As former Colombian President Álvaro Uribe digs his claws into the carefully crafted peace agreement between Colombia's government and the FARC guerrillas, the debate over prosecuting rebel commanders for drug trafficking crimes will surely rise to the fore, providing a potentially accord-busting power to the former executive.
Following the shocking "No" vote during the October 2 plebiscite on the Colombian government's peace deal with the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia – FARC), the administration of current President Juan Manuel Santos has entered into talks with opposition leaders aimed at finding a way to renegotiate and salvage the agreement.
Prelimary proposals by the de facto leader of the "No" campaign, ex-President Uribe, seem very similar to what is already in the accord. For instance, Uribe called for "effective protection for the FARC" so they "can consolidate a non-violent status immediately," something that is covered in the rejected agreement and was only delayed because Uribe's "No" campaign won the plebiscite.
Uribe also called for amnesty for FARC guerrillas not guilty of crimes against humanity, something that is also already covered in the previous agreement. But buried in the details of this proposal is a spoiler. As "No" campaign spokesperson Senator Alfredo Rangel explained, the ex-president is demanding a change to the provision regarding "delitos conexos" ("connected crimes") that would exclude drug trafficking from the list of crimes pardonable under the amnesty.
The peace accord section on the amnesty does not specifically mention drug trafficking, but instead includes crimes committed to finance the conflict. However, the meaning was understood by all: The FARC's drug trade activities would be pardoned as long as they were used to fund their insurgency. The agreement also included a provision to ease one of the FARC's greatest fears -- extradition to the United States -- stating no FARC guerrilla could be extradited for crimes committed during the conflict.
The designation of drug trafficking as a "political crime" was a controversial topic during negotiations and caused both political and legal wrangling. However, it was a key compromise, one that even the United States government was willing to accept.
The FARC make hundreds of millions of dollars a year from the drug trade, and it has been the primary source of financing their insurgency for decades. They are the overseers of an estimated two-thirds of Colombia's coca crop, taxing farmers and trading in the coca base the farmers produce as the rudimentary first step in transforming coca into powdered cocaine. Several of the FARC's most powerful fronts are even more deeply involved, running trafficking routes out of the country.
InSight Crime Analysis
The proposal to change what constitutes a "delito conexo" is Uribe's nuclear option. If there is no amnesty for drug trafficking, then huge numbers of guerrillas, including important commanders, could be prosecuted for these crimes in Colombia and potentially face lengthy prison sentences. Additionally, if drug trafficking is no longer considered a crime connected to the armed conflict, then this raises the possibility that FARC members accused of involvement in the drug trade could be extradited. US courts have indicted at least 60 FARC members, including 50 for "narco-terrorism," and under Uribe's plan they could be shipped off for trial in the United States.
But the details of Uribe's proposal and how it would be implemented remain unclear. Perhaps the most important aspects will relate to extradition and whether the FARC's drug trafficking would be subject to the normal judicial process or whether it would be included in a special justice regime dealing with crimes committed during the conflict. In addition, it remains to be seen to what level those involved in the drug trade would be prosecuted -- whether it would just be leaders involved in transnational trafficking, or anyone involved in activities related to cultivation of coca crops and trade of the coca base.
Even if Uribe softens his stance with guarantees against extradition and a transitional justice component, the issue is likely to remain a red line for the FARC. If drug trafficking is not part of the amnesty, then too much of the FARC may be exposed to potential jail time or extradition. And if there is no amnesty, there will almost certainly be no new agreement, and therefore no demobilization by the rebels.
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While the consequences could be dramatic, insisting on removing amnesty for drug trafficking might prove an easy sell to the public for Uribe. The idea of drug trafficking being a political crime is abhorrent to many Colombians, who have watched the drug trade corrode and corrupt their institutions for decades.
Aware of Colombian sensitivity over this issue, Uribe has repeatedly complained of impunity for "the biggest cocaine cartel in the world," and he has compared the peace process to the deal cut with Pablo Escobar, which saw the drug lord surrender but continue to run criminal operations from a purpose-built luxury compound masquerading as a prison. The incident remains seared into the Colombian consciousness as a painful symbol of institutional surrender to organized crime.
On the other hand, Uribe's proposal opens him up to criticism and charges of hypocrisy. While president, he and his allies in congress negotiated a demobilization deal with leaders of what was then the largest cocaine enterprise in the world, the United Self-Defense Forces of Colombia (Autodefensas Unidas de Colombia - AUC), the proxy army that the government used to fight the FARC. Many of these AUC leaders were later extradited to the United States after Uribe claimed they violated the accord his government had forged with the paramilitary umbrella group, but the initial agreement excluded prosecution for drug trafficking and barred them from extradition.
Uribe's proposals also contain one more potential spoiler. His calls for security guarantees for the FARC appear to be attached to the condition that the FARC stop committing crimes such as drug trafficking and extortion in order to fund themselves.
With the FARC caught in limbo and uncertain if and when the demobilization process will proceed, it is all but inevitable that many units will continue or return to criminal activities to sustain themselves, especially if negotiations drag on. Uribe can use this fact to discredit the FARC at any time he chooses. It is an argument he deployed many times throughout his opposition to the peace process. But this time he will be making it as a key player in the negotiations rather than sniping from the outside.
In sum, the leverage the former executive has on the issue of drug trafficking cannot be understated. And if Uribe stands firm on these issues, it could be a way of derailing the renegotiation talks and extracting other political concessions that have nothing to do with the peace agreement.