Crisis?  What Crisis?   Security Issues in Colombia

The Peace Process and Human Rights

by

Enrique ter Horst⁵⁴

I would like to thank the Woodrow Wilson International Center for Scholars and the National Defense University for this invitation to address such a distinguished audience on the topic of the peace process and human rights. I do so in a purely personal capacity, as someone who had the privilege of participating in the process of implementation of the Salvadoran peace agreement. My comments have not been cleared by the United Nations, as they are my own.

The negotiation and implementation of peace accords stemming from internal conflicts affecting a single United Nations member state are increasingly common. In several such situations the United Nations has acted as mediator and as verifier of compliance with the accord. United Nations participation always results from a request by the government of the member state, and is frequently based on mandates in the United Nations Charter governing issues of peace and security, social and economic development, and support and defense of human rights. At times orchestration of these accords has been facilitated by a United Nations peacekeeping operation organized by the Security Council, or by a mission approved by the General Assembly.

In this hemisphere the United Nations has participated as mediator and verifier of two peace processes which could be of interest to Colombia: El Salvador and Guatemala. In seeking to reestablish internal peace and governability and to arrive at solutions to the underlying political, economic, social, and institutional causes of conflict, these processes constitute veritable programs of political structural adjustment. Aimed at consolidating the long-term viability of the state, these processes are always based on the consolidation of democracy and the rule of law. Their foundation and guiding principal is respect for human rights, particularly the rights to life, integrity and security of the person, legal due process, personal freedom, and freedom of expression and association.

These are the rights emphasized in the San José [human rights] Accord of June 26, 1990, part of the Salvadoran peace accords. It must be stressed that the establishment of peacekeeping operations and of in situ verification missions does not suspend a particular state’s responsibility to carry out other international human rights obligations it may have assumed, nor does it interfere with applicable permanent oversight mechanisms: El Salvador, for example, maintained a Special Rapporteur of the United Nations Human Rights Commission, and later a Special Expert, even after the implementation of the peace accords was well underway. The mandate of Group of Experts for Guatemala was discontinued in April of 1998, during a meeting of the Human Rights Commission. The San José Accord itself makes clear that it does not offer the last word on the theme of human rights, and that it is thus only a partial accord. Similarly, this accord also incorporates the Geneva Conventions on international humanitarian law, thereby allowing verification of guerrilla conduct during the conflict.

In order to carry out the specific tasks established by the San José Accord, the United Nations Observer Mission in El Salvador (ONUSAL) was granted the necessary capabilities: Receipt of communications and complaints; free, unrestricted visits [to places of detention] without prior notice; information-gathering by whatever means it deemed best; formulation of recommendations to the parties; active verification of human rights violations; and preparation of regular reports to the secretary-general, for subsequent presentation to the Security Council and the General Assembly. Information received that could require prosecutions of those accused was transmitted to the appropriate judicial bodies, as mandated by the San José Accord.

The mandate and powers given the United Nations by the parties to the Salvadoran conflict a full year and a half before the peace accord was signed in Chapultepec in 1992 were clearly directed towards facilitating the negotiations of a final accord. They accomplished this by inhibiting on-the-ground actions by either the government or the guerrillas that might disrupt such negotiations, thereby inspiring confidence in the possibility of the negotiations’ successful conclusion.

The San José Accord also remained in force after Chapultepec. It contributed to a notable improvement in respect for human rights and helped generate a climate conducive to each side’s fulfillment of its assumed responsibilities. Additionally it provided the entire process with an ethical base, consolidating its credibility and facilitating the work of the United Nations in its verification work.

Such credibility, in turn, permits the United Nations to act as a good-faith third party, enjoying the respect and trust of the parties to the conflict. In general, when mandated to facilitate the enactment of a peace accord, as well as when it verifies respect for human rights, the United Nations must be impartial but never neutral, in that it is obliged to take positions regarding concrete situations demanding value judgments. It is on the basis of the parties’ trust in the United Nations that the organization may reestablish trust between the sides and secure anew the governability of the country in question. In El Salvador, ONUSAL’s mandate simultaneously included verification of both parties’ fulfillment of the commitments assumed in the peace accord, and the function of "good offices," an extension of the mediation function it had provided during the negotiation of the accords.

Some practical lessons may be derived from the experience of ONUSAL that are useful for any peace process verified by the United Nations. One concerns the need for a clear policy of "recognition and criticism" of actual developments, and for an unbiased attitude towards the former parties to a conflict. It is necessary to start by giving the benefit of the doubt to all, providing a kind of "clean slate" so each side may prove it has recognized the opportunity for positive change and will make every possible effort to see it is complied with. The mission must stimulate and consolidate the dynamism of the peace, promoting and highlighting the deeds and actions that will cause the peace process to become irreversible. But it must also denounce violations of the peace accord and of human rights, as well as maneuvers that delay the fulfillment of obligations assumed in the accords. This must be done regardless of which side caused the violation or failed to carry out a commitment. This attitude of impartiality, of calling things by their name, regardless of the source, must govern every action of the mission.

