On June 14, the Colombian Congress approved the historic Legal Framework for Peace, a mechanism that outlines the terms of a possible peace negotiation. Its primary beneficiaries are guerrilla groups, who are explicitly recognized as being actors in the armed conflict, and can receive lenient prison sentences if they turn themselves in.
But lawmakers explicitly excluded second-generation paramilitary groups, referred to as "bandas emergentes" (BACRIM), from the Framework on the basis that criminal gangs are not considered part of Colombia’s armed conflict, but are instead mere criminals. The BACRIM's exclusion from the Framework has been largely uncontested, mostly due to fears that anything resembling negotiations with the BACRIM would echo the government's flawed demobilization of the BACRIM's predecessors, paramilitary group the United Self-Defense Forces of Colombia (AUC).
Still, the reasoning behind the peace bill has revived an old debate: should the BACRIM be recognized as actors in the armed conflict?
Many civil society organizations believe so. They claim that the current characterization of the groups leads to lax judicial processes for BACRIM members. In a recent report, the International Crisis Group (ICG) argued as much, citing the example of ERPAC's partial demobilization in 2011. The NGO characterized the move as a failure because when members of the armed group were treated in the courts as common criminals, this meant they received shorter prison sentences. The ERPAC's classification as a criminal organization meant that its members received less serious sentences for crimes such as “aggravated conspiracy,” and were not charged with serious human rights violations (including forced displacement and mass killings) that fit within the context of the armed conflict.
This issue goes beyond the ERPAC demobilization. The BACRIM's current classification as mere criminals also prevents victims of their crimes from benefiting from the 2011 Victims Law, which aims to restore land and provide reparations to victims of human rights violations. While the BACRIM cause forced displacement and commit many other violations covered under the Victims Law, the law explicitly excludes victims of violations committed outside the context of the armed conflict. As such, it could be argued that the current characterization of the BACRIM leaves victims without access to an important mechanism of justice.
While most analysts agree that there is solid evidence linking the BACRIM to the political aspect of the conflict, civil society is divided as to whether they should be officially recognized as actors, for fear of the consequences. Antonio Menendez de Zubillaga of the Office of the UN High Commissioner for Human Rights described it as “dangerous” to declare the BACRIM part of the armed conflict. “We do not want to enter into a peace agreement with criminals,” he stated.
Human Rights Watch (HRW)·expressed similar concerns about the potential for impunity if the BACRIM were to ever be included as actors in the armed conflict. HRW has been highly critical of the Legal Framework for Peace because of the possibility of impunity for human rights violations committed by guerrilla groups. The organization warns that if the BACRIM were to ever be recognized as actors in the armed conflict, they too could be granted a seat in potential peace negotiations, a development which would surely complicate the peace process.
If Colombia’s recent history is an accurate predictor, then concerns about the repercussions of a peace negotiation are justified. Human rights organizations cite the Justice and Peace process, a peace negotiation with the paramilitaries, as a partial or even complete failure. According to Federico Andreu of the Colombian Commission of Jurists, seven years of the Justice and Peace law have only resulted in courts sentencing seven paramilitaries, only three of which have been fully carried out. Given this, there is plenty of reason for the concerns that negotiations with the BACRIM would lead nowhere.
However, the BACRIM's role in the armed conflict is impossible to ignore. In a recent interview, Luis Alberto Bonilla of the Human Rights Ombudsman’s office explained that the victims of BACRIM violence who approach his office report the same human rights crimes that victims of paramilitary group the AUC reported during the 1990s and early 2000s, including forced displacement, targeted assassinations, and social control of communities. And unlike the BACRIM, the AUC were recognized as being part of the armed conflict. While Mr. Bonilla stressed that the Ombudsman’s office follows the terms of the current law regarding the BACRIM and their classification as groups outside the confliict, he insisted that “Reality reveals something else.”
Most human rights organizations even go as far as rejecting the name “BACRIM,’” choosing other labels that stress to varying degrees the links between the BACRIM and paramilitarism. These range from “neoparamilitaries” to “narcoparamilitaries,” and, in a blatant rejection of the government’s characterization, “paramilitaries.”
The reality is that the current classification is flawed. The types of human rights crimes that the BACRIM commit show continuity with the actions of paramilitaries, whose actions made them clear actors in the country’s internal conflict. Given this, it seems reasonable that the state should declare the BACRIM actors in the conflict. This would result in a clearer recognition of the gravity of the human rights crimes these groups commit and would grant the BACRIM's victims more complete access to mechanisms of justice.
But the government must be careful not to allow a repetition of history. Declaring the BACRIM actors in the armed conflict must be done in an effort to prioritize victims’ rights and should not result in the impunity that characterized the Justice and Peace process.
Ultimately, it remains to be seen whether the Colombian government will change its stance towards these groups, and if they do, how the development of a possible framework to combat and address them will balance victims’ rights to truth and justice with the very real possibility of a peace negotiation, one that could mean continued impunity.