Author: Lisa Haugaard
By Lisa Haugaard, Executive Director of the Latin America Working Group
The surprising No vote in the October 2, 2016 referendum on the peace accords between the Colombian government and the FARC guerrillas has left Colombians in a no-man’s-land, suspended between war and peace.
The No vote won by a narrow margin (of 12.8 million votes cast, 50.2 percent no vs. 49.8 percent yes). In most of the areas where the conflict has raged, and in most rural areas, the Yes vote prevailed. In urban areas, where the war was more distant, the No vote won (with the notable exceptions of Bogotá, Cali and Barranquilla). Among No voters, reluctance to allow FARC leaders to evade jail time was probably the major factor, but a strong backlash by evangelical churches against women’s rights and LGBTI rights also played a role. The Colombian government’s failure to effectively explain the accords, both immediately prior to the referendum and throughout the years of negotiations, contributed to the No vote and the high (over 60 percent) abstention rate. Finally, the impact of Hurricane Matthew on the Caribbean coast prevented many from voting in an area that was a stronghold for President Santos.
Stepping Back from the Abyss. At first, the shock of the aftermath left Santos’s legitimacy severely damaged and seemed to signal the collapse of the peace deal. But the rapidly moving political scene began to reveal some possible, though admittedly difficult, ways forward. Many sectors organized to show their support for advancing towards peace.
· 380 Colombian business leaders published an open letter calling on the Yes and No voters, government and FARC to “put aside their private interests” and “dedicate all possible efforts to the decisive and rapid search for a final, inclusive and sustainable accord”;
· Forty-five of the 60 victims who had addressed the peace table in Havana urged that “those at the negotiating table redouble efforts to expedite a consensus that advances a final agreement bringing together the voices of all sectors of the country,” called for a continued bilateral ceasefire to “safeguard and protect rural people and communities that directly suffer the cruelty of war” and congratulated President Santos for his Nobel Peace Prize;
· Thousands of students, indigenous people, victims of violence, campesinos and other Colombian citizens organized marches all over Colombia carrying white flowers and calling for peace;
· Citizens gathered in the Plaza de Bolivar in Bogotá to sew together a 4-mile long white quilt with the names of victims, inspired by Colombian artist Doris Salcedo;
· 255 Colombian and international faith leaders called on President Santos to move forward with the accords as they are;
· Communities affected by the war, such as indigenous communities and the Afro-Colombian community of Bojayá, declared they would move forward with constructing peace in their territories even if in the cities, people voted for war.
Even some of the leadership of the No campaign began to dial back their demands and clarify that they did not wish to scrap the entire peace deal and start from zero. The Nobel Prize for Peace awarded to President Santos helped restore a measure of legitimacy. The October 10th announcement of the start of formal talks with the ELN guerrillas in Ecuador also offered a ray of hope.
To provide breathing space for negotiating this difficult terrain, President Santos extended the ceasefire until December 31. But although it can be extended again, the clock is ticking.
After having negotiated for four years and agreeing to a deal, it is hard for the FARC to accept new concessions. FARC leadership have said that they remain committed to words, not weapons and that they stand by the accord, although they offered room for negotiation by saying that they could accept some clarifications, not revisions. The longer the impasse continues, the more likely it is that FARC base members will refuse to lay down their arms or will join other armed groups or the drug trade.
President Santos has reached out to sectors backing the No vote. At the same time, he cautioned that some changes are viable while others are not. In mid-October, after many meetings with the No campaign as well as with other sectors, President Santos stated that the time for meeting with those objecting to the accord had passed and that the Colombian government had established a process with the FARC to review potential changes.
What Does the No Campaign Want? While many citizens may have voted “no” out of a general reluctance to allow FARC guerrillas to escape time in jail for serious crimes, and while over 60 percent of the Colombian electorate simply did not feel sufficiently engaged and informed to vote in the referendum, it’s the leaders of the No campaign who have gained political space to advance their agendas. The most prominent No leaders include ex-President Uribe of the Centro Democrático, ex-President Pastrana, former Conservative Party presidential candidate Maria Lucía Ramírez, and ex-Inspector General Alejandro Ordóñez and those evangelical pastors who characterized the mention of gender in the accord as an “attack against the family.” There is not one set of “No” recommendations, but rather various contradictory or overlapping sets of concerns. It remains uncertain whether some No campaign leaders, such as ex-President Alvaro Uribe, will support a revised deal even if it includes a number of their recommendations.
