Accord reached on UN/CELAC verification of cease-fire and disarmament

Here is a quick translation of the accord announced today in Havana between the Colombian government and the FARC.

Joint Communiqué #65

The government of the Republic of Colombia and the Revolutionary Armed Forces of Colombia, People’s Army, FARC-EP:

Reiterate their commitment to the negotiations to achieve a Final Accord for the Termination of the Conflict and the Construction of a Stable and Long-Lasting Peace (Final Accord), including an accord on a bilateral, definitive cessation of fire and hostilities, and the leaving aside of weapons.

They also reiterate their commitment to the implementation of all accords contained within the Final Accord and the launching of effective mechanisms of monitoring and verification, with international accompaniment, which can guarantee full compliance with the agreed commitments.

We have decided to create a tripartite mechanism of monitoring and verification of the accord for a bilateral and definitive cessation of fire and hostilities and leaving aside of weapons, which can generate confidence and guarantees for its compliance, made up of the government of Colombia, of the FARC-EP, and by an international component which will preside and coordinate the mechanism in all of its instances, settle controversies, make recommendations and present reports, and which will begin its work once that accord has been reached. With regard to the leaving aside of weapons, the same international component will verify it in the terms and with the due guarantees that will be established by the accord’s protocols.

We have agreed that that international component will be a political mission of the UN integrated by observers from CELAC member countries.

With that purpose, we have decided to ask the UN Security Council to create that political mission starting now, with unarmed observers for a period of 12 months, which can be extended at the petition of the national government and the FARC-EP, and also to ask the member countries of the Community of Latin American and Caribbean States, CELAC, their willingness to contribute to said mission that will be made up by the United Nations.

They also ask that the Mission begin its necessary preparations, in close coordination with the government of Colombia and the FARC-EP, for its deployment. The international observers will enjoy full security guarantees.

We thank the United Nations and CELAC for their willingness to support Colombia in the search for peace.

9 Unanswered Questions About Colombia’s Victims and Justice Accord

A delegation of conflict victims attended the December 15 singing of the Victims accord in Havana.

Colombia’s government and the FARC guerrilla group have settled the most difficult question facing their three-year-old peace negotiations: how can Colombia hold human rights abusers accountable for their crimes, without imposing penalties so severe that they encourage guerrilla leaders to keep fighting?

The December 15 accord on Victims establishes a Special Peace Jurisdiction to hear confessions, to try and punish war crimes and crimes against humanity, and to determine reparations to victims. A December 19 government communiqué explains how the security forces will fit into that special jurisdiction.

“Settled” is too strong a word, though. Both declarations leave fundamental questions unanswered, and raise others. Detractors have seized upon these ambiguities, and their critiques are influencing the Victims accord’s reception before Colombian public opinion. The head of Colombia’s rightist opposition, Senator and former President Álvaro Uribe, wrote that the December 15 accord “substitutes Colombian justice in order to absolve the FARC.” The Americas director for Human Rights Watch, José Miguel Vivanco, told reporters, “This is a piñata of impunity. …It is a pact between the government and the FARC that ends up sacrificing the right to justice of thousands of the Colombian conflict’s victims.”

WOLA shares some of these concerns, but does not share this broad view. Colombia did not just approve a “piñata of impunity,” and this sweeping choice of wording is unfortunate. The December 15 accord does not amnesty serious human rights crimes, includes significant concessions from an armed group that is not actually surrendering, and is the product of much consultation with victims of the conflict.

Nonetheless, as HRW’s more careful written critique and other analyses have made clear, a great deal remains undefined, and some dangerous potential loopholes remain to be closed up.

  1. How austere is “restriction of liberty” going to be?

Variations of this question are coming up repeatedly in the debate over the new accord. Depending on the depth of their involvement in serious human rights crimes, demobilized guerrillas who fully confess will receive sentences of between two and eight years of “effective restriction of liberty” while they perform acts of reparation to victims.

What does “restriction of liberty” mean? The accord is still vague, but we now it doesn’t mean “jail.”

