In a January 4 interview with Emilio Archila, the Colombian government’s lead official for peace accord implementation, El Espectador’s Sebastián Forero asks, “Why do you always talk about [the Duque administration’s] ‘Peace with Legality,’ policy, but not about the Peace Agreement signed in Havana?”
Archila replies that the text of the 2016 accord, which ended 52 years of fighting with the FARC guerrillas, is not binding unless its commitments are enacted into law.
The Constitutional Court said that the Havana agreements did not generate obligations in themselves, except to the extent that they have been incorporated into legislation, as with all laws issued through Fast Track [the brief 2017 period when Congress could quickly pass laws to cement accord commitments into place]. The Court struck a very good balance made between compliance with the agreements—which must occur in good faith during three presidential administrations—and democracy, because each president will continue to be elected with different mandates. …Those who think that the agreements should be applied as they were signed in Havana are wrong, that is not what the Court said. It said that one should take those texts, turn them into legal and policy instruments, and through them put them into effect, which is what we have done.
Of course, this is technically correct. The peace accord isn’t law, it’s just a 300-page document full of promises that the government made in order to secure a 13,000-person armed group’s commitment to disarm.
The problem with this reasoning should be obvious. What happens if a big chunk of the commitments in the peace accord don’t make it into law? That’s what’s happened with about 41 out of 107 laws or norms that Colombia’s Congress would have had to approve in order to realize all of the peace accord’s commitments.
In the reasoning laid out by Archila, because the Congress did not enact these commitments, they are just dead words on a piece of paper signed in Havana. His administration—led by politicians who opposed the peace accord— is under no obligation to honor those that didn’t make it into legislation.
By another reasoning, though, the failure to pass necessary laws equals non-compliance with the peace accord. Colombia’s Congress didn’t act to pass much outstanding legislation, and especially during the government of Iván Duque (2018-present), the executive branch didn’t push hard for it to do so. Now, that same executive can say, “sorry, we can ignore what was signed five years ago because the laws weren’t passed.”
This creates a terrible set of incentives for any future peace dialogues, whether in Colombia or in other countries with similar legal systems. In order to entice an armed group to disarm, a government can promise its leaders far more than it ever intends to fulfill. Then, after the group disarms and demobilizes, that government can blame the legislature for failing to enact its lofty promises, wash its hands, and walk away.
Why would an armed group negotiate on those terms? If four years of negotiations end up with a piece of paper that the government and legislature can pick and choose from later, why pursue such negotiations?
This is a blow to the credibility of accords resulting from peace talks. If such accords lack credibility, then armed conflicts will be condemned to drag on for longer than they otherwise would. Unnecessarily prolonged conflicts mean years of preventable death, abuse, displacement, and tragedy. The implications of Archila’s position are grave.