Equally, the mission must assist the parties in carrying out the commitments they have assumed, by providing the necessary technical advice, and by not limiting itself solely to an oversight function, which could be interpreted as arrogance or lack of interest in the peace process. This in turn requires solid professional work that assures the reliability of the information behind the mission’s statements. It implies a capacity for independent criminal investigation that can go beyond the testimony of eventual witnesses. It also has implications for the organization and structure of the mission itself.

Thus, when the mission was definitively established after the signing at Chapultepec, with the objective of verifying implementation of all the commitments assumed by both parties, the new director of the human rights division reported directly to the secretary-general on the issues under his purview. This avoided any possibility or suspicion that the political accords between the United Nations and the parties might be carried out at the expense of respect for human rights. At the same time, the overall coordination of the mission, including its human rights functions, was undertaken by the chief of mission. This assured coherence between the political objectives having to do with the implementation of the peace accord and human rights verification.

Yet a human rights mission or one aimed at facilitating or verifying a peace accord cannot limit itself to denouncing violations. It must also assure that when the mission leaves, domestic institutions have reached a sufficient level of development that they are capable of taking over the mission’s responsibilities. Thus, in the Salvadoran case, the mission’s technical assistance was very useful in preparing legislation and in establishing and professionalizing the institutions charged with upholding the rule of law and the defense of human rights, such as the National Council on the Judiciary and the office of the Human Rights Ombudsman. Much of the technical assistance initiated by the mission has been transformed into projects of the United Nations Development Program (UNDP), the U.N. branch that has assumed a large portion of the institutional consolidation effort begun by ONUSAL.

The Truth Commission

The work of the Truth Commission was a parallel but separate effort from that of ONUSAL, so different that even the administrative support was provided by a separate department of the United Nations. Composed of three independent commissioners, its goal was to break the cycle of impunity, denouncing those who committed grave human rights violations. Even though many of those named in the Truth Commission report were not prosecuted, the mention of their name constituted a clear sanction, and in practice had the effect of disqualifying an entry into politics. Value judgments about the Truth Commission report were numerous and contradictory. But in addition to the recommendations pertaining to institutions, some excellent and others not very realistic, there is no doubt that the report aided in the process of leaving the past behind. This obligated the country to confront the past in all its crudity, and then direct its attention to the future and to the reconstruction of a better country.

Having discussed the mandate and structure of ONUSAL, particularly in reference to human rights, it is useful to summarize the principal elements of the Salvadoran peace accord, today enacted in its entirety:

• Complete demobilization of the FMLN, with its transformation into a political party.
• Subordination of the armed forces to civilian control.
• Creation of a National Civil Police, separated from the armed forces and with the sole responsibility for public safety.
• Reduction in the size of the armed forces.
• Economic and social reintegration of the demobilized guerrilla and military forces.
• Creation of new institutions--the National Council of the Judiciary and the office of Human Rights Ombudsman--and constitutional and legal reforms designed to strengthen the rule of law and promote reconciliation.

Many and varied factors contributed to the success of the Salvadoran process, and its analysis would provide enough material for a book. I will outline briefly those points I consider the most important:

• The sincere desire of Salvadorans, after twelve years of war and 100,000 deaths, to end the war.
• The battlefield military stalemate between the two sides in the conflict, the recognition of the conflict’s political nature, and the need to find a solution resolving its deeper causes.
• The support (and political pressure) of the international community, including the United States and the Soviet Union.
• The financial and technical support of the international community, which translated into an influx of resources proportionate to the task at hand.
• The catalyzing and confidence-generating role of the United Nations, as mediator, verifier, and definitive guarantor of the peace accord. A time limit on ONUSAL’s presence in the country was never imposed; nor was a limit on the number of personnel it could employ. ONUSAL maintained a presence, in one form or another and under a number of different names, until the last point was complied with.
• A growing national economy, supported by the entrepreneurial capacity of the Salvadoran population and by remittances from emigrants. Suffice it to note that these remittances were nearly three times higher than income derived from coffee exports when the price of coffee was at its highest.

In Guatemala, today there is also a U.N. mission to verify compliance with the peace accord, verification that includes a clear mandate to monitor human rights. This verification mission, as in El Salvador, was preceded by a mission limited to human rights verification while the negotiations over the peace accord took place. This human rights mission was established in November 1994; the General Assembly authorized a personnel strength of 245 international officials, including ten military liaison officers and sixty police observers. Its principal objective was to generate confidence in the process and between the parties and thus facilitate a successful conclusion to the negotiations. The implementation of the Guatemalan peace accord, which is much more complex than the Salvadoran, will necessarily take longer. Insomuch as the presence of a verification mission accelerates and improves the implementation of the commitments assumed, it is to be hoped that the parties and the United Nations will also concede the necessary time and resources to the Guatemalan peace process, as they did in El Salvador.