The Centro Democrático offered 26 pages of proposals for modifying the accords. They call for changes in the transitional justice system and political participation, including: 1) eliminating the Special Jurisdiction for Peace and placing a transitional justice system within the current judicial system; 2) establishing that guerrillas involved in grave crimes who collaborate with the process serve their reduced 5- to 8-year sentences in confined areas, such as farms (but without calling for prison); 3) prohibiting FARC members involved in grave crimes from running for the special congressional seats temporarily set aside for the demobilized while they are serving their time (without objecting in general to FARC leaders running for office) and 4) providing a differential and preferential treatment for state agents (which would include those involved in grave crimes such as the “false positive” extrajudicial executions).
The Centro Democrático proposals also react to and try to limit the accords’ modest attempt to address historic inequality in the countryside. The proposals 1) call for more recognition of large-scale landholding vs. peasant agriculture: 2) ask for explicit guarantees of private property (which was never challenged in the accords), and 3) call for modifications of the Victims Law, not part of the accords but rather passed by the Colombian Congress in 2011. These specific proposed changes center on protecting those who with “good faith” acquired land where people were displaced by violence. Paramilitaries or those who employed them often put land under the names of third parties, making it hard to sort out “good faith” purchasers from paramilitary straw purchasers. The Victims Law appropriately puts the burden of proof in such cases on the purchaser, rather than on the victims who were displaced. The proposed changes would likely make it even harder for victims to reclaim their land.
Ex-inspector general Alejandro Ordóñez and the evangelical pastors’ objections center on their fears that the mention of gender in the accords poses a threat against what they see as the traditional family. Yet there is no mention of same sex marriage, adoption, abortion or other sensitive issues for evangelical churches in the accords. The accords recognize women’s role as peacebuilders and as victims in this conflict; ensure that sexual violence is considered among the grave crimes that are not subject to amnesty; and emphasize women’s basic human rights. Indeed, one of the accords’ accomplishments is a “gender focus” that recognizes that women are affected differently as victims, so that responses should be tailored to their needs. The accords mention the LGBTI community 10 times in 297 pages, recognizing their role as victims of the conflict and emphasizing that they should be included in the construction of peace.
The No vote emboldened other sectors involved in criminal activity. Military members in jail for extrajudicial executions, massacres and other grave human rights violations sent a letter to the government asking to meet to explain their issues with the accords. The paramilitary successor group the Urabeños issued a call to be included in peace negotiations.
On October 24, President Santos reached out to the main No leaders except for the Centro Democrático to go over in more detail where negotiations stand, perhaps indicating he will try to gather consensus from the other candidates. Ordonez refused to attend, but Marta Lucia Ramírez and Pastrana’s representative attended. Their concerns are similar to the Centro Democrático proposals, centering on transitional justice and guarantees for private property.
Listening to Yes. It is critical that President Santos and the negotiators listen to those who voted Yes as well as to the No campaign. In the weeks following the referendum, victims of violence, communities affected by the war, human rights organizations, students, and members of the business community have organized for peace. Some have called for the accords to remain the same, while others simply call for quick action to put the process back on track. Many urged for the victims to remain “at the center of the accords.”
Major networks of human rights organizations, victims’ associations, nongovernmental, Afro-Colombian and indigenous and faith organizations called on the government and the FARC not to abandon or weaken the victims’ chapter, expressing support for the transitional justice mechanisms. They emphasized that the transitional justice mechanisms represent a step forward from the current prevalence of impunity and allow for restorative justice. Women and LGBTI Colombians organized “#delAcuerdoNoNosSacan” –a “Don’t Throw Us Out of the Accord” campaign. Afro-Colombian and indigenous groups called for continued inclusion of the “ethnic chapter” of the accords that they won in last-minute negotiations. Such groups expressed concern that after having won this broader inclusion of groups in the peace process—including women, Afro-Colombian and indigenous communities, and a wide range of victims, many from poor rural communities—the circle of people providing input to the negotiators has once again narrowed.
