On June 23, the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) announced a bilateral ceasefire in front of the Secretary General of the United Nations and 11 world leaders in Havana, Cuba. This is the most significant development for the Colombian peace process to date, with military hostilities between both parties ceasing immediately.
This does not mean that the peace process negotiations are over. In recent statements, however, President Juan Manuel Santos hinted that the parties could be ready to sign the final peace accord before the end of July.
As the peace process between the government and the FARC enters the final stage, opponents continue to escalate their rhetoric in a desperate attempt to confuse the public and thwart the final accord. In what appears to be an effort to steal a page from Donald Trump’s political playbook, opponents of the peace process are accusing President Juan Manuel Santos of being a secret member of the FARC and of orchestrating a coup against the institutions of the state.
The last point of the negotiation agenda addresses the steps the government will need to take to implement the final accord once signed and the mechanisms that will allow the Colombian people to approve or reject the terms of the accord. From the beginning of the peace process, President Santos has insisted that the accord, which has taken four years to negotiate, will be set aside unless a majority of Colombians approve it in a referendum.
In recent weeks, negotiators in Havana began to turn their attention from the content of the agreements (e.g., agrarian reform, illicit drugs, transitional justice) to this final stage focusing on the mechanisms necessary to implement the final accord and “shield” its contents from modification by Congress and future administrations.
The opposition was no doubt counting on the opportunity to meddle with the content of the final accord once it was signed by the parties and presented to Congress as a legislative bill. This would have posed an insurmountable challenge to the peace process because the final accord depends on its comprehensiveness, and because the FARC would likely refuse to lay down its weapons if some of the most controversial provisions, those most important to FARC, were omitted in the legislative process.
Thus, for the peace process to succeed, the government had to devise a strategy that ensured that the provisions of the accord, once signed, would be implemented into law without modification.
Furthermore, the government faces two additional challenges in implementing the final accord. First, even if the accord is approved by Congress without modification, Congress could delay or refuse to pass the laws that will be necessary for its implementation. And second, future administrations could choose to modify the accord or disavow it in its entirety.
The solution devised by negotiators in Havana is as creative and elegant as it is controversial. To be sure, the strategy cuts some corners, but it also takes steps to maintain the final accord’s domestic and international legitimacy.
The Legislative Act for Peace
The first step of the government’s strategy following the signing of the final accord is the Legislative Act for Peace (LAP). The LAP, which was passed by Congress on June 2, introduces a series of special legislative procedures to fast-track laws that will be necessary to implement the final accord, once signed. The procedures and powers granted by the LAP will expire one year after the date of the referendum. Although the LAP has yet to pass muster before the Constitutional Court, its approval by Congress was hailed as an essential triumph for the peace process.
Beyond fast-track authority, the LAP also gives the president a set of “extraordinary powers” to make laws by decree for the 180 days following enactment This means that President Santos will have the power to unilaterally pass laws that would ordinarily have to be approved by Congress. However, the LAP limits this power by stating that those laws will only come into force once the final accord is signed by the parties in Havana and the Colombian people have approved the accord in a national referendum.
The LAP purports to create the Plan de Inversiones para la Paz (Investment Plan for Peace). That provision states that, for the next 20 years, the government’s budget will prioritize resources for citizens and local governments that are most afflicted by rural poverty, illegal economic activities, weak state institutions, and that were affected by the armed conflict.
But it is the fourth article of the LAP that is most controversial and leads to the second step in the government’s strategy. The article states that once the final accord is signed by the parties it will be treated as a “Special Humanitarian Agreement” under Articles 3 and 6 (Article 7 in the Fourth Convention) of the 1949 Geneva Conventions.
So what are “Special Humanitarian Agreements?”
While the Geneva Conventions traditionally apply only to inter-state conflict between state actors, Article 3 regulates the behavior of parties to an internal armed conflict. It states that the parties to such a conflict should endeavor to bring into force “by means of special agreements, all or part of the other provisions of the present Conventions.”
Taken in its narrowest sense, Article 3 encourages all parties to a conflict, both signatories and non-signatories of the Conventions, to incorporate the provisions of the Geneva Conventions through special agreements. In March 2016 the International Committee for the Red Cross (ICRC) released its updated commentary on Article 3, stating that a “peace agreement, ceasefire or other accord may also constitute a special agreement for purposes of common Article 3.” The commentary to Article 6 further states that “the notion of special agreements must be interpreted in a very broad sense, with no limitation on form or timing.”
The ICRC’s updated commentary opened the door for negotiators in Havana to elevate the final peace accord from a domestic political agreement to a special agreement of international status under international humanitarian law. However, this status does not allow either party to avoid responsibility under international law for crimes against humanity.
The effects of the second step of the strategy overcome two crucial hurdles. First, it means that the accord will be submitted to Congress, not as an ordinary bill, but as an international agreement for ratification. As such, Congress can either approve or vote down the agreement, but it cannot modify its contents. Second, if Congress approves the accord and the Constitutional Court upholds it, it will automatically acquire constitutional status domestically under a judicial doctrine known as the “constitutional block.”
Article 93 of the Colombian Constitution states that, when Congress approves a treaty concerning human rights, its provisions will prevail over domestic law. This article gave rise to the “constitutional block” doctrine in Colombian law, where Congressionally-approved international treaties or agreements become controlling over the judiciary’s interpretation of any contradictory domestic law and gain constitutional status, protecting them from future interference, whether by Congress or future administrations.
Critics of the strategy were quick to label it as undemocratic. However, President Santos’ administration is going to extraordinary lengths to maintain the integrity of the accord that is being negotiated in Havana while still upholding Colombia’s constitution and respecting the will of the Colombian people—all the while trying to ensure that it will be accepted and implemented without breaking the delicate consensus among the parties.
Here’s how Santos’ deft maneuvering has kept all of this within the constitution. First, while the strategy removes Congress’ prerogative to debate and modify the accord, Congress still retains its power to approve or vote down the agreement as a whole. Second, the Constitutional Court will still have a final say as to whether the strategy complies with Colombia’s domestic and international obligations. And third, even though there is no constitutional or international requirement that the final accord be submitted to a popular referendum, the entire government strategy depends on the Colombian people’s approval of the accord.
Finally, the laws necessary to reform Colombia’s agrarian sector, end its illicit drug production, and create a transitional justice system—the substantive components of the peace accord—are unlikely to pass a divided Congress using a piecemeal approach. The accord contemplates structural reforms that are interdependent and thus must be implemented nearly simultaneously in order to stay true to the accord’s intent. That is the reason why the special procedures granted by the LAP are vital to the accord’s implementation once the accord has been approved by Congress, the Constitutional Court and the Colombian people.
The strategy is an extraordinary measure to achieve an extraordinary objective. If it succeeds, the final accord will become permanently binding on the state under international law as a Special Humanitarian Agreement and protected domestically from interference with the “constitutional block” as a judicial shield.
This explains—but does not justify—the recent surge of outlandish critiques by adversaries of the peace process. With the peace accord almost finalized and judicial shield strategy well on its way, it seems the only viable strategy left to halt implementation is for the opposition to convince the public to reject it in the referendum.
Let us hope that the Colombian people see through the fear-mongering tactics of a minority bent on sabotaging the noble endeavor of bringing peace to a society that has seen its enormous potential stifled by decades of war.