On Sunday, October 2, 2016 Colombians headed to the polls to vote on a peace agreement to end the 52-year war with the Revolutionary Armed Forces of Colombia (FARC) guerillas. [The Guardian: Voters] Contrary to what the polls had predicted, the peace deal referendum was rejected by a 0.4 percent margin. [The Guardian: Voters] The deal was the result of four years of negotiations between the government, led by President Juan Manuel Santos, and the FARC. The agreement instituted a ceasfire and initiated the demobilization of fighters through a process that will continue to be overseen by the United Nations. [UN News Centre] It also included provisions that would have cut off FARC’s ties to the drug trade, required FARC guerillas to turn in their weapons and transition to a political movement that would allow FARC leaders to participate in government, and permit rebel leaders to confess and avoid jail time through special tribunal proceedings, while granting amnesty to fighters. [The Guardian: Brexit]
The peace deal, while criticized for compounding impunity for war crimes and crimes against humanity, was largely seen as an opportunity to move towards peace. [Amnesty International: No Vote] With the no vote and the remaining uncertainty over the future of Colombia and FARC’s activities, officials have re-entered negotiations. [The Guardian: Brexit] Meanwhile, the Norwegian Nobel Committee recognized President Santos’ efforts, awarding him the Nobel Peace Prize this past week. [Nobel Prize]
The Peace Deal
The peace deal was the result of four years of negotiations between the FARC and the government after more than 50 years of conflict that resulted in at least 263,000 deaths, millions displaced, and human rights abuses including torture and extrajudicial executions. [Amnesty International: Colombia; The Guardian: Brexit; Amnesty International: Negotiations] The deal, published last year, is 297 pages in length and includes topics such as political participation and the establishment of mechanisms to uphold victims’ rights to truth, justice, and reparations. [Amnesty International: Negotiations] The peace deal sought to create a tribunal and special courts to try individuals for violations of human rights and humanitarian law, but those who plead guilty would face non-custodial sentences of five to eight years, up to 15 years less time than other individuals ultimately convicted. [Amnesty International: Colombia]
The vote against the peace deal came after President Santos and Rodrigo Londono (“Timochenko”), a FARC leader, had already signed the deal on September 26, 2016 and after the United Nations had arranged for oversight of the FARC disarmament process. [The Guardian: Brexit; Guardian: Sign] With the signing of the peace deal, the European Union removed the FARC from its terrorist list, and the United States pledged hundreds of millions of dollars for the peace process. [Guardian: Sign]
Impunity, Reconciliation, and International Legal Obligations
Civil society observed that some of the provisions of the peace agreement fell short of international law and human rights standards. [Amnesty International: Peace Deal; HRW] Some of the main concerns included the definition of command responsibility, which would allow guerrilla and security force commanders to evade justice for human rights violations, and the punishments outlined for those who admit responsibility for war crimes and crimes against humanity, which were critiqued for falling short considering the gravity of their crimes. [Amnesty International: Peace Deal] However, the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, recognizing the need for accountability, stated that the peace agreement would not have afforded complete impunity as some suggested. [OHCHR] Although “impunity” concerns and the possibility of FARC leaders holding political office may have influenced the rejection of the peace deal, it is noteworthy that in areas of the country that had been most directly affected by the armed conflict, the voters voted to accept the agreement. [Foreign Policy; Semana]
Inter-American Commission on Human Rights on the Conflict
The Inter-American Commission on Human Rights (IACHR) previously outlined the acceptable parameters of peace in a 2013 report on the conflict in Colombia. In the report, the IACHR stated that the peace process had to be based on truth, justice and reparation. See Truth, Justice and Reparation: Fourth Report on the Human Rights Situation in Colombia, IACHR, OEA/Ser.L/V/II., 31 December 2013, para. 86. However, the IACHR also emphasized that Colombia has a non-derogable duty to investigate serious human rights violations and that amnesty laws and any other provisions that obstruct observance of that obligation are incompatible with the American Convention. See Follow-Up on the Recommendations made by the IACHR in the Report Truth, Justice and Reparation: Fourth Report on Human Rights Situation in Columbia, Annual Report, Chapter V, 17 March 2016, para. 98. In particular, the IACHR noted that a May 2014 decision from the Constitutional Court of Colombia, which held that “the elimination of the reparation motion for the victims by the criminal courts . . . [violated] the fundamental right to access to the administration of Justice and to an effective judicial remedy to obtain such reparation,” provides a “valuable roadmap for the treatment of the rights of the victims . . . in harmony with [Colombia’s] international obligations.” Follow-Up on the Recommendations made by the IACHR in the Report Truth, Justice and Reparation: Fourth Report on Human Rights Situation in Columbia, at paras. 161-162.
The Inter-American Commission and its counterpart, the Inter-American Court of Human Rights, have also issued numerous statements and decisions on rights violations committed during the conflict, including the phenomenon of “false positive” killings of civilians, massacres, attacks on human rights defenders and peasant leaders, and the severe impact on Colombians of African descent. [IJRC] See, e.g., I/A Court H.R., Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of Nov. 20, 2013. Series C No. 270; Case of the “Mapiripán Massacre” v. Colombia. Merits, Reparations and Costs. Judgment of September 15, 2005. Series C No. 134.
Impact of the Armed Conflict on Human Rights
As of December 1, 2015 at least 263,000 killings related to the conflict had been recorded and there were about 6.6 million victims of forced displacement, as well as 45,000 enforced disappearances. [Amnesty International: Colombia] Most affected have been the country’s Afro-descendants, indigenous people, and peasant farmer communities seeking to defend their territorial rights. [Amnesty International: Colombia] They have been forced to leave their land or their land has been illegally acquired. Further, many leaders of displaced communities have been targeted for defending territorial rights. [Amnesty International: Colombia] Other violations of human rights include torture and inhumane treatment, crimes of sexual violence, hostage-taking, femicide, and the use of child soldiers. [Amnesty International: Negotiations; HRW]
Although many of the human rights violations mentioned above have not occurred in the context of direct combat, but rather, are due to economic factors linked to land exploitation, the peace deal’s rejection poses an even greater risk that these violations will continue. [Amnesty International: End of Negotiations]
President Santos announced that the ceasefire, which has been in place since the peace deal or “Final agreement for the termination of the conflict and building a stable and lasting peace” was signed on August 24, 2015, will end on October 31, 2016. [The Guardian: Ceasefire; IACHR Press Release] The announcement placed FARC leaders on alert and led them to order troops preparing to demobilize to move to “safe zones”. [The Guardian: Ceasefire] Analysts hope that the October deadline will provide time and pressure to renegotiate another ceasefire. [The Guardian: Ceasefire] Since the signing of the deal, the FARC had maintained strict command over its troops; however, some have speculated that the fraction of FARC’s guerillas that were against the peace deal may fragment the FARC’s resolve for peace post the “no” vote. [The Guardian: Brexit]