Can Peace Break Out in Colombia?

The tentative, but historic, peace deal between the government and the FARC may not be popular. But it still might work.

Soldiers patrol during a march on August 7, 2015, in Cali, Colombia against the government of president Juan Manuel Santos and the ongoing peace process with the Revolutionary Armed Forces of Colombia (FARC) guerrillas. AFP PHOTO / RAUL ARBOLEDA        (Photo credit should read RAUL ARBOLEDA/AFP/Getty Images)
Soldiers patrol during a march on August 7, 2015, in Cali, Colombia against the government of president Juan Manuel Santos and the ongoing peace process with the Revolutionary Armed Forces of Colombia (FARC) guerrillas. AFP PHOTO / RAUL ARBOLEDA (Photo credit should read RAUL ARBOLEDA/AFP/Getty Images)

From the outset of his presidency in 2010, Juan Manuel Santos has pursued one overriding objective: ending Colombia’s five-decade-old armed conflict with the Revolutionary Armed Forces of Colombia (FARC). Formal negotiations began nearly three years ago, and though both sides made progress on a five-point agenda, one exceedingly tricky issue — with huge political and legal implications — stubbornly stood in the way: whether the FARC commanders would be prosecuted and would accept paying a price for their many crimes.

On Wednesday, Sept. 23, a novel formula for addressing that issue — commonly referred to as “transitional justice” — was announced in Havana, Cuba, where the negotiations have been taking place. A glowing President Raúl Castro stood between Santos and FARC leader Timoleón Jiménez, alias “Timochenko,” as the two longtime bitter foes clasped hands. Santos was en route to address the U.N. General Assembly in New York, where the transcendence of this breakthrough accord will surely be his chief message to the world.

Santos arrived in Havana right after Pope Francis headed to Washington, D.C. The pope had played a crucial role in the rapprochement between the United States and Cuba and had pressed for an agreement between the Colombian government and the FARC during his four-day Cuba visit. His admonition last Sunday at a Mass at Havana’s Revolution Square could well have helped cement the deal: “We do not have the right to allow ourselves yet another failure on this path of peace and reconciliation.”

The fine choreography and the dramatic photo of Santos and Jiménez lend credence to the claim that, having cut the Gordian knot, the Colombian peace process now seems irreversible. To be sure, anything can happen and a rupture cannot entirely be ruled out, but with the tricky “crime and punishment” question apparently resolved, that is improbable. Also highly significant is that both the government and the FARC have, for the first time, set firm dates: March 23, 2016, is the deadline for signing the final accord; two months later the FARC will disarm.

The formula, elegantly crafted and skillfully communicated, consists of a special peace tribunal that will be set up to review evidence of crimes and determine penalties. FARC fighters who confess to serious crimes and cooperate with an already agreed-to truth commission will face alternative penalties that will entail a “restriction of liberty” and some form of community service from five to eight years. In contrast, those who do not recognize responsibility and are found guilty will be prosecuted by ordinary justice and sentenced to up to 20 years in prison. The same tribunal will have jurisdiction over state actors, including security forces, and others directly or indirectly responsible for violating human rights during the armed conflict.

Most Colombians do not favor this formula. Polls show that nearly 90 percent of the public believes FARC members, who are almost universally despised, should go to prison for their crimes. For this reason, the accord’s detractors — chiefly the irrepressible former president and now opposition senator Álvaro Uribe — have centered their criticisms on the fact that, however egregious their crimes, FARC commanders who confess will not go to prison. Critics are convinced that the government, presumably in a strong bargaining position because of a politically and militarily weakened FARC, did not have to give in on this crucial issue. They also fiercely object to the implicit symmetry the agreement creates between the FARC “terrorists” and the armed forces and other respected pillars of Colombian society. With his relentless tweets, Uribe has not wasted any time in waging a campaign to attack the agreement.

Yet, while most Colombians would have preferred harsher terms to end the conflict, the final formula went about as far as was politically feasible. Indeed, for many who have been following the peace process over the past three years and have been speculating about what a final accord on transitional justice would look like, the terms are tougher than expected.

The FARC, not known for its flexibility or recognition of political realities, had always refused to accept any responsibility in the armed conflict, presenting itself as a victim of a largely repressive state. Whatever one’s misgivings about the agreement, it is hard to deny that it marks quite a fundamental (and welcome) shift from the FARC’s traditional mindset — which augurs well for the country’s eventual reconciliation.

Questions, of course, abound. And the devil, as is always the case, is in the details. It is unclear how the special tribunal will function and who will serve on it. Moreover, the accord is already giving rise to what are sure to be endless legal debates and challenges. Specialists will argue about whether the terms meet the standards and requirements outlined by the International Criminal Court (ICC) and even Colombia’s own Constitutional Court. This agreement, after all, is a test case — the first in a state party of the Rome Statute treaty, which created the ICC, since it came into force in 2002. The Rome Statue prohibits impunity for most serious crimes, which is a much debated concept.

But the main question is essentially political. Santos has promised that the final agreement — including the latest on transitional justice — will be submitted to a popular vote at some point. The government has always bet that, in the end, most Colombians would support the overall accord, despite some qualms on the justice question. The alternative would be to thwart the best chance ever to end the armed conflict. Although Santos has wisely kept the FARC at some distance (“we are adversaries, but we are advancing in the same direction”), the country remains politically polarized on how to deal with the guerrillas, with Uribe leading the opposition charge.

In the coming months, it will be critical to see how the Colombian military reacts to the terms of the justice accord. Santos has been shrewd in engaging the armed forces in the peace process from the beginning, and initial signs suggest that they will back the accord, however grudgingly. But if some faction of the military becomes disgruntled with the process moving forward, that could spell trouble and complicate matters.

In this respect, Washington has played a crucial role. President Barack Obama’s administration has been unwavering in its support of Santos’s peace initiative. Bernard Aronson, the U.S. special envoy for the peace talks, has conveyed the message to the FARC that once it disarms and its members seek to reintegrate into Colombian society, Washington will do what it can to influence the military to provide security against any possible violence. Moreover, in accordance with the agreement, FARC leaders who confess their crimes and accept punishment will not be extradited to the United States on drug-trafficking charges.

It would be naive to believe that, even if the peace agreement with the FARC is fully implemented, violence in Colombia will end. Most, but surely not all, of the FARC’s 7,000 combatants will demobilize as a result of the peace process. Peace talks are only pending with the country’s second rebel force, the National Liberation Army, or ELN. Criminal groups that emerged after the “justice and peace” process with Colombia’s paramilitary forces still pose a serious problem in some parts of the country. And the drug trade and other illicit activities are hardly under control.

Yet if the government’s agreement with the FARC materializes, as seems likely — and especially if the Colombian people embrace it — that would doubtless be a major boost for a nation that has suffered untold costs from the Western Hemisphere’s only remaining armed conflict.

Raul Arboleda/AFP/Getty Images

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