Would Colombia’s failed peace deal with FARC have passed muster under the Rome Statute of the International Criminal Court?

By Mikka A. Burrell

My generation has not seen one single day of peace, and my dream is for my children and the children of all Colombians to have the chance to see it.

–Juan Manuel Santos, President of Colombia

Introduction

On October 2, 2016, approximately 50.2% of Colombians voted “No” to a historic peace deal that would have spelled the end of a 52-year armed conflict between the government of Colombia and the guerilla group FARC.[1] A narrow majority of Colombians rejected the deal, known as the Final Accord, on the basis that its terms granted too much leniency to FARC.[2] Indeed, the Final Accord’s perceived amnesty terms have raised questions as to its legality under international law.  

Who is FARC?

The Fuerzas Armadas Revolucionarias De Colombia, or FARC, is Colombia’s largest left-wing guerilla group.[3] Founded in 1964 as the armed forces of Colombia’s Communist Party, FARC’s original intention was to fight against the vast economic inequality in Colombia at the time.[4] FARC is mostly a rural movement, whose members are often farmers or inhabitants of Colombia’s poor, remote areas.[5]

To finance its operations, FARC plays an active role in Colombia’s infamous narcotics trade. It is estimated that FARC controls as much as 60 percent of Colombia’s drug trade.[6] FARC earns as much as $1 billion per year from the trafficking of cocaine both in Colombia and overseas, making it one of the richest guerilla movements in the world.[7]

Although FARC’s main enemy is Colombia’s security forces, many of the rebels’ victims are civilians killed in FARC ambushes and bombings. As many as 220,000 people have been killed in the conflict between FARC and Colombia’s security forces, with civilians making up four out of five victims.[8]

In recent years, Colombia’s security forces have launched several offensives against FARC.[9] Today, estimates put FARC’s membership at 7,000, down from 20,000 before the raids. FARC’s weakening power is what influenced the group to participate in peace talks with the Colombian government over the past several years.

The Colombia-FARC Peace Deal’s Implication of the Rome Statute

As previously mentioned, the narrow defeat of the Final Accord has been attributed to the fact that many Colombians felt the agreement was too lenient on FARC. Over the decades-long conflict, FARC has been accused of various human rights abuses, including killings, child combatant recruitment, kidnapping, and sexual violence.[10] The Final Accord would have allowed many rebels to receive reduced sentences or even escape formal incarceration entirely for such crimes.[11]

Many human rights groups criticized the peace deal for this very reason, suggesting that Colombia may be shirking its responsibilities under international law depending on the level of amnesty potentially afforded FARC rebels under the deal. Amnesty International criticized the deal’s proposal of non-custodial sentences of five to eight years for FARC guerillas who admitted perpetrating grave crimes, stating, “By proposing sanctions that do not appear to be proportionate in the severity of crimes under international law, Colombia may be failing to comply with its obligation under international law to prevent and punish such crimes.”[12] Human Rights Watch echoed Amnesty International’s concerns with Colombia’s proposed non-custodial sentences, pointing out the country’s “obligation under international law to provide punishments for human rights violations . . . that are proportionate to the gravity of the crimes.”[13]

But what international laws does Colombia’s failed peace deal with FARC implicate specifically? Perhaps the most obvious implication is the Rome Statute of the International Criminal Court, which Colombia signed in December 1998 and ratified in August 2002.[14] The Rome Statute of the International Criminal Court establishes the International Criminal Court (ICC). Article 17 of the Rome Statute states in pertinent part:

[T]he Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute . . . . [15]

 In the context of the FARC peace deal, the ICC could consider the deal’s amnesty measures and weak sentencing proposals even for admitted FARC war criminals to be a display of Colombia’s unwillingness to bring war criminals to justice in the interest of peace. Upon such a determination, the ICC could potentially assert jurisdiction over certain FARC rebels and prosecute them for war crimes in The Hague.

