Note from the Editor: This is a full translation of the declaration of Colombians for Peace in response to the government announcement of peace talks with the FARC (Revolutionary Armed Forces of Colombia). in the interests of sharing the discussion of the many issues and perspectives on building a peaceful resolution to the armed conflict in Colombia–by far the hemisphere’s longest and bloodiest–the CIP Americas Program has translated the entire document for our readers. To see the original document in Spanish, click here.
On the announcement of peace talks:
Bogota, August 28, 2012.
I. Preliminary considerations
On the night of August 27, 2012, Colombian president Juan Manuel Santos publicly confirmed negotiations with the FARC and an exploratory process of peace talks with the group. As an effort to finally resolve the armed conflict, negotiations could also be extended to the ELN, given the announcement of willingness to negotiate a political solution.
Colombians for Peace (CCP, by its Spanish initials) welcomes this important step and encourages the parties and the nation to continue to work for a political solution that allows us to build a peaceful country–with justice, a secure future and collective dignity.
Similarly, CCP considers the president’s announcement to be very important, to direct talks under the guiding principle of learning from past mistakes. To do this, we must recognize previous failures of negotiation attempts and point out with precision the origin of some of the costly mistakes of the past. To avoid repeating mistakes, we must view the situation of the country without omissions or falsehoods.
With that goal, we present this document to Colombia and the world, as a modest contribution to that process that we believe should be maintained and strengthened with everyone who wants to see Colombia build and achieve peace with justice.
It is important to recognize that the country is at a crossroads, which questions the form and meaning of politics, and also what it means to build a true democracy. This is confirmed by a chain of events in the past two months, among them the sinking of the “justice reform”; the apparent persistence of armed conflict; the re-engineering of the paramilitary, the maintenance of “para-politics” and “para-economics”; the crisis of the paramilitary demobilization call; the only partial recognition by former paramilitary commanders, police and military alliances of violations and alliances reported years ago; weak or non-existent judicial follow-up that corresponds to agreements with the U.S.; the worrying prospects for economic and social rights such as health and reparations to victims; among other realities of the country.
Faced with all this, there has been an encouraging sign in the mobilization of social groups outraged by the “justice reform”; citizen protests for the right to health and education, respect for the environment and ecosystems, cessation of extractive operations and unfair trade agreements; and demands for peace in Cauca, Putumayo, Antioquia, Chocó and other departments.
CCP believes it is its responsibility to propose to the general public elements of a road map at this critical crossroads given the effects of the national crisis, and to support existing approaches for peace talks with the guerrillas. Since September 2008, CCP has clearly stated its views and formulated specific humanitarian and political actions to find timely solutions that are also sustainable within the framework of a coherent democratic strategy. We are driven by a spirit of respectful and constructive criticism, committed by the same harsh realities that we want to transform to call for peaceful civilian common action, compatible with an energetic attitude that would safeguard both the rights of civilians amidst confrontation. These inalienable rights include freedom of expression in thought in conscience and opinions, which cannot be criminalized by an order of rule of law.
From this critical position, with the pursuit of peace the most worthy objective, CCP considers it crucial not to overlook at least four facts:
- The “justice reform”, which has collapsed due to social pressure although some seek to hide what happened, made evident extremely serious intentions and charges regarding pacts of impunity and patronage of some sectors entrenched in crime.
- The alarming onslaught led by a political bloc with the slogan of a ‘united front against terrorism’ proposes a policy framework for war, with which they intend to take over the debate and distract the public from their involvement in paramilitary criminal cases, drug trafficking, corruption and human rights violations.
- The legislative and constitutional change involving the so-called “Legal Framework for Peace” that really supports continuing conflict, taking peace hostage, and the renewed system of privileges to distort the character of military exemptions from criminal prosecution.
- The continuation of threats against and criminalization of citizen protests and broad, popular demonstrations, as well as against grassroots leads and politicians.
Based on the contradictions and problems revealed by these four facts, we see two strategic needs, both irrefutable and urgent: to regenerate politics and create forums and paths for a solid peace process. This is a great cause, a goal that CPP shares with many sectors and is at the base of our actions. We have been pushing by pointing out the need to humanize the conflict and resolve it structurally.
II. Our character and political analysis of the moment
CCP’s path has been forged by many events and efforts in the humanitarian field. The nature and main goal of our group has been to connect with various organizations, platforms and people–nationally and internationally–in efforts to change the language and the approach; recognize the conflict; promote direct dialogue, openness, and full social participation; reach agreements and promote a peace process with all the insurgents.
We therefore believe that the potential significance of reviewing the policy toward the conflict – although still rhetorical and fragile—is not a trivial matter. We of course, recognize the value of the August 27, 2012 statement to explore dialogue with the guerrilla forces. Our interpretation is that President Juan Manuel Santos began a change when he took office two years ago and that this measure could be a positive step forward. It is a remarkable feat in light of recent failures from the past government dedicated to a strictly war-like, negative and deceptive approach, with very high levels of corruption.
Although the “security” policy of the former government has been kept intact, over the past two years we have witnessed a change of language from those who then occupied the Ministry of Defense. Some corrections have been made based on a more realistic political analysis of future scenarios, in which it is not possible to conceive of a military defeat of the guerrillas. The latter have readjusted their strategies, making foreign investment unfeasible in some regions or making it only possible at the cost of many lives and in onerous conditions that are not sustainable in the context of future decades of confrontation. Within these changes, regional integration processes in Latin America and the Caribbean also come into play, processes in which Colombia should participate as a nation at peace.
The change in the language used in relation to the conflict is a minor change, coupled with the relative recognition of the armed conflict and the armed opposition, which has political and legal implications. These changes to some extent rectify the discourse and part of the means or mechanisms of internal war that before invariable led to a blind military approach with no exit strategy whatsoever.
In Colombia it is only possible to build peace, reconciliation, justice and coexistence, incorporating the country into the integration and security in the region, if we are able to convert the change of language into a path forward.
If change is real, it implies otherness and a declaration of otherness as reflected in the Aug. 27 presidential statement, and the time is now, not later. This approach is vital. The affirmation of the political existence of the adversary is confirmation of a dialectic that we are all a part of, each with different visions, different interests and projects for the country, and we can debate without violence, without the threat of weapons on either side, for consensus and reforms, to the extent that we can establish the minimum democratic requirements.
