Fabio Andrés Díaz

In the past week, several promising reports emerged regarding the current peace process between the FARC-EP and the Colombian Government. Among these are the agreements reached on the demobilization of FARC child soldiers, and on the juridical shielding of the agreements (according the final peace agreement the standard of an international treaty, ensuing that the government is obliged to enforce it, and that it is protected from amendments or denial owing to possible changes in government or legislative processes). Two final points of the peace agenda remain under discussion: cessation of the conflict; and implementation, verification and countersigning of the agreements. The agreements just reached will inform how discussion and negotiation on the two outstanding points take shape. The fact that the end of negotiations and the start of the post-agreement phase with the FARC might be soon a reality in Colombia heightens concern about implementation, and adds urgency to ongoing negotiations.

Both outstanding agreements speak to one of the major difficulties faced in the final stages of any negotiation, when attention shifts from what is agreed upon to questions of practice and implementation. Ideas can be stretched as far as imagination dares, but the gap between dreams and reality can be stark; planning a route that connects these two is critical for peace to grow. This is what the Colombian negotiations between the FARC-EP and the government currently face. So far, the agreements reached speak to where the country wants to go, but lack clarity on how to get there. In this context the agreement regarding the juridical shielding of the final agreements can be seen as a step towards clarifying the transition between what has been agreed and the how the accords will be effected in practice.   

The agreement on the shielding of the peace accords suggests concern from both sides that the agreements are rendered sustainable and effective over the long term. It also indicates interest in making peace resilient against spoilers within state institutions. The judicial shielding of the peace agreements offers an interesting strategy and a novel way of proceeding in signing agreements, giving confidence to both actors and reducing the fear of spoilers. These accords might, if  the shielding works, present a new option for future peace negotiations in other parts of the world.

What has been decided is that the Colombian Constitution will now include a temporary article that will give the agreements signed in Havana the status of an international agreement, obliging signatories to comply with the negotiated settlement.

The agreements represent a departure from the original position from the FARC-EP which initially wanted a new constitutional assembly and the creation of a new social contract in Colombia. The Colombian government has consistently refused to entertain the possibility of establishing a new constituent assembly. They claim the government is a legitimate institution, arguing that the constitution of 1991 (signed after a peace agreement with another guerrilla group, the M-19) represents a valid social contract and therefore that the legitimacy of the state is not in question. 

Theoretically, Colombia ensures human rights and liberties to the same level as advanced democracies. However, it is also features interesting mechanisms to protect these that surpass institutions and mechanisms of some advanced democracies. But reality does not reflect what is promised in the constitution of 1991. The poverty index in Colombia is 27.8 percent , the poverty in the rural areas is 44.7 percent, and the country has eight million of victims of an armed conflict. 

Thus, the benefit of the shielding agreement is the creation of a safety mechanism that will oblige the state and the FARC-EP to comply with what has been signed. This hints at the real interest from the negotiating parties in going beyond the symbolic nature of the agreements, not to mention their genuine concern for their transformation into practice. This could avert later tensions and disappointments, such as those seen in South Africa, where the transitional agreement was accompanied by a series of promises that have remained largely unfulfilled (for example around land redistribution and justice). The people have been left with symbolic gestures rather than real structural changes, as a result. 

The shielding agreement can be seen as the reassertion of the legitimacy of the 1991 constitution, as the peace agreements are not creating a new social covenant just between the FARC and the government. However, critiques have emerged regarding the fact that the agreements have been reached by bypassing existing institutions, and raising questions about the extent to which these agreements represent the will of the people.

Indeed, the agreements point to the inevitable fault lines of peace in regards to notions of democracy, representation and sovereignty. If the agreements are enforced by international agreements, through a mechanism stated in the Colombian Constitution, it begs the question of whether the state is recognizing its own incapacity to impose its own will.  

The fact that the government and the FARC-EP appear to be looking to validate the agreements at an international level in order to protect them from the uncertainties within the borders of the country raises several questions regarding the credibility of Colombian institutions. This can be seen as an awareness on the part of state institutions of the difficulties in guaranteeing the agreements by themselves.  The question of how the state, in delegating responsibility to an international “big brother,” can improve its institutions is yet to be answered.  However, if it is the case that the shielding agreement is being brought as a mechanism to give more legitimacy to the agreements, and to assure the parties that agreements will be honored, it might serve an important purpose. 

It might be the case that legitimacy and credibility is what is being sought. The agreements will be submitted to a plebiscite, after all. And while the results are not binding, there exists a strong  interest in popular validation. , In fact, this is an exercise of democracy, where citizens have a say in the final agreements. However, questions emerge as some politicians are mobilizing citizen discontent, using the peace process as a political straw man in order to earn support for their cause. The case of former president Alvaro Uribe is illustrative of this. Readers of Warscapes may recall that Uribe previously tried to negotiate with the FARC, and signed a peace process with the paramilitaries, but is opposing the current peace process with the FARC vehemently, and calling citizens to civic resistance against government efforts. 

Further questions will emerge should the agreements be signed and the plebiscite rejects them. The state will be obliged to implement them, even as the constitution of Colombia obligates the government recognize the will of its citizens. In such a case, where does state legitimacy reside? This scenario might in fact become reality. The peace process itself is seen as legitimate at an international level, with support from the U.S. government, the UN Security Council, and various European leaders, even as it is embraced less enthusiastically at home where the current president is deeply unpopular(he enjoys support from roughly around 21 percent of the population).

It is in this space of fears of spoilers and opportunists piggy-backing on the unpopularity of President Manuel Santos (and the fears of the FARC-EP leaders taking power in Colombia) that those opposing the peace process might present a counter-reformist agenda. There is also the lingering fear of the re-emergence of paramilitary forces that have consistently opposed several peace attempts in the past, and who have made noises against the current possibility of agreements. To be sure, peace would be detrimental to their financial and political interests. 
It is here that the shielding agreement presents a logical avenue for peace. Despite the fact that implementation could be read as bypassing public opinion and some of the institutions of Colombia, the shielding mechanism manifests a genuine effort to ensure the agreements will be implemented and respected, and that the negotiating parties embrace their obligations. In this context, these agreements could be read as an exercise of the Colombian state in reasserting its sovereignty. There are still other actors to deal with, such as other guerrilla groups, paramilitaries, drug lords, and a host of other criminal gangs. But bringing its war with the FARC to an end could free resources for the state to consolidate its sovereignty and ensure a lasting  and deepening peace.

Fabio Andrés Díaz is a Colombian researcher on peace, conflict and development, at the Institute of Social Studies of Erasmus University Rotterdam and a Research Associate of Rhodes University based in South Africa. He is currently researching on the interaction between protests and civil wars and he is also editing a volume on Transitional Justice in Colombia.