Competing Views and “Trial Balloons”

Colombia’s most-circulated newspaper, El Tiempo, ran a series of articles Friday about a forum it co-hosted about the country’s peace talks with the FARC guerrillas. The event was noteworthy because its participants included several of the government’s negotiators, plus officials and legislators who would play a large role in a possible post-conflict period.

The speakers revealed much current government thinking about the peace process, and raised eyebrows with some “trial balloons”—statements perhaps intended to prepare public opinion for some tough decisions if the government and guerrillas reach an accord. Here are some standout examples.

Disarmament: whether the FARC will “stop using” or “turn in” its weapons

Disarmament is one of the main questions left to be negotiated in Havana. The FARC is reluctant to hand over its weapons immediately after an accord is signed. Doing so gives the appearance of defeat or surrender, and guerrillas also fear being killed if disarmed, as happened to thousands of members of a political party the FARC tried to form during a failed 1980s peace process. Instead, guerrillas wish to promise not to use weapons in the short term, and perhaps to give them up in the long term, once they are certain that the government is complying with its peace accord commitments.

Jaramillo

Debate at the forum centered on the difference between “abandonment” (dejación) of weapons and “surrender” (entrega) of weapons. Even a verifiable abandonment of weapons (like Northern Ireland, where the IRA kept weapons “beyond use” for nearly seven years after the 1998 Good Friday Accord) does not satisfy many in Colombian politics and public opinion, as it leaves open the option that the FARC might take them up again.

“Of course there has to be abandonment (dejación) of weapons,” said government negotiator Sergio Jaramillo, the Colombian Presidency’s high commissioner for peace. Jaramillo added that the distinction between abandoning and surrendering weapons is “a false dilemma,” noting, "The government said clearly in the secret stage, and will continue to insist, that there must be a verifiable abandonment of those weapons so they are out of use.”

Negotiator Jorge Mora, a retired general and former chief of Colombia’s armed forces, agreed. “Call it what you want: abandonment, surrender, destruction, whatever. What matters is what they will have to do. They will not practice politics with weapons. If it’s not like that, we simply won’t sign the accords. As soon as the guerrillas sign, they will have to do away with their strategy of combining all forms of struggle [violent and non-violent]. Demobilization is an implicit activity to end the conflict.”

Mora

Ángela Ospina, the vice-president of Colombia’s Conservative Party, disagreed: “abandonment and surrender of arms are different.” She wondered to whom the FARC would hand over its weapons, and whether the government has any idea how many weapons the guerrillas possess. “We are convinced that there must be a surrender of weapons and their destruction, to demonstrate that there is a genuine desire for peace,” she said.

Alfredo Rangel, a security analyst who is now a senator in ex-President Álvaro Uribe’s right-of-center political party, warned that if it merely “abandons” weapons, the FARC will end up conducting “armed oversight of the peace agreements.”

Whether human rights violators will go to prison or something else

Another pending issue for the negotiations is transitional justice. There is broad consensus—upheld by Colombia’s membership in the International Criminal Court—that there can be no amnesty for those who committed war crimes or crimes against humanity. What, then, must happen to the worst human rights violators in the FARC and in Colombia’s armed forces?

Transitional justice for the FARC

The Colombian government’s internal-affairs chief (Procurador, a separate branch of government), Alejandro Ordóñez, has staked out a skeptical position about the peace talks, voicing frequent concern about impunity for FARC members. “If peace is to be done well,” he said, the FARC has the obligation to undergo “deprivation of liberty. With reasonable, but effective, sentences, part of them paid in prison.” Alternative penalties “like social work or community activities to redeem massacres and child recruitment will only provoke the International Criminal Court’s intervention,” he warned, “or engender the possibility that [Colombia’s] Constitutional court take down all decisions” made in the accords.

De la Calle

Humberto de la Calle, the government’s chief negotiator in Havana, insisted that “there will be no impunity through amnesties,” but did not discuss what “deprivation of liberty” or other penalties might look like.

Colombia’s Prosecutor-General (Fiscal), Eduardo Montealegre, has been more flexible than Ordóñez in his definition of transitional justice. He floated the idea of “double imputation,” in which war crimes are attributed to the entire FARC organization, and individuals’ responsibilities are clarified later.

Transitional justice for the military

Montealegre said that “double imputation” would not apply to the military—the entire institution would not be held responsible for war crimes—but individual military personnel would be held accountable. This accountability would not be at the current criminal standard, under which some soldiers and officers are paying sentences of up to 40 years for human rights abuses. Instead, “their offenses committed in relation to the armed conflict would fall within the framework of transitional justice.” This implies lighter penalties, like “a combination of deprivation of liberty and one of alternative character, like open prisons, house arrest, or weekends off, something more daring than what we have now.”

