Don’t Hold Your Breath

So, news was leaked via La F.M. radio station this morning informing listeners of a mass legal process to be levied at the FARC guerrilla group in coming days. Good news on the surface, but don’t hold your breath.

the FARC emblem

The story

Apparently the Colombian Attorney General’s Office has been investigating and preparing a case against members of the Revolutionary Armed Forces of Colombia (FARC rebels) as a whole and which will be presented in the coming days. This will be the first time that the FARC will have been accused as a group rather than individuals.

According to La F.M. the case will consist of more than 500,000 (yes you read that right, five hundred thousand!) crimes and more than 100 high-ranking FARC guerrillas including members of the Secretariat and FARC commander-in-chief alias ‘Timochenko’ will be accused of massacres, kidnapping, torture, forced disappearances, displacement and the recruitment of minors. Members of the Secretariat and negotiating team in Havana, Cuba (talks have been on-going since November 2012) are reportedly on the list as well.

There has been no information provided as to when the charges will date back to, but given the number of crimes said to have been compiled in the case, one can presume that the clock will be wound back as far perhaps as 1964, the “official date” of the commencement of hostilities.

The FARC’s (predictable) Response

“This action will oblige the attorney general to speed up charges and accusations for crimes committed by the state, which it has not done so far,” said chief FARC negotiator Luciano Marín Arango, alias Iván Márquez, in an interview with the same radio station (La F.M.). “They will need to accelerate processes to clarify the phenomenon of the paramilitaries. How this phenomenon came about and how it was financed leaving so much human tragedy in our country,” he added.

Aside from this we can expect the FARC in Havana to shrug their shoulders and ignore the charges as they continue to defend their position, which represents in their view a legitimate voice in the struggle against a corrupt and uncaring, landowning oligarchy. As they continue to negotiate the same arguments are repeated, that they are the “first victims in the Colombian armed conflict.”

The FARC is not wrong to demand answers for crimes committed by the state and it appears that there is movement, albeit torpid, on this front with four retired Generals being called on to provide information regarding the nefarious “False Positives” scandal where according to Human Rights Watch up to as many as 3500 civilians were killed and then presented as guerrillas during the presidency of Alvaro Uribe (2002-2010).

Don’t Hold Your Breath

Why do I say this? Well, as with any peace negotiation or in fact a negotiation of any type there is going to be a great deal of intrigue. Who would expect less from a government led by President Santos, the unrepentant devotee of “the Third Way?” Anyway, for starters we don’t know what has been said and agreed upon in Havana between members of the government’s negotiating team and the FARC. They have supposedly reached agreements on the issues of agrarian reform, political participation and illicit drugs. While this is to be commended, don’t think for one minute that these agreements are final. Apparently there is a phrase being employed a fair bit: “put it in the freezer.” So, when one side or the other cannot agree on a technicality, wording, phrase or so on, so as to keep the negotiations moving, they “put it in the freezer” to revisit at the end of negotiations. I would assume that the freezer is pretty full by now.

Now, we could be celebrating the Attorney General’s decision to create this case and accuse the FARC of more than 500,000 criminal acts including crimes against humanity, war crimes and violations of International Human Rights Law and so on, but, there’s a caveat. By creating this lawsuit against the FARC as a whole and as a group the Attorney General is effectively protecting the guerrilla group from International Criminal Law and Transitional Justice.

Call me cynical, but don’t think for one moment that President Santos isn’t capable of pulling a fast one to push through this thorny issue of “victims” in the dialogues so as to reestablish some forward momentum to the talks. The dialogues have been stagnated on this point for month after month and the conflict has escalated into a bloody hurting stalemate with more than 38 guerrilla attacks since they suspended their unilateral ceasefire in May 2015.

Now that it’s a national court case, once charges are presented, the International Criminal Court can stand back and watch from afar as they are only complementary and it’s in their statutes that they do not have universal jurisdiction. Even where the ICC has jurisdiction, it will not necessarily act. The principle of “complementarity” provides that certain cases will be inadmissible even though the Court has jurisdiction. In general, a case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction.

So, there you have it…don’t hold your breath, what they are looking to formulate right now are “alternative sentences” for the guerrillas.