, Volume 71, Number 6

Mariano Aguirre, Director of the Norwegian Peacebuilding Resource Centre (NOREF) www.peacebuilding.no 

Negotiations with FARC are too advanced for anyone to step back now

After 50 years of rural insurgency, the longest guerrilla war in the Americas, Colombia is about to enter a new phase that could be a model for other countries struggling to emerge from conflict. 

In recent months Juan Manuel Santos, the president of Colombia, and Rodrigo Londoño Echeverri (nom de guerre Timochenko), the leader of one of the two Colombian Marxist rebel groups, FARC, or the Revolutionary Armed Forces of 

Colombia, have reached two decisive agreements on transitional justice and the fate of the estimated 50,000 people who disappeared during the war. 

The process seems to have reached a point from which neither side can retreat and a peace agreement could be reached by March 2016. If that happens, the government plans to hold a referendum on it within two months. 

The two sides started peace negotiations in August 2012 by signing an agreement to terminate the conflict and build a stable peace. They agreed to negotiate on five issues: rural development; political participation; the end of the armed conflict and the laying down of arms by FARC; drug trafficking and illicit drug cultivation; and the rights of the victims of the conflict. 

Agreements for the first three issues were negotiated in the first year and a half. Their implementation will not be easy, dealing as they do with such sensitive issues as land rights, minorities, extractive industries and powerful drug traffickers. Despite severe political crises, the parties continued their engagement in the peace process, thanks very often to the proactive role of Norway and Cuba, the two facilitators of the process. A second Colombian guerrilla movement, the National Liberation Army (ELN), has refused to take part in the peace process, but efforts are in hand to encourage it to join. 

The agreement on transitional justice was difficult to achieve. FARC said that it was not willing to take part in the negotiations if its leaders would end up going to jail for crimes against humanity. 

Similarly, the armed forces, while conceding that some human rights violations occurred in the war against the insurgency, stressed that they were obeying the orders of a democratic government and were unwilling to see some of ‘their officers going to prison while FARC leaders went to parliament’. 

Colombia is party to and has ratified the Rome statute of the International Criminal Court, which means that amnesty for the leaders of both sides is not an option. 

The approaches 
The Colombian peace talks, having learnt lessons from negotiations in El Salvador, South Africa and Northern Ireland among others, have adopted innovative features, particularly consultations with, and the inclusion of, victims and the role of gender. The negotiations took place only between the two main parties, but the voices and influence of other sectors of Colombian society and the opinions of international experts have played an important role. 

Equally important has been the creation of subcommissions. The Colombian government and FARC established subcommittees to discuss issues such as a ceasefire, the laying down of weapons and the re-integration of guerrillas. They also established a historical commission to examine the origins of the conflict and the plight of victims affected by it. An important advance was the creation of a gender subcommission that receives proposals from women’s and lesbian, gay, bisexual, transgender and intersex organizations.

The presence of victims made the negotiations more complex but at the same time a deeper and more creative process than other peace talks. Delegations of victims from all sides – guerrillas, paramilitaries and the armed forces – were present in Havana for six months. In parallel, the United Nations and the National University of Colombia organized forums allowing victims to give their testimonies. Nearly 24,000 victims were given the chance to present their proposals and ideas to negotiators. 

The negotiating parties and facilitators consulted regularly with legal experts to find formulas to resolve the conflict. The September 23 agreement on transitional justice includes the following points: 

The agreement is based on ‘truth telling’: an individual (guerrilla, soldier or civilian) who acknowledges his/her participation in grave crimes will receive a jail sentence of between five and eight years. If the individual does not acknowledge his/her crime then the penalty would be up to 20 years in prison. 

But crimes against humanity, such as torture or assassinations, will not receive an amnesty. Vicenç Fisas of the School for a Culture of Peace (Barcelona) has been advising the parties for many years. He thinks that ‘peace always has a price. And that price is magnanimity in the application of justice when there is truth, willingness to make reparations, a commitment to non-repetition, and the desire to ask for forgiveness for the crimes committed.’ 

The parties agreed to create a ‘Special Jurisdiction for Peace’ that will address crimes committed during the war. There will be alternative sentences for the FARC (as yet to be defined). The transitional justice regime will apply to all the armed actors engaged in the internal armed conflict.

FARC will lay down its arms at the latest 60 days after an accord is signed. The government will guarantee the full ‘re-incorporation into civilian life’ of FARC members.  Regarding the agreement about disappeared people, two mechanisms will  be established. One puts into effect ‘immediate humanitarian measures for the search, location, and dignified release of the remains of persons assumed to be disappeared in the context and because of the internal armed conflict’. The second set of measures will establish a special unit for finding people believed to be missing.

Controversies
The transitional justice regime has divided legal experts and human rights camp-aigners. Virginia Bouvier of the US Institute for Peace considers that: ‘There is no other peace process in the world where victims have occupied such a central role. We have here a design for transitional justice that is historic and innovative. It gives priority to truth-telling, but it does not eschew the need for justice. 