With the ethical conviction to build bridges between opposing positions it is possible to agree on a political solution through dialogue. We have noted this perspective of new and hopeful expressions of will, some of which have come from the guerrillas. The public correspondence between CCP and guerrilla commanders of the FARC and ELN leave no doubt. The process opening up with the Santos government will confirm it.
We are aware, however, that there hasn’t ben an opportunity for any talks or negotiations for a bilateral ceasefire. This is something we regret and we realize that the current talks will unfold in an atmosphere of violence and military hostility – in a scenario of armed confrontations and violations of humanitarian law. Thus, evaluating the statements of intent by the guerrillas, we are concerned that they continue to present serious infringements of that law, which they should recognize and clarify since the victims have a right to the truth, justice, reparation and non-repetition of such acts. It’s a matter of the transgression of limits of the rules applicable to armed conflicts and the humanist values of the right to rebellion. For that reason, we insist that the FARC and ELN continue listening to the demands for actions that take into consideration not only humanitarian-oriented acts, but are consistent with an unwavering commitment to political dialogue about the causes and consequences of the conflict.
We also continue to believe that it is possible to expect more explicit preliminary gestures–public and clear–from the government, in addition to the language and recognition of the political nature of the guerrilla organizations. Demonstrations should be addressed by the State, as it is required, in immediate humanitarian responses to civilians living in areas of armed conflict. The state is responsible to respect and care for persons deprived of their liberty because of their affiliation to armed rebel groups. On the contrary, we have seen degrading treatment of those captured or fallen in combat. We also heard reporters blamed for changing social perceptions about the reality of political, not terrorist violence. By accusing them of distorting reality, the aim is really to suppress criticism.
Partly for these reasons, we see the point of encounter to build sustainable peace still some way off. Basically due to the ambiguity and official discourse that publicly offers to open the door to peace with the presidential key at the same time as it is both exclusive and excluding. We call for parties to rise above the daily acts of war-mongering, amid deplorable social conditions resulting from the economic model that affects most Colombians in everyday corruption, aggression, impunity, and moral and political decay.
III. The shameful “justice reform”
The wordplay and double meanings, the maneuvers that erode seriousness and credibility, the relationships of institutional collusion and complicity with twisted powers—all of which delay covenants for peace and true justice–have been exposed by the promotion of the now-shelved “justice reform”. The reform was a failed, but still latent, attempt at constitutional change that will go down in history as a deception to the people and to Colombian society.
While we recognize some distancing between the Santos Government and totalitarian approaches, we look with sadness at the lack of greater clarity and courage in the political attitude of institutional and social actors to face the shadows that darken the panorama. These forces have associated with the corrupt private interests that have driven the mafia take-over of public powers much of the government and its corporate strategy defense paramilitary and state. Those interests related to the protection of the criminal logic of paramilitary and dividends, return again and again to impose their agenda, their goals for power, their markets–with spurious proposals aimed at blocking a real peace process, such as a Constituent Assembly with terms dictated by these powerful groups to be formed by them and to obey their need for impunity.
Knowing that the “justice reform” was doomed to crash, CCP welcomed and encouraged the response of citizen indignation and we hope it continues, generated by this outburst. We find commendable the reaction of many civic, popular and political organizations, and groups of lawyers and activists, intellectuals, journalists and other sectors and movements who understood the implicit purpose of the constitutional reform, which was to seriously undermine some of the gains of the already weakened Constitution of 1991. They not only announced their rejection of this attempt, challenging the “injustice reform”, but have undertaken work to position forces to develop a referendum and other measures to permanently bury the proposal. Some have also proposed a recall of the mandate of the current Congress and even the mandate of President Santos and the opportunity and need for a radical rethinking such as a Constituent Assembly, or a new National Agreement, not at the service of a corrupted regime, but at the service of peace, democracy and justice.
IV. Peace taken hostage
If peace is understood as national goal, as a public good and basic condition of general happiness and good living and living together; if the willingness to enter into dialogue toward a political solution to the conflict is now clear and emphatic: Who is holding it back?
Peace with justice that honest people work for and build daily in Colombia has been physically impossible, because it must face both the causes of the conflict and the institutionalization of war. The objective causes and origins are rooted in social and economic injustice, political and cultural exclusion, lack of sovereignty, flawed electoral mechanisms, environmental destruction and asymmetric and unfair trade agreements, the absence of participation, lack of collective, majority access to property and to democratic dissemination media. At the same time, it faces the concepts and inertia derived from the degrading dynamic of a war that benefits the status quo, the institutionalization of conflict through a planned economy of war that benefits specific national and international groups, and the mentality that conceives of the “others” as “internal enemies.”
CCP conceives of not only the forms but the content needed for a dialogue for a political solution, and understands that the implementation of a negotiation process should review the terms of overcoming rational based on ethics and law, with a consensus that addresses the real needs of the majority of society. So in CCP we understand peace not only as the absence of conflict, but the recognition and transformation of the indefensible social, economic and environmental injustices, and legal impunity, such as extreme poverty, the misery and destitution to which millions of people have been condemned in Colombia, a country with the most unequality in the world, a country of wealth and resources that could support a society without hunger and other violence; egalitarian and inclusive, democratic and generous in all dimensions of life.
On the other hand, the end of military confrontation between the insurgents and the state, and the move toward coexistence with justice, must ensure the abandonment of the strategies and practices contrary to humanity’s common heritage, such as values and principles of respect to dignity, that is to clear the path of undemocratic political concepts and their military and paramilitary means, incubated for decades. If a guiding principle of the dialogue is to learn from past mistakes, as announced by President Santos on August 27, 2012, that path must be cleared of concepts and strategies that are at odds with the most basic ideas and obligations of the Rule of Law. This must be accomplished by appealing to both international law and the needs of peace-building affirming the possibilities of progress and potential of the country in with the participation of all its peoples.
When building links or building peace through agreements between the contending parties, was proposed, peace has been attacked and taken hostage. Sometimes crouching or covert, sometimes outright, the enemies of peace seek to blow it to smithereens. They fear peace with justice and have always waged war to steal from the poor or maintain an order of privileges. It’s their business and reason for being: liquidate the possibilities of concerted peace-building as real democracy.