United Nations Missions in Haiti

The case of Haiti is very different. Haiti lacks a peace accord as well as a state capable of functioning as such to assume its responsibilities. The presence of the United Nations, both in its peacekeeping mission and its international civilian mission (a joint human rights mission of the United Nations and the Organization of American States) is aimed at social and political stabilization while new national institutions are created, namely a police and judicial system, and while generating a minimum level of economic growth. Both operations have contributed significantly to strengthening the new police force but much less to fortifying the judicial system, principally because of the lack of interlocutors on the Haitian side. But Haiti’s historical, social, and economic circumstances are distinct, and difficult to compare with those in Colombia.

One particularity of the Colombian case is that the United Nations has a human rights presence -- the office of the United Nations High Commissioner for Human Rights in Colombia, located in Bogotá – established without the existence of a peace accord and before peace negotiations have even begun.

This office was established in response to an appeal from the government of Colombia, a request granted by the Human Rights Commission in a declaration by its president on April 23, 1996. The mandate is to assist Colombian authorities in developing policies and programs to promote and protect human rights, to monitor human rights violations in the country, and to present reports to the high commissioner for human rights and to the U.N. Human Rights Commission on the office’s activities. The November 29, 1996, agreement signed by the Colombian minister of foreign relations and the United Nations high commissioner for human rights envisions advisory, promotion, monitoring, and verification functions.

This office began operating in March of 1997 with seven international professionals. Regarding its promotional efforts, the office advises the executive branch, including the security forces, on the general definition and practical implementation of policies related to human rights. It also advises the legislative branch, making sure that every bill related to human rights respects international human rights instruments.

Equally, the office’s advising role extends to the national institutions for promotion and protection of human rights, such as the federal prosecutor general’s office, the office of the human rights ombudsman, the attorney general’s office, and the judicial branch. Finally, the office has within its mandate to advise representatives of civil society and individuals and non-governmental organizations on human rights protection issues and educational programs. It is also involved in the training of officials responsible for upholding the law, including lawyers and members of the judiciary. The office also works to ensure that recommendations and decisions made by United Nations human rights groups are taken into account by the appropriate public authorities.

The office is equipped to receive individual complaints regarding human rights violations and other abuses, including violations of the humanitarian norms applicable during armed conflicts. Having received such complaints, the office transmits them to the Colombian national authorities, to compel their handling in accordance with internal legal procedures. If such internal procedures prove incompatible with international legal instruments, the office so informs the appropriate authorities and can make recommendations for adopting corrective measures. The office also can recommend protective measures for those who lodge complaints, victims, or witnesses to the acts in question.

The office regularly informs the government of its concerns and evaluations regarding issues under its mandate, and reports to the U.N. high commissioner on its activities. In turn, the high commissioner provides detailed and analytical public reports to the Human Rights Commission. These concern the activities of the office as well as the human rights situation in the country, and take into account the violent context of the internal armed conflict. Similarly, the office can make the observations and recommendations it deems necessary, and ensure that the pertinent information collected by the office is placed at the disposition of the United Nations bodies charged with human rights protection.

This description of the mandate and activities of the high commissioner’s office in Bogotá shows that, in the absence of peace negotiations and only a few months after its establishment, it represents for many an impartial arbiter. It thus seeks to avert a deepening of the conflict and to generate greater trust in the possibility for a successful political negotiation.

It is difficult to speculate about additional functions the parties to the Colombian conflict might request of the United Nations. As was seen in the cases of El Salvador and Guatemala, such requests could extend to mediation during the negotiations and later on to verifying fulfillment of the commitments assumed by the parties in a possible peace accord. Nor is there doubt that Colombia’s size and the complexity of its internal conflict would represent a new and significant challenge to the United Nations, should the parties to the conflict request its participation in a negotiated solution. On the other hand, Colombia’s level of institutional and economic development could make the fulfillment of certain commitments much easier and faster than in the cases of El Salvador and Guatemala. For example, agreeing to a new process of constitutional and legal reform would not necessarily involve the United Nations in drafting the texts, given the well-known professional capabilities of Colombian jurists.

The United Nations could contribute its experience in the organization and supervision of a cease-fire, and in the demobilization and subsequent social and economic reinsertion of the guerrillas, as well as in the reduction of the armed forces. The same could be said regarding incorporation of the guerrillas into political life and reestablishment of state authority in the zones previously controlled by insurgent forces. A peace accord is normally accompanied by a significant program of reconstruction and economic and social development, and thus the United Nations could play a role in promoting and coordinating the design and execution of such a program.

I would underscore that in the present circumstances, any United Nations participation whatsoever could only come about as a result of a formal request. With objective conditions clearly favoring a political negotiation, we can but hope that this process begins soon, thereby allowing Colombia to set out definitively on a path of peace, reconciliation and development.

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Last Update:  September 30, 2002