Indeed, the ICC has reminded the parties to the peace deal that, although it welcomes an agreement that will end the conflict, “any proposed solution in the peace talks must be compatible with the Rome Statute.”[16] ICC prosecutor Fatou Bensouda released a statement in the weeks leading up to the referendum, stating his satisfaction with the fact that the final agreement.[17] However, Bensouda sternly reminded Colombia that it nonetheless had a duty to prosecute:

The peace agreement acknowledges the central place of victims in the process and their legitimate aspirations for justice. These aspirations must be fully addressed, including by ensuring that the perpetrators of serious crimes are genuinely brought to justice. The Special Jurisdiction for Peace to be established in Colombia is expected to perform this role and to focus on those most responsible for the most serious crimes committed during the armed conflict. The promise of such accountability must become a reality, if the people of Colombia are to reap the full dividends of peace.[18]

 Colombian President Juan Manuel Santos’s attitude towards the ICC’s close scrutiny of the peace deal has been somewhat inconsistent throughout negotiations. On one hand, Santos has stated his intention to enter a peace deal that is acceptable to the ICC[19], but he has also declared that Colombia will be the ultimate arbiter regarding to what extent “it will allow international bodies to dictate how to make peace.”[20] Meanwhile, the chief negotiator for FARC has been much more openly critical of the ICC during negotiations, calling them “interventionist and biased” while “knowing little about the internal Colombian conflict.”[21]

Conclusion

It remains to be seen whether Colombia will re-negotiate a peace deal with FARC that is acceptable to the Colombian people. But the fact still remains that Colombian President Juan Manuel Santos has the delicate task of ensuring justice for the people of Colombia and complying with the Rome Statute, while securing an agreement from FARC for lasting peace. Should a deal finally be ratified by the Colombian people and Santos’ government fail to adequately prosecute FARC war criminals, the ICC may be able to assert jurisdiction to prosecute FARC rebels for war crimes under Article 17 of the Rome Statute.

* * * * *

[1] Colombia Referendum: Voters Reject FARC Peace Deal, BBC (Oct. 3, 2016), http://www.bbc.com/news/world-latin-america-37537252.

[2] Id.

[3] Who Are The FARC?, BBC (Sept. 28, 2016), http://www.bbc.com/news/world-latin-america-36605769.

[4] Id.

[5] Id.

[6] Helen Murphy & Luis Jaime Acosta, FARC Controls 60 Percent of Drug Trade – Colombia’s Police Chief, Reuters (Apr. 22, 2014, 10:58 PM), http://uk.reuters.com/article/uk-colombia-rebels-police-idUKBRE93L18Y20130422.

[7] Id.

[8] Colombian Conflict Has Killed 220,000 in 55 Years, Commission Finds, Guardian (July 25, 2015, 7:19 AM), https://www.theguardian.com/world/2013/jul/25/colombia-conflict-death-toll-commission.

[9] Who Are The FARC?, supra note 2.

[10] Colombia: FARC Battering Afro-Colombian Areas, Human Rights Watch (July 30, 2014, 8:35 AM), https://www.hrw.org/news/2014/07/30/colombia-farc-battering-afro-colombian-areas.

[11] Mimi Yagoub, Colombia, FARC Peace Deal: Amnesty For Organized Crime? InSight Crime (Aug. 31, 2016), http://www.insightcrime.org/news-analysis/colombia-farc-peace-deal-amnesty-for-organized-crime.

[12] Amnesty International, The State of the World’s Human Rights 123 (2016), http://www.amnestyusa.org/sites/default/files/pol1025522016english.pdf.

[13] Human Rights Watch Analysis of Colombia-FARC Agreement, Human Rights Watch (Dec. 21, 2015, 6:21 PM), https://www.hrw.org/news/2015/12/21/human-rights-watch-analysis-colombia-farc-agreement#_edn5.

[14] Colombia, Coalition of the International Criminal Court, http://www.iccnow.org/?mod=country&iduct=37.

[15] Rome Statute of the International Criminal Court art. 17, (Rome, 17 July

1998) UN Doc. A/CONF.183/9 of 17 July 1998, entered into

force 1 July 2002.

[16] Adriaan Alsema, Eventual Peace Deal With The FARC Must Comply With International Law: ICC, Colombia Reports (June 21, 2013), http://colombiareports.com/eventual-peace-deal-with-the-farc-must-abide-international-law-icc.

[17] Statement Of ICC Prosecutor, Fatou Bensouda, On The Conclusion Of The Peace Negotiations Between The Government Of Colombia And The Revolutionary Armed Forces Of Colombia – People's Army, International Criminal Court (Sept. 1, 2016), https://www.icc-cpi.int//Pages/item.aspx?name=160901-otp-stat-colombia.

[18] Id.

[19] David Gagne, Impunity Issue Looms Large Over Colombia’s Peace Process, InSight Crime (Mar. 3, 2015), http://www.insightcrime.org/news-analysis/impunity-issue-looms-large-over-colombias-peace-process.

[20] Adriaan Alsema, Colombia Challenges ICC Over Possible Amnesty for FARC, Colombia Reports (Aug. 27, 2013), http://colombiareports.com/colombia-challenges-icc-possible-amnesty-farc.

[21] Id.