About the author(s):
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.
Lily Rueda Guzman is a Colombian lawyer who specializes in the interaction between criminal law and human rights in the context of political transitions. She holds an LLM in Human Rights and International Criminal Law from Utrecht University and is Magister from the Universidad Nacional de Colombia.
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The events of the last two weeks in Colombia are confusing. Peace with the FARC-EP seemed to be within reach when Colombia’s President, Juan Manuel Santos, and the top commander of the FARC-EP, Timoleón Jiménez, formally signed a peace agreement on 26 September. One week later, however, Colombians voted to reject this negotiated solution in a plebiscite that took place on 2 October. After the President subsequently announced that the bilateral ceasefire would only remain in place until 31 October, people took to the streets and to social media in massive numbers to shake the political arena and demand that the negotiations be re-opened. Even though it has become clear that the peace agreement will not be implemented in the near future, the hope of a negotiated settlement remains. However, the goal of reaching a national consensus on this remains elusive. What factors are driving this paradox consisting of the rejection of an agreement on the one hand and the enduring hope for peace on the other hand? This post attempts to highlight the main facts that could help in understanding what the future holds for the country and the peace agreement.
A very controversial agreement
On 26 September, after more than 50 years of armed conflict and four years of negotiations, the Colombian Government and the main guerrilla of the country, FARC-EP, announced that they had reached an agreement to end the conflict. It was, however, a very controversial pact. Colombians were upset by the fact that guerrilla leaders would have not been sentenced to jail time for the international crimes and humanitarian law violations they committed. They would, instead, face alternative and reparatory sanctions. This part of the agreement was criticized as not fulfilling international legal standards and, at the end, resulted in an understandably visceral reaction of rejection. The FARC-EP have caused untold suffering to the Colombian population and, to make matters worse, referred to themselves as “victims” and to their crimes as “mistakes” until advanced stages of the peace negotiations.
The second controversial item was the fact that the peace agreement would have opened the door to the political participation of members of the FARC-EP who are responsible for grave human rights violations and international crimes, which is currently banned by the Constitution. The negotiating parties agreed that, once the peace deal was in place, three representatives of the new political party created by the FARC-EP would have a voice in the Congress, but no vote. Following the legislative elections of 2018, the political party of the FARC-EP would have had ten seats in Congress until 2022, with full political powers.
This measure divided the opinion of the Colombian society between those defending the possibility of political participation of the former FARC-EP members and those considering that such political prerogatives amount to a reward. The former group maintained that political participation is a necessary feature for a consensual transition to take place with a Marxist rebel group, especially given that the absence of political participation would have been a “deal breaker” for the FARC-EP. Those against the political participation of the FARC-EP argued that granting such political prerogatives was unacceptable given that the FARC-EP has participated not only in political crimes but also in drug-trafficking and terrorism. Endowing the former guerrillas with political authority and formal participation in the decision-making processes would, according to this group, show that “crime does pay.”
The third item giving rise to intense debate was the economic support that demobilized FARC-EP members would have received as part of a reintegration program. A monthly subsidy, amounting to close to the Colombian minimum wage (180 Euros per month) would have been granted by the Government for two years. Large part of the population saw this as deeply unfair in a country with a 27 percent poverty rate and in which many struggle to obtain sufficient income to procure basic supplies and housing. Those in favour of this point argued that economic support is necessary to avoid the repetition of violence and that this need should take precedence to the perceived unfairness of the arrangement. Absent economic support, they argued, demobilized persons would be at risk of regressing into organized criminality before having had a chance to acquire the skills that would allow them to engage in licit economic activities.
The implementation of the agreement would also have required several constitutional and legislative amendments. The measures in need to facilitate these future legal reforms were a matter of intense legal debate. At the end, in July 2016, the granting of special powers to the President to implement some dispositions of the agreement by decree was approved and a new expedited procedure (referred to as fast track) to pass peace-related laws was also in place. The possibility of elevating the Agreement to status of “Special Agreement under the terms of the Article 3 Common to the Geneva Conventions” was also approved and it would have resulted in the agreement being given constitutional normative hierarchy.
A special plebiscite
The fear that the strong opposition to the Santos government, coupled with the dark shadows of the FARC-EP’s extreme violence, could undermine the sustainability of the peace agreement led to the negotiating parties’ decision to present the peace deal for popular approval. Strictly legally speaking, this special plebiscite was not necessary. Under the Colombian Constitution the President has the power to conclude and implement peace agreements without public consultation.
