a network of constitutionalists from countries throughout the world
By Sebastián Machado, a PhD candidate with the Laureate Program of International Law at Melbourne Law School.
As reported in this blog, the Colombian people decided to vote against the peace agreement signed between the Colombian Government and the FARC guerrilla group by a very slim margin. As with Brexit, the outcome of this public vote was highly unexpected, and coupled with the massive public demonstrations and the announcement of the Nobel Peace Prize being awarded to President Juan Manuel Santos, Colombia lived through its most tumultuous week in its recent history.
At first glance it would seem odd that a country would choose war rather than peace. The decision, however, was not between war and peace but rather between different ways to achieve a ceasefire. The Government had continuously campaigned with the argument that the 297-page-long agreement was the best possible agreement, while the opposition — the ‘no’ supporters — led by former President Álvaro Uribe, argued that a peace agreement with more stringent conditions for the guerrilla group could be negotiated.
The first thing that should be noted about the peace process is that it attempts to terminate the longest ongoing non-international armed conflict in the world. For nearly 60 years Colombians have been engaging in hostilities, with as many as nine or ten organised armed groups existing simultaneously. Traditionally, guerrilla groups in Colombia have embraced an anti-establishment Marxist ideology and have sought to take control of the country through armed revolt. They have however, on occasions, collaborated or confronted drug cartels. The most important spin-off from these confrontations was the creation of the AUC, a right-winged paramilitary group which used extreme violence against other belligerents and civilian population.
Different peace negotiations have successfully put an end to different armed groups. While the different guerrillas negotiated under one same umbrella some decades ago – the Coordinadora Guerrillera Simón Bolivar – the failed Tlaxcala peace talks as well as the demobilization of the M-19 armed group and the subsequent redrafting of the Colombian constitution dissolved the fragile unity between different guerrilla groups. At the moment, the two largest guerrillas, FARC and ELN (National Liberation Army), are negotiating separately. It is the former’s peace agreement that was rejected by popular vote, while the latter has only just begun its negotiation with the government.
Two earlier peace attempts have set the tone for the current efforts. The 1998 negotiations initiated by President Andrés Pastrana, known as the Caguán Process, involved the demilitarization of 42,000 square kilometres where FARC belligerents were provided safe haven. The concessions to the guerrilla group, as well as the lack of any significant compromise, led to the decision to terminate the negotiation. President Pastrana finished his term in office with very low approval ratings precisely because of his failed peace process, and it was the dissatisfaction with any perceived lenient attitude towards armed groups that had President Álvaro Uribe elected and re-elected with the highest turnout and approval ratings in Colombia’s history.
By 2002, when Mr. Uribe was taking office, FARC membership was estimated to be at around 20,000 belligerents, ELN membership was estimated at around 5,000, and AUC membership was estimated at around 15,000. By the end of his term, in 2010, these numbers had been significantly reduced. It was estimated that FARC membership had dropped to around 7,000 members, ELN membership to 1,500 members, and due to the AUC peace process, it was officially considered that the group was disbanded (around 30,000 persons who claimed demobilization benefits argued they had been AUC members). It was this AUC peace process which cast the other large shadow over the ongoing Havana talks.
The AUC peace process was — from a legal point of view — executed through the adoption of Law 975 of 2005, dubbed the ‘Justice and Peace Act’. The piece of legislation was originally entitled ‘Bill for Penal Alternatives’, and it was made up mainly of alternative criminal procedures for AUC members and the imposition of a maximum 8-year incarceration. Before some changes were made by several rulings of the Constitutional Court of Colombia, the Justice and Peace Act envisioned the incarceration occurring in ‘rural farms’ and some limitations to individual reparation. Its provisions were questioned heavily as they were considered too lenient for the standards set by the international community’s fight against impunity, particularly through the ICC. At the end of the day, the AUC demobilization process did very little to contribute to the ‘truth’ or ‘reparation’ component of transitional justice, and the criminal sentences of the top AUC leaders were handed down by US courts after most of the commanders were extradited to the United States for drug-related offences.
Hence, the Havana talks — if they could ever be successful — had to be undertaken with the lessons learned both from the Caguán and Justice and Peace processes, more than anything else. The former demanded that no area of Colombian territory could be demilitarized for guerrilla members; the latter had fixated the public’s attention on the sort of criminal punishment that FARC leaders would have to face. The decision was then made to undertake the negotiations abroad and without ceasing the hostilities. In fact, FARC’s top leader was killed by the Colombian military while the confidential phase of the negotiations was underway. This confidential phase officially ended once the parties agreed on the agenda for their formal and substantive negotiations, and it was announced on October 2012 that the peace process would occur in Havana, Cuba.