Thus, there’s a partial victory for the obstacles to peace, one that’s not excusive to the government, since the President himself is trying to overcome it, but one that is fed by two visions apparently contradictory but compatible in practice–that led by an extreme position that proposes a politico-legal framework of war, and the one trying to reduce the government to impose a mandatory logic, which adopts and enforces a framework for peace in which peace is kidnapped or held hostage in the midst of rising militarization of society. A peace that would be released by the state as mere pacification, under the condition that the other side surrender and society be prohibited from participating in its diverse expressions. Such a model of achieving “peace” is not shared by CCP.
V. The Legal Framework for Peace
Its appearance as a tool to break with the past and find a negotiated solution
The constitutional reform conceived in the Legislative Act No. 1 of 2012, enacted on July 31, gives life to the Legal Framework for Peace (LFP), which “establishes legal instruments of transitional justice in the context of Article 22 the Constitution and other provisions.” This new constitutional reform corresponds to a proposal promoted by the Santos government, since September 2011 with the support of the coalition of parliamentary political groups that share the failures of “democratic security” and the economic model inherited from the past government. During the discussion the country experienced very important events, such as the release of members of the security forces held for several years by the guerrillas, the statement by the FARC command on its definitive end of holding people captive for financial reasons or “kidnapping for economic reasons”, thus confirming from this organization and the ELN, the need to agree on a political solution to the armed conflict.
In those months, a millions of voices expressed the increasingly widespread feeling of wanting to live in a country in peace and justice, colliding head-on with the obtuse war-mongering vision that left no room for the word and dialogue to advance political solution to the armed conflict. Such a view has been shown in grassroots protests like the one in the Cauca, or surveys that show that over 75% of the public would agree to peace talks between the government and the guerrillas.
It was important to generate a break with this strategy of war that hides thousands of crimes against humanity still unpunished. For that statement alone, it was a positive step to present a constitutional reform with the stated objective of peace, as it acts in tandem with rising social and political forces to open the way for working with temporary and partial mechanisms, which, along with others that are larger, deeper and of longer duration, could contribute to a final solution.
Formally, the LFP is based on a projection and articulation of instruments of “transitional” justice with the declared purpose of facilitating the end of the internal armed conflict and achieving stable and lasting peace, guaranteeing that offenses are not repeated and assuring the security of all Colombians. It proposes in exceptional circumstances to ability to select and prioritize different crimes so judicial authorities can focus on the investigation and punishment of those who had the greatest responsibility in the commission of the most serious crimes. It announces that non-judicial instruments of transitional justice could be designed to guarantee state investigation and punishment of those who had less responsibility in the commission of these crimes. It also provides for possible waivers of criminal prosecution in certain cases, by implementing collective and non-judicial mechanisms to investigate and punish, and the possibility that “members of armed groups outside the law” could demobilize to participate in politics.
A critical interpretation of its genesis and its strategy
The LFP project was debated immediately in conventional spaces for nine months, with the usual formats and voices of some sectors of power, reproduced without hearing the other side by the media, politicians, some academics, some experts in conflict resolution and human rights analysts, without including in the discussion some important sectors of society, such as organizations, communities and local leaders, and all those who suffer the brunt of the armed conflict. The controversy generated by tensions within a powerful sector hid the fact that the constitutional reform was done without the participation of social and popular movement. The fundamental right to build peace, to be part of their proposals, was denied.
Given the evident level of corruption and the logic of complicity reflected in the failed “justice reform”, one can hardly expect that those in Congress as advocates for their own interests or private interests of power, i.e., the vast majority of parliamentarians with a few honorable exceptions, would regard as fundamental the representation of society and the Colombian people in a peace process. Citizen action to demand changes is well-known so actions not only to repeal the current parliamentary mandate, but also to enact a combination of exercises in which society establishes its indignation and offers alternatives to overcome this downward spiral would not be surprising. Therefore a strategic tool as basic as the LFP should not have been reduced to a forum marked by its discredit. It should have been the role of a number of scenarios.
Nor were the guerrillas consulted in any way on the rules for eventual talks with them and their subjugation. We say this in light of the unforgettable and incomparable fact that several years ago ago the shameful voices of the paramilitaries had a major role appearing before the full Congress, to participate in the design of the framework of “Justice and Peace” to be applied to them. Therefore, this constitutional change initiative lacks exactly that: a binding mechanism with the guerrillas. It was a unilateral expression of the state, which, in the most generous of interpretations, means an orientation of its power of discretion under which the institutions sought to condition, in the middle of the armed conflict, some of its jurisdiction for a subsequent stage of peace talks. The LFP is not born of a military withdrawal or some sort of truce. It is imposed, on the contrary, as a legal complement to military goals.
The genesis of the LFP follows political and military strategy of “democratic security” and its predictions of triumphalist military victory implemented over the years, based on authoritarian pressures and proven human rights violations expressed in the so-called “false positives” before and now as the so-called plan for consolidation and social and territorial control. It comes from the same mold, as a prelude to a further stage of deepening conflict, where rhetoric of dialogue is combined with more war against a guerrilla that still has the capacity to launch offensives and maintains a presence in various regions.
The LFP, based on the idea of individual demobilizations as the practice and application of “democratic security”, contrary to “transitional justice” that proposes agreements with the armed opposition, is not conceived as a product of some type of consultation or negotiation between two parties who should look hypothetically at the most appropriate instruments for the implementation of a peace process. It is limited and exclusive from perspective of one of the parties, mismatched with the reality of a confrontation between two opposing sides that need to agree on de-escalation and determine causes and tools for regulation and solutions.
True, it was not mandatory for State mechanisms to consult or listen to the guerrillas’ opinions, however irrational they may seem to some. But it is desirable and would have been more effective to consult with insurgent organizations to advance the implementation of joint action and agreed-on resolutions, overcoming the argument that concludes tendentiously that conditions for negotiations don’t exist and that it was only to give the President needed faculties for a much later stage, when, for factors concerning military defeat, demoralization and disarray, the guerrillas agree to a model of submitting to justice on the terms previously determined exclusively by the state and exclusionary.
This model in which the rules apply depending on the guerrilla’s military or political surrender is worrisome since peace is still understood as vanquishing one side or as a simple corollary of closed rules to be applied under the irreversible will of the State. The guerrilla is still disqualified as “terrorist” or simply denied its political aspects, in a vertical, solipsistic and partial formulation, according to which only one party has the key to peace and decides above all; only one party can speak while excluding society and exhibit and impose alone the conditions for peace.
