Politics of international law:FARC-Colombia Conflict

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By 2018-02-13

By Liliana Muscarella

Fourteen months since the signing of the historic Colombian peace agreement, aspects of the conflict remain shrouded in a blind overture to bilateral diplomacy. Despite measures to ease the violence between Fuerzas Armadas Revolucionarias de Colombia – Ejércitodel Pueblo (Revolutionary Armed Forces of Colombia – People's Army, FARC-EP) and the Colombian Government, much of the conflict's evolution and key players continue to be overlooked.

Media reports and political pundits hail President Juan Manuel Santos, aided by US support, as the hero of the decades-old conflict, but this reductionist analysis fails to give sufficient weight to international law and its role in facilitating the conflict's détente. In fact, international humanitarian law (IHL) was in many ways the key instrument in advancing Santos' political mission, while the framework provided by IHL also sheds light on the manipulations of the Colombian and US governments.

This context is crucial so that the militaristic alliance of the United States and former Colombian Governments is not accepted as a legitimate contributor to peace; and secondarily, so that FARC fighters are not written off as nothing more than senseless killers.

In this way, a deeper analysis of international law and its politicization better respects the struggle of the Colombian nation and reveals misguided historical intervention, exposing a common thread: at different moments and under different administrations, the political manipulation of international law was crucial in both prolonging the conflict and agreeing to its suspension.

The FARC-Colombia conflict has inflicted unmatched damage on the Colombian people. It is second only to the Syrian Civil War in terms of internally displaced persons and, at its membership peak in 2009, the FARC-EP (FARC, for simplicity) numbered 20,000 fighters with an annual turnover of US$ 600 million, third in line behind Hamas and ISIL. The violence began more than 60 years ago during the infamous period called la violencia (violence).

At this time, triggered by the assassination of liberal leader Jorge Eliecer Gaitan, the game became simply killing, especially as far as the quest for land was concerned; peasants were forced out of their villages and had to regroup as guerrilla factions to protect themselves from Colombian renegades and right-wing vigilantes. Despite sporadic attempts to achieve political representation at higher government levels, over time, Marxist voices were silenced as the violence and alliances further evolved, leading to the FARC's solidification as a militant group.

Class-divided discontent

While this class-divided cycle of discontent brewed for decades, the escalation of the conflict and the FARC's transition into an organized entity were only fully realized after 1960, when the United States became increasingly interested in retaining Colombia as an anti-communist regional stronghold. Colombia was seen as a strategic geopolitical ally, and the groundwork for intervention was laid under US Presidents Dwight D. Eisenhower and John F. Kennedy.

Following a US mission to Colombia, a plan was devised "to pressure toward reforms known to be needed and execute paramilitary, sabotage and/or terrorist activities against known communist proponents." The resultant Plan Lazo, initiated by US officials and adopted by the Colombian authorities in January 1962, kicked off decades of militant activities against FARC groups, who retaliated in turn. Beginning in the 1970's, paramilitary groups known as 'death squads,' funded by Colombian social, political, and religious elites, in partnership with the Colombian Armed Forces, killed thousands of Partido Union Patriótica (Patriotic Union Party, a non-violent socialist party) and communist individuals, sabotaging any hope of reconciliation between the government and its socialist constituents.

Since that epoch, the FARC has been heavily implicated in the area's coca drug trade to finance its activities via peasant farmers with little choice for profitable crops, leading the United States to justify its intervention as part of the failed "war on drugs" under US President Richard Nixon. After decades of violence from all sides (a trend catalyzed by elite money and social dominance), the FARC would also turn to kidnapping for ransom, holding hostages, and killing Policemen and political opponents.

The matter was further complicated by the paramilitary death squads, funded by the US and Colombian Governments, leading the FARC to increase its military breadth and further implicate the rural and indigenous populations where coca was grown.Consequently, the majority of internally displaced persons are indigenous and poor farmers, many of whom have also been killed, caught in the crossfire between the US-funded Fuerza Pública (the Colombian Army plus the National Police), allied paramilitaries, and the FARC.

With the government's failure to stall the increasing devastation in the country, the United States has steadily upped its involvement in the region since the 1960's, allying itself with decades of right-wing and centre-right Colombian presidents. The most striking example of this intrusion is the United States' 1999 systematized "Plan Colombia," which to date has dedicated more than US$ 10 billion to countering the production of narcotics and defeating the FARC militarily. Despite constant US aid, Plan Colombia is increasingly recognized as a failure or even a farce. It failed to curb violence and the narcotics trade as per its mandate, but it succeeded in strengthening the Colombian Army and the United States' grasp on its southern stronghold.

New line of thought

It was former Venezuelan President Hugo Chavez who eventually introduced a new line of thought regarding the resolution of the FARC-Colombia conflict, one which would prove instrumental, recognize the FARC as a belligerent force in a legitimate armed conflict, thereby triggering the application of IHL and obligating both parties to follow the law or risk international condemnation.

Interestingly, due in part to the fact that Chavez was an open sympathizer of the FARC's political plight, and in part because the FARC shared his opinion regarding IHL, his 2008 suggestion was initially met with scepticism or even outrage. The FARC, then and now, are recognized as a terrorist organization by the United States, Colombia, Chile, Canada, New Zealand, and the European Union.

Amid some debate, many international institutions began accepting the FARC as a belligerent actor subject to IHL, giving them a stronger foundation for dialogue and affording the FARC the stronger political stance it had sought for the better part of a century.

