On the evening of October 2nd, shortly after the results of the plebiscite that narrowly rejected the Cartagena Accord were announced, a defeated President Santos addressed the nation. The soon-to-be Nobel laureate vowed to continue to pursue peace with the Revolutionary Armed Forces of Colombia (FARC) and to work with his critics to produce a new peace accord.
Mr. Santos had good reason to expedite the approval and implementation of a new accord. Many feared that the bilateral ceasefire between the government and the FARC would not hold for long after the rejection of the Cartagena Accord and without the promise of a new peace plan. But, on November 24 at the signing ceremony for the new accord, when he promised that, “in 150 days, all of the FARC’s weaponry will be in the hands of the United Nations and the organization will cease to exist as an armed group,” it looked like there was hope again for peace.
In the weeks that followed, government officials met with the business executives, religious leaders and politicians that had campaigned against the original Cartagena Accord. After gathering more than 500 proposals for modifications, government representatives returned to Havana to negotiate a new accord with the FARC.
On November 11, just 41 days after the plebiscite, a new accord was announced and signed in Havana. Unlike the signing of the Cartagena Accord on September 26th, this time there was no grandiose ceremony, no heads of state, no Secretary General of the United Nations dressed in a white guayabera.
Humberto de la Calle, the government’s chief negotiator, announced that the new accord addressed close to 80 percent of the 500 proposed modifications. That said, and barring a few notable exceptions, the new agreement retains the vast majority of the original accord’s provisions. The new accord does not “modify” the Cartagena Accord as much as it clarifies many of the ambiguities that were exploited by its critics in the run-up to the plebiscite.
Although these clarifications will likely placate the fears of many Colombians that rejected the Cartagena Accord on October 2nd, the government’s political opposition is already strategizing how to undermine the new accord. In their view, the new version still omits several of their key proposed modifications.
The New Final Accord
The most significant modification in the new accord is that it will no longer be incorporated into the Colombian constitution. From the start of the 4-year long negotiations, FARC leaders remained adamant that the only way to guarantee that a peace accord would be implemented to the letter would be to grant it constitutional status. However, faced with the results of the plebiscite, they were forced to step over that red line.
That concession should not be overlooked. In practical terms it means that the new accord can be modified by Congress, the judiciary and a future administration. But one of the more resounding criticisms against the Cartagena Accord was that it would be anti-democratic to modify the constitution with the stroke of the president’s pen.
One of the most controversial aspects of the Cartagena Accord was that it would substitute ordinary prison time for “effective restrictions of liberty” and reduced sentences for perpetrators of grave human rights violations that fully and promptly confessed to their crimes.
For some of its loudest and most radical opponents, the only apt punishment for these perpetrators of grave human rights violations would be 20-plus year sentences in ordinary jails. Most critics, though, demanded that the provisions related to the “effective restrictions of liberty” contemplated in the Cartagena Accord be spelled out in more detail to prevent the imposition of punishments so flexible and light that they would amount to impunity.
To address those fears, the new accord clarifies that such sentences must be served in areas no larger than the rural hamlets (the smallest political unit in Colombia) designated for the FARC’s disarmament and demobilization. It also stipulates that the Special Jurisdiction for Peace’s (SPJ) tribunals must designate and monitor their domiciles and strict work hours for their completion of restorative works. The UN Mission on Colombia and the UN Office of the High Commissioner on Human Rights will also verify the fulfillment of the sanctions. While the new agreement does remove some discretion from the transitional justice tribunals, the bulk of the provisions related to the SPJ remain intact.
The FARC refused to acquiesce to one key proposed modification. Critics of the Cartagena Accord insisted that FARC members convicted of grave human rights violations be banned from participating in politics for the duration of their sentence. However, as President Santos explained during the new accord’s announcement, the principal objective of any peace negotiation with a domestic insurgent group is to persuade it to lay down its weapons in exchange for its participation in the political process. As a result, the point remained in the amended accord.
Implementing the new accord
Despite demands for another plebiscite to ratify the new agreement, President Santos recently announced that the new accord will be submitted directly to Congress for ratification, not to a public referendum. Government officials justified that decision claiming that a new plebiscite would only serve to polarize the country even further and that a democratically elected Congress is the legitimate representative of the people. The truth, however, is that losing a second plebiscite would be the death knell for an already fragile peace process.
Mr. Santos did not have a legal obligation to submit the Cartagena Accord to a referendum in the first place. His promise to do so became legally binding only after the Constitutional Court held that if he submitted the accord to a plebiscite, his government would be barred from implementing it if it was not approved. One of the questions that remains, hopefully to be answered soon, is whether the modifications to the Cartagena Accord will be deemed sufficient for the Court to hold that it is in fact a “new” accord.