This has been, without real consultation and consensus of society, developing a supposedly policy seemingly restorative and directed toward the “objective causes of the conflict.” It is expressed unilaterally in laws for victims or on land that are seriously questioned as cosmetic measures to hide an ugly reality, given their meager scope and the lack of protection for those who would be subject to these provisions, faced with the growth of the power of those that traditionally have stripped the poorest and today continue creating new forms of encroachment and terror.
Alongside “subjective causes”, that is, faced with the existence and social and political justification of the guerrillas, the parallel formula is the stick in one hand and the carrot in the other—an only slightly more favorable judicial and political framework to be applied in a much later stage through the LFP, when criteria is defined under the logic of military victory. This explains why even now the vast, expensive and complex military operations continue, with a multimillion and bloody daily war budget, year after year, with the aim of annihilating one by one the various guerrilla fronts, in addition to the resources for social control and the establishment of military units with foreign staff and agents of security companies.
This all links up in the institutional apparatus of “transitional justice”, which has been thrown out as a lifejacket in deeper political and legal discussions, faced with against systematic human rights violations, crimes against humanity and war crimes. It was used to resolve the legal limbo of over 28,000 real or alleged demobilized paramilitaries and to legitimate since the past government a transaction model with elements of criminal groups, thus evading the truth, justice, reparation and the requirement of not repeating the past. There was a prioritization and selection process with the paramilitaries by the government, which decided who could or could not be a beneficiary of the law 975 of 2005. In none of these experiences has the full truth come out or proper punishment, nor obviously any process of democratization. By contrast, there has been re-victimization, re-engineering of paramilitaries, new forms of impunity and a notable absence of guarantees to some former paramilitary commanders who want to tell the truth and identify the guilty. These are all symptoms of the trivialization of what is known as transitional justice.
The trivialization of the concept and meaning of “transition” is leading to a conception of criminal cases as if they were in themselves the solution to underlying problems of conflict and building democracy. While criminal cases for a peace process are very important, especially when there are thousands of fighters or rebels held in prison, all of them together are not the only or the main piece.
Effective transitional building, from our point of view, in a project supported by the resolution of the armed conflict, depends not only on legal decisions or modified legal structures, but on political and societal agreements on guarantees relating to democratic participation and inclusion, and the effective exercise of individual and collective rights, including for the members of armed groups who obtain their freedom.
Given the excessive and trivial use of the term “transitional”, one of the most important questions to ask is whether Colombia is experiencing a genuine transition phase. If so, to what kind of country we are heading? To a nation that overcomes the rupture of political and economic democracy that plagued it for decades? To a country that ensures greater participation and decision-making on the local and community level to exercise economic and social rights? To a Colombia that reflects the needs of the majority in the use of and access to the media? Toward electoral models that encourage broad participation, transparency and deliberation, to break with abstention and corrupt practices and patronage? Can we speak of transition with fewer public goods and services? With greater exclusion in education, health and housing? With hunger and homelessness of millions of people? With repeated and unpunished violations of civil and political rights?
The differences arise regarding the scope of “transitional justice”, in official usage as a simplified scheme of a few criminal prosecutions–without pacts, agreements or effective social or political changes that assure redistribution or transfers of power to the majority. The differences reflect the diverging visions of peace and their depth. The transitional becomes a matter of limited alternative punishment for some who took up arms, a number of specific legal benefits and eventually political, without the whole society has bigger and better mechanisms and democratic institutions.
The LFP distorts reality, it is insufficient and contradictory
The stated objective of ensuring negotiated peace paths probably will not come with the current measures of the LFP, since they not only derive from the political and military factors that assume defeat of the insurgency, they also offer a mix between an assembly between an ultimatum, the denial of political offense and the usefulness of impunity for perpetrators of acts that do not fall under the category of rebellion or generally to the category of political and related crimes.
The LFP distorts the nature of pardons that would be justified only if they refer to the set of policy violations by the rebels, due to the ethical and political characteristics assigned by progressive criminal law, which is expressed both in the objective use of crime political and the subjective depth of it, that is, the features that define it in the light of the most advanced humanist concepts (subject to amnesty or pardon, by its very nature of the state opposition, which establishes such measures in the interests of negotiation, extendible to acts related to political crimes [Article 3 of the LFP, 67 transient Constitution]).
This is based on the otherness of an armed political adversary who is recognized as such, however, is legally and rationally pursued, since institutions collide head with it without agreeing on how to break with it, by having the rebel with the objective of violently subverting the established order, attacking regulatory structures, political and economic, mediating an alleged altruistic motive, to play the opposite side in a political debate of the criminal law. Consequently, it is necessary to undertake a re-conceptualization clear political, media, cultural, and undoubtedly criminal, which is the road map of values and a dialectic with alleged democratic order must respond to political crimes.
The Colombian government, in the current framework of legal, media, political, and obviously military thought that is most authoritarian counterinsurgency in the world, replaced the concept of political offense with terms of terrorism, applying the criminal law of enemies. The purpose was clear: deny any credibility or legitimacy of the guerrillas, identifying them as lacking ideals or political motives, as organized crime against society, not based on social values but on anti-social reasons. Complementary and parallel to that portrayal, the government redressed paramilitary or mercenaries as political actors, creating a tendency, put in practice, as the criminal law of friends, not only through legislation, but other means of ideological reproduction. This dual process grew in recent decades, showing its limitations and perverse intentions.
The LFP is insufficient for failing to directly and fully assume this conceptualization of political crime for pardons and real, not apocryphal, agreement. It avoids talk of rebel adversaries as political offenders and opts to call them members of illegal armed groups the law outside the law (as it appears repeatedly in the text of LFP). This is not to vainly evade the political nature of the enemy, but also to enable or allow allies or members of the armed units of the State to be sheltered in the future by measures that in practice resemble amnesties or pardons to some degree, which, in line with coherent criminal and political practices of law that seek to restore democratic principles for a genuine peace process with the insurgents, should apply solely to them, although other subjects and other criminal groups can receive other benefits, which would be from a different political and legal reference, not ethically comparable to those applied to the rebels.
