Is it Possible to Negotiate with Criminal Groups?

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Analyst Alejandro Hope asks whether it makes sense for Mexico to negotiate a solution with its criminal gangs, looking at the successful — and not-so-successful — precedents in El Salvador and Colombia.

Q: Is it possible to negotiate an agreement with criminals?

It’s possible, without a doubt. The historic examples are abundant. Whether or not it’s desirable is a more complicated question.

Q: But how is it more complicated? Shouldn’t negotiation with the law be rejected on principle?

Yes and no. Undoubtedly, negotiating with criminals undermines the fundamental principle of the law’s supremacy. We give ourselves laws so that all of us are subjected to them, without preferential treatments or privileges. However, in practice, there are moments and circumstances in which the public interest is better served if the authorities use certain discretion in the application of the norm.

Q: Let’s see. Aside from subversive, you are making it very abstract. How would these circumstances be possible?

For example, a juvenile criminal can receive legal immunity, physical protection and even monetary reward in exchange for information that leads to the capture or conviction of an adult criminal. That is the principle that governs witness protection programs or rewards for informants.

Another possibility is negotiating the severity of a sentence or even the crime for which a presumed criminal is accused (from a more serious crime to a less weighty one, for example), in exchange for a declaration of guilt, which saves the authorities the costs of a trial. This is known as “plea bargaining,” or “charge bargaining,” in Anglo-Saxon countries. It’s a mechanism that exists in a variety of countries and legal systems (whether they be from Roman tradition or common law). And don’t think that this is unusual: 90 percent of convictions in the United States have their origin in this type of arrangement.

Q: But this concerns individual criminals. Are there collective arrangements with criminal groups or gangs?

Well, that’s more complicated, but there are also precedents.

Q: Precedents? Like what? The old PRI regime’s agreement with drug traffickers?

It’s a possible model, but not a very good one. At the outset, the covenant was not quite a covenant. Rather, it had to do with circumstantial arrangements, which were created with specific traffickers by commanders of the Federal Security Directorate — before its disappearance in 1985 — as well as the Federal Judicial Police later on, with the occasional participation of a few governors (the mechanism has been brilliantly described by Luis Astorga). They were necessarily unstable arrangements, subject to the many political swings of the country. On top of that, they suffered a fatal defect: they were not a clean exchange of peace for tolerance. Rather, it was peace for tolerance and some money for the officials involved. That created what economists call the principal-agent problem: the civil servant seeks to maximize his personal benefit, and not that of the government that he pledged to represent. To receive more money, the commander of the judiciary — or the governor — was willing to grant more tolerance and receive less peace. In the long term, this not only undermined the integrity of the institutions, but also enabled the growth of organized crime groups that were constantly more willing and prepared to use violence. Returning to that system would be inadvisable, even if it were possible (with the proliferation of gangs, a corrupt arrangement becomes more complicated: the bribery of a gang is considered to be aggression by the many rivals).

Q: If not like this, then how? Are there other models?

Yes. For example, in various times and cities of the United States and Canada, police have been able to create truces between rival gangs. Those truces sometimes involve the withdrawal of the police from certain zones or the suspension of particularly aggressive practices against gangsters. More recently in El Salvador, the government, in collaboration with the Catholic Church and some legislators, established a truce between the two major maras, or gangs, the Mara Salvatrucha (MS-13) and Barrio 18. According to current information, the arrangement involved sending some of the principal gang leaders from a maximum-security prison to a normal facility. In return, the gangs halted their war and declared some areas as “peace zones” (schools, for example).

The arrangement seems to be working in a narrow sense: the homicides have decreased from a daily average of 14 in March to 5 in May. However, this apparent success does not come without a price: other forms of crime (extortion, for example) have shot up. There are also doubts about the sustainability of this type of truce: at the end of the day, the criminal structures remain intact and relatively minor incidents can set off a new spiral of violence. This is what appears to be happening in Belize, where an unstable truce between gangs was sustained from September up until a chain of homicides in April and May broke the calm.

Q: It doesn’t sound very encouraging. Is there some other alternative?

One more occurs to me: the so-called demobilization, disarmament and reintegration (DDR) in Colombia. Initially conceived as a mechanism for reintegrating guerrilla groups into civil life (the restructuring of M-19 into a political party is a great success story), it has been used on different occasions to pacify criminal groups. The principle is relatively simple: a series of legal benefits codified in a special law (shorter sentences, for example) is offered to the criminal groups in exchange for their members’ demobilization, disarmament and surrender to the authorities. The demands made of the criminals can also include a full confession, the handing over of illegally obtained goods and the repair of damage done to victims. The benefits can be extended to the criminals’ families (protection, visas to reside abroad, etc.).

