In Cartagena, Colombia, on September 26, 2016, Colombian President Juan Manuel Santos signed a historic peace accord with Rodrigo Lodoño (“Timochenko”), the leader of the Revolutionary Armed Forces of Columbia (FARC).
The accord was supposed to mark the end of fifty-two years of bloody warfare between the Colombian government and the guerilla rebel group. The war killed around 220,000 and displaced around seven million. However, the accord was short lived, as only a week later on October 2, 2016, Colombian voters unexpectedly rejected the peace deal in a referendum. It was rejected on a narrow margin, with 50.21 percent voting “No” and 49.78 percent voting “Yes.” Many of the voters who rejected the accord were unsatisfied with its mild punishments of those who committed atrocities, including FARC leaders who confessed to war crimes. However, in many Colombian provinces hit hardest by violence and conflict, the vote was overwhelmingly “Yes.” After weeks of expeditious and determined renegotiation, President Santos announced on November 12, 2016 that a new agreement was reached. The path towards peace is still not an easy one for Colombia. As President Santos pursues ratification of the new agreement in Congress, he must convince his country and the human rights community of its merits while maintaining the fragile ceasefire and temporary peace.
Since the 1950s, Colombia has been fighting a war with paramilitary groups, drug syndicates, and left-wing guerilla groups such as FARC and the National Liberation Army (ELN). Throughout the course of this conflict, numerous atrocities have been committed by all sides. According to Human Rights Watch, the guerilla groups have “killed and abducted civilians, carried out disappearances, engaged in widespread sexual violence, used child soldiers, and subjected combatants to cruel and inhumane treatment.” Colombian armed forces are also guilty of thousands of “false positive” cases, where civilians were lured to remote locations and then killed by the Colombian armed forces in order to increase the number of reported “combat deaths.” For many human rights activists and Colombian citizens, the initial peace accord did not satisfactorily hold perpetrators on both sides accountable for their crimes.
The initial peace agreement provided for the disarmament of FARC’s 6,800 troops, 8,500 militia, and their concentration into twenty-three restricted and controlled areas termed “normalization zones.” It required FARC to eradicate coca fields, the foundation of the cocaine business, and to clear landmines. The agreement also provided a path for FARC to become a recognized political party within Colombia. It would have granted ten seats in Congress, with voting rights beginning in 2018. FARC guerillas who confessed their crimes would only be sentenced to two to eight years of community service and face restricted liberties such as limited movement. The agreement also did not stipulate or pursue any measures to punish members of the Colombian armed forces for their crimes. The vote against the accord manifested the dissatisfaction of the Colombian electorate with these provisions and made the road ahead uncertain and unsteady. However, it also provided a unique opportunity to address the impunity in the first accord.
Colombia is a party to the Rome Statute that established the International Criminal Court (ICC). While the Rome Statute applies to cases under the jurisdiction of the ICC, it also serves as a model for other justice systems and outlines the concepts and standards of international humanitarian law, as laid out in the Geneva Conventions. Article 78 of the Rome Statute stipulates that the gravity of the offense should factor into the determination of criminal sentences. Within the original provisions of the Colombia-FARC peace accord, these considerations were woefully unbalanced. While total amnesty is not granted, the mild consequences for war crimes acted more like a slap on the wrist than punishment for systematic atrocities. Another significant concern with the original agreement was the vaguely defined concept of “command responsibility.” Under the agreement, many military commanders could escape responsibility for crimes committed by their subordinates if they claimed they did not know about them. This contradicts international standards of “command responsibility,” set forth in Article 28 of the Rome Statute, which dictates that a military commander is responsible for crimes committed by his or her forces when the commander had reason to know or should have known about those crimes. These inconsistencies with international law and human rights standards would have created a concerning precedent of lenient sentencing for war crimes.
Upon the rejection of the initial peace agreement, President Santos and FARC leaders remained determined to come to a renewed agreement. President Santos worked with the “No” camp, led by former Colombian President Álvaro Uribe. Uribe has been an outspoken voice against the original accord due to its minimal punishment. After six more weeks of negotiations, a modified peace accord was reached. The new peace accord addresses some of the deficiencies and criticisms of the first. While the agreement still does not require jail time for those convicted of war crimes, it tightens the restriction on movement to a smaller area. It also clarifies the ambiguous concept of “command responsibility” so that it is more consistent with international standards. The new accord also provides for the potential prosecution and punishment of those who committed “false positive” killings by harshly punishing war crimes committed for “personal enrichment.” The new accord still provides ten congressional seats for FARC and allows those found guilty of war crimes to hold office after they have served their sentence.
While this new accord does not fully satisfy all human rights concerns, it is certainly an improvement on the first. President Santos is under pressure as he seeks to approve the modified accord while temporary peace holds. Just last week, two FARC guerillas were killed in combat with security forces, demonstrating the urgency of reaching an agreement and the increasing instability of the ceasefire. While this was an isolated incident, it serves as a reminder to Colombia that the alternative to a peace agreement is an impending return to war. There has not yet been much response to the new agreement from the international human rights community critical of the initial agreement or from President Uribe of the “No” movement. President Santos has decided to bypass the referendum and will have Colombia’s Congress ratify the new deal. This decision may cause controversy among Colombia’s staunch opponents of the peace accord. However, for President Santos, it is the quickest way to secure and ensure the already-fragile peace.