Montealegre

In the Prosecutor-General’s view, not all military human rights abuses should qualify for these lighter sentences. Those who committed so-called “false positives”—thousands of cases in which soldiers killed civilians outside of combat and presented them falsely as combat kills—should not benefit from transitional justice, Montealegre said, because their crimes were not part of the armed conflict. He referred to the most notorious “false positives” case, the murder of 22 men from the poor Bogotá suburb of Soacha. “The death of these young men had no strict connection with the conflict. They were not extrajudicial executions related to it. They were committed not as an issue of excessive use of force within the dynamic of the conflict, but exclusively with the purpose of winning time off and other economic benefits.”

For civilians who aided and abetted

Montealegre also pointed out that cattlemen and businesspeople who supported murderous paramilitary groups have avoided investigation and prosecution. “I think that they also have to enter into transitional justice,” the Prosecutor-General said, calling for “a process of extra-judicial sanctions and focusing their responsibility on providing truth and reparations” to their victims.

What about other crimes, like narcotrafficking?

Upon signing a peace accord, guerrillas would obviously be pardoned of the “political crime” of rebelling against the state. The forum saw some debate, though, about what other crimes might be considered political. For instance, should FARC leaders be absolved of trafficking drugs—and exempted from extradition to face drug charges in the United States—since their participation in the drug trade was a means to pay for their rebellion? In the language used in Colombia, was narcotrafficking a “connected political crime?” And what other illegal acts might qualify as “connected?”

Lead negotiator De la Calle urged the forum to consider broadening Colombia’s definition of “political crime and connected crimes” because “there has been a hollowing out of connectedness to political crimes, leaving it reduced and very far from the reality of the military conflict.”

Prosecutor-General Montealegre agreed that narcotrafficking, “which served as an instrument for carrying out crimes during the conflict,” should be included in a transitional justice framework. So, he said, should “crimes against humanity.”

Ordóñez

Internal-Affairs Chief Ordóñez disagreed on that latter point. Colombia’s Constitutional Court has ruled, he said, “that there can be no connectedness with political crimes with respect to crimes against humanity.” Citing the court, Ordóñez also claimed that it is still possible that a demobilized guerrilla could be extradited, to the United States or elsewhere, for a “connected” political crime like narcotrafficking.

The FARC’s victims

“Victims” is the current topic on the government-FARC negotiating agenda. Its resolution hinges in large part on the guerrillas’ clearly acknowledging their responsibility to their victims, and committing to truth and reparations.

Chief negotiator De la Calle made clear that this hasn’t happened yet. He criticized “vacillation in the FARC’s recognition about its victims. A stable, unqualified recognition is needed.”

Internal-Affairs Chief Ordóñez said that FARC members must compensate their victims “with all the money that they have illegally obtained” through drug trafficking, land theft, and other activity. “Without delivery of the money they have accumulated, there will be no transitional justice.”

Is there time for a referendum?

Another pending issue is how to ratify an eventual peace accord. The FARC have called for a constitutional convention to rewrite Colombia’s constitution. The government wants something quicker and more limited: a referendum in which the Colombian people vote to approve or disapprove the accords.

If that referendum is to occur, it will need a good voter turnout. Otherwise, voters motivated by opposition to the accord might turn out in larger numbers to vote “no.” Colombia’s government won a small victory in October when the Constitutional Court ruled that a peace referendum could be held concurrently with another election, thus guaranteeing greater overall turnout.

Barreras

However, the only national election scheduled between now and March 2018 is less than a year away: the country’s October 16, 2015 vote for new governors, mayors, councils, and departmental legislatures. That places a sort of soft deadline on the peace process.

Senator Roy Barreras, who chairs the Colombian Senate’s Peace Committee, saw a strong likelihood that the negotiators might miss this referendum opportunity. Organizing a referendum, he argued, requires over a month of review in the Congress, four months of review by the Constitutional Court, and three months of preparation in the Electoral Registry. That timeline would require the government and FARC to reach an accord by March 16 of next year, four months from now—a very unlikely outcome.

If Barreras is correct, and the option of a referendum without a concurrent election is off the table, then the negotiators may need to find another formula for ratifying the accord. A limited constitutional convention, focusing only on the accords’ content, might be another option. The possibility appears in a letter written last week by Former President Álvaro Uribe, who has otherwise been an outspoken critic of the current peace talks.

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