What if? The question at the heart of the ‘No’ campaign

With the vote on the plebiscite happening this weekend, Senator Iván Duque speaks to Emma Newbery about why he is opposed to the current peace agreement and what a ‘No’ vote would mean.

Colombia has suffered untold damage in more than half a century of conflict. According to the latest figures, over eight million people have been displaced by the violence.

In addition, 220,000 people have been killed. A UN report said that the FARC is responsible for just 12% of these killings, while paramilitaries have caused 80%, with the security forces responsible for the rest.

But regardless of who took whose life, if you also consider the 11,000 people injured or killed by landmines, and add in the economic and development costs to the country, or the number of people touched by the illegal mining and illicit drugs industries, it is fair to say that there are few Colombians who have not been affected by this long running war.

With all the fanfare that came with the signing of the ‘historic’ final accord, many people outside the country are perplexed as to why Colombians might vote against peace.

The Bogotá Post spoke to Senator Iván Duque Márquez, a leading ‘No’ campaigner and member of the Centro Democrático party, and he was quick to assure us that a ‘No’ vote is not a vote against peace, but a vote against the agreement as it stands.

“I think the constitutional court has been very clear that this is not an election where peace is at stake. They have made it clear that the discussion will be based on the text of the agreement.”

Duque is correct, but the problem is that if the public rejects the plebiscite, it is not clear whether – or how – the peace process could continue.

But before we get to that, there are a number of specific clauses that the senator and his party take objection to.

Firstly, there’s the question of political participation. Duque, who is also a lawyer, says, “When you read article 36 in the justice chapter it’s pretty obvious that people who have committed crimes against humanity will be allowed to run for office – going against the Colombian constitution.”

Indeed, the idea of political participation was one of the trickier points in the negotiations – and is one of the ‘frogs’ (as described by President Santos) that the nation needs to swallow. But as Thomas Stevenson, a conflict resolution specialist, argued in a Bogotá Post article when it was initially agreed, in negotiating terms it is the epitome of low risk, high benefit for the Colombian people.

The FARC may have five guaranteed seats in the Senate and the House of Representatives as well as non-voting seats in the Congress between 2018 and 2026, but after that they’ll need to be elected. And then it’s up to the Colombian public whether or not they vote for them.

Then there’s the other highly controversial question of justice. Duque tells us that, “If you read article 60 in the justice chapter, it’s also very clear that ­– quote, unquote – people who tell the truth will not spend one day in prison even when they have committed crimes against humanity.”

He also objects to articles 38 and 39 because he argues that things like the assassination or kidnapping of soldiers and the activities that have been carried out to finance rebel activities like narco trafficking and illegal mining will all be defined as political crimes, and so perpetrators will never see the inside of a prison cell.

So what would he say to those who say that, since these crimes have never even been investigated by the current legal system, the Special Jurisdiction for Peace actually represents a unique opportunity for a form of justice – even if those who admit their crimes don’t receive custodial sentences?

Duque answers that – contrary to what the government says – this is not the first time since the creation of the International Criminal Court (ICC) that transitional justice has been used. He argues that when the paramilitary groups demobilised, they negotiated reduced sentences for those in charge, down from 30 years to between five and eight.

That doesn’t actually answer the question, but I guess his argument comes from a point he makes later on, “If we don’t have the kind of peace based on the rule of law, we won’t have a sustainable peace at the end.”

He continues that Colombia has to make sure that those responsible serve prison time, or it will be in contravention of article 77 of the ICC statute. Otherwise, the senator warns that the ICC could then have the basis to start investigations of their own.

On this point, President Santos and the High Commissioner for Peace Sergio Jaramillo disagree with him. They say that the concept of transitional justice – whereby rebels receive restricted liberty/mobility and other sanctions including reparative measures instead of prison sentences – is well within the parameters of Colombia’s agreements with the ICC’s Rome Statute and the Inter-American Court of Human Rights.

And ICC prosecutor Fatou Bensouda released a statement, welcoming the announcement of the final agreement in which she said, “I note, with satisfaction, that the final text of the peace agreement excludes amnesties and pardons for crimes against humanity and war crimes under the Rome Statute.”

She adds, “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.”

However, it is clear that Duque speaks for many when he argues against both impunity and political participation. A recent Ipsos poll showed that 88% of people wanted to see jail time for FARC members and 75% objected to their entry into politics.

The public sentiment is completely understandable and there is no doubt that the government negotiators in Havana pushed for stronger sanctions. Bear in mind that, for years, people said that peace would never be possible in Colombia because the FARC would not accept prison and the government would not accept impunity.

So I ask the senator how he would convince FARC leaders to agree to prison sentences if he were at the negotiating table.

He explains that it is a question of the type of society that we want to build; that it is unfair to have a society with one justice for regular people and a different justice for the FARC.

He suggests that for horrible crimes, those responsible “have to put their imprisonment sentence at stake for a bigger purpose”.

Perhaps, but no negotiated peace settlement has ever convinced the combatants to accept jail time. And what we don’t know – because we haven’t been at the negotiating table – is whether this is the best deal the government could have got.

Santos has said several times that, “A peace, even an imperfect one, is far better than a perfect war.”

Which brings us back to the most crucial point in the discussion: What will happen if the Colombian people vote ‘No’? Would the FARC go back to the negotiating table?

“If they don’t, then we’re not talking about a free plebiscite, we’re talking about a blackmail,” says Duque.

He continues to explain that the President needs to listen to the people. “If we say no, and then we call to amend some of these elements, it is his duty to go that way.”

This makes sense in principle, but it is difficult to see how it might work in practice – especially given the amount of time and effort it has taken to hammer out the deal that is currently on the table. It is easy to see why the government are taking a ‘now or never’ approach to the vote.

Technically, according to a detailed document on the plebiscite by WOLA, a leading research and advocacy group in the Americas, if the Colombian people vote ‘No’, that result is only binding on the President (because he called the vote). So in theory, “The President could seek to negotiate a different accord with the guerrillas, or the Congress (not the President) could seek to enact this accord.”

But as WOLA point out, “Those scenarios are unlikely in real life. A ballot-box rejection could be a fatal blow to the government-FARC negotiation.”

With just weeks to go until the vote, poll results swing from wildly pro to wildly against and everything in between. I would love to exhort Colombian people to inspire a troubled world by voting to end the conflict. But the more pragmatic question is whether they believe by voting ‘No’, there’s a possibility to somehow negotiate a better peace or, as government negotiators argue, this is the best it’s going to get.

Additional reporting by Veronika Hoelker and Luisa Leon