democraciaAbierta

Justice is key to a stable and longstanding peace

The issue of transitional justice is complex and yet vital to regain people’s trust. It took one and a half years to finalise a contested agreement. Español

DemocraciaAbierta
23 November 2017
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Signing of the peace agreement between the Colombian government and the FARC. September 2016. Photo: Wikimedia Commons

This article forms part of the section on the Negotiating Timeline: From Start to Finish, from the project “Peacemaking in Colombia: Lessons from the negotiators”, a collaboration between DemocraciaAbierta and the IFIT.

Visit the Negotiations Timeline here. 

Process Design

The Office of the High Commissioner for Peace was in charge of process design throughout discussions on all items of the agenda. However, during the discussion of this item in particular, President Juan Manuel Santos created a commission of expert lawyers with the mandate of “advising the government delegation”, with significant influence on the process design and the agreements reached. Above all, the design was based on good mapping of the other processes. The main reference was the country's previous peace process with the FARC guerrillas, the Caguán process, and most of the design of the process was built upon the lessons learned from the previous attempt. This exploratory phase did not include a document or ground rules. What needed to happen at this stage was to establish a process of rapprochement, and, from there, the methodology was built little by little and the rules integrated into the General Agreement. The General Agreement established the type of negotiation (direct and reserved), the participation mechanism, the verification mechanism, and the listed agenda - in this phase, the structure of the process was basically created.

 

The Negotiations and Challenges

One of the tensest periods in the negotiations took place during discussions on transitional justice, in particular the creation of a legal subcommittee to resolve what would happen to the commission of crimes in the context of armed conflict. The main international participant in this issue was Norway, who helped finance lawyers for the FARC to ensure its leaders had good legal advice. However, these advisers also included international experts from different parts of the world. For example, there was a Spaniard advising the FARC delegation and a Canadian advising the government delegation. 

 

Confidence Building Measures (CBMs)

The confidence-building process dates back to the exploratory part of the design phase process, in which the government extracted the FARC guerrillas involved in the negotiations to take them to Havana. This mere act represented an early trust-building exercise, as some members of the FARC were placed in the hands of the government and the government complied by protecting them and transporting them, as agreed. This was followed by the granting of amnesties and pardons on the basis of current legislation. Upon being released from prison, these people were able to begin to explain the peace agreement in different places within the organization. In 2014, confidence-building measures (CBM) aimed at victims began to be implemented in areas such as humanitarian demining, the search for missing persons and the eradication of illicit crops. These measures were implemented to build confidence both within the delegations and in civil society.

 

Ratification

Since the beginning of the peace process, partly as a result of the talks being held behind closed doors with no open public participation, and especially after the problems in previous processes, like El Caguán, it was agreed that whatever the outcome, it would be the Colombian people who would vote to either approve or reject the peace agreement. Various ratification mechanisms were explored and, for different legal reasons, the plebiscite was chosen as the validation mechanism. Negotiators changed the plebiscite’s threshold of participation to a threshold of approval to discourage the opposition from promoting abstention, and to encourage people to vote for one position or the other.

The plebiscite took place on October 2 and the 'No' side ended up winning by a narrow margin. After the plebiscite, the renegotiation phase kicked off, in which serious changes to the Peace Agreement were made – a lot of work was done with representatives of different sectors of the 'No', both political and organizational. However, at the end of this process the different political leaders of the 'No' rejected the New Agreement and the government made the decision to take it to Congress to be endorsed.

Regardless of whether there were other alternatives or not, in the end it is clear that the objective sought by the plebiscite was to politically and legally shield the agreement so that it would have long-term sustainability. This goal was hindered by the victory of the ‘No’, and there are risks today both political (facing the next presidential elections) and legal (facing constitutional court rulings) that may jeopardize certain elements of the agreement.

 

Implementation and Challenges

There are two main challenges, one short term and one long term. The most worrying short-term challenge is the reintegration of members of the FARC. This was one of the issues that remained vague in the Peace Agreement, since it was a topic left to the end, and in the last phase only certain activities were listed, but a reincorporation program was not really developed. This is a serious issue faced by the country because, by the end of August, the reincorporation programs should have been deployed and the issue is not clear.

If there is no clear reintegration program, there are risks of recidivism – people who may start go back to committing crimes because they have no other source of income. In the long term, there is concern about the political commitment to the changes, particularly on issues of access to land and state-building in the areas most affected by the conflict, where there have never been political incentives to bring goods and services because there are not enough votes. There must be a very serious political commitment from leaders who come to the presidency, as well as Congress, to really materialize the Agreement. Otherwise, it would be very easy to let it drown, and in that sense the biggest challenge is the 2018 presidential elections.

Return to the timeline.

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