Following the narrow victory by those who opposed the peace deal between Colombia's government and the FARC rebel group, InSight Crime considers how it compares to the transitional justice agreement struck a decade earlier with right-wing paramilitaries.
Defying virtually all polls, Colombians voted on October 2 to reject a peace agreement with the country's largest and oldest insurgency group, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia - FARC). Some of the main sticking points that helped tip the balance away from a deal relate to the judicial leniency -- and even political benefits -- granted to FARC members involved in criminal activity.
The deal with the FARC is often compared to the "Justice and Peace Law," the legislation passed in 2005 to open the door for right-wing paramilitary groups to demobilize. To be sure, many major points of the accord with the FARC are similar to the deal with the paramilitaries, notwithstanding some slight but important differences, which a slim majority of Colombians ultimately deemed unacceptable in the case of the FARC.
Here are a few of these points:
One of the principal arguments against Colombia's peace agreement with the FARC was that the rebel group would not be adequately punished for crimes committed during more than 50 years of conflict. A hugely controversial point of the deal was the fact that FARC fighters that recognized their crimes would "under no circumstances" spend time in prison. The peace agreement offered rebels the "broadest amnesty possible," while those responsible for the gravest human rights abuses -- including massacres, kidnappings and disappearances -- would face a "restriction of liberty" for five to eight years.
Furthermore, drug trafficking would be considered a political -- and therefore pardonable -- crime. Extradition of FARC members was also explicitly banned.
SEE ALSO: Coverage of Colombia's Peace Process
In contrast, the right-wing paramilitaries included in the country's 2005 "Justice and Peace Law" were imprisoned for between five and eight years. And while amnesty was initially on the table for paramilitaries not responsible for grave crimes, this was declared unconstitutional in 2007. Many did not end up spending time in prison, however, and a consequent 2010 law offered them conditional freedom. Drug trafficking was ultimately not considered a pardonable crime.
Although it is hard for many to accept, the FARC's "restriction of liberty" may have benefited post-agreement Colombia more than them serving prison stints. The alternative sentences included participation in projects such as crop substitution programs, removing land mines and building infrastructure -- all important tasks for rural development, which is a key component of the peace accords.
There are also differences between the paramilitary demobilization process and the planned demobilization of the FARC. For the AUC, this was a lax procedure that enabled criminal bosses to demobilize alongside paramilitaries and commanders to pass themselves off as rank-and-file members in order to avoid jail and continue running drug trafficking activities. The anticipated FARC demobilization would have been a much more regulated process, with lists of members being subjected to verification by state intelligence agents.
Opponents of the peace deal argued that the deal did not require the rebel group to provide sufficient compensation to its victims, while each demobilized guerrilla would receive a maximum of $8,500 in state allowances over the next two years.
The agreement did appear weak as it related to the FARC's illicit wealth, which by some estimates could be worth billions of dollars. It did not explicitly require the rebels to give up all of their assets. The deal demanded that the FARC provide "material reparation," but it offered no strict definition for the open-ended term. Essentially, the agreement largely relied on the willingness of ex-FARC members to speak up and identify their assets -- supposedly a process that was already underway. But until now, the guerrilla organization has stubbornly refused to recognize its criminal earnings, and a lot of its land ownership is concealed behind frontmen. As such, much of its wealth may remain secret.
What's more, the deal would have allowed for the past confiscation of FARC assets to be re-evaluated, provided their former owners could prove the land was not bought with ill-gotten funds.
SEE ALSO: FARC News and Profiles
In the case of the paramilitaries, the Justice and Peace Law required them to turn over "assets resulting from illegal activity," or they would not receive judicial benefits. However, Colombian authorities were not prepared for the flood of information that they were to receive. Lacking the resources and legal tools to receive all the assets being uncovered, it took the Attorney General's Office years to secure its first property.
As a result, many territories remained in the hands of criminal groups, some of which remain centers for criminal activity. For example, illegal mining is being conducted on plots of land in the department of Antioquia that belong to top AUC commanders Ramiro "Cuco" Vanoy, and Carlos Mario Jiménez, alias "Macaco." People have also reported being threatened or killed over the purchase of confiscated properties at auction sites.
Some also contend that the assets turned over by paramilitaries were nowhere near enough to cover the costs of reparations. According to lawyer Laura Gutiérrez, the government's victims unit has claimed that only three percent of reparations were paid with paramilitary resources.
The FARC peace treaty states that none of the sanctions imposed during the transitional justice process will prevent members from participating in national politics. Furthermore, the political party formed by the FARC will have ten guaranteed seats in Congress -- five in the Senate and five in the House of Representatives -- for two four-year terms starting in 2018. Many of those who voted against the peace deal were heavily opposed to the possibility of FARC leaders responsible for atrocities would receiving automatic positions in Congress. This transition to politics is one opportunity that the AUC -- who were not interested in becoming a political movement -- did not have.
However, it is important to remember the FARC's history. In the 1980s during an earlier peace negotiation, the rebels created a political party known as the Patriotic Union (Unión Patriótica - UP), which was meant to serve as a means to transition into the political system. However, the UP was slaughtered -- its first two presidential candidates assassinated, and thousands of its members killed by security forces and paramilitaries. The government's concession on political representation is designed to make amends for failing to protect the UP in the 1980s.
4. Time frame
The FARC agreement laid out a clear timeline for the guerrilla group's disarmament process, stipulating that fighters would begin moving to concentration zones around the country as soon as the deal was signed on September 26. What's more, their weapons would be handed over to United Nations representatives over a six-month period.
There was no timetable in the AUC process, and there was no plebiscite to gauge the agreement's acceptance amongst the Colombian people.
For the FARC and Colombia, the October 2 "No" vote has put all of these measures on hold, and what happens next is hard to say. There is a real risk that the FARC will begin to crack into pieces. Members of one rebel front that has deep links to the illicit drug trade have already objected to the agreement and stated they will not demobilize. The rejection of the peace deal only raises the likelihood that more FARC elements follow suit.
Indeed, it took roughly three years for the paramilitary units to demobilize in the mid-2000s. During that time, some paramilitary factions expanded their territorial control in areas that other paramilitaries had already vacated, even while weapons were redistributed among these groups and more civilians were victimized.
The road to peace is long. As of October 2, it just got longer.