May 12, 2016
In what government negotiator Humberto de la Calle called a “highly important act”, yesterday afternoon, the government of Colombia and the FARC-EP moved one step closer to a final peace agreement. (See his statement here.) In a joint declaration, they announced from Havana that they had reached a new agreement on the endorsement mechanism for the final accord. (Read it here.) The agreement, if implemented, will ensure the legal protection of the final peace agreement in Havana and will incorporate it as a Special Humanitarian Agreement under the terms of Common Article 3 of the Geneva Conventions into the body of international law. Yesterday’s agreement also anticipates the incorporation of the final peace accord into an annex to the UN Security Council Resolution 2261, which in January, committed to the creation of a tripartite peace mission in Colombia to verify the ceasefire and setting aside of arms following the signing of the agreement. The measures agreed to yesterday also include a popular referendum, the nature of which has yet to be determined in Havana.
The institutional mechanisms agreed to yesterday will provide legal security to the Final Accord, assure that it is made part of Colombian law, and provide guarantees for its implementation in accordance with both Colombian and international law.
The new agreement represents a major victory for the negotiators and creative compromises on both sides. While it still has many hurdles and resistances to overcome at home, the agreement appears to satisfy the needs and interests of the parties at the table and those they represent, as a good agreement should. It gives the Colombian Congress a role in formalizing the mechanisms for integrating the final accord into law, and requires approval by the Constitutional Court. Likewise, it provides international guarantees through the parties’ commitment to deposit the Accord with the Swiss Federal Council (which oversees the Geneva Conventions applicable to internal armed conflicts) and proposes to annex the final agreements to the UN Security Council resolution signed last January. These international mechanisms will imply a commitment to compliance by the parties of the accord, and would provide a kind of international stamp of approval (particularly for the transitional justice mechanisms in the final agreement) that could make the Accord less vulnerable to challenges from the International Criminal Court.
The agreement is highly technical, and it requires a series of immediate measures that put the peace process on a fast track. Indeed, here in Bogota, there is a guarded and growing expectation that a full accord could be reached by the end of June.
The agreement will “require additional measures to give it solidity and stability over time,” noted de la Calle. These include “a popular referendum (refrendación), that still has not been agreed to in Havana,” and a series of legal instruments” to introduce the peace accord into Colombia’s legal system. (See de la Calle’s statement here.)
While there are still items related to the final two points on the agenda in Havana, this new agreement is a huge step forward. The agreement commits the government to presenting the specific modifications being called for to the Congress by next Wed. May 18. A legislative act for peace, which has already been working its way through Congress, must be modified according to the particular language agreed to yesterday. The agreement includes the specific language, based on the Colombian Constitution’s recognition (Art. 22) of the right to peace, to incorporation of the final peace accord into the Colombian Constitution. The current legislative act for peace has already been approved by the Senate and has two of 6 rounds of debate remaining in the House before the bill goes to reconciliation. Yesterday’s agreement requires the modified legislation to be approved by the Congress by June 20 at the latest. It is anticipated that the final peace agreements would be signed around this time, and then, within two months of signing, a plebiscite would be called.
Before the plebiscite occurs, President Juan Manuel Santos would request the UN to annex the agreement to Security Council Resolution 2261. If the majority vote in a referendum in favor of accepting the peace accords, the legislative act for peace will enter into force. The Constitutional Court will then have 15 days to review the law to be sure it meets all standards of constitutionality and Colombia’s international obligations. Additional laws will then need to be developed that legalize and put into practice particular provisions of the final accord.
Implementation, verification, and endorsement
The new agreement addresses part of the final topic (#6) on the agenda in Havana–implementation, verification, and endorsement. The issue was taken up for the first time at the main peace table in Havana only in April. The central question has been how a final peace agreement reached in Havana will become legally binding, and how it will remain so despite any future changes in policy or administration. Discussions in Colombia and only now in Havana have explored whether this might happen through the establishment of a Constituent Assembly, by the declaration of the President, or through other participatory mechanisms allowed by the Colombian Constitution. These mechanisms include a referendum (used to approve or repeal a law), a plebiscite (to weigh in on a government decision), or a popular consultation (for matters of local or national interest). A bill currently working its way through Congress has
The government has long supported a plebiscite, and the Congress has passed relevant laws to make it possible. The FARC has long rejected a plebiscite, at least in part because it considered a plebiscite to be a unilateral imposition from the other side; in its stead it has promoted a Constituent Assembly. In addition, the FARC has long argued that Colombian state institutions are corrupt and has been disinclined to engage them in the process. These positions have shifted in the course of the discussions at the table. Last Friday, May 6, FARC delegation leader Iván Márquez clarified that “No one has affirmed that the results of the negotiations should not be consulted with the populace. But we want to do it well…” (See his statement here.) Yesterday’s statement opens the path for a consultation mechanism, which could be a plebiscite, and is a sign of the FARC’s willingness to work within the democratic frameworks that exist in Colombia. It is a huge leap forward and a reminder of the importance of taking the time that is needed to shape agreements that truly reflect commitments to the process and the substance of what is agreed.
In addition to the mechanism for approval of the agreement, the new agreement also addresses the question of how the accords will be regulated by law. This too has been the topic of much discussion and debate–mostly within Colombia, until the past cycle of talks in Havana. The debates in Colombia have been heated. As his term ended, Colombian Attorney General Eduardo Montealegre had proposed a formula that would give the accords the status of an international treaty and automatically convert any accords reached through the legally sanctioned peace talks in Havana into a constitutional mandate; he called on the Constitutional Court to weigh in with an opinion. (More here.) The court, in turn, called for briefs, including from the parties themselves, in effect giving the FARC legal standing to present its opinions, which in turn unleashed a huge polemic. On May 5, Comptroller General Alejandro Ordóñez argued that the Court was not even competent to judge the case and it should be sent to the Council of State to judge the case.
In the midst of these debates at home, on May 6th, the FARC then echoed Montealegre’s proposal with its proposal for a “Special Agreement”, a figure that is part of International Humanitarian Law under the Common Article 3 of the Geneva Conventions, which are part of Colombian law. The Agreement would legally protect any accords reached in Havana and it has now been accepted by both sides as the path forward for ensuring that a new government that might come in would not have the capacity to alter the agreement that was produced in Havana.
With FARC agreement not to oppose a plebiscite, and the government’s acceptance of the special humanitarian agreement mechanism, the peace talks have overcome a significant hurdle and are poised to finish out the remaining agenda.