BOGOTÁ, Colombia – Amidst a bloody internal conflict carried out by illegal armed groups that has lasted nearly 50 years, Colombian lawmakers are coming out of the trenches to negotiate an end to the violence.
The Legal Framework for Peace, which was approved by the Colombian Congress in June, is a constitutional reform allowing the government to negotiate with guerrillas from the Revolutionary Armed Forces of Colombia (FARC) and National Liberation Army (ELN) terrorist groups.
The bill, written by Sen. Roy Barreras, is supported by President Juan Manuel Santos’ administration.
“My thanks to Congress for approving the guidelines that will allow this conflict to end,” Santos tweeted on June 14.
The bill is essentially a demonstration of good faith on the part of the government to facilitate negotiations with the guerrilla groups, as it could lead to more specific laws, analysts said.
“The government wants victims and Colombian society to participate in choosing the parameters to guide the Legal Framework for Peace,” Colombian Prosecutor General Luis Eduardo Montealegre said during a recent visit to Washington, D.C.
Montealegre added no peace agreements or benefits of transitional justice – temporary legal processes implemented by the judicial systems of countries that are transitioning from armed conflicts to peace – can be implemented until the illegal armed groups comply with explicit requirements contained in the Legal Framework for Peace.
Montealegre continued: “All the mechanisms of transitional justice depend on contributing to the establishment of the truth and full compensation for victims. The armed groups will have to lay down weapons, release all hostages and give up the use of violence so they can be part of the democratic process.”
The new articles to the Constitution are temporary and will remain in effect for four years, following the launch of negotiations.
The initiative to dialogue with armed groups rests solely with Santos and can only commence after the terrorist groups pledge to cease their violent tactics as mandated by the Legal Framework for Peace.
The framework clearly stipulates “in no case will crimes against humanity and war crimes, as well as those ultimately responsible for them, be exempt from investigation and punishment.”
The Constitution’s new articles do not extend the benefits of transitional justice to criminal organizations (Bacrims), but do include government officials, police officers and soldiers who committed crimes in conjunction with the armed conflict.
The rights of members of these illegal groups to participate in political processes will be debated at a date decided by Congress.
Also awaiting definition are the alternative sentences and benefits that might be extended to demobilized guerrillas who contribute to the peace process.
In several speeches and interviews, Barreras has stressed the reforms’ transitional nature, pointing out they are merely a tool to open the path to future talks.
At present, however, “we don’t have the conditions necessary for peace,” Barreras said.
“Right now, all Colombians understand the state needs to use a firm hand to combat the perpetrators of violence,” Barreras told Colombia’s El Espectador newspaper on June 14, when the bill was approved by Congress.
The war will continue until the illegal armed groups support the peace process, Barreras added.
“If they decide to continue kidnapping and engaging in terrorist acts, our police and military will continue to fight them,” he said.
Reform is criticized
The constitutional reform’s shortcomings in regards to the suspending of sentences, granting pardons and allowing for the political participation of former guerrillas dampen the effectiveness of the Legal Framework for Peace, analysts said.
Santos’ administration has postponed debate on the details of the negotiations until the moment in which the peace process begins, said Ricardo García Duarte, a political science professor at the Fracisco José de Caldas District University.
Without consensus regarding the level of dialogue with guerrilla fighters and with the internal conflict still ongoing, García said it will be difficult to approve a law that provides clearer conditions for a peace agreement.
“In reality, Santos wanted to send a message to the FARC,” he said. “The president wanted to say something like, ‘See? We amended the Constitution in order to negotiate with you.’”
But the bill’s shortcomings have been criticized, including by former President Álvaro Uribe.
In interviews and through Twitter, Uribe said the constitutional reform allows the current head of the FARC, Rodrigo Londoño, known as Timochenko, and other guerrilla leaders to engage in political activities.
The framework leaves an “open door” for political activities by former guerrillas because it does not explicitly define crimes against international humanitarian law and drug-trafficking offenses as political crimes, Uribe said.
“If the framework, which is a constitutional regulation, does not exclude these crimes, the common law (which will subsequently be voted upon) will have no reason to exclude them either,” Uribe tweeted “As a result, major criminals who ordered the use of car bombs and other explosives will still be eligible [for political office].”
In defense of the new law, Barreras clarified: “It’s not true that it will be possible to elect the perpetrators of heinous crimes. It’s not true the guerrillas who took part in these terrible crimes will be exempt from serving time in jail. There will be no special treatment for Timochenko.”
The FARC, for example,are responsible for thousands of murders, kidnappings and the forced recruitment of children and for the displacement of more than four million Colombians.
In accordance with Article 67 of the Legal Framework, “a common law will establish which crimes will be considered political crimes in order to determine eligibility for participation in political processes. Those accused of political crimes, crimes against humanity and systematic genocide cannot participate in political life, nor can those who have been convicted of these crimes.”
García adds that other demobilizations, such as those of the April 19 Movement (M-19) in 1989 and the People’s Liberation Army (EPL) in 1990, allowed its former members to become politicians.
“M-19 and the EPL were reinserted into political life and that is why the process was successful,” he said. “It will be difficult for the FARC to agree to stay out of politics.”
Gustavo Petro, a former M-19 guerrilla and the current mayor of Bogotá, is an example of the political amnesty provided to rebel groups in Colombia.
Impunity and reparations
While it was being debated in Congress, the Legal Framework for Peace was strongly criticized by Human Rights NGOs, such as Human Rights Watch (HRW). For the HRW, the constitutional reform in Colombia could favor impunity.
Luís Alfonso Fajardo, a professor of Human Rights at Santo Tomás University, said reparations and justice are indispensable in the peace-building process, even though the process may be slow.
The end of the conflict cannot seek to “bury” the violations that have been committed, he added.
“For lasting peace, there has to be a balance between the concessions to armed groups and reparations for victims,” he said. “If the memory of the victims isn’t rescued and the truth doesn’t come to light, the reparations process will become frustrated.”
*Ligia Hougland contributed from Washington, D.C.