The type of process doesn’t always work. At the beginning of the 90s, then-president of Colombia, Cesar Gaviria, launched a “policy of submission to justice” that offered legal advantages to drug traffickers that voluntarily turned themselves in to the authorities. The process led to the addition of an article to the Constitution that prohibited the extradition of Colombian nationals. With it, Pablo Escobar and other so-called “extraditables” voluntarily turned themselves over to justice. But, as is well known, the arrangement didn’t last more than a few months, at the end of which Escobar escaped from prison, resumed his war and ended up dead on the roof of a building in Medellin.

The second rendition of this policy seems to have had better results. In 2002, the government of President Alvaro Uribe started an open and formal negotiation with the paramilitary groups, organized in the so-called United Self-Defense Forces of Colombia (AUC). Make no mistake about the nature of the party: many of the heads, or “paras,” involved in the negotiation were no more than drug traffickers that had bought the AUC an exemption. In early 2003, an agreement was reached (the Santa Fe de Ralito Agreement) and toward the end of that year, the demobilization of the diverse “blocks” that made up the AUC began. In 2005, the Colombian Congress gave legal form to an arrangement called the “Law of Justice and Peace.” The terms of the agreement were reasonably simple: demobilization in exchange for reduced sentences (and no extradition). To access the benefits of the law, the paramilitaries first had to make a full confession of their crimes (the so-called “versiones libres,” or voluntary confessions), repair any damage done to victims and hand over any illegally obtained goods. In reality, many of them received the benefits without fulfilling those additional requisites.

In a way, the policy was a success. By 2006, 31,000 presumed combatants of the AUC had been demobilized and, by the strengthened hand of Colombian institutions, the incidence of violent crimes decreased rapidly: between 2002 and 2006, the number of homicides and kidnappings fell by 50 percent and 80 percent, respectively. At the same time, the demobilization of the “paras” allowed Colombian authorities to concentrate on combating the FARC, pushing them towards increasingly remote zones of Colombia and systematically hunting their leadership.

However, it hasn’t all been frosting on the cake. It’s possible that some of the demobilized paramilitaries have regrouped into newly coined criminal bands (the so-called BACRIM). Some of headway on security was lost starting in 2008, after President Uribe, under pressure from the US, ordered the extradition of the main paramilitary heads (claiming alleged violations of the terms of the law): in 2009, the number of homicides in Medellin tripled (from 700 to 2,000) and it has since remained at relatively high levels. What’s more, the process ended with an important scandal, known as the “parapolitica,” which revealed the ties between a number of politicians and government employees and paramilitary groups, and put a third of the Colombian Congress under judicial investigation. The scandal ended up reaching President Uribe, when he was imprisoned for the same reasons as a close relative.

Q: And given all of this, should something similar be tried in Mexico?

I don’t know. Based on the experiences in El Salvador or Colombia, the peace processes negotiated with criminal groups are morally and politically very complicated. To begin with, they require compromising a basic conviction: the non-negotiability of the law. Once that happens, important risks are opened up: the criminal groups may perceive that if they become sufficiently violent, they can receive privileged treatment from the authorities. Peace today can provoke more violence tomorrow (for that reason, the exceptionality of a special treaty should be communicated with absolute clarity from the beginning).

That is not the only cost of a negotiated pacification. For the victims or their relatives, it can be very painful to realize that the perpetrators don’t receive full punishment; that those who committed atrocities receive special treatment. In the name of peace, justice can suffer (and suffer a great deal).

That being said, a negotiated pacification can have numerous costs and uncountable defects, but equally many benefits. Among others, they include the following:

  • The security climate can improve dramatically in the short term
  • It can create space for the indispensable transformation of the security and justice institutions (think of the problems that Nuevo Leon has had recruiting police, due to the state’s high levels of violence)
  • It can generate conditions for creative social policy interventions (like what happened in Medellin beginning in 2003)
  • It can achieve the social reintegration of some criminals

This doesn’t necessarily mean that anything should be negotiated with anyone. Maybe in Mexico all of the possible arrangements would be objectionable; maybe the criminal groups don’t have the level of cohesion necessary for a solution like the Colombian one; maybe the proliferation of criminal groups makes any kind of stable balance impossible, maybe the Mexican government doesn’t have the institutional development necessary for this kind of negotiation. However, considering the costs that criminal violence imposes on the country and the potential benefits of a rapid pacification, would it not be worth having a serious discussion about the topic? It’s a question, not a recommendation.

Q: Ok. In conclusion, are you in favor of negotiating with criminals?

Of course not. I believe that all who break the law should be penalized. However, I’m a private citizen, not a politician. According to Max Weber, the politician should govern not only by the ethics of belief, but also by the ethics of responsibility. And the ethics of responsibility sometimes oblige us to make decisions that wound the primary moral intuitions of a private citizen. Like negotiating with criminals, for example.

Again, I don’t know if that is what our politicians should do right now. But I believe that the question is not trivial, and the answer is not obvious.

Translated and reprinted with permission from Alejandro Hope*, of Plata o Plomo, a blog on the politics and economics of drugs and crime published by Animal Politico. Read the Spanish original here.

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