To avoid a second plebiscite, the government chose to interpret Mr. Santos’ promise to submit any final peace accord with the FARC to a referendum as sufficiently wide to be satisfied by congressional ratification. By all accounts, this was the safest way to salvage the peace process, which enjoys wide support in Congress. While crafty, this strategy cannot be accurately labeled as “anti-democratic” because the current Congress was elected by more than 14 million Colombians. That is more than two million additional voters than the total number that voted in the October plebiscite.
Nevertheless, there is good reason to believe that a majority of Colombians would approve the new accord. When Mr. Uribe and his cohorts presumptuously claim that this new agreement did not address the principal reasons why a narrow majority of Colombians rejected the Cartagena Accord, they are assuming that everyone that voted “No” shares their views and interests. Remember that only 35 percent of Colombians participated in the plebiscite and that the Cartagena Accord was rejected by a .45 percent margin, little more than 53,000 votes.
According to some analysts, the largest bloc of voters that rejected the peace accord was Colombia’s religious conservatives. In the weeks leading up to the plebiscite, critics of the Cartagena Accord took issue with its “gender focus” and “gender diversity” provisions that sought to emphasize the rights of women and LGBT groups. These critics claimed that the government was furtively inserting its “gender ideology” into the constitution by way of the accord. Arguing that it promoted homosexuality and hindered religious freedom, religious leaders openly instructed their congregations to vote against the accord. To appease those unfounded fears, the new accord substitutes references to “gender diversity” for provisions that promote the rights of all citizens and guarantees a more active role for religious organizations throughout the implementation process.
Most of the modifications that were incorporated into the new agreement are meant to clarify similar ambiguities that were exploited by the Cartagena Accord’s critics in the run-up to the plebiscite. Having incorporated hundreds of these recommendations, it is likely that the new accord would be approved in a second plebiscite (although, given ballot box surprises this year, nothing can really be certain).
However, Mr. Santos is right to be wary of a second campaign and its implications for an already divided country. Much like President-elect Trump’s electoral campaign, critics of the Cartagena Accord, led by Mr. Uribe, appealed to the electorate’s fears and base emotions. With little regard for the facts, they claimed it would destroy Colombian families by promoting homosexuality, that it would turn Colombia into a castro-chavista state overnight, and that the government would effectively hand over the country to the FARC.
Merely a week after the plebiscite, the “No” campaign manager, Juan Carlos Velez, boasted about these tactics in an interview with La Republica. In that interview, Velez admitted that the gist of the “No” campaign strategy was to draw attention away from the actual provisions of the Cartagena Accord to make voters “pissed off” when they cast their ballots.
The eternal critic
Since the beginning of the negotiations with the FARC, former president, and now congressman, Alvaro Uribe has been the leading critic of the peace process. Even though President Santos reached out to him personally after the failed October plebiscite, it was unlikely that Mr. Uribe would ever support a peace accord with the FARC.
Mr. Uribe has made several suggestions that would make it impossible to reach a peace accord with the FARC, but one of them in particular gives cause to question his motives. Despite the incontrovertible evidence that the Colombian government is responsible for thousands of grave human rights violations related to the internal armed conflict, Mr. Uribe refuses to accept any transitional justice system that would “equate” members of the armed forces and politicians with a terrorist group like the FARC.
Mr. Uribe’s indignation has little to do with preserving the dignity of these individuals. Instead, it could have more to do with Mr. Uribe’s own fear that their testimony before the SPJ, which requires that they tell the whole truth about their involvement in the conflict, would implicate him personally along with his closest allies.
This accusation is not without precedent. A New York Times investigation published earlier this year raised suspicions as to whether Mr. Uribe had extradited a select group of paramilitary leaders to the United States in 2006 in order to prevent them from testifying. Then-President Uribe had proposed the “Justice and Peace” law as a transitional justice mechanism to demobilize paramilitary groups. Before the law came into force, however, the Constitutional Court modified some of its provisions to require truth-telling in exchange for reduced sentences. It was only then that Mr. Uribe decided to extradite these paramilitary leaders to the United States.
The government’s decision to take the new accord directly to Congress leaves Mr. Uribe in a tough spot. As expected, Mr. Santos’ coalition in Congress approved the new accord, and is now likely expedite its implementation. Mr. Uribe’s hopes of stalling the peace process until the 2018 presidential elections are fading fast.
Colombians remain divided over the latest agreement, but the heated passion that emerged in the run-up to the plebiscite has withered on both sides. In the end, it is likely that the improvements now reflected in the new accord gathered some supporters for the peace process. However, Mr. Uribe’s unmatched political skills and his gamble to continue to oppose the peace process will continue to polarize the country. Colombia’s unenthusiastic peace will, hopefully, be one more anomaly to remember about 2016.