By Kevin Gustafson, Center for Civilians in Conflict (CIVIC)
Colombia’s half-century-long conflict is rapidly coming to close. On Thursday, Aug. 25, 2016, the government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), released the final text of a peace agreement four years in the making, and President Juan Manuel Santos has called for a referendum on the agreement for Oct. 2. Colombia’s war-weary population will be voting on a 297-page document that covers a wide range of issues, including rural land reform, participation of FARC in the political process, the group’s disarmament, and, perhaps most importantly, the creation of a truth commission as part of a transitional justice program. And while the end of any conflict is worthy of praise, the Colombian agreement has some serious—although not insurmountable—hurdles to a lasting peace in the Andean nation.
Colombia’s conflict is the longest-running guerilla war in the Americas. It left more than 220,000 people dead (more than 80 percent of them civilians) and some 5 million people displaced, the second largest number in the world. In all, some 8 million people were directly affected by the war, according to government statistics.
How the state addresses the needs of those people will, in large part, determine the success of the agreement, and Santos has his work cut out for him. One of the biggest concerns some Colombians and nongovernmental organization such as Human Rights Watch point to is a lack of justice for victims of serious violations of international humanitarian law. In short, many worry that the deal will result in amnesty for alleged kidnappers, narcotraffickers, and war criminals.
Enrique Celis believes his brother-in-law, a Colombian soldier, was kidnapped by FARC in the 1990s. He told The New York Times that despite the group’s insistence that they have released their captives, he believes his relative is still in FARC’s hands somewhere.
“The FARC have been untruthful in the whole process,” Celis was quoted as saying. “This deal doesn’t get a real justice or reparations for the victims.” He says he will vote against the referendum in October.
(FARC wasn’t the only group committing grave offenses; army units and government-backed paramilitary militias are also implicated. Between 2002 and 2008, up to 3,000 civilians were lured to the countryside, summarily executed and claimed as guerillas by the government-affiliated fighters in order to boost body counts and receive bounties and promotions.)
The agreement suggests ill-defined alternative sentences (“sanctions”) for those who admit their involvement in war crimes at the truth commission. But in January 2016, Colombia’s Inspector General Alejandro Ordoñez wrote to the International Criminal Court, which has an ongoing investigation in Colombia, expressing concerns that “the agreement does not comply with international justice standards” because those who had committed violations may not face domestic imprisonment. As Human Rights Watch points out in its analysis:
The agreement states categorically that perpetrators who confess to atrocities will be exempt not only from prison or jail, but also from any “equivalent” form of detention. They will instead be subject to “sanctions” that have a “restorative and reparative function” – as opposed to a punitive one – and entail carrying out “projects” to assist victims of the conflict.
This lack of prosecution could violate Colombia’s obligations under international law, while the ICC’s investigation may mean some of the leaders of both parties to the conflict could face prosecution in The Hague. That could put Santos’ government in the uncomfortable position of shielding alleged perpetrators—who most Colombians would like to see hanged—from international justice while creating a political nightmare for his Partido Social de Unidad Nacional.
Humberto de la Calle, the government’s chief negotiator, acknowledged the agreement’s limitations in his statement on the release of the agreement. “The accord we’ve achieved isn’t a perfect accord.” However, he went on to defend the agreement as the best possible given the situation. “Many Colombians would want punishment for the FARC,” he said, “the violence of the other cannot justify one’s own violence.” Indeed, the truth commission’s name, the Commission for the Clarification of Truth, Coexistence and Non-Repetition, attempts to make it clear that its main focus is restorative, rather than retributive justice. “Non-repetition” of human rights violations, de la Calle wrote, “is something that we demand of the FARC with firmness. But this should also be a great national commitment.”
Iván Márquez, FARC’s chief negotiator, echoed much of this sentiment in his statement. Márquez acknowledged that in war, especially one lasting 50 years, “errors are committed and the population is involuntarily affected.” And, he added, “We hope to dispel, definitively, the risk that weapons may again be used against citizens.”
The agreement, though in its final form, remains unsigned. While the FARC is likely to approve the agreement at its upcoming 10th Conference, Santos is expected to have to campaign heavily for its passage in the referendum as well as push for its ratification in Congress. Former President Álvaro Uribe, Santos’ predecessor, mentor and now political opponent, opposes the agreement and controls a large opposition bloc in Congress.
Assuming the referendum passes muster with both FARC and the Colombian voters, and Congress ratifies the agreement and passes the appropriate legislation, only then will the agreement be officially signed. Then, members of FARC will be have 180 days to disarm under UN supervision. Soon thereafter, the Truth Commission will begin its work.
This agreement is a significant step forward for peace in Colombia. But the history of La Violencia suggests that observers not hold their breath until each step in the process is complete. And even then, large swaths of the country are still under control of drug cartels and other armed groups. The Colombian government’s anti-narcotic operations continue to pose risks to civilian men, women, and children.
Until the state can control all of its territory, infuse respect for civilians throughout state security forces, and deliver meaningful justice through a mechanism acceptable to all victims of 52 years of civil conflict, this week’s peace agreement will remain unfinished.