4 October 2016

Reflections on the referendum results

On 2 October 2016, the Colombian people voted to reject the agreement reached between the Colombian government and the guerrilla organisation FARC-EP by a slim majority of 55,000. Both President Santos and the leader of the FARC-EP Timochenko have publicly stated their intention to continue the dialogue. According to the Constitutional Court, the decision of the plebiscite is binding on the president of Colombia, but not on the other state organs such as Congress.  There is large scale uncertainty regarding what happens next.

The proposed agreement was the result of four years of negotiation between the parties that took place in La Habana with the support of Cuba, Norway, Venezuela and Chile. Furthermore, the United States and the European Union have closely followed the negotiations and sent special representatives to Cuba to accompany negotiations.

The agreement dealt with matters relating to rural land reform, political participation, illicit drug production, the end of the armed conflict, verification and victims. This last point involves a proposal for a transitional justice mechanism called the integrated system of truth, justice, reparation and guarantees of non-repetition. This system would involve a truth commission and a special peace jurisdiction to investigate and sanction perpetrators of human rights violations committed during the conflict by both state actors and members of the FARC-EP. In addition, there would be a special unit for the recovery of persons presumed to have been disappeared or missing and further mechanisms for reparations of victims.

There has been much debate in Colombia regarding this proposed system of transitional justice. While it was not entirely clear which crimes would pass to the special tribunal, it is at least possible that many of the grave human rights violations suffered by victims who are supported by PBI accompanied lawyers and human rights defenders would pass to this new system.

One of the main concerns raised during the campaign leading up to the referendum was the issue of potential punishments for serious human rights violations. The agreement states that state actors or members of the FARC-EP who confess crimes, provide reparation and cooperate with the special peace jurisdiction would receive alternative sanctions, involving some restriction of liberty but not prison, of up to eight years.  Should perpetrators recognise their responsibility later on or refuse to recognise it entirely, they may be sanctioned to up to twenty years in prison. This debate involves those who consider that there must be greater custodial sentences for human rights violations due to their gravity and those who consider that in transitional justice contexts a combination of different judicial and non-judicial mechanisms may be better placed to ensure that victims’ rights are upheld.

While the country awaits to discover what the next step is in the peace negotiations and the likelihood of any transitional justice measures being implemented, many challenges remain in Colombia for the defence of human rights. The situation remains extremely serious for human rights defenders. According to the human rights platform Somos Defensores, 35 human rights defenders were murdered in Colombia in the first half of 2016. In addition, despite the reduction in the number of victims of the armed conflict due to the cease-fire, civil society organisations have denounced the resurgence of neo-paramilitary and criminal gangs in various parts of the country. Furthermore, impunity rates remain high in cases of human rights violations in which PBI accompanied organisations typically represent victims. This situation continues to be monitored by the Office of the Prosecutor of the International Criminal Court as well as the Inter-American System of Human Rights, among other international bodies.

Finally, it is not clear what impact this result may have on the parallel negotiations that are underway between the Colombian government and the second guerrilla organisation in Colombia, the ELN.