For this reason, it is contradictory, to integrate those who have systematically violated the law in order to defend the order to which the law corresponds. This key opens the doors to impunity, covering groups distinct from the armed opposition organizations or actual disputing parties. It postulates mechanisms of self-exculpation for acts distinct from political and related crimes. In this manner, the proposal for progressive, transitional justice that centers on peace, truth, justice and reconciliation is distorted, as is the proposal for non-repetition since penal provisions under the banner of peace are used to exonerate the state and compensate its allies or its armed forces. It is possible that tomorrow the LFP will apply to those responsible for paramilitarism, which is by definition a strategy radically opposed to the principles of humanitarian law–it is mercenary and functions to shield and enrich those most responsible for crimes against humanity.
This framework can convert itself into a means to ensure impunity to agents of the state responsible for deplorable actions. It is evident that in the courts, including military justice, there is a certain prioritization and selection that is due in part to the persistence of victims that have gathered evidence and to international pressure. Today, with few advances in justice, as in the cases of disappearances committed in the incident at the Palace of Justice, in the Mapiripán massacre, in the “Genesis” operation and other crimes, the logic of repressive structures tied to perpetrators that attempt to undermine the search for justice is generalized. They turn to measures such as threatening witnesses and relatives of the victims, the exile of judicial officials, the refusal to turn over bodies, and the media concealment of political and economic actors behind the commission of thousands of crimes.
Given the impunity that exists with respect to violations committed by agents of the state, which covers instigators, creators, and funders, it could be that the government and Congress have the ignominious and inconfessable purpose to use the LFP to resolve judgments against soldiers and their auxiliaries who were involved in grave human rights violations and crimes against humanity. If this is the case, if they seek a formula of inclusion of the military, they should state this openly and clearly, despite the seriousness and the challenge this would present for upholding an obligation to society’s historic memory, and the right to truth, justice, reparations and non-repetition.
If this is what the government intends, it should generate an open space with guarantees for a real and clear truth, promoting a policy that requires anyone who acted as an agent of the state at any given time to unveil the entire truth. What is unacceptable is that the LFP be used to further hide the chain of command and the responsibility for crimes against humanity and the marginalization of victims. In any case, the participation, without any hindrance, of victims of state crimes should always be guaranteed and society should know everything that occurred, including those responsible no matter the extent, their motives, their interests, its benefits and all the circumstances of the acts and their impunity.
Even if the LFP indicates that under no circumstances can transitional justice tools be applied to armed groups on the margins of the law who have not been part of the internal armed conflict, nothing guarantees that soldiers accused of paramilitarism will not be framed as beneficiaries of those transitional justice measures. There is also no guarantee that those who served as nothing but clandestine arms of the state’s dirty war or public units in the service of private political and economic interests, both legal and illegal, will be considered party to the internal armed conflict.
Furthermore, the peace framework contradicts in state law for another reason: It does not attribute in practice what President Santos’ government has assumed in discourse. This is in regards to the existence of the armed conflict and the prospect of possible peace talks, as is its constitutional and legal obligation, domestic and international, according to the law and cannons that nations have adopted as law in armed conflicts, both in laws of war and humanitarian law.
From that set of rules, of which Colombia has been a signatory for the past half-century, a clear conceptualization and a binding mandate is derived about the combatants, in this case those who rose up in arms, about its statute, which can suppose intersections or possible concordances with the category of political crime. This is does not reconcile by definition with saddling members of armed groups on the margins of the law with the label of delinquents (as the LFP registers them). It does not recognize the essential characteristics of those acts of a political and military nature committed by the guerrilla, treating political crimes or war actions as if they were common crimes and as if common organized crime should remain forcefully and equivocally covered in the future and conclusive application of an instrument of “transitional justice” whose “prevalent purpose” is to “facilitate the termination of the internal armed conflict.”
We’ve passed the midway point of President Santos’s administration, which since its commencement proclaimed to have the key to peace and only now announces possible advances for a process of political resolution to the armed conflict, as can be deduced from its declaration on August 27, 2012.
Two years remain in more complicated conditions for governance that is not at risk, with a Congress dominated by the National Unity coalition, in which the representation of political circles implicated in corruption, which protect private interests and turn their backs on social or public interests, stands out. For those reasons, welcoming what President Santos has publicly declared, CCP considers it necessary to refer to the problems treated here and present some proposals for making common cause towards an inclusive pact that can neutralize the political framework for war and the intentions that were registered with the intention of “reform and justice” and its concealment. To this end, we have done this critique of the LFP and we call to commit and limit the threats and the criminalization of social protests and popular mobilizations, guaranteeing citizen participation and the right to political opinion.
Contrary to murky actions that could obscure reality, transparent action assumes responsibilities. President Santos, as head of state, such as he announced on the evening of August 27, 2012, should and could take steps toward peace. In this sense, we propose:
A. Securing the exploratory process of the peace talks
Give continuity and guarantees to the exploratory process of peace talks with the FARC, with the prospect of dialogues that will definitively overcome the armed conflict that incorporates the ELN in the insurgency, and include Colombian society.
In the conditions of ethical and political degradation in Columbia, with public opinion in part mentally prepared for the prolongation of the conflict, in the midst of the powerful machinery utilized by the business media and other powers, President Santos’ aspiration to be reelected until 2018 can be compatible with the maintenance of the current discourse of ambiguity, in which some urge war and then later claim to have the key to peace. Certainly, President Santos can be reelected without deciding to speak more of peace and instead orienting himself radically toward confrontation, without a hint of moderation. We hope that this is not the intention and that his discourse is not only for appearance’s sake, in the face of social and economic disaster and popular discontent, disguising his political programs, manipulating and redirecting electorally. This predicament would be one from which extreme positions would gamble on a military solution.
President Santos, with his announcement of August 27, 2012, has the historical opportunity to drive an efficient process of conversations for the definite conclusion of the war. He should maintain firmness and courage, resisting in the face of a dynamic of exacerbation that is induced time and again by the declared enemies of peace.
Not only should he continue conversations with the FARC, but also consider the possibility with the other rebel organization, the ELN, which is a substantial part of the insurgency in the path of the Colombian conflict and its integral solutions.
Due to the commitment that the majority of the country could understand, President Santos could and should eliminate the confusion regarding political and legal actions in different planes: invalidation of everything that opposes the political treatment of the insurgency, and political and legal promotion of what gives authority to both parties in a scenario of dialogues. This could advance in two areas: in the regulation of the accords or the unrestricted application of human rights to protect civil society from the effects of the war and also to act in accordance with the insurgent combatants or irregulars (for whom the basic instruments are already in place and are obligatory), to strengthen and guarantee meetings to develop an agenda for peace talks.
