Taken from: eltiempo.com
From a legal point of view, what obstacles remain to sign the peace agreement?
The most important thing now is to address how the implementation of the agreement will be, how each of the reached agreements will be incorporated into the Colombian legal system. At present there is a debate on two proposals, one prepared by the government, which unfortunately has not been consulted at the Conversation Table and has begun to be implemented unilaterally. This obviously is not the right thing to do during a peace process, especially when implementation is one of the matters that are to be discussed at the negotiating table, mentioned in the sixth point (verification and countersignature).
The FARC still talks about the subject of a constituent. The Government insists on a plebiscite ...
While ratification of the agreements is also a matter on the agenda of the talks, at no time it has been discussed between the government and FARC. And furthermore, the final agreement will require a legislative development, so this plebiscite, because of its scope or the objective sought by it, should have been called as a referendum, without using the figure of plebiscite.
Also read: FARC-EP rejects countersignature project
But there is a previous work in the Congress building laws, as a backdrop and legal ground for the peace process ...
The Government has started processing a series of legislative acts unilaterally, without previously discussing them at the Table, for the implementation of certain constitutional reforms that aim basically at creating a reduced legislative commission, which would be responsible for developing the agreements. It is not known under what criteria, because this was not discussed either ...
What does the FARC propose in order to reach peace soon?
They are proposing, first, to sign the final agreement under the formula of special humanitarian agreement, a figure provided for in Articles 3 and 6 of the I, III and IV Geneva Conventions - the same figure demanded by former prosecutor Eduardo Montealegre, just admitted by the Constitutional Court. This type of agreement is intended to regulate aspects related to the humanization of the conflict and with strict respect for international humanitarian law.
The use of this figure would immediately incorporate the contents of that agreement, which reinforce fundamental rights, into the constitutional block. The FARC proposes that this agreement, signed as a special humanitarian agreement, subsequently should be processed in Parliament to grant it force, using the means of ordinary law or the emergency procedure, which could eventually be applied to the processing, which would make the agreement to be reached within a maximum period of two months; or less, within 15 days.
There have been problems in implementing the agreements. Which do you consider complicated?
The Government does not provide for the approval of the final agreement as such its incorporation into domestic law, but merely provides for the incorporation through partial developments, aspects that have not even been negotiated so far.
Constitutional or not, or constituent later, it seems that everything leads to basic constitutional changes ...
There are many constitutional changes that will follow the signing of the peace agreement, which makes the call for a national constituent assembly practically imperative and urgent. But it is not proposed by the peace delegation of the FARC as mechanism to approve the agreement, because this would take too long and in the meantime there would exist a situation of legal uncertainty. The National Constituent Assembly is proposed as a mechanism to subsequently develop new institutions that will emerge from the peace accords in Havana; that is, a medium-term target after the signing of the peace accords.
Following statements by the Government and the implementation of a plan against criminal gangs, the FARC seems to accept that there is will to end the phenomenon of paramilitarism. However, do there still exist doubts and fears regarding the guarantees to do politics once demobilized?
The peace delegation of the FARC is requesting the immediate start of an emergency plan against paramilitarism, which is obviously not something that has to be negotiated at the talks, but which is a state responsibility. They are demanding results and a clear willingness to confront the phenomenon. Paramilitarism is still alive and continues to act with absolute impunity.
Could we be facing an impasse in which the FARC demands the end of paramilitarism in times in which this is impossible?
We must not lose sight of the fact that the position of the FARC since the start of the talks has changed substantially. They are not asking the effective dismantling, but the adoption of serious and effective policies to combat paramilitarism to start the process of decommissioning of weapons.
What is your assessment of the special jurisdiction for peace? Is there identification with the Government regarding this point?
It has received much criticism, which is logical if we consider that it is an innovative system that is light years ahead compared to any other justice mechanism agreed in any peace process. For the first time in the history of Colombia and in any armed conflict, a special jurisdiction is created that will have competence to try or to know the responsibilities of all participants involved in the conflict; of course not only the guerrillas but also state agents. This court will have jurisdiction to examine the responsibilities of civilians, be they politicians, businessmen, financers, members of paramilitary groups or agents of foreign governments; that is, it is the most serious attempt to end and fight against impunity which has existed not only in Colombia but in any peace processes after World War II.
One of the workhorses of the enemies of peace is the word impunity ...
To avoid impunity in any legal or judicial system it takes a number of elements. First, strict regulations that allow to fight against such impunity. Secondly, some legal practitioners, in this case some judges, with the will to implement those standards that are available to end impunity. And thirdly, a number of technical resources, infrastructure and financial means for legal practitioners to apply these laws and combat impunity in the best way possible.
The last two points of discussion, the third (end of the conflict) and sixth (verification and implementation), are being discussed simultaneously. What do you say about that?
A week after the September 23, as everyone knows, the Government of Colombia said that it understood that the agreement of that day was not an agreement, but a communiqué and they forced us to renegotiate the contents, which meant that the agreement could fully be closed only three months later, in late December; ie those three months were lost and probably they are the ones that are running from 23 March. Hopefully they are even less than three months.
You mentioned a definite advance on May 26 ...
The signing of the peace agreement can not be later than the first half of this year. My forecast is that if both sides set to work at the Table to address outstanding issues and no time is wasted in unnecessary arguments, by the end of May or June all points would be closed, including the final agreement. This would start the process of decommissioning of weapons; it would allow, first of all, the entry into force of amnesty.
But, pragmatically, what remains to agree?
The issues remaining on the table are very delicate. Basically, security guarantees, policies for the effective dismantling of paramilitarism. A second problem has to do with the Government's vision on peace zones or territories, areas of reintegration of guerrillas into civilian life. The Government has a vision that is different from the one worked by the technical commission and proposed by active military, generals and senior officers of the guerrilla. The Government's vision aims to change these camp-areas to prisons, ie they propose closed areas where no one can enter or leave and where there can be no contact between the guerrillas and civilians.
This is absolutely contradictory: first, it is an even tougher regime than that established in the system of special jurisdiction for peace in the case of restorative sanctions.
Secondly, it is absurd that a guerrilla force that has historically maintained a relationship with the civilian population, which has been its mainstay during these 50 years of conflict, when at this moment they want to disappear as a guerrilla force and become a political force, it makes no sense to ban the relationship with the civilian population.
Hence the issue of weapons arises. It is clear to the country that mixing politics and weapons is what we are trying to finish ...
Obviously the FARC’s proposal is not to maintain a relationship with civilians while being armed during the process of reincorporation into civilian life; but, of course, they say that these areas of reincorporation into civilian life should not become prisons.
Assuming the agreement will be signed in May or June, what is your vision on the immediate future of peace?
If there is commitment and seriousness by the Government to implement security policies, ie effective combat against paramilitarism, the process of decommissioning of weapons could be completed by the end of this year or in early 2017, by which the conflict of more than 50 years between the government and the FARC could be ended. From then on, the FARC should be able to attend normal political and electoral confrontation.
The final moments of a peace process are usually unexpectedly complex...
Yes, the parties may be tempted to invent obstacles to get in the best possible position to the signing of a final agreement.
Anyway, you sound very optimistic.
There’s no need to be nervous, we shouldn’t worry about the little crises that will be untied in this context; the important thing is not to lose time, to work hard on outstanding issues and achieve a greater impact in these remaining months.