Legal challenges. There are several legal challenges to the referendum that could have an impact. Ironically, one of the most potent ones is the legal challenge filed by ex-President Uribe before October 2 opposing holding the referendum, arguing that the fast-track legislative procedure was unconstitutional. A legal challenge was filed after the referendum arguing that the No campaign—by the head of the No campaign’s own admission—willfully used misleading arguments to persuade voters to choose no (citing the Constitutional Court ruling on the referendum, which had called for all campaigning on the referendum to be fact-based). Another challenge concerns the right to vote of those precluded from voting because of the storm. If any of these legal challenges prosper, another path might open legally—but the political challenges of reaching some kind of consensus would remain.
Paths forward. President Santos could propose some modest changes to the accords, likely focusing on the issue of transitional justice. Given that even the Centro Democrático’s proposals do not call for denying political participation to all FARC leaders or jail time, it is possible an agreement could be reached. The government negotiators have reminded the public, however, that this is an accord between the government and the guerrillas, and both parties have to agree to the terms.
If such an agreement is hammered out and agreed to by both parties, the way forward is still not clear. While President Santos was not obliged to affirm the accords by plebiscite, once he did so, Colombia’s Constitutional Court ruled that the plebiscite is binding. Therefore the government cannot simply ignore the results. But the court ruling did not take away the President’s constitutional powers to negotiate peace. Among the options for moving forward are: holding the revised agreement to a new referendum; calling on the Congress to approve the deal without a second referendum; or holding a special constituent assembly to approve the agreement and accompanying legislative changes.
A fundamental logistical difficulty is that the accord included a fast-track mechanism that would allow for the rapid passage of the accord’s legislative and constitutional reform measures. Without this mechanism, and with time slipping away from Colombia’s congressional schedule, which also includes a major tax reform, even if the government and FARC agree upon a set of modifications to address the No campaign’s objections, it will be difficult to get them passed in the Colombian Congress.
Despite all of these challenges, Colombians may well press forward to peace. Many Colombians do not want this once-in-a-generation chance to slip away. Continued war would undermine Colombia’s economy and create chaos that would undercut efforts to grapple with organized crime and the drug trade. Above all, a failure of peace would reignite the conflict that primarily has hurt civilians—more than 220,000 killed, over 80 percent civilians; countless victims of sexual violence; over 45,000 people forcibly disappeared; more than 27,000 kidnap victims; more than 6 million displaced. The international community should stand firmly behind Colombians willing to rescue the peace.
Recommendations for U.S. Policy
· Express support for Colombians to rapidly find a way forward to reach and approve a final peace accord between the Colombian government and the FARC;
· Continue the efforts of the U.S. special envoy to the Colombian peace process;
· Keep the U.S. assistance intended for implementation of the peace accords ready, but wait for final accords to be signed and approved before releasing the bulk of this assistance;
· Express support for the opening of official talks with the ELN guerrillas;
· Express support for renewal of the mandate of the UN High Commissioner for Human Rights office in Colombia, which is essential both if an accord is not reached and if peace accords are implemented; and
· Recognizing that this is a difficult and tense moment for human rights in Colombia, and that threats against human rights defenders and victims may escalate, be prepared to express concerns about human rights defenders and communities in conflict areas.
While Colombians must reach the exact formula for peace themselves, at this moment, it would be helpful to:
· Specifically express support for victims remaining “at the center of the accord”;
· Oppose a “differential and preferential treatment” for state agents involved in grave crimes such as extrajudicial executions, forced disappearance and sexual violence;
· Reaffirm the importance of the emphasis on women and LGBTI Colombians, as victims of the conflict and as crucial to the construction of peace; and
· Support the ethnic chapter of the accords and the inclusion of Afro-Colombian and indigenous communities in the construction of peace.