More than three weeks after suspending talks with guerrilla group the FARC, the Colombian government has resumed negotiations with the rebels. But one of the toughest questions yet lies ahead for the peace process: will Colombia need to change its laws to assure guerrillas who may demobilize that they won't be extradited to the US on drug trafficking charges, and if so, will the public tolerate it?
According to El Tiempo, the US currently has extradition orders for 50 leaders of the Revolutionary Armed Forces of Colombia (FARC), including eight leaders representing the group in the peace talks in Havana, who are accused of involvement in drug trafficking.
As InSight Crime has reported, the question of how to handle these extradition orders should the rebels demobilize has loomed over the peace talks since they began in November 2012. Even though the government and the guerrillas have already hashed out an agreement concerning the FARC's political participation in a post-conflict Colombia -- and have dealt with the issue of the drug trade -- the negotiations still need to address what will happen to demobilized guerrillas once involved in drug trafficking.
President Juan Manuel Santos tested the waters on this issue last week, when he said that Colombia should consider expanding its definition of "political crimes" so as to include drug trafficking.
The logic behind such a move is this: if the FARC used drug trafficking to fund their insurgency against the state, and if, under Colombia law, drug trafficking were "connected" to a political crime like rebellion, then the guerrillas would receive amnesty. They could neither be prosecuted for drug trafficking charges in Colombia, nor could they be extradited to face charges abroad.
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However, first Colombia would have to change its laws to establish this link between drug trafficking and political crimes, a proposal which has caused a huge public debate in Colombia. Rallying against Santos' idea are figures like former Colombian President Alvaro Uribe, the biggest critic of the peace talks, and former President Andres Pastrana. On Santos' side are Colombia's Attorney General and former US President Bill Clinton, who said in a radio interview that the United States may support such a move.
Santos later expanded on his comments, explaining that he would never make drug trafficking as such a "political crime," but that it was worth considering whether the use of money sourced from drug trafficking -- and then channeled towards an insurgency -- should be recognized as a political act. As noted by the Washington Office on Latin America (WOLA), Colombia's courts may eventually have to take on the challenge of adjusting the law so that the definition of "political crime" is connected to drug trafficking used to fund a political insurgency, but not to other types of drug trafficking.
As Colombia's peace talks continue, there are three major questions worth considering while the Colombian government -- and public -- continue to debate over whether the FARC's involvement in the drug trade should be considered a political crime:
1. If the law does change so that drug trafficking is "connected" to political crimes, what if Colombia's other armed groups try to take advantage of this? Other major drug trafficking groups in Colombia -- including the most powerful one, the Urabeños, and weaker ones like the Rastrojos and the Oficina de Envigado -- may be tempted to argue that their drug trafficking crimes are connected to the political crime of belonging to a paramilitary-type group. But there's already a precedent for Colombian law to treat these neo-paramilitary gangs separately from the guerrillas. These groups -- known as "BACRIM", from the Spanish acronym for "criminal bands" -- were explicitly excluded from the 2012 law that provided a legal framework to allow for the FARC's possible demobilization. Lawmakers are currently developing separate laws that would allow for the mass surrender of BACRIM.
2. Is the Colombian public ready to guarantee the FARC they will not be treated as drug traffickers under the law? It's worth pointing out -- as Verdad Abierta explains -- that the issue of how to demobilize armed actors involved in the drug trade is a long-running debate in Colombia. It was only in the 1990s, when the FARC's assault against the state was at its strongest, that Colombia really tightened its laws regarding which actions committed by the FARC could be considered "political crimes."
Since then, the FARC's military manpower has weakened and there's been a slight paradigm shift regarding drug policy, with Colombia's Senate meant to debate legalizing medical marijuana this week. But more progressive attitudes towards drug policy doesn't necessarily mean that Colombians would tolerate the FARC receiving amnesty for drug trafficking.
SEE ALSO: FARC, Peace and Possible Criminalization
3. What if, in a post-conflict Colombia, some elements of the FARC remain involved in the drug trade, claiming they are doing so to fund their "insurgency," but are actually just interested in profiting from the cocaine trade? If Colombian law changes, won't they technically still be shielded from prosecution? This will be another significant challenge facing Colombia's courts -- differentiating between those who can indeed be considered "insurgents," versus those who are "pure" drug traffickers.