The Complexities of the FARC Deal

As I noted at the end of the year, the Government of Colombia and the FARC-EP are continuing peace talks in Havana, Cuba aimed at ending the longest running conflict in the Western Hemisphere. The three-year peace effort is nearing a conclusion with both sides saying they hope to reach a final peace deal by March 2016. The process is fragile and requires agreement on all sub-issues before a final deal can be signed; the General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace signed in 2012 holds that “nothing is agreed until everything is agreed upon.” As of two months ago, the three remaining issues to agree upon were Victims, End of Conflict, and Implementation. In the past two months progress has been made on all of three of these issues, with the agreement on victims being finalized and released. The challenge in this deal, as in many others (Syria, Congo, Ukraine, and beyond) is how to settle complex conflicts involving a multitude of non-state actors, address the needs of victims for remedy and acknowledgment, and bring those who have been previously violent and politically destructive constructively into the political mainstream.

In addition, both parties recently requested a 12-month UN mission of unarmed observers to monitor any future ceasefire. The UN Security Council agreed to this request pending a final peace agreement. Notably, details about the most complex and controversial part of the deal — the final details of how combatants will be demobilized, disarmed, and reintegrated — have recently been released and involve a complex tripartite mechanism of monitoring and verification.

Victims have been a central and defining part of the FARC and National Government negotiations. Their calamitous loss of life in the conflict, the widespread displacement of persons, the appropriation of property, and the raft of torture, rape, and disappearances that accompanied the violence between combatants means that the symbolic claims of victims and the perceived need to remedy harms is an unavoidable part of the peace process for both state and non-state actors.

On December 15, 2015, the FARC and National Government reached an agreement on how victims and perpetrators will be treated under a future peace agreement. The Agreement on Victims of the Conflict (subtitled “Comprehensive System of Truth, Justice, Reparation and Non-repetition”), has multiple provisions including the Special Jurisdiction for Peace and the Commitment on Human Rights, which reiterates previous agreements that “to repair the victim is in the center of the Agreement between the National Government and the FARC-EP.” The Parties agree that:

[T]he Comprehensive System puts special emphasis on restorative and remedial measures, and aims to achieve justice not only with retributive sanctions.

The Agreement highlights the participation of victims in the process; 3,000 victims participated in forums in Columbia and 60 victims travelled to Havana to give direct testimony and offer recommendations. The 63-page Agreement on Victims of the Conflict is divided into two sub-sections:

  1. Comprehensive System of Truth, Justice, Reparation and Non-repetition
  2. Commitment with the, promotion, the respect and the guarantee of human rights

As the name implies, the Agreement attempts to use a comprehensive system to address victims’ rights, including a Truth Commission, a special court (the Special Jurisdiction for Peace), and a unit to locate missing persons. The Agreement’s first sub-section lists seven goals the Comprehensive System will achieve: satisfaction of victims’ rights; accountability; non-repetition; territorial, gender and differential approach (focusing on those most affected by the conflict); legal security; coexistence and reconciliation; and legitimacy. In an attempt to meet these goals, the Agreement also specifically addresses perpetrators through the creation of a new Peace Tribunal that would prosecute those responsible for serious crimes committed during the armed conflict. Despite the lofty rhetoric of victim-centeredness and accountability, there has been harsh criticism of the deal from international and local NGO, on the grounds that it enables and facilitates impunity for serious international crimes. Americas Director at Human Rights Watch José Miguel Vivanco has stated:

The agreement is full of references to justice, accountability and even effective restraints on liberty … But a close look at the text reveals a tangle of ambiguities, omissions, and loopholes that make these references seem, at best, an empty promise.

The key point is that the Agreement represents an ongoing set of tensions inherent in international peace-making. That tension resides in the question of whether compromises will be made on justice in order to bring about political settlement between warring factions, and whether certain kinds of amnesty still remain lawful under international law. Despite the ongoing narrowing of amnesty practices, amnesty still remains a tool in the arsenal of states and remains permissible by the terms of Protocol II Additional to the Geneva Conventions of 1977.

So it remains clear that while both Parties to this agreement highlight the importance of victims in the process and final agreement, the treatment of perpetrators is likely the key to the acceptance of this peace deal. The Agreement on Victims states:

In accordance with IHL, the Colombian State may grant the “amplest possible” amnesty. Crimes against humanity, genocide, grave war crimes among other grave human rights crimes and violations, will not be subject to amnesties, pardons or equivalent benefits.

The agreement specifically identifies some combatants and officials who will be ineligible for amnesties or pardons. According to Article 40 of the Agreement, “Crimes against humanity, genocide, serious war crimes, hostage taking or another severe deprivation of physical liberty, torture, extrajudicial executions, forced disappearance, violent sexual intercourse and other kinds of sexual violence, child abduction, forced displacement, as well as the recruitment of minors, according to what has been established by the Rome Statute, won’t be eligible for amnesty or pardon.” Additionally, the FARC has claimed “there will not be any immunity for the officials in charge or high dignitaries of the Government or State, because this is not possible under international law, and because it would be unacceptable to the conscience of the Colombian people.” However, the Victims’ Agreement simply states:

The definitive configuration of the sanctions of the system applicable to State agents will be decided before the signing of the Final Peace Agreement.

If the individual is ineligible for amnesty, the punishment for her crime will be based on the level of cooperation and how early the individual admits responsibility. If an individual admits to the Chamber of Acknowledgment (early in the process of the Special Jurisdiction for Peace) to committing serious offenses, such as those listed in Article 40 above, and acknowledges the truth and accepts responsibility, the punishment will be a five to eight year sanction, but not prison. During these five to eight years, the individual may have travel restrictions and be required to participate in rural or urban community works projects. An interesting point is that where precisely these restrictions will be imposed; there is a clear sense they will be carried out on territory that was or remains under the effective control of the FARC. If an individual waits to acknowledge truth and responsibility before the Section of Judgments but before sentencing, she can be sentenced to five to eight years in prison. When there is no acknowledgment of truth and responsibility the “ordinary sanction” will be between 15 and 20 years in prison.

Clearly, the Agreement on Victims is an important step towards ending the conflict. However, the tensions pertaining to justice, accountability, compromise, and political accommodation remain live and unsettled. Ultimately, “nothing is agreed until everything is agreed upon.” As has occurred in other transitional societies, domestic political pressure may mount after close examination of the Victims Agreement or the to be released End of Conflict and Implementation deals. Some Colombians already resent the cost of the peace talks and will likely oppose the costly reintegration of FARC areas into the national economy. In addition to ordinary Colombians, the military and/or conservative political opponents of President Santos may attempt to derail the deal, playing the role of spoilers that is a consistent feature of political settlement process in fraught post-conflict settings. Moreover, the FARC is not a defeated force, so if the End of Conflict and Implementation deals are not sufficiently accommodating, their fighters may retreat into the jungles and reignite the conflict.

The unknowns remain significant. However, the deals are testament to the ongoing power and traction of the political deal to settle decades old conflict, the attraction of pulling combatants in from the margins to the mainstream, and the deep desire of violent polities to settle into a different pattern of normality.  As we have learnt elsewhere the challenge is not the perfection of the deal but the traction to implement it. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).