“Effective restriction means that there may be appropriate mechanisms of monitoring and supervision to guarantee good-faith compliance with the restrictions ordered by the tribunal. …The Special Peace Jurisdiction will determine the conditions of effective restriction of liberty that may be necessary to ensure compliance with the sanction, conditions that in no case will be understood as jail or prison, or adoption of equivalent security measures.”

This confinement’s austerity and geographic scope remain to be defined. The place of confinement, chief government negotiator Humberto de la Calle told Colombia’s El Tiempo newspaper, “will be a function of the place where reparations occur.”

“For example, there will be guerrillas contributing to de-mining at the site where it takes place. In these sanctions we’re not talking about jail. There won’t be a lot of people all going to one place, but simultaneous reparations programs in several sites. And that is where there will be the presence of those who have been punished with restriction of liberty, movement, and residence. …If someone must go and de-mine in El Orejón (Antioquia), he goes, and it could be that tomorrow he has to go and de-mine in Lejanías (Meta). But look, he won’t have the entire department [province/state] as his base, as some opponents of the peace process said at the beginning.”

How large this “base” may be, though, hasn’t been determined. “If the restriction of movement consists only of not being able to leave the country or a department, or if the labor restriction consists of going to Congress or the town council, it will be very hard for people to trust in transitional justice,” wrote journalist Juanita León of La Silla Vacía. “If it is more strict, it could give the system more legitimacy.”

Support for the process will also depend on the level of austerity of both sides’ convicted human rights abusers’ confinement. Many Colombians recall with shame the sumptuous conditions that drug lord Pablo Escobar enjoyed during his brief stay in his custom-built prison outside Medellín in the early 1990s. While the December 15 accord is unlikely to repeat that experience, it holds open the possibility of a “restriction of liberty” that is insufficiently punitive to meet international standards. “Ay, President Santos,” wrote center-right El Tiempo columnist María Isabel Rueda. “I’d like to help you out, but this sounds like a picnic.”

Concerns about leniency run both ways. A 2011 scandal surrounded the “resort” conditions in which military personnel found guilty of serious rights crimes were being held at the Tolemaida army base. As the December 19 announcement places the armed forces in charge of confining their personnel accused of serious war crimes, that experience risks being repeated.

  1. Are “false positives” going to be judged as violations of International Humanitarian Law?

There is still no clarity about whether the system would apply to the most serious military human rights crime of the past ten years: the “false positives” scandal, which continues to move slowly through Colombia’s courts. In order to satisfy top leaders’ policy of rewarding high “body counts,” military personnel killed at least 3,000 civilian non-combatants, mostly between 2004 and 2008. Civilian courts have sentenced a few hundred to long prison terms—but there is a possibility that these convictions could be reduced, or even overturned, within the new “Special Peace Jurisdiction.”

ELN Talks: With the agenda almost ready, a bloody setback

Maximum ELN leader Nicolás Rodríguez Bautista, alias “Gabino”

(740 words, estimated reading time 3 minutes, 42 seconds)

Sunday’s attack on a military column in Boyacá, in northeastern Colombia near the Venezuelan border, dims prospects that formal negotiations might start soon between the Colombian government and the ELN guerrilla group.

The ELN or National Liberation Army is a leftist group founded in 1964 like the FARC (Revolutionary Armed Forces of Colombia). While the FARC has perhaps 7,500–9,000 members, the ELN today probably has about 1,500–2,500, mostly concentrated in thee or four parts of the country. For three years in Havana, the FARC has been participating in formal peace negotiations with the Colombian government, but the ELN has not.

Government and ELN representatives have been holding “talks about talks,” at least six rounds of them in Ecuador, for over a year and a half. A source close to the talks told WOLA last month that these exploratory meetings have totaled nearly 200 hours. But a formal launch of negotiations remains elusive.

Part of the reason is the ELN’s insistence on a bilateral cease-fire before talks begin. The Colombian government rejects this, and refused to grant a ceasefire to the larger FARC, arguing that the guerrillas would use the resulting “rest period” to recover militarily. Another reason is the ELN’s slower decision-making process: the group’s top leaders do not appear to have reached full consensus on the terms for peace.