On 2 October, 6,431,376 of Colombians, representing a narrow majority of 50.2 percent of the actual voters, rejected the agreement. It must be noted that out of almost 35 million of potential voters, only little more than 13 million exercised their right. As was the case in the recent “Brexit” referendum in the UK, the vote itself reflected a much wider range of issues well beyond the immediate subject matter that was being voted on. Indeed, voters would appear to have used this platform to express discontent with the Santos Government whose presidency suffers from low rates of approval (less than 25%) due to different concerns, such as the state of the economy, the low rate of formal employment and the poor state of public health.
In the second place, some Colombians feared that the implementation of the agreement would usher in a castro-chavista communist catastrophe. Even though the bases of the political and economic system were not topics of negotiation, this fear was fuelled by the poignant images of the Venezuelan crisis of the last months, which were handily exploited by the campaign against the peace deal.
A third, and perhaps more surprising but nonetheless significant factor comes from a staunchly conservative and religious sector, which contended that the repeated mention of “gender” as a relevant category and the protection of LGTB’s rights within the agreement were evidence of an attack against the “natural” model of family. For them, the vote on the peace agreement became an opportunity to reject progressive policies on sexual education and the recognition of minority rights
A final factor was the revival of the political rivalry between “Santistas” and “Uribistas”. Current president Santos used to be the right-hand and protégé of former president Uribe, who cultivated conservative policies. After Uribe blessed and bolstered Santos’ presidential bid, Santos departed from his predecessor’s policies and set a slightly more progressive course, which was seen by many as a betrayal. This gave rise to profound and at times even intensely personal clashes. The plebiscite on the peace agreement never really managed to transcend the Uribe-Santos story of betrayal and rivalry.
Is negotiated peace really possible?
Few days have passed after the rejection of the peace agreement. The results have bolstered Uribe’s political leverage and obliged Santos to negotiation and dialogue with his political opponents. Several meetings have taken place between Santos, religious leaders, Uribe and his supporters. They all have stated they are willing to form a new national pact for unity. Timoleón Jiménez, leader of the FARC-EP, initially expressed that he had no intention of changing the agreement, which, to his view, was legally valid and ready for implementation. However, later on, through a joined press release, the Colombian Government and the FARC-EP expressed that “it is convenient to continue hearing to the different sectors of the society”. Against this background, what are the possible scenarios the future holds for a negotiated peace in Colombia?
The first possibility is a renegotiation of the peace agreement. This scenario is complex because it would imply re-opening the discussion on contentious points such as the possibility of prison terms for guerrilla leaders, maintaining limits on their political participation and the elimination of provisions intended to protect vulnerable groups, such as LGTB victims. The biggest hurdle so far seems to be the unwillingness of the guerrilla to settle for less than what they thought they had achieved.
If a renegotiation is to take place, it will need to be fast and effective. The ceasefire has been temporary extended until 31 October and while it could be prorogued, the situation would be a fragile one. Additionally, Santos’ presidential term is to finish in August 2018 and it would be risky for this peace negotiation to overlap, again, with a presidential campaign.
Another option is to adopt a constitutional assembly. This was in fact, the first proposal of the FARC-EP for the endorsement of the agreement and it was also a suggestion once made by Uribe’s party. However, this was rapidly rejected by the government. Currently, this scenario seems improbable. Holding a constitutional assembly is a legal and political endeavour of daunting complexity. It would need either Congressional action or a referendum. In practice, it could open a Pandora box of structural political and economic changes. As a matter of fact, this possibility has not yet been defended by any of the leaders following the outcome of the plebiscite.
The final option is to revert to active armed conflict, an option which is currently actively rejected by all relevant actors in Colombia. The Government, the FARC-EP, the political opposition and the civil society have strongly ruled out war as an option. In fact, those who voted “yes” and those who voted “no”, peacefully marched the streets to demand that their political leaders reach a new accord. This being said, the conciliation of all the contradictory views and interests, some of which this blog post has attempted to explore, will prove to be extremely difficult. In order to avoid falling back into war, a new collective decision needs to be made. It would seem that, after five decades of war and polarization, Colombian society and its leaders feel more comfortable with division and strife than with navigating in the uncharted waters of dialogue and compromise.
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