Does the FARC still exist? Challenges in Assessing Colombia’s ‘Post Conflict’ under International Humanitarian Law

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Three years ago last month, the Revolutionary Armed Forces of Colombia (FARC) guerrillas formally completed demobilization, marking the end of their 53-year conflict with the Colombian government.

Over 10,000 FARC members demobilized and handed in weapons in a process verified by a United Nations mission in the country. Nonetheless, some FARC fighters rejected the peace process or rearmed. Myriad armed groups, often called “FARC dissident groups,” emerged.

This piece analyses these FARC dissident groups through the lens of international humanitarian law. After presenting the current “post-conflict” scenario, it discusses the government’s characterization of FARC dissident groups, and the challenges in making such an assessment.

This is not just a technical debate. The Colombian government has recently been criticized for the military nature of its security strategy. However, this debate has largely ignored the critical question of how to characterize the situation in the country. Whether the groups meet the international legal standards to be parties to an armed conflict will determine whether the government is using the appropriate rules of engagement against them, including in controversial operations in which alleged child soldiers have been killed. It should also inform discussions of whether and against whom a military strategy may be appropriate.

The Current Situation

Several armed conflicts continue in Colombia. There is wide agreement that the fighting between the government and the guerrillas of the National Liberation Army (ELN), created in the 1960s, amounts to a non-international armed conflict. Additionally, in the view of the government and International Committee of the Red Cross, the Gaitanist Self-Defense Forces of Colombia (AGC) and the Popular Liberation Army (EPL) appear to be parties to armed conflicts, though the UN Office of the High Commissioner for Human Rights disagrees. The AGC emerged in large part from a flawed paramilitary demobilization in the 2000s. The EPL is a holdout from a guerrilla group with the same name that partly demobilized in the 1990s.

There is less agreement on how to characterize “FARC dissident groups” and whether hostilities between the groups and the government can be said to rise to the level of an armed conflict. Members of these groups include former FARC fighters who never demobilized, others who participated in the demobilization process but returned to arms, and new recruits.

Most well-known, in August 2019, Luciano Marín Arango, known as “Iván Márquez,” the FARC’s former second-in-command and top peace negotiator, announced he was taking up arms again. He and other former FARC commanders created a group called the “Second Marquetalia,” named after an area held in the 1960s by groups that eventually formed the FARC.

Currently, 25 FARC dissident groups operate throughout the country, according to a survey by Conflict Responses, a Colombian think tank. The groups often operate in the same territory FARC units controlled before the demobilization process, at times using the units’ names. Many of them engage in fighting with government forces, and are responsible for abuses, including killing civilians, forced displacement, and threatening violence to control daily life in numerous parts of the country.

According to government estimates, the various FARC dissident groups total 2,500 – 2,600 fighters in arms, with another 1,800 – 2,000 “part-time” members who live in urban areas and provide support, a high-level government official told one of us. Yet, the groups vary significantly in size. Some groups, like the so-called 28th and 18th “fronts,” probably have fewer than 100 members; others appear to have more than 300.

Assessing FARC Dissident Groups under IHL

Various assessments have been made regarding FARC dissident groups.

The UN Office of the High Commissioner for Human Rights considers that these groups do not fulfill the intensity and organization requirements to be parties to a conflict with government forces. The ICRC considers that fighters from the FARC’s former Eastern Bloc, which did not accept the peace deal and operate mainly through the 1st, 7th and 40th “fronts,” are parties to a conflict with government forces. It has not publicly concluded that any other FARC dissident groups, including the “Second Marquetalia,” are parties to a conflict.

In contrast, the government has taken the position, since 2017, that all FARC dissident groups are parties to a conflict with its forces and subject to rules of engagement under IHL. The conclusion is inconsistent with the government’s denial, at a more political level, of an armed conflict in the country, and its repeated claims that the FARC and its dissident groups are criminal gangs, though in line with its strategy to deploy the military to troubled areas.

The government has not clearly explained its conclusion about these groups. The government resolution making the determination three years ago that they were parties to a conflict, Directive 37 of 2017, said that the groups had “command and control” that the government claimed was increasingly unified and engaged in hostilities, but it failed to identify any FARC dissident group in particular, seemingly treating all FARC dissident groups as one. Moreover, the government has expanded the characterization to new groups as they emerged, seemingly without carrying out an individualized analysis of the new group’s level of organization and hostilities, as well as its relationship to the others.