At the same time, the Colombian Government was finally forced to comply or at least be aware that its militaristic actions carry consequences. In 2010, President Santos recognized that (a) military defeat was impossible despite Plan Colombia and US wishes, and (b) political dialogue from a sound legal foundation was the only way to achieve peace. Since 2012, peace talks have been held in Havana, Cuba and in November 2016, the peace agreement was approved, leading thousands of FARC members to lay down their weapons and allowing for greater political involvement by the former fighters. A month later, Santos was awarded a Nobel Peace Prize, despite some restlessness as to the integrity of his achievements.

The application of IHL had been a possibility for some time, even if it was never fully recognized until Santos' presidency. International humanitarian law is a branch of law outlined by the International Committee of the Red Cross (ICRC) in the Geneva Conventions, internationally ratified since the 19th century. IHL's original purpose was to protect human life during armed conflict, not an insurgency, uprising, or terrorist situation. Despite IHL's potential, it has gone largely unaddressed in media reports on Colombia; even so, as early as 2001, Human Rights Watch (HRW) called for IHL to be put in place and the norms of the foundational Geneva Conventions to "be embraced fully and without conditions."

Astutely, HRW also recognized the political nature and ambiguities of IHL, saying "the distance between words and deeds is vast.

All parties actively manipulate the concept of international humanitarian law for perceived political and tactical gain." This has been true throughout the history of the conflict, both on the part of the FARC and of the Colombian Government. Few would deny that the FARC had consistently violated the would-be laws of war and humanitarian law, had they been applied. The Colombian Government, likewise, has engaged in questionable tactics of warfare and impunity. But without IHL, these breaches have primarily gone unaddressed, especially for the latter party.

Banned weapons

Under IHL, various means (weapons) of warfare are outright banned. The FARC is known to have planted anti-personnel mines and gas-cylinder handmade explosives, which, since 1990, have "killed or wounded more than 11,000 Colombians," nearly half of them civilians. At the time, these mines were a cheap and desperate measure to preserve FARC numbers during a period of increased governmental and paramilitary crackdowns by elite military forces. According to IHL norms, anti-personnel mines are illegal due to their nature of indiscriminate murder, duration of harm (even after the conflict is over), and long-lasting impact on the land in which they are buried. They are also implicated in general principles of the Geneva Convention protocols regarding indiscriminate harm and unnecessary suffering. Mines and makeshift bombs have caused thousands of cases of such injury, and unlike other means of warfare, their death toll is never justifiable as a "military necessity."

Besides illegal means of warfare, the FARC also engaged in illegal methods that unequivocally affected non-combatant civilians, causing greater harm than even the mines. The group has employed child soldiers, held hostages for ransom, and murdered civilians. As outlined explicitly in the 1949 Geneva Convention and emphasized in other protocols, civilians and non-combatants make up the primary population that is to be protected under the terms of the IHL.

This norm in theory protects child soldiers under the age of 17, but the FARC is estimated to have employed nearly one in five at the age of 15, up to 1,000 total, including many whom were forcibly taken from their families, violating another IHL regulation regarding hostage-taking. The FARC's signature method of warfare is kidnapping or hostage-taking, including of children and politicians. This is, importantly, distinct from 'prisoners' who are taken, in theory, for military necessity, and therefore allowed by IHL.

The FARC has undeniably wreaked havoc and misery on the Colombian people for the past 60 years, this is visible with or without the lens of IHL. But the same could be said about its adversaries, although transgressions by the government and its death squads have often gone unnoticed or unaddressed. In fact, since the 1960s, the close relationship between the Colombian Fuerza Pública and paramilitaries, all aided by massive US aid, has led to over 11,000 'targeted murders' compared to the FARC's 3,900, and over 100 reports of impunity, which were mostly ignored in the legal system. Amnesty International (AI), Human Rights Watch, as well as Latin American regional and supranational bodies, have called out the government for human rights abuses such as targeted murder, but even if brought to Court, the cases and defendants are more often than not let off with minimal charges.

The majority of such violations, had they been subject to in bello (IHL) laws prior to the 2000s, would have been prohibited by various statutes, including the most basic fundamental guarantee of protecting "all persons who do not take a direct part or who have ceased to take part in hostilities violence" against "violence to the life, health and physical or mental wellbeing, in particular murder as well as cruel treatment." Most dramatically, according to a report sponsored by Colombian non-profit Centro de Memoria Histórica, the Fuerza Pública also engaged in 371 cases of terror, the very same label thrown at the FARC in an attempt to dismiss its legitimacy as a belligerent. But the government's atrocities were often overlooked in the debate over whether the appropriate international law could even be applied. Any legal matters were also perhaps deliberately swept aside by right-wing governments like those of Álvaro Uribe and Andrés Pastrana Arango, who in some cases were themselves implicated in paramilitary land grabs, and who also sought US approval and a military win over actual steps toward reconciliation.

About the author:

Liliana Muscarella is a Master's student at Sciences Po, Paris School of International Affairs, where she studies Human Rights, Diplomacy, and International Law in Armed Conflict. Her geographical focus is Latin America, especially Brazil, Colombia, and Venezuela. Having started with COHA as a Research Associate, since January 2017, she has worked remotely with Aline Piva as Managing Editor of COHA's Brazil Unit.

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