In the face of the LFP’s discordant elements with other areas of legislation, such as human rights, President Santos can retrace this path and correct the error of not recognizing political offenses, which opens the door to homologation, analogy, or equalization to those that are not rebels. President Santos can correct this path, both within and outside of the Framework. He can do this by changing the language, approaching contacts and reaching preliminary accords with the insurgency.
It is doubtful that the current Congress will join him in an eventual peace process with that historical vision and political will, given the corruption and the reigning position there, which is imbued with triumphalism and the defense of the results of the military and paramilitary strategies applied for years. There is a legal loophole that is viewed as the hypothesis of the LFP: “a statute may authorize under a peace agreement a differential treatment for distinct armed groups outside the law who have been party to the internal armed conflict and also to state agents, in connection with their participation in the same.” The contradiction is reflected in the same proposal. However, the amendment policy, allowing differential treatment for the two rebel organizations or armed opposition groups should and could be carried out immediately, along with the President, with existing legal means and capable of discretion with which he is authorized, the provisions of the international law of armed conflict, not only acceptable but absolutely binding as part of national legislation and has constitutional status. Its single invocation removes any doubt. Similarly, it can resort to other means in the legal-political mechanism whose principal angle and primary obligation is the right to peace.
With respect to the criminal law of impunity for agents of the state, it will depend on whether the state intends to exonerate itself for common crimes committed by its agents, typical military related offenses already regulated, or real crimes against humanity such as executions, forced disappearances, torture and massacres, committed by paramilitaries or official security details, which constitute an ethical, political, and legal aberration. Not only for the responsibilities of the past but also for current acts verified in different regions where these structures and crimes accompany “investor security” projects of looting, encroachment and destruction of communities and their territories, reinforcing and legitimizing the beneficiaries of these systematic land grabs. It is condemnable and should be corrected because in the same idea of political offense the framework establishes the possibility of self-pardon for the state to use deceptively for itself or for economic, military and political allies.
President Santos should promote a peace process without the subjugation or limitations represented by the LFP, before reforming statute (Article 152 of the Constitution) that must be processed in a special way, with absolute majority approval, with the exclusive issue of Congress, during the same legislature and with prior review by the Constitutional Court,
In this way, he can activate available mechanisms not only to carry out peace talks, but to sustain them in the long term, removing or neutralizing obstacles in this LFP.
Humanizing the war is imperative
Without linking the character of humanitarian law to peace talks, a joint effort aimed at applying the rules of war, designed to prevent massive and unwarranted human suffering, is the ethical and legal obligation of both disputing parties. It also involves and projects possibilities for accords that can bring both sides together and serve as bridges of understanding for a peace process. This noble sentiment makes it a useful proposal.
Independent of that contingency and perspective of ad hoc agreements, CCP emphasizes the necessity to obey the principles of human rights, to regulate each and every war action, to safeguard and not expose non-combatant civil society, to respect its rights, as well as those of wounded combatants or prisoners of either side. This includes restrictions on the use of arms, means and methods in the conduct and deployment of hostilities. Such a demand refutes calculations of a military nature, not acknowledging the thesis that to the extent that the conflict superimposes one party as the winner, then nothing is left to regulate or humanize. This thesis, perverse in itself, of false assumptions that reality refutes, does not acknowledge the international obligation according to which it is absolutely imperative to humanize or limit warlike actions. This tension must guide the conduct of hostilities, despite the intensity of the conflict and the predictions of how long it will last. While it exists, the parties must take unilateral measures to instruct all forces, whether regular or irregular, to subject themselves to the respective laws and international regulations.
Despite the terrible scenario of a bloody war, it can be argued that some steps have been taken recently to reduce consequences or desist from actions that entail significant suffering. This is why we recall the FARC’s declaration of February 26, 2012 announcing it was desisting from abductions for financial purposes, repealing its law 002 of 2000. Furthermore, the fact that the FARC does not have any prisoners from the state armed forces after releasing the last of these captives in April of 2012, and that in the same way the ELN expressed its respect for human rights, as has publicly and constantly expressed through proposals, are all signs that may encourage this perspective, which does not mean that the conflict has ended or is coming to an end.
Situation of political prisoners
The Colombian government should undertake the task of rebuilding its legal framework, providing evidence of its respect for humanitarian legal obligations, both the rights of the civilian population as well as neutralized insurgents, both prisoners and the wounded.
Consistent with the request for the recognition of political crimes in the criticism of the LFP, it is also an inescapable duty to recognize the political prisoners in Colombia, that is, the combatants of the FARC and the ELN, convicted or prosecuted, some of which have been subjected to cruel, inhuman, and degrading treatment to the point that many combatants have lost their lives or have irreversible injuries and illnesses, for example, due to torture inflicted, immersed in the subhuman conditions in many Colombian jails, for both common prisoners from the popular sectors and especially for political prisoners.
This situation is degrading, not only for undoing basic standards of domestic and international law, but also for representing an affront to the ethical humanistic genealogy of liberal institutions, whose theoretical basis is predicated on the Colombian state and its values. Safeguarding or protecting and respecting the rights of prisoners, whether they are insurgents or not, whether they are prisoners of conscience or not, whether they have been formally accused of rebellion or not, whether they have been charged as collaborators of the guerrilla organizations or not, is an obligation that emanates from national criminal law and from international law, both the general and the humanitarian law applicable to Colombia by the confirmed and recognized existence of armed conflict, as President Santos’ government has validated in statements. Although this recognition, as the government explained, was motivated by a short-sighted purpose–to legally safeguarding itself in regards to military operations–it requires examining the conditions of people who are detained for rebellion or related offenses, who have the characteristics of combatants/ prisoners of war.
Parallel measures for national and international law
It is likewise necessary to establish parallel mechanisms of exceptional order to review the processes so far, regardless of the stage they are in, against members of guerrilla organizations, given the conceptualization undertaken based on the notion of terrorism and other categories that alter the facts concerning political and related offenses. Especially since this determines not only the political treatment in the dialogues, but also on the eventuality that through the peace agreements, they could participate in legal political life. If that revision is not done, the cases of rebellion–rarely recognized as such–are reduced to simplified, false expressions, undermining symbolically and practically the assessment of causes and dimensions involved in an armed uprising i.e. the set of political and related crimes.