Under international law, the determination as to whether a situation of violence amounts to an armed conflict is an objective one— not to be determined by the relevant government. When it comes to FARC dissident groups, they may be considered parties to a conflict in three ways:

  1. If the specific group fulfills in and of itself the levels of organization and hostilities required under IHL;
  2. If two or more (sub)groups that fail to fulfill in and of themselves such requirements have genuine links among themselves, in practice creating a single group that satisfies the requirements under IHL;
  3. If a group that fails to fulfill in and of itself such requirements has genuine links with a group that satisfies the requirements.

So far, the ICRC and the Geneva Academy have concluded that only the FARC’s former units in of the Eastern Bloc fulfill in and of themselves the levels of organization and hostilities required under IHL (option 1 above).

Indeed, former units of the Eastern Bloc appear to be highly organized and often engage in fighting with government forces. However, the same is not true for other FARC dissident groups. For example, Human Rights Watch found that, at least by August 2018, the 33rd Front had a “limited level of organization” suggesting that it did not fulfill the requirements to be a party to the conflict. Similarly, the Second Marquetalia appears to have rarely engaged in fighting with government forces, though it has engaged in fighting with other FARC dissident groups.

Alternatively, it may be possible that several or—as the government’s position seems to suggest—even all FARC dissident groups have genuine links among themselves such that they can be treated as a single group, and that taken together they fulfill the organization and hostilities requirements under IHL (options 2 and 3).

Scholars have suggested that the relevant test for such links is whether some sort of centralized command exercises “overall control” over several armed groups (option 2 above) or whether an armed group exercises such control over another armed group (option 3 above). That argument is based on the test developed in Tadic before the International Criminal Tribunal for the former Yugoslavia (ICTY) for determining whether an armed conflict has internationalized due to a state’s role in ‘organizing, coordinating or planning the military actions’ of a non-state armed group in another state.

International case law has built on the Tadic test when determining whether different armed groups form a single party to the armed conflict. The ICTY’s Trial Chamber found that small groups belonged to a single larger organized armed group in Haradinaj et al. (para. 89), in a situation in which it could establish the ‘initial phases of a centralized command’ exercising authority over the (sub)groups. At least in Tilman Rodenhauser’s interpretation, this standard does not require that the controlling group or the at least incipient centralized command must be able to issue specific orders or command each military operation, but it does require that they coordinate military activities and determine the overall military objectives and the internal rules that all subgroups have to follow.

It appears inaccurate to treat all FARC dissident groups as a single group. Indeed, many FARC dissident groups operate independently. The Second Marquetalia, for one, operates independently from the former Eastern Bloc’s units and has even engaged in fighting with other FARC dissident groups.

At the same time, there is some evidence that a subset of FARC dissident groups that fail to fulfill in and of themselves the organization and hostility requirements have genuine links among themselves that may create a single group that may satisfy the requirements under IHL (option 2). For example, the “Western Coordinating Command” (WCC) brings together eight dissident groups in southwestern Colombia. While many of them frequently engage in fighting with government forces, there is no clear evidence that they have a solid chain of command, based on our interviews with humanitarian sources.

The eight groups reportedly have a commander who coordinates them, a member of the WCC told one of us. Two of these groups fight alongside each other against government forces and ELN guerrillas, according to WCC’s news releases. Nonetheless, the nature of this actual coordination and the level of autonomy of each group is unclear. As far as we can determine, the clearest evidence of any coordination are news releases. While these suggest that the groups have the ability to speak with one voice, a relevant factor in the assessment, there is no clear evidence that these statements reflect the facts on the ground.

There are also indications that some FARC dissident groups that don’t fulfill in and of themselves the organization and hostility requirements have genuine links with a group that satisfies such requirements (option 3). For instance, in February 2019, the “Western Coordinating Command” released a statement saying that some of its armed groups were “linked to” the 1st Front, which the ICRC considers to be a party to the conflict. They said that the 1st Front was “leading a process of reorganization of the FARC.” Yet on the ground, it is far from clear what that actually means. There is little evidence that 1st Front commanders are able to determine the varying military strategies and the internal rules of these groups, based on our interviews with humanitarian workers and local experts.

Similarly, three FARC dissident groups, including the 7th front, which the ICRC considers a party to the conflict, are part of an umbrella group called “Jorge Briceño Front,” based on our interviews with local prosecutors and other officials. But each of them appears to have different internal rules, based on our interviews with local experts and journalists.

Conclusion

After the peace accord, fluid and multiplying armed groups emerged in Colombia, alongside armed groups that have been fighting for decades. There are strong reasons to doubt that the government is correctly assessing these new groups as a single armed group to which international humanitarian law applies; rather, different assessments likely apply to different groups. These groups present serious legal and factual challenges, which need to be taken seriously to ensure that international humanitarian law is appropriately applied. Such an analysis should also inform the assessment as to whether military or other strategies are appropriate to address the various situations of violence in the country.

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