Colombian peace deal: how thin is the line between political party and criminal organisation?

People around the world were visibly shocked by the result of the Colombian referendum on the peace accord. At first sight it seems that the only reasonable response to attacks and atrocities, committed by the FARC rebels, would be an approval of recommended peace agreement. The pure “moral monument” to those fallen in the fight for piece would provide decent and peaceful life to those who were suffering for so many years, but survived. Does Colombia’s peace agreement really present so called satisfaction for the years of life wasted in fear?

After four years of negotiations and adjustments Juan Manuel Santos, Colombia’s president and FARC leader, Timolean Jimenez reached the agreement and signed the peace deal in order to end Latin-America’s longest running conflict, 52-year war with FARC guerrillas. Confident initiators thought that the hardest part had already been done. Consequently, the rejection of the peace deal with 50,2%, came as a terrible blow to the president and his supporters.[1] 

The motivation to sign the peace deal was not only the above mentioned 52-year war, yet also the years of political violence, that had begun decades earlier. Mr. Santos once declared that the FARC guerrillas have a political origin and the main reason of all peace processes is to facilitate a transition from armed rebellion to legal and peaceful democratic politics[2]. Colombia, as a former Spanish colony does not have a strong tradition of stable democracy. In its approximately two hundred years of existence it has had more than twelve Constitutions. Constitutional changes can be seen as a result of ideological disagreements between Conservatives and Liberals that escalated in the creation of two opposing parties. The Conservative Party, supported by the Catholic Church was founded in 1848 as a response to the foundation of the Liberal Party that was based on the British Enlightenment principles. Parties’ attempts to enhance the influence and to gain political and economic power led to aggressive confrontations. In 1958 the Conservative and Liberal Party reached an agreement called “National Front” about the division of powers and control of the economic conditions[3], with the main aim, to stop violence and aggressive rhetoric. More ideological left wing of the Liberal Party, joined by communists and influenced by a wave of socialism did not accept mentioned agreement and prolonged the series of restless times. Meanwhile the devastating inequality had been spreading across the countryside and had escalated in uprisings led by farmers, who later established the Revolutionary Armed Forces of Colombia also known as FARC. Few years later, the strong FARC, influenced by the Colombian Communist Party expressed its political ambitions at a national level, posing a serious challenge to the political status quo. In 1985, when the Colombian government started with peace negotiations with the rebel groups on this area, the FARC joined more moderate leftist thought leaders in order to form a political party, the Patriotic Union[4].[5]

Political parties in modern democratic societies are chosen by the people in order to represent their interests. Moreover, just as John Locke emphasised, as soon as political parties become active participants in executive and legislative branch of the state, they have a responsibility to do “the good of the people, and not manifestly against it”.[6] However, the idealistic philosophical perspectives do not go hand in hand with the reality.

“Anyone entrusted with power will abuse it if not also animated with the love of truth and virtue, no matter whether he be a prince, or one of the people.”

                                                                                                                       Jean de La Fontaine

The absence of effective legislation that sets the boundary line for parties’ activities enable political parties to follow their own interests and consequently fail to present their voter’s interests by abusing a given power[7]. In a situation, when the voter’s interests are illegal per se, they can force the political parties, faithful to its supporters, to violate the legal principles by engaging themselves in terrorist activities. In the majority of contemporary criminal legal systems in the world, their legislatures decided “what is considered to be a crime when committed by other (natural or legal) persons, the state does not consider it as a crime when committed by a political party”[8]. Raisons d’être of such situation is on one hand the unwillingness to prosecute the political parties and the other reason refers to the absence of legal provisions that impose criminal liability on political parties. Consequently, the main sanction for the abuse of their powers can be the removal from the power and replacement by another political party[9]. In addition, the obstacles for the prosecution and effective imposition of criminal liability do not only refer to political parties, but also to politicians[10].

How thin can be the line between the political party and criminal organisation?

A criminal organisation can be defined as “a structured enterprise of three or more persons existing for a period of time with the aim to engaging in criminal activity”[11]. Pursuant to the main purpose of criminal organisations’ activities, we differ three different types of such organisations. Besides an organized criminal group, which aims to achieve a financial benefit and an organized criminal group that commits serious criminal offences, there exists politically motivated terrorist group[12]. Unfortunately, legislations around the world, that refer to this kind of organisations (criminal organizations) are primarily motivated to prosecute their members and not to impose sanctions on criminal organisations as such, since it is considered as illegal enterprise[13]. Therefore, the Colombia’s peace agreement would be an optimal solution (from legal perspective) for the former members of criminal organisation. However, many Colombians, who recall all the atrocities committed by FARC are disappointed by the lack of barriers in their legal system, that would prevent the leaders guilty of war crimes to become eligible for election to congress and also as mayors. Current laws subsequently allow them to become peoples’ legitimate leaders and representatives. It has been written in the peace agreement that all of the FARC leaders that were found guilty of atrocities and war crimes will not be sent in jail, yet they will face alternative penalties, which involve “effective restrictions of liberty.” Moreover, the FARC will be disarmed and become a political party[14]. The mentioned organisation is not an isolated case, there exists many examples of political parties that turned into terrorist organisation, sometime even though they were registered as legal political parties. In order to attribute a criminal responsibility to criminal organisations, the states may follow one of three models. The first model criminalises the participation in criminal organisation, the second attributes a responsibility for crimes committed by such organisation to its members[15] and the last one refers to accomplice liability[16].

So called “status of inviolability” is (also) attached to the third type of criminal organisations, the politically motivated terrorist groups. The main reason for the attachment is a lack of legal provisions referring to the criminal liability of political parties.

A very good example is Article 129 (2) of the German Criminal Code, which states that “the criminal offence of forming criminal organizations shall not apply to political parties which the Federal Constitutional Court has not declared to be unconstitutional.[17]” According to Schäffer, such privileged status has been enacted in order to protect the operation of political parties that present one of the cornerstones of the democratic society[18].

Another way to avoid the liability for crimes is an agreement, where citizens accept certain terms and conditions in order to achieve peace. The rejection of Colombia’s peace agreement should serve as a wake-up call to all of us, their courage should not be overlooked. With their decision they have consciously sacrifice the peace and show that they are strong enough to wait for the peaceful justice.

By Tjaša Zapušek

[1] The Economist, “Saving Colombia’s peace agreement”, published October 3 2016.

[2] The Economist, “If at first you don’t succeed…”, published November 19 2016.

[3] Every four years.

[4] The attempts to participate in politics faced an extermination campaign by right-wing paramilitary groups and extreme elements within the state.

[5] Alsema A, “A 200-year history lesson to understand Colombia’s 52-year conflict”, published August 29 2016;

[6] Maršavelski A, “Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies”, published December 1 2013, 504.

[7] Given power can be abused by illegal wiretapping, practicing violence, engaging in corruption etc.

[8] Maršavelski A, “Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies”, published December 1 2013, 505.

[9] Id.

[10] Such as abolition, pardon, immunity, amnesty.

[11] Maršavelski A, “Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies”, published December 1 2013, 507.

[12] Id.

[13] They are generally considered as criminal organisations, in most cases they are terrorist groups.

[14] The Economist, “If at first you don’t succeed…”, published November 19 2016.

[15] Strict liability.

[16] Maršavelski A, “Responsibility of Political Parties for Criminal Offences: Preliminary Observations, Challenges and Controversies”, published December 1 2013, 508.

[17] Id.

[18] Schoffer J, “Strafgesetzbuch Münchener Kommentar: Article 129” (2nd Edition, 2012), 70.