January 12, 2008

FARC Not a Terrorist Group

by Paul Wolf

Amid the jubilant press reaction to the freeing of Clara Rojas and Consuelo Gonzalez, Venezuela’s President Hugo Chávez has made the surprising announcement, almost immediately ratified by the Venezuelan Congress, that the Revolutionary Armed Forces of Colombia - People’s Army (FARC-EP) is a legitimate belligerent force, and not a terrorist group. Although I have been criticizing Chávez of late, I have to say that I not only agree with this, but also think that America’s official “terrorist list” and “war on terrorism” have an extremely destructive impact on efforts to resolve conflicts all over the world.

While assassination, kidnapping, and the use of indiscriminate weapons are barbaric, they are used in one form or another in virtually every conflict, including by the United States. Just ask the estimated 10,000 people in Iraqi prisons—held without any legal process on the suspicion that they are insurgents—if they have been kidnapped. Or a “high value al-Qaida operative” impacted by a missile on the basis of “actionable intelligence.” Or go to the morgue in Fallujah and ask about people killed in the incendiary bombing a couple years ago.

It’s not a question of accepting the FARC-EP’s goals and methods as legitimate. It’s about resolving a conflict through negotiation, rather than trying to demonize and exterminate an enemy. In Colombia, numerous illegal groups have demobilized and successfully entered into politics. The practical effect of recognizing the FARC-EP’s belligerent status—which of course Colombia will never do—would be to force the Colombian government into negotiations. Also, people like FARC commander Simón Trinidad could not be put on trial for acts that are not war crimes, such as taking enemy combatants as prisoners.

On the other hand, if the FARC-EP is kidnapping hundreds of civilians every year for financial gain, and currently holding over 700 of them, this does sound more like an illegal kidnapping ring than an insurgent group. I’m skeptical of this and don’t think the FARC is even large enough to hold that many people. If it were true, what are the names of these people, and why haven’t their relatives joined the very vocal relatives of the 45 people the FARC-EP admit to holding? I am skeptical of this number, but that is another story. The kidnapping of innocent people is a very serious matter, and is, in fact, a war crime. It is a crime whatever the status of the FARC-EP may be.

Below are some notes I made that may help to clarify the legal definition of belligerency. I wrote this for Simón Trinidad, but could not get his public defenders interested in the subject, and the arguments were never made. Nevertheless, a strong argument can be made that the FARC-EP has the status of a belligerent force under international law, particularly if they will release their remaining hostages and renounce kidnapping once and for all. I hope that Chávez’ statement provides some incentive for that.

1. The FARC-EP has the legal status of a belligerent army

The rights and duties of parties to a conflict are first decided by the status of the factions to the conflict. Traditional international law distinguishes three stages of non-international armed conflict. These are, in ascending order of intensity: (1) rebellion, (2) insurgency and (3) belligerency.

Rebellion involves merely sporadic and isolated challenges to the legitimate authority of the government, conferring neither rights nor duties on the rebels. Rebels can legally be treated as criminals under domestic law and, if captured, do not enjoy prisoner of war status. In a rebellion, any assistance from a third State is prohibited by international law as unlawful intervention and interference with State sovereignty. Thus, rebels have no protection under international law.

The second stage, insurgency, involves a sustained campaign to challenge the legitimacy of governmental authority. While there is no precise definition of insurgency, it appears that insurgency constitutes a civil disturbance confined to a limited area of the State’s territory and supported by a minimum degree of organization.

There are two schools of thought on the status of insurgents in international law. Some scholars are of the opinion that to confer the status “insurgent” on a group takes them from the realm of municipal law into that of international law, while others say that the status of insurgency does not confer any rights or duties on the group, which is still subject to municipal criminal law. However, even under this view, the status of insurgency does bring the group out of the exclusive realm of domestic law, giving them quasi-international law status.

The third and most serious category of non-international conflict is called belligerency. Belligerency is a more clearly defined concept in international law than either rebellion or insurrection. Belligerency is defined as “the acknowledgement of a juridical fact that there exists a state of hostilities between two groups contending for power or authority; it is ... the recognition of the existence of war.” Recognition of belligerency formalizes the rights and duties of all parties to a war.

The criteria for belligerency were set forth by the Institut de Droit International in 1900. For a state of belligerency to be recognized, it is necessary that (1) the insurgents occupy a certain part of the State territory; (2) establish a government exercising the rights inherent in sovereignty on that part of territory; and (3) conduct the hostilities by organized troops kept under military discipline and complying with the laws and customs of war.

The FARC-EP maintains a military campaign in every department (administrative region) of Colombia, and in 1999 controlled an estimated 40 percent of the country’s territory. It has maintained a continuous military campaign since 1964, and its activities began during the period called La Violencia of the 1950s, which claimed an estimated 300,000 lives.