This route is not at all fanciful. Many peace processes or at least attempts at detente, in Colombia and in other countries, have addressed this issue of criminal categorization in order to introduce positive reforms for the purpose of negotiation. It is urgent to begin exploring the changes that this plan requires, since it is the basis of legitimacy with which the government can justify its role in the dialogues and deal politically with its opponents.
The fairness of the government can also be tested in these historic moments with a paradox, responsibly exercising the duty of unmaking and remaking internationally, in the face of at least three mechanisms that continue attacking the possibilities of a peace process: the extradition of rebels to other countries, some of whom face improper charges and unjust sentences; the order placed by the Colombian government that insurgents imprisoned in other countries be handed over, straining diplomatic relationships and violating rights recognized by international law regarding political prisoners; and the unnecessary inclusion of the armed organizations FARC and ELN on the list of terrorist groups. Although those three mechanisms concern the sovereignty and jurisdiction of other countries, in comparison to international treaties of humanist and progressive spirit, the Colombian government itself can advance the deactivation of the problem and the impairment assumed by this recent repressive instrument for a peace process.
It can coherently emulate what other governments in other situations have done, for example, requesting the removal of groups with whom they propose to negotiate from those absurd lists, especially when this usually concerns fickle and arbitrary government decisions. Diplomatic labor for a peace process requires the Colombian government to undo this prejudice and error. It should be done morally and politically, and also legally by canceling administrative orders to pursue insurgents. As the Colombian government well knows, safe conduct passes should be extended and some measure of diplomatic protection should be provided to the spokespeople of armed groups as has been done in the past in Latin American countries such as Venezuela or Mexico, or in Spain, Switzerland and other European countries.
It is also unjust and unacceptable to maintain orders for espionage or intelligence gathering, and media campaigns to politically discredit and stigmatize, and whose purpose is to criminalize and punish the dialogue between civil society and insurgent organizations. This persecution is carried out by resorting to seemingly legal measures or in an openly criminal manner, to threaten or prepare attacks against peace and human rights defenders. According to CCP’s experience, perhaps the most outstanding and consistent in recent years due to the epistolary dialogue with the insurgency and its decisive humanitarian action in the process of liberating of prisoners of the guerrilla, this is one of the most pressing problems–the lack of guarantees for facilitators or promoters of the approaches and peace talks, impedes substantial advances.
No path to peace can move forward without the truth, obtaining justice and reparations for the victims of crimes against humanity suffered by the Colombian people. The impunity of those responsible for those grave offenses against humanity is incompatible with resolving the conflict and building a stable and long-term peace. We refer to those crimes which, according to international law, there is neither amnesty nor pardon, because they concern crimes that offend human dignity as a whole beyond the individual victims who suffered or the place and context in which they were perpetrated: torture, forced disappearance, extrajudicial executions, political persecutions—all examples of crimes against humanity—war crimes, genocide.
No situation or justification allows contemplation of these crimes as a normal consequence of political actions, state reasons or the effects of errors, or the lack of supervision in the chain of command during an armed conflict. The principle of commander’s responsibility, and the non-application of exemption for obedience, are guarantees that there will be no loophole to impunity for these crimes. The Colombian justice system should recognize these facts, without political pressure. Only in this manner, can it prevent the necessary intervention of international jurisdiction, as in the International Criminal Court, which in application of the principles of complementarity and subsidiarity should extend its jurisdiction over war crimes and crimes against humanity that took place in Colombia in the framework of the internal armed conflict, in the case that impunity continues to be practiced.
Transitional justice and new definitions of political struggles
Peace with justice constitute the ideal strength and material that integrate the principles and means of coexistence in democracy. Peace as a silencer of arms cannot and should not mean the silencing of voices that demand truth, justice, reparations, and prevention of future criminal acts committed from positions of power against human dignity and the rights of communities to their processes of transformation. Not everything can be punished, not everything can be ideally pardoned, not only the crimes as a whole, but the crimes committed by each of the disputing parties.
We understand that a negotiated political solution–not apocryphal agreements between allies or accomplices–can assume the relaxation or modification of canons of law, whether national or international, regarding certain facts, for the sake of those agreements and with decisions by concurrent judiciaries and broad consensus, based on at least four assumptions.
Consultation of all the victims (CCP finds that the LFP does not at all take into account the rights of the majority of the victims of crimes against humanity in Colombia); the separation and non-equivalence between actions perpetrated by the guerrilla against state power and state media, and actions by state institutions and forces committed using state power; the relationship between criminal networks and the stripping of the economic and social rights of the population; the effectiveness of measures to flexibilize to assure a verified and guaranteed transition and to comply with the agreements without contravening the values of the defense of justice and the rights of victimized persons and organizations that have suffered regularized or methodical impunity.
This is subject to international law and also to a critical and sovereign look at the transparency and congruency of its theoretical and practical formulations so as to not colonize the exercise of law, and the same possibilities for national peace, of improper or foreign claims not guided by an honorable duty to justice.
The need to adopt a framework of transitional articulation between the necessities of peace and the necessities stemming from the aspirations of justice, lead us to the conviction to construct a humanist tension in which faced with the reality of impunity, permanent social and popular offensives are forged with diverse means and methods, with regards to truth, justices, effective reparations and structural guarantees to not repeat the past, from the perspective of cultural processes of the construction of democratic power. This is our proposal to the society that struggles against impunity. This can appear to be a mere illusion, given the current moment, apparently without the conditions to create important or decisive spaces not only for a peace process but for the process of a dignified peace, due to the resulting policy of correlating forces in which organizations victimized by the state are presented as debilitated, without power, without means, many times labeled as responsible for the conflict and its disintegration, due to the fact that they raised their claims to social change.
The debate over transitional justice is a political rather than a legal debate. Therefore, the state and the insurgency should respect the agreements. The historical horizon of the victimized struggles– their social, political and ethical meaning–should be recovered, and there should be guarantees that this new category will not be attacked again.
