Colombian Government and FARC armed group reach a mine clearance agreement

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

Many thanks to Nicolás Carrillo-Santarelli (PhD, Colombian lawyer and professor of international law at the Autónoma de Madrid University) for this guest post on the recent agreement between the Colombian government and FARC on mine clearance.

As revealed by a joint communiqué dated 7th March 2015, available (in Spanish) here, the Government of Colombia and the insurgent group FARC have reached a landmark agreement dealing with the gradual demining of zones with the presence of anti-personnel mines and other devices that pose a risk to human integrity. The agreement is noteworthy for several features. In this post, I will outline the main aspects of the agreement and comment on its implicit considerations and potential implications.

Purpose of agreement

The agreement, which is just over two pages, is based on a gradual approach, in the sense that its parties commit to finding out the locations with anti-personnel mines and other devices which pose the greatest risk to individuals and populations. According to the agreement, those places must be prioritized for demining purposes. Interestingly, this implies that once these locations are demined, other locations will follow suit. This seems to be confirmed by the title of the agreement on the “clearance and decontamination, in the territory, of the presence of anti-personnel mines” and other devices (emphasis added). To my mind, the ordinary meaning of territory in the context of the agreement most likely referring to the whole Colombian territory, in which no mines must remain in the future if the purposes of the deal are to be fully realized. In fact, progress in different mine clearance stages is envisaged in the agreement.

Consultation with local communities

Moreover, it is important to note that teams acting under the guidance of the Norwegian People’s Aid  (hereinafter, NPA), comprised of representatives of the FARC and the Government, will consult communities in order to identify “contaminated” zones (see here). This seems designed to ensure that prioritized territories are those that most affect the aforementioned communities; and acknowledges that it is important that their opinion is considered as crucial. This is a welcome approach that corresponds to developments in human rights law regarding consultation and taking into account the opinion of individuals concerning how they are affected by threats to their rights.

Human rights protection

The effects of the agreement will have a positive impact on the protection of the integrity of individuals and their safety, which is an express goal of the agreement. This purpose of protecting human rights in light of the international framework of their protection is confirmed by further references within the agreement, such as the respect of national and international standards, and the mention of the importance of ensuring the non-repetition of exposure to anti-personnel mines and other devices.

Accountability of non-State actors

Importantly, this can be construed as a tacit recognition of the unlawfulness of their use by the FARC and responds to international requirements and developments on the accountability of non-state actors. For instance, as Theo van Boven comments when discussing the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, it is felt that non-state actors must respond for their abuses, and non-repetition is included as a component of human rights responsibility.

Collaboration and trust-building

Additionally, the way in which such consultations and information gathering are to take place serves to promote the collaboration of members of the guerrilla and the Government and may foster greater understanding and cooperation, which is another of the purposes of the agreement. After all, the agreement begins by expressing that, in the context of de-escalation, promoting trust is important. Furthermore, the Colombian Government and the FARC will set up a technical body to determine where and how the agreement will be implemented. While the actual removal and clearance of mines will be carried out by multi-task teams composed of Norwegian People’s Aid coordinators and Government agents, such operations will be verified by and watched by members of the Government, FARC representatives, NPA and representatives of affected communities; civilian teams may participate in the tasks; and the NPA will have a constant contact with communities and will exchange information with them. This reveals an important aspect of the agreement that may prove crucial to the peace talks: not only the Government and the guerrillas, but also affected communities and individuals, who have suffered in the decades-long armed conflict, must participate and be involved, and the trust of all of them is important for the agreement and the peace process at large to have prospects of being successful.

Positive engagement

It is also pertinent to note how the agreement constitutes a form of engaging non-state armed groups that does not rely on a direct shaming or confrontation, which sometimes may generate negative attitudes, as Olivier Bangerter explains here but rather seeks to bring them onboard processes of protection of rights (in any case, non-state abuses cannot be ignored, and condemning them is important to both change attitudes in non-state agents and to employ legal strategies to protect from those abuses).

Conclusion

To conclude, it can be said that agreements as the one being discussed and mechanisms and operations contemplated in it are truly ways in which States may seek to promote the observation and effectiveness of international norms. In this regard, articles 1 and 9 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, to which Colombia consented on 6 September 2000, indicate that State parties must take appropriate measures “to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control.”