‘The model is innovative in its inclusion of restorative justice and its focus on repairing the damages inflicted on individuals and communities through a process of dialogue and healing. This bears watching as it could provide new models for other conflict zones seeking to find a way out of war.’

But for Human Rights Watch, the agreement ‘would deny justice to thousands of victims of grave violations of human rights and humanitarian law by allowing their abusers to escape meaningful punishment. While the Special Jurisdiction for Peace would create important incentives for violators to confess their crimes, it would also allow those responsible for mass atrocities to avoid spending any time in prison.’ 

For its part, the ICC has noted ‘with optimism that the agreement excludes the granting of any amnesty for war crimes and crimes against humanity’, and is designed, among other things, ‘to end impunity for the most serious crimes’. 

The spoilers
There is strong domestic opposition in the form of former president Alvaro Uribe. During his term in office he reorganized the armed forces, with Juan Manuel Santos as defence minister, and launched a strong offensive that weakened the insurgency. Uribe represents the conservative rural sector that opposes any reform in land tenure and any changes to a political system in which liberals and conservatives alternated in power without changing the status quo. He is also popular among sectors of society who do not trust FARC to keep to the peace agreement. 

Militias and paramilitaries have continuously been present in Colombia’s history thanks to the weakness of a state that has never had full control of its national territory, the isolation of certain areas due to the country’s complex geography, and the heritage of a colonial system that gave land to local caudillos in exchange for loyalty. 

Some of these problems persist. A 2014 report by DeJusticia, a Colombian think-tank on legal issues, indicates that the state does not reach and deliver services in about 60 per cent of its territory, leaving 6 million citizens living in a situation of ‘institutional apartheid’ in which indigenous people and those of African descent are the most marginalized. In the periphery, the state is neither legitimate nor democratic and is substituted by ‘big men – mafia and guerrilla leaders, landlords and paramilitaries.

The business community is in general sceptical of the peace process, and some of its members fear being held accountable as complicit in war crimes. But some urban and rural businesses see the advantages of a peace agreement. 

Reasons for optimism 
Both sides to the peace talks need an agreement. President Santos represents the urban private sector and other parts of the affluent middle classes who want to live a in a normal country. Without a peace agreement it is difficult to present the country as stable. Colombia has about 6 million internally displaced and 360,000 refugees, while 1.3 million people have registered for reparations from the state for kidnappings, death threats, injuries by landmines or forcible disappearances. 

FARC’s leaders have concluded that they could continue the war from the jungle, but to defeat state power is impossible. The Colombian armed forces have been increasingly successful against the guerrillas, thanks to reforms that have made them more flexible and mobile and their increased use of high-tech equipment. 

FARC has also lost support among large sectors of society. After the fall of the Soviet Union, China’s joining the capitalist system and the defeat of other guerrilla movements in Latin America, the idea of a 1960s-style armed revolution lost its appeal. FARC’s harsh methods and links with drug trafficking have undermined its image to a point where human rights organizations, trade unions and peasants that have suffered state repression and the brutal actions of the right-wing paramilitary groups no longer feel represented by FARC. 

Meanwhile, hundreds of civil society organizations are working as if the peace agreement is already signed. All this makes it very difficult for the parties in Havana to step back from the negotiations, even when ceasefires have been broken. 


Peace talks: Who is at the table
An inner group close to President Juan Manuel Santos and the FARC leadership held nearly 50 meetings between January and August 2012. They decided that Cuba and Norway would be the facilitators of the process, with Chile and Venezuela as guarantors. Havana was chosen as the site for negotiations.  

The presence of Cuba covered the FARC leadership’s ideological back. The rebel group  was born under the influence of the Cuban revolution in the 1960s. Thus Havana has offered its revolutionary prestige to bless the peace process and sent a signal to the US that an era, of which FARC and the ELN are the last survivors, is closing. In this sense the Colombian peace process has direct links to the restoration of US-Cuban diplomatic relations.  

Since the 1960s, Washington has been in the forefront of counter-insurgency operations, leading Plan Colombia (1999), a mixture of aid, military and intelligence assistance and the war on drugs. But the Obama administration was not visible in the peace process until it was almost complete. It was not until February 2015 that John Kerry, the US secretary of state, appointed Bernie Aronson special envoy for the Colombian peace process. The US has been requesting the extradition of about 70 FARC leaders for drug trafficking and other crimes. If an agreement is reached the US is likely to drop these requests.  

In 1995, Norway helped to start talks in Colombia, as Jan Egeland, a former UN Special Envoy for Colombia, explains in  ‘A Billion Lives’. His account shows how inflexible FARC was in its demands at that time. After that attempt broke down in 2002, Norway continued its contacts with the government, and through back channels with the insurgent groups.  

The current chief negotiator, Dag Nylander, has said in an interview with a Spanish newspaper that, to be successful, a mediator needed ‘the will to enter into the process keeping a very low profile, not looking for any publicity either for the process or for Norway’.