VII. Conclusion: toward a new political and legal framework of social consensus and transformation
Abandon the authoritarian model
It is necessary to confront and democratically isolate a strategy of polarization and extension of the war that seeks at least two objectives: to look away from criminal responsibilities for paramilitarism, violations of human rights and drug trafficking, brandishing a political framework for war that is compatible with a legal framework that holds peace hostage, abandoning dialogues for a successful peace process between the state and guerrilla organizations. The core of this block is the idea of repositioning at the center those who defended a military solution at all costs. This model of bellicosity and impunity that did not and will not liberate us from war, inspired the sunken judicial reform as well as the LFP, rejecting the path to agreement y dictating the exclusion of civil society, and so losing the possibility of having a solid and adequate instrument for creating judicial conditions that give effective momentum to a peace process. That authoritarian model should be abandoned. Its limitations are evident. Even though it advocates a political solution, it distorts reality and reproduces in part the triumphalist fascination, characterized by the conviction of a military solution and the lack of consultation with major sectors of the population. This vision, predominant among some of the members of the National Unity coalition, is imprisoning the country and can paradoxically end up trapping President Santos.
Following this trend, the LFP proclaimed the idea of capitulation to the demands of guerrillas for a type of political and legal favorability, when the rebel organizations had already clearly announced other foundations of dialogue and negotiation during these two years of Santos’s government, and through their respective command centers have made it known in public communications directed at the country and the international community, especially in the sequence of letters to Piedad Córdoba Ruiz and the CCP among other negotiators.
As we’ve analyzed, the LFP contradicts itself, deferring and blurring means for peace, keeping it in the middle of a language that does not facilitate proper treatment, dispelling concepts such as those of rebellion and other political crimes, which historically and ethically correspond to the judicial culture of the liberal illustration. Under these conditions, the LFP does not facilitate but rather it creates obstacles to the promotion of a peace policy and anticipates a new failure. Today two connected risks will lead to frustration. The first is to shelter the government of Juan Manuel Santos in the LFP, as if it was its maximum legal-political definition. The second, that a military strategy or offensive is articulated and continues to praise the notion of a fateful peace or contra-insurgent pacification: a bad end and a bad beginning; a break towards new phases of violence at the regional level and in the entire country in ruins, enclosed as a regional and subcontinental problem.
Peace: from two sides to a joint construction
Peace seems like a bifrontal term: it allows a reading from left to right and another distinct reading from right to left. However, it is possible to construct it as a political reality that is broad, negotiated, diverse and representative of interests that are involved in the process of agreements, products of dialogues and consensus over rights and limits, an economic as well as a political model. In the meantime, urgent measures to ensure dialogues for the nation are needed.
We think that President Santos should turn to other references in the discretional geometry or to his exclusive powers and legal capacities, to use the current legal system, whose potential is dependent on his political will and will enable a superior effort and better results. For example, complying with the obligations of international human rights law, particularly towards victimized communities and given the situation of political prisoners. It is his obligation. It is urgent to transform the LFP beginning with the critical observations and proposals of the social organizations, the popular movement, the victim sectors, the communities, political forces that work for peace, academia, and progressive international law.
President Santos could employ the scarce useful concepts of the LFP, blocking the contradictory ones; he can think of pacts that transcend the legislative space; he can open the door to the participation of people and organizations that struggle for peace in Columbia from a humanist perspective. He should understand that the moment for peace talks has arrived or the proposal to construct them will be lost. He cannot make promises and then deny them with his actions. It is like signing and not complying. Due to this, the regeneration of peace in general, and its politics in particular, means assuming and developing a peace process–a peace process without a regeneration of politics and without a culture of honoring the word is condemned to failure.
Even without optimal conditions, the act of sitting down to dialogue now or in the next few weeks, as President Santos declared publicly on August 27, 2012, in any format, can be a transcendental sign for the history of the country. The announcement has great significance. President Santos’ effort to seek or intensify contact and extend the offer to the ELN when the government still enjoys adequate backing inside and outside of Colombia, and the firm will of the guerrillas to take stable steps in this direction should be accompanied by the creation of an atmosphere and a fund for the peace talks.
A new political and legal framework of social consensus for peace should also assume revisions or reforms to the electoral system; based today on exclusion, clientelism, corruption and the power of money. It should generate effective spaces for social and political participation in the different public spheres; accessibility and accountability of the exercise of politics; open control over the resources of the nation; legal neutralization of those who oppose the restitution of divested lands or who oppose reparations for crime victims.
In summary, Juan Manuel Santos’ government must choose an alternative that its responsibility converts into a historic crossroads for the entire country. Or it takes the path of corruption and the well-known extremism towards the war, or it heads toward peace with the courage, firmness, and clarity needed to open the door to peace talks, as he just announced. He should minimize confusion; commit to humanizing the war, ensure respect for the rights of political prisoners; and apply parallel measures of national and international criminal law in order to open a space for efficient transitional justice that admits and safeguards the resignification of political struggles. He should look for alliances for peace in the face of the powerful diatribes of its enemies, and galvanize a new political and legal framework of social consensus and transformation that includes multiple voices.
The entire nation should convene to discuss ideas for peace and should mobilize the popular sectors to combine their ideologies of democracy: the peasant organizations, indigenous communities, afrodescendant communities, women, students, the unemployed, environmentalists, intellectuals, the displaced; the foundations that express and propose human development, culture, progress, respect to public property; guilds, political forces, armed forces and the media should also be included. If society does not debate its demands for an expansion of the Constitution, define spaces for a new nation, to ensure not only inclusion but guarantees for the compliance of the peace accords and justice, Columbia will trapped in war.
Finally, as the actions of Cauca, Putumayo, Chocó and other Colombian regions have demonstrated, the necessity and feasibility of a bilateral ceasefire is evident. It is a message of détente that is urgent in order to confront not only situations of humanitarian crisis but also to change the conditions of militarization of territories for conditions of social presence that not only are conducive to regulation and to an understanding of limits and accords by the disputing parties, but also isolate and eliminate plans for paramilitarization and dispossession that are linked to unfair economic interests.
To citizen networks and popular movements we make a call to those who are indignant over the nation’s situation and act to overcome unjust structures, to converge towards connections or unified spaces where everyone who struggles for the country in peace and with justice can fit in, where those who are have ethical and political influence not through corruption but through honor and the desire to resist and transform oppression into a full democracy can express themselves.
For document in Spanish see: http://www.americas.org/es/archives/7915
Translation: Nidia Bautista and Marlene Medrano, CIP Americas Program.
Note: This article has been corrected to include the second portion of the translation, translated by Americas Program translator Marlene Medrano. We now present the document in its entirety. Ed.