With regards to the transitional justice scheme, the Havana peace talks were preceded by a constitutional amendment dubbed the ‘Legal Framework for Peace’ — a transitory article in the Constitution that allowed the government to put in place a differential penal treatment in cases of demobilized belligerents. From the outset and throughout the 5 years that the Havana process has been underway, this constitutional amendment and any judicially-related aspects to the criminal punishment of combatants and belligerents have been heavily criticized by human rights groups – especially Human Rights Watch. The final peace agreement envisages no traditional incarceration even for the most serious (international) crimes; it considers that ‘effective restrictions upon liberty’ that will happen in predefined rural areas is sufficient to satisfy international standards on administration of justice. It is a sort of incarceration without bars and walls, coupled with community work and other forms of social reparation.
From the moment the negotiations were made public, President Santos and his chief negotiator, Humberto de la Calle, had drawn some ‘red lines’ for the peace process. The Government undertook the negotiations from the standpoint of a winning-not-winner party to the armed conflict. The Uribe presidency had severely affected the military capacity of the guerrillas, and the Caguán debacle had exhausted any patience of the Colombian public. Thus the Government’s philosophy when negotiating with FARC was that it recognized some major flaws in its political and economic policies, but that accompanying changes were not going to be afforded between a democratically elected government representing 50 million people and a 7,000-member armed group. The Government was willing to provide fair circumstances by which FARC members could be re-introduced to political legality where any change that FARC wanted could be pursued by the traditional, democratic means. On the other hand, FARC wanted — and still wants to this day — to redraft the Colombian Constitution in all of its aspects, as it considers that it includes some of the ‘objective reasons’ for the armed conflict to exist. The biggest ‘red line’ for the Government has thus always been that major changes must happen in deliberative democracy and that no Constitutional Assembly to redraft the constitution should be invoked as a consequence of the peace process.
The public dissatisfaction with FARC and any peace process after Caguán also led President Santos to promise that once the final agreement had been struck, it would be accepted or rejected by the Colombian people. This was not a legal requirement of any kind, and many of his advisors, including the Attorney General of Colombia, explicitly warned against submitting the peace agreement to a public vote. Regardless, the executive always saw a public referendum in favour of the agreement as a necessary legitimization of the negotiation, even if it was constitutionally unnecessary.
And like with so many other political events this year, pollsters missed the mark and against all odds, the Colombian people voted against the agreements by a tiny margin. Several factors, including Hurricane Matthew on the day the vote took place, affected turnout and abstention percentage was in the high 60’s — one of the highest abstention rates in Colombian history. The backlash was unexpected: it unified and fortified the religious right in the Colombia, and the peace process was left in a very fragile state. Thousands of demobilized belligerents still armed with their weapons were left in a legal limbo (as any of the transitional measures for their demobilization would only be triggered if the plebiscite had been favourable to the agreement). Perhaps due to this fragility, President Santos was awarded the Nobel Peace Prize.
Another negotiation then began. The Government had to meet with the different coalitions that had campaigned against the agreements — even with the religious groups which had argued that the Havana agreements would undermine traditional conceptions of gender identity, though such notions fell squarely outside the scope of the agreement. Different groups that had campaigned against the agreement, from those with different conceptions of criminal justice or rural reform, to those who had outright distorted and lied about its content now had a voice on how the agreements had to be redrafted.
The redrafting process took a little over a month, and on the 12th of November, the Government announced that a new agreement that took into account the objections of the opposition had been struck. The reality is that the agreement changed very little: some minor variations were introduced (such as the ineligibility of foreign judges for the special transitional jurisdiction), and some issues were carved out and defined more in detail (such as the conditions for the restriction of liberties in rural areas). Being a new agreement, President Santos is now constitutionally permitted to seek its implementation in any way it sees fit, as it is technically a different agreement that was rejected in the October plebiscite.
The discussion now turns largely on how this new agreement should be politically legitimised. In his visit to the United Kingdom, President Santos suggested that it was likely to be put to Congress for its final approval. Other groups have suggested that a new plebiscite should take place, or that independent, communal approval by the different municipalities of the country should take their own votes. With a new agreement that incorporates the oppositions’ objections, though, it is taken for granted that whatever the mechanism, the agreement will be ultimately approved. What remains the most difficult question is whether its implementation will work and Colombia will eventually find itself at peace.