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Friday, 28 October 2016 00:00

"The plebiscite was not necessary to legitimize peace, much less to delegitimize it"

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Source: Semana

Italian jurist Luigi Ferrajoli, theorist of criminal law, talks about the legal implications of the triumph of the NO-vote [to Final Peace Agreement] and what might be the way out of this limbo.

You have always said that rights such as peace cannot be taken to a plebiscite/referendum. Why?

Luigi Ferrajoli: Peace is a counter-majoritarian principle. Therefore, as I have argued many times, the Agreement to reach peace did not need to be submitted to a popular referendum. The referendum was not and is not necessary to legitimize peace, much less was and is sufficient to delegitimize it.

In your opinion, what do the plebiscite results in Colombia mean?

L.F.: The negative results of the plebiscite of October 2 (especially by a few thousand votes) cannot jeopardize the peace process. The principle of peace –like or much more than other fundamental principles such as dignity, equality, freedom and other human rights- represents, indeed, a precondition of civil coexistence. It is the supreme political value above any other; it represents the necessary presupposition of all others. Its nature rests in its supreme and fundamental character in the sense that peace does not need the consensus of the majority, much less can be repealed by the will of any majority.

What do you mean by "peace is the supreme political value"?

L.F.: I mean that in Colombia -besides the counter-majoritarian character of peace as the foundation of national coexistence- [peace] has been constitutionalised: "Peace is a right and a mandatory duty" consecrates Article 22 of the Colombian Constitution. Unlike other constitutions, such as the Italian, which also enshrines the rejection of war, the Colombian Constitution establishes peace as a fundamental right of the individual -and jointly and correlatively- as a duty of the public sphere; its implementation is a priority task of the State.

 What does that legally mean?

L.F.: That the absolute and unconditional nature of that right relies there, as well as the non-withdrawal of the obligation of the State to guarantee it even against the will of any majority. That’s the reason of the impertinence of the referendum on peace. Indeed, on peace -in any of its areas- no vote or decision is needed by the majorities, neither on the dignity and equality of individuals or other supreme values such as the right to life and the fundamental freedoms. In short, the result of the plebiscite does not diminish the constitutional obligation of the State to guarantee peace.

The final agreement signed between the Government and the FARC has been given the status of "special" in light of the Geneva Conventions. Do you think this makes it binding?

L.F.: Indeed, that gives binding status to the agreements. Therefore it is binding for both negotiating parties. But beyond the purely legal issue, it is clear that in fact, the execution of the imperative of peace cannot happen if it’s not based on those agreements, reached with effort in the long negotiation of Havana: the disarmament of combatants, their reintegration into civilian and political life and, above all, the rules on the so-called Transitional Justice, aimed at ex-combatants and agreed in virtue of the Legal Framework for Peace approved by the Colombian Congress on June 12, 2012 and the Legislative Act # 1 of July 31, 2012.

What will happen to the covenants on Justice made in the Havana Peace Process?

L.F.: Among the reached agreements there is in particular the obvious condition of peace, representing the resignation of the State to subdue the insurgents to the ordinary criminal justice and the provision of a different model of justice for them, precisely, Transitional Justice, named like that due to the transitional nature of its governing rules, that is to say the period of transition from a state of war to a state of peace.

There are many criticisms of the justice system especially that it leads to impunity. What is your opinion?

L.F.: Precisely, the justiciability of those who committed serious crimes –in other words, its treatment with the norms of law, even the transition ones, rather than with those of war- transforms yesterdays´ enemies and combatants into the citizens of tomorrow, with which it makes a distinctive feature of peace. It is clear that such Transitional Justice -oriented to the verification of the truth, the responsibility of the perpetrators of the committed atrocities and at the same time the compensation of the victims- does not amount at all to impunity, that, in turn, would come from a general and unconditional amnesty. This is a reparatory type justice, directed to the obvious purpose of effective national reconciliation that will not leave hatred, resentment, feelings of suffered injustice or vindictive justice, and therefore based on the idea that the main reparation to the violence suffered by the victims is consists of the reconstruction of historical truth, public recognition and compensation for the suffering and for that, the rehabilitation of their dignity as individuals.

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