[Nicolás Carrillo-Santarelli is a Colombian lawyer, PhD on international law and international relations. He works as a researcher and lecturer of Public International Law at the La Sabana University, Colombia.]
The last few days have been quite intense in Colombian politics due to fierce arguments _between key political players about the prospect of considering the agreements entered into between the Government and the FARC group as international legal agreements.
The discussion began when the former General Prosecutor filed an application before the Constitutional Court, precisely asking it to declare, among others, that the agreements entered into between the Government and the guerrilla are international treaties. Afterwards, the President, Mr. Santos, seemed to be pleased with this idea and it was later announced that the negotiating parties agreed in Havana that the agreements will be considered as having an international legal nature, provided that the Colombian citizens vote in favor of what has been agreed upon._
Needless to say, the reason why this point has been so prominent in discussion lies in the fact that the very parties to the transitional justice negotiations have publicly avowed that the reason why they consider the peace agreements will equate with treaties is their desire to strengthen the agreements, providing them with an armor against eventual legal challenges against them. Indeed, the agreements would be protected, because apart from the fact that the State would undertake an international commitment with the FARC, which could not be set aside on the grounds of domestic provisions –as articles 27 of the Vienna Convention on the Law of Treaties and 3 of the ILC articles on State responsibility determine-; Colombian Constitutional law has a figure known as the “block of constitutionality”, according to which, among others, certain international norms acquire the status of constitutional norms and are therefore according constitutional supremacy over other domestic norms.
In light of this, I will briefly explore two issues: firstly, whether non-state actors as rebel armed groups can celebrate international treaties; and, secondly, if, provided that the agreements end up being treated as international legal agreements, whether they would indeed be protected from any challenges -from an international legal perspective.
International treaties between rebel groups and States?
As Jean d’Aspremont and others have expressed, international law is still mostly dominated by States in relation to the question of which subjects are entitled to create it. This is one of the reasons why global governance and other theories have gained relevance, because they may somehow offset some of the shortcomings of a system that is still excessively anchored on Statehood and thus lacks some flexibility when facing certain transnational and global challenges and realities –as Jan Klabbers has said.
That being said, the fact that States largely control the identity of law-makers evinces that they are can decide to empower other actors to also become law-makers. Considering that different actors may have international legal capacities to different extents, it is therefore possible for a given State to grant law-making capacities to a given non-state actor in an ad hoc way. That is to say, an actor can be given law-making powers for one single occasion. That would be useful if, for any reason, a State desires to enter into a bilateral treaty or to celebrate bilateral custom with a given non-state actor without conferring upon it the capacity of participating in the creation of international norms in future occasions.
Regarding this, it is useful to note that the International Law Commission itself said in 1966 that “other subjects of international law, such as international organizations and insurgent communities, may conclude treaties”. Likewise, the International Committee of the Red Cross, when commenting Protocol I to the 1949 Geneva Conventions, put forward the idea that unilateral acts of peoples fighting for self-determination made pursuant to article 96.3 generate treaty rights and obligations applicable between such group and parties to the Protocol._
Furthermore, we have the case of the Abyei arbitration. This case was examined in the Permanent Court of Arbitration, and was submitted on the basis of an agreement between Sudan and the Sudan People’s Liberation Movement/Army. If we consider that the celebration of international arbitration agreements reflects jus ad tractatum, this case confirms that States can grant treaty-making powers upon a given rebel group, even for one single case.
In light of the previous considerations, the argument that the agreements entered into between the FARC and the Colombian Government may be regarded as treaties is sound, considering that the State itself seems to be openly granting the capacity to the rebel group. If so, does it mean that the agreements are immune to legal challenges from the perspective of international law, considering that some of the supporters of this strategy express that such agreements fall under common article 3 to the Geneva Conventions? Not necessarily so.
The subsistence of possible challenges to the agreements
If the FARC-Government agreements end up being international treaties, they may still be open to criticism and legal challenges. This is due to several factors. Firstly, there is the issue of jus cogens and impunity. Why so? Some political actors and NGOs as Human Rights Watch have expressed concern that the agreements on justice and victims may lead to impunity of serious violations, including international crimes. While the idea of alternative sanctions is not questioned as such, since States may decide to use them in exceptional case to facilitate transition, international human rights case law has so far said two things: amnesties are prohibited not only when granted to State agents (the so-called self-amnesties) but also to agents of non-state entities, and that there is a minimum proportionality between the conduct and the punishment that must be respected lest there is impunity.
Then, bodies as the International Criminal Tribunal for the former Yugoslavia have voiced that acts that grant impunity to international crimes and to violations of peremptory law lack validity, regardless of their being domestic or international acts; and it is well known that international treaties cannot circumvent the observance of jus cogens. Hence, if it is regarded that the agreements do provide impunity, a question to be settled and which may be explored in a future article, they would be invalid even if adopted in the form of treaties. Moreover, it has been argued that the Colombian “block of constitutionality” must respect peremptory law at all times.
Some may question if the risk of eventually declaring the agreements as contrary to jus cogens –provided that they do contradict it, which I will not address here- are real, given uncertainties about the content of peremptory law and the scarcity of case law striking down treaties on the basis of their contradicting jus cogens. Still, the risk exists: bodies as the Inter-American Court of Human Rights have condemned amnesties granted by States to non-state agents and will likely end up deciding on a case involving the Colombian agreements, being its decisions binding for Colombia; and foreign actors and activists may seek to use universal jurisdiction or transnational litigation bases against those benefiting from the agreements by arguing that international crimes admit no statute of limitations and that, if there if impunity, the agreements lack validity. Those actors and bodies can invoke international legal arguments, and they may end up being received. After all, authors as Roland Portmann have argued that peremptory law arguments could have been subtly considered in ATCA litigation in the U.S., the very Inter-American Court of Human Rights has found that rights and principles as those linked to non-discrimination are peremptory; and bodies as the European Court of First Instance of the European Union demonstrated its willingness to examine compatibility with jus cogens in the Kadi case. The threat of legal challenges that rely on peremptory law arguments, and the possibility of those challenges being examined and admitted, will remain in spite of debates in doctrine about peremptory law.
Additionally, it is important to recall that, to prevent fragmentation, treaties must be interpreted in a systemic way, in light of other applicable international norms, which includes those human rights and criminal norms that oppose impunity. Thus, the agreements would have to be interpreted in a way that ensures that there are no de facto amnesties. Finally, agreements with rebel groups, as those of common article 3 have limits. For instance, agreements entered into under article 6.5 of Protocol II cannot grant impunity to serious abuses, as noted by the ICRC.
The transition from armed conflict to peace is necessary in Colombia. That being said, it is necessary to make sure that the content of the peace agreements respects international public order and legality. If this is not ensured, the very peace process could be at risk in the future, given the possibility that foreign and international actors investigate abuses arguing that there was impunity, as the International Criminal Tribunal for the former Yugoslavia itself warned in the Furundžija case.