The hardest-line leader is believed to be the newest addition to the ELN’s five-member Central Command, Gustavo Aníbal Giraldo Quinchía alias “Pablito.” Giraldo commands the Domingo Laín Front in northeastern Colombia, which may make up one-third of all ELN fighters and is responsible for Sunday’s bloody attack on a military column that was transporting voting materials for local elections.

Observers of the ELN talks have been insisting for months that a launch of formal negotiations is drawing close. “There is 80 percent agreement” on the agenda, maximum ELN leader Nicolás Rodríguez Bautista alias “Gabino” said in April. And this week, the Colombian investigative website Verdad Abierta published a draft negotiating agenda, citing “sources who have participated directly in the discussions.” The six points reportedly are:

  1. Participation of society in peacebuilding. Here, it must be defined how communities and civil society are going to participate in peacebuilding. A methodology and a means of participation will be defined.
  2. Democracy for peace. This would be a sort of participatory diagnostic, in which communities define a substantive agenda for overcoming violence.
  3. Transformations for peace. From this point would emerge a proposal for social transformations which would make possible a climate for guerrillas’ transition to civilian life.
  4. Victims. The community of victims, not the negotiators at the table, would define, in a participatory manner, the standards for truth, justice, reparations, non-repetition, and memory that the process must have.
  5. End of conflict. A banner issue for the ELN has been that the conversations take place amid a bilateral cease-fire, and not in the midst of the conflict. It must be seen how this possibility could be articulated with that of a pre-accord cease-fire with the FARC. There will be a “leaving aside” of weapons in the sense of not using them for political reasons.
  6. Implementation. Unlike the process with the FARC, this point contemplates evaluations of developments, which will be made public.

This overview is vague, and some of its language (“social transformations,” “participation”) points to areas of disagreement about the scale of the reforms that the agenda will include. The agenda points are notable, though, for their lack of overlap with the FARC negotiating agenda: they don’t specifically address issues from the Havana talks like rural development, political participation, and drug policy, though they may in some way revisit victims and disarmament. It’s also surprising not to see on this draft agenda one of the issues that the ELN has raised most consistently since the 1980s: Colombia’s management of, and foreign investment in, the mining and energy sector.

Either way, these six points’ emergence indicates that a formal launch of negotiations with the ELN is drawing ever closer. Sunday’s attack, though, clouds the outlook. It may have been a misplaced “show of strength” aimed at improving the guerrillas’ negotiating position. Or may have been a message from “Pablito” to the rest of the group’s leadership, discouraging them from rushing into talks on unfavorable terms. Either way, because of the October 25 attack’s political fallout, it would be surprising to hear of a breakthrough with the ELN in the next few weeks.

English Summary of the September 23 Government-FARC Communiqué on the Transitional Justice Accord

The communiqué’s Spanish text is here.

  • Special Jurisdiction for Peace: The accord creates a separate, presumably temporary body in Colombia’s justice system. It will have two sections, and each will have a minority number of foreign magistrates. “The essential function” of these two chambers, the Chambers of Justice and the Tribunal for Peace, “is to do away with impunity, obtain truth, contribute to victims’ reparations, and to judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, particularly the most serious and representative ones.”

  • Political crimes will be amnestied: There will be the “broadest possible amnesty” for the crime of rebelling against the state. This amnesty will also extend to “connected crimes.” This is tricky, as narcotrafficking and extortion (and perhaps even some ransom kidnappings) may be defined as “connected” to political crimes—and thus amnestied—because they may have been committed in order to raise funds for the FARC’s “political” cause. “An amnesty law will specify the extent of this ‘connectedness.’”

  • What won’t be amnestied: The amnesty will not extend to crimes against humanity, genocide, serious war crimes, hostage-taking or other serious privation of liberty, torture, forced displacement, forced disappearance, extrajudicial executions, or sexual violence. “These crimes will be subject to investigation and trial by the Special Jurisdiction for Peace.”

  • Who must face justice: The Special Jurisdiction for Peace will cover everyone who, “whether directly or indirectly, may have participated in the internal armed conflict, including the FARC-EP and state agents, for crimes committed in the context and for the purpose of the conflict, with particular respect to the most serious and representative cases.”

