventually move in that direction, consistent with both Filipino and American values.

In the spirit of people-to-people understanding, the American majority and leaders should be able to eventually understand the “special meaning to Filipinos,” as Vice President Binay recently put it, of “The Balangiga bells [as] a remembrance of the men, women and children of Balangiga who died in our struggle for freedom.” On the other hand, Filipinos should understand it when U.S. war veterans see them as “our war memorials that honor our fallen soldiers…. represent a memorial to our fallen comrades in the Philippines…. That is what represents their death.” The modest brick memorial housing the bells at Warren Air Base is the only place where the U.S. troops killed at Balangiga have been memorialized as a group. And so, it is an understandably strong emotional issue for both sides, each side valid in its feelings.

There are of course those in the Philippine side who would say that “The Balangiga bells’ rightful place is not in some garrison monument to imperial adventurism…,” as a recent Inquirer editorial puts it. That may be so, but Filipinos should understand the admirable distinction that Americans make between its wars and its troops. They may oppose wars, including imperialist ones, but they always support the troops. Fallen soldiers are of course always or usually honored, whether in the U.S. or in the Philippines. But one does not see in the Philippines the general respect and honor for living troops as defenders/protectors that one sees in the U.S. (honored especially during featured baseball games). That has to count for something. In the Philippine case, our troops have yet to fully recover from the taint of being martial enforcers/oppressors (and more so when it comes to the Moro population), so as to earn that level of general respect and honor.

More than 10 years ago, around the centennial of the Balangiga Massacre/Raid, Philippine President Fidel V. Ramos once broached a Solomonic solution: Send one bell from Wyoming to the Philippines and keep the other one in Wyoming. Cut each in half and send half of each bell to the other country. Weld the bells’ halves together. “And then we end up with two pairs that are almost identical to the original.” Perhaps, the better Solomonic solution, one that is legally as well as morally right, is to still return the Balangiga bells to the Philippines and keep the old English cannon in Wyoming, as a continuing memorial to the fallen American soldiers in Balangiga. This would certainly be in accord with IHL and, mind you, the U.S. military manual.

Soliman M. Santos, Jr.
Naga City, 17 June 2012