The FARC-EP conducts hostilities by organized troops kept under military discipline. The FARC-EP’s military rules are extensively documented on its website. These include a complete description of its command structure; a published Statute, Regulations, and Internal Rules of Command; and rules prohibiting “utilizing guerrilla columns against the masses,” the murder of civilians, sexual assault, theft, fraud, extortion, drug use, and other prohibited activities.

The FARC-EP complies with the laws and customs of war to the extent that any armed group in Colombia does, including the Colombian military. However, human rights organizations such as the UN High Commission for Human Rights, Amnesty International, Human Rights Watch and even the U.S. State Department, routinely accuse all sides of the Colombian conflict of violating the laws of war. There is general agreement among human rights organizations that the worst violations of the laws of war are carried out by Colombian paramilitary forces, which have been materially supported by the Colombian government for decades.

To deny the FARC-EP belligerent status on the basis of violations of the laws of war would be to unevenly apply the laws of war to this conflict. If those laws were strictly applied, no prisoner in Colombia, no matter which side held him captive, would be entitled to the protections of the Geneva Conventions, since they would not be prisoners of war. This would include prisoners in the custody of the FARC-EP, which would have no legal obligation to treat its prisoners in accordance with the Conventions. This unfortunate result would not be in keeping with the spirit of the Geneva Conventions.

The FARC-EP has at times established a de facto government in areas it controlled. Beginning in January 1999 and continuing through February 2002, the government of Colombia ceded control over a large area of rural Colombia to the FARC-EP (the despeje, or cleared zone). The FARC-EP established courts, schools, and other emblements of government which operated openly and with the sanction of the Colombian government. These negotiations were conducted with the assistance of James Lemoyne and Jan Egeland of the United Nations.

In February 2002, the peace talks came to an abrupt end and the Colombian government re-asserted de jure governance of the despeje zone. However, the FARC-EP has continued to control and govern large sections of Colombia since that time.

This was not the first time the Colombian government had negotiated with the FARC-EP. Prior negotiations include the La Uribe Accords (1984), the Barco/Gaviria negotiations (1986-1990), and negotiations between President Gaviria and the Simón Bolívar Guerrilla Coordination (Coordinadora Guerrillera Simon Bolivar - CGSB) in Caracas, Venezuela (1991) and in Tlaxacala, Mexico (1992). Signed agreements were produced as a result of these negotiations.

Two decades of negotiations and agreements, the creation of a despeje zone openly governed by the FARC-EP, and the involvement of high level United Nations representatives in the negotiations constitute de facto recognition of the belligerent status of the FARC-EP by the government of Colombia and the United Nations.

The government of Colombia says it does not recognize the belligerent status of the FARC-EP. This is unsurprising, because the Colombian government would not want to admit that it has a serious conflict occurring within its borders. In addition, an admission that the FARC-EP were belligerents recognized by international law would give legitimacy to the FARC-EP’s challenge to the established government. Despite numerous insurgencies that have occurred all over the world, no government has formally recognized the belligerent status of insurgents within its territory since World War Two.

The United States is intervening in the Colombian conflict through the provision of arms, training, and logistical support to the Colombian government for the express purpose of combating the FARC-EP organization. The United States has contributed at least four billion dollars through its Plan Colombia program, increasing the number of Colombian troops ready for combat by 60 percent since 1999. US intervention in Colombia would be prohibited by traditional international law if the conflict were merely a rebellion.

The FARC-EP are a belligerent army of national liberation, as evidenced by their sustained military campaign and sovereignty over a large part of Colombian territory, and their conduct of hostilities by organized troops kept under military discipline and complying with the laws and customs of war, at least to the same extent as other parties to the conflict. Members of the FARC-EP are therefore entitled to the rights of belligerents under international law.

2. A prisoner of war can be tried for war crimes but not for acts of belligerency in accordance with the laws of war

Prior to 1949, members of national liberation movements were normally tried as criminals under municipal law. This changed in the wake of the Second World War, when most nations of the world, including the United States and Colombia, signed the Geneva Conventions. Article 4(A)(2) of the Third Geneva Convention of 1949 sets forth the criteria to be used to determine status of a member of an organized resistance movement as a prisoner of war. These criteria include (1) that of being commanded by a person responsible for his subordinates; (2) that of having a fixed distinctive sign recognizable at a distance; (3) that of carrying arms openly; and (4) that of conducting their operations in accordance with the laws and customs of war.

The FARC-EP has an organized command structure as described on their website. They have a fixed distinctive sign recognizable at a distance—this emblem is shown in the upper left corner of its website at http://www.farcep.org. The FARC-EP carry their arms openly, and insisted on doing so during the negotiations with the Pastrana administration. The FARC-EP conduct their operations in accordance with the laws and customs of war to the same extent that other parties to the conflict do.

3. Revolutions do not violate international law

Finally, there is no rule of international law prohibiting revolution, and, if a revolution succeeds, there is nothing in international law prohibiting the acceptance of the outcome, even though it was achieved by force.

Paul Wolf is an an attorney based in Washington, DC. He is currently representing Colombian victims of paramilitary violence in a civil suit against Chiquita Brands International.

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