    This may mean that crimes committed by armed actors outside the conflict—like the “false positive” extrajudicial executions—may have to remain in Colombia’s regular criminal justice system. It probably also means that civilians who participated in war crimes, such as landowners who generously sponsored paramilitary groups that committed mass atrocities, could be investigated and tried by this new judicial structure.

  • Penalties for “those who recognize truth and their responsibility”: These individuals’ confessions will be contrasted with Colombian authorities’ investigations and earlier verdicts, and with information from victims’ and human rights groups. If they are not found to be holding anything back, their punishment “will have a component of restriction of liberties and rights.” This will guarantee that they participate in “work, tasks, and activities” aimed at “the satisfaction of victims’ rights” by “compliance with reparative and restorative functions.” This punishment will last for five to eight years “of effective restriction of liberty, in special conditions.” (The 2005 “Justice and Peace” law, which governed demobilization of the AUC paramilitary group, foresaw similar five-to-eight-year terms for the most serious human rights abusers, which ex-paramilitaries spent in ordinary prisons.)

  • Penalties for those who deny “the truth and their responsibility,” or who recognize it later in the process: These individuals will be put on trial before the Tribunal for Peace. Those who recognize their guilt later will go to regular prisons for five to eight years, during which they will “contribute to their re-socialization through work, training, or study.” Those who persist in denying responsibility for serious crimes will be tried and, if found guilty, sentenced to up to 20 years in regular prisons.

  • Special Jurisdiction for Peace requirements: To receive reduced sentences and “special treatment,” the accused must “contribute full truth, provide reparations to victims, and guarantee non-repetition” of their acts.

  • Disarmament requirement: FARC members must cease to use weapons. (The text uses the phrase “dejación de armas,” which means “leaving behind” or “laying aside” weapons. This is different from an immediate handover or destruction of guerrilla weapons.) This disarmament or “laying aside” process must begin no later than 60 days after the signing of a final accord.

  • FARC future as a political movement: “The FARC-EP’s transformation into a legal political movement is a shared objective, which will receive all support from the government, in the terms that are agreed to.”

  • Deadline: While it is not in the text of the accord, President Juan Manuel Santos said that the sides have agreed to sign a final accord within the next six months.

Colombia and FARC to Make Crucial Announcement on Peace Process

Statement

September 23, 2015

Colombia and FARC to Make Crucial Announcement on Peace Process

Washington, D.C.—At about 5:00pm today in Havana, President Juan Manuel Santos and FARC guerrilla group leader Timoleón Jiménez are expected to announce an agreement on transitional justice, the most difficult item on their negotiating agenda.

The leaders may also announce a date for the signing of a final peace accord. The end of a 51-year-old armed conflict is now in sight.

The items that remain to be negotiated are not easy. The negotiators still must define what “disarmament” means, how fighters are to be demobilized, how to turn accords into law, and how to guarantee a ceasefire while all of that happens. But these issues will likely turn out to be less contentious than what is agreed today: a judicial framework to clear up the worst human rights crimes committed during the conflict, and probably to punish those responsible.

While we don’t know yet what is in this Transitional Justice accord, WOLA hopes that it includes real accountability for individuals on both sides who committed war crimes. Some basic human norms were violated, and even if the punishment is less severe than the crime, it is important that perpetrators face consequences. Nobody, meanwhile, should enjoy pardons or lighter sentences without first confessing fully to his or her crimes and making amends to his or her victims.

A final accord may come soon. The U.S. government and the international community will have to move quickly to help Colombia during the fragile post-accord phase. For Washington, that will mean an increase in assistance to Colombia, which has been slowly cut back nearly every year since 2007. As officials planning the U.S. foreign aid budget prepare their 2017 request, which gets sent to Congress in February, it is essential that they plan for a big increase for Colombia. It is essential that the post-conflict package guarantees restitution and support for the rights of Colombia’s diverse victims-Afro-Colombian, Indigenous, rural farmers, women and the displaced.

CERAC, a Colombian think-tank that monitors conflict events, reported this week that the past two months have been the most peaceful that Colombia has lived since 1975. A peace accord will bring uncertainty and new challenges as Colombia struggles to implement it. But for now, let’s enjoy today’s breakthrough and share in the hope that these gains might be permanent.