Making Peace, Fighting Battles in Colombia: An Annotated Interview with Juanita Goebertus

ABSTRACT

This interview article provides a glimpse behind the scenes of making peace and shows how the engagement of a peacemaker stretches beyond practicalities and the time–space of peace talks. Based on the Colombian case, it focuses on moments of decision-making, strategic and creative thinking, conceptual debates and adversarial politics that take place throughout a peacebuilding process. Juanita Goebertus’ reflections on gender, legitimacy, and transitional justice reveal that the horizon of peace is not only shaped by the power of law, norms, and institutions but by peacemakers’ own principles and the cultural and political battles they are driven to fight.

KEYWORDS:

• Peace process
• Havana peace talks
• transitional justice
• gender
• referendum
• resistance

Introduction

The use of the word ‘transition’ to describe the journey undertaken by a society to build peace might prompt us to believe that the temporality of peacebuilding works in a linear way. However, the path to a ‘handshake moment’ is usually preceded by ‘secret talks and diplomatic back channels’ (Bell and Wise 2022, 386), and the journey to peace is fraught with fluctuations and setbacks that shape what the end point of a peace process might look like (Jones and Lühe 2021). Literature on mediation and negotiation stresses that the content of early talks includes the commitment of the conflict parties on the goals of the talks, their proceedings, the points of the agenda and their sequencing (Bell and Wise 2022). ‘Confidentiality’ in these early talks is ‘critical to the success of negotiations’ (Dudouet 2021, 12), and constituencies of the conflict parties will only be aware of the existence of such ‘behind-the-scenes talks’ once negotiators and mediators have reached a consensus over the appropriate moment to go public (Francis 2010, 29). But the work of making peace ‘is never a matter of practice alone’ (Francis 2010, 38). As this interview article shows, neither confidentiality nor a clear sequencing of the peace process are sufficient conditions to reach a successful agreement. To ensure the long-term commitment of the conflict parties and other stakeholders, peacemakers address strategic concerns, carefully considering not only the publicness of the negotiations but also the weighting up of legal frameworks and norms against their ethical principles and societal demands for equality and justice. Creating and keeping momentum to achieve citizen buy-in to the peace process and secure institutional legitimacy is crucial to ensure the implementation phase. But what to do when, despite these efforts, a peace agreement fails to secure citizen support?

This article seeks to provide a glimpse into sociocultural, legal, and political challenges that peacemakers, and particularly negotiators, face and the strategies they adopt to address forms and practices of citizen resistance to peace throughout the negotiation and implementation phases. The article brings to the fore the standpoint of Juanita Goebertus, former peace negotiator for the Colombian government at the Havana peace talks, which ultimately led to a peace agreement between President Santos’ government and the Revolutionary Armed Forces of Colombia (FARC) (UNSC 2017). The specificities of the Colombian case with regard to the role that gender perspectives, demands for accountability, truth, and political participation played in these negotiations offer a window into the practices engaged by peacemakers in order to transform antagonistic voices to peace into agonistic relations.

This article is a result of the project ‘The Intersectional Politics of Antagonism in Peacebuilding’ (IPAP) which aimed to investigate how peace institutions and peacemakers can implement a peace agreement that encounters resistance. Within the context of this project, resistance is understood in Jones, Bernath, and Rubli’s (2013) sense as a ‘purposeful act intended (…) to work against, prevent or disrupt’ a peacebuilding process or a peace agreement’s implementation. The article contributes to the analysis of how peace practitioners can bring groups or individuals into peacebuilding processes who have been involved in adversarial activities against the making or the implementation of a peace agreement. In exploring Goebertus’ perspective, this article not only expands the knowledge of resistance to peace during the negotiation phase as it is experienced by negotiators at track 1 level, but it also sheds light on the important role that politicians can play in the implementation phase. By using their political leverage, they can drive other political actors and third parties to engage in actions to ensure that a peace agreement has better chances to succeed in its implementation.

The article’s first section opens with an overview of the literature on peacebuilding with a specific focus on negotiations without formal mediation and looks at the phases of a peace process. This section explores dimensions of inclusivity and participation, arguing that when incorporated in peacebuilding tools, they can become critical for enhancing agreements’ legitimacy and enabling the implementation phase. The article then introduces the Colombian peace process, providing a brief overview of the parties to the Colombian conflict, the phases of negotiation, and the points of tension from which resistance to the Agreement arose. The third section presents an online interview with Juanita Goebertus conducted in English in May 2022. The interview considers Goebertus’ insider experience as a peacemaker, both working within the government’s negotiation team of the Havana peace talks and as a congresswoman in the Colombian Senate. Goebertus offers her perspective on how the Havana negotiators addressed the complex challenges they faced to reach an agreement and secure its implementation. As reflected in the conclusion, the interview stresses the interdependence of the peace process phases. Decisions made by peacemakers during the preparatory or secret phase lay the groundwork for providing constitutional legitimacy and political enforceability to the agreement to ensure its implementation. The battle for peace does not end with the signature of an agreement. If a peace agreement meets with citizen resistance and fails to obtain people’s endorsement, political actors can become peacemakers by using the peace dividend to leverage support for the implementation process.

The who, what, and how of the peace process design

The perspective of mediators is often the window through which the work of peacemakers is studied. Mediators are countries, organisations, or individuals ‘who are independent, or (…) autonomous, of disputing parties’ (Moore 2014, 9). Conflict mediation is a tool by which mediators assist the parties in dispute to ‘prevent, manage or resolve a conflict by helping them to develop mutually acceptable agreements’ (UNSG 2012, 4). Given that from the 1980s onwards, mediation has become the most common tool to manage or resolve violent conflicts (Clayton and Dorussen 2022), numerous academic publications and guides have been devoted to inform and analyse mediation processes (Dziatkowiec 2017; IPI 2009; Nathan 2017; Pring 2017; UNSG 2012). Although ‘unusual,’ peace processes can also be conducted without mediation (Jaramillo 2021, 33). The Colombian peace process that led to the signature of the Havana Agreement in 2016 is an example of a peace negotiation without formal mediation, where peace talks were instead held among the negotiation teams of each conflict party (Segura and Mechoulan 2017).

Unlike mediation, negotiation is a ‘direct encounter’ between ‘the primary parties to an armed conflict’ in which they seek to reach an ‘agreement on a situation that is perceived as a problem or conflict’ (Dudouet and Dressler 2016, 7). In processes without mediation, external actors can offer support through specific topical expertise or capacity-building, enhancing conflict parties’ ability to negotiate peace agreements that are in congruence with national and international laws and norms (Dudouet and Dressler 2016). Often conducted abroad, a peace process is typically understood as an initiative ‘to bring political and/or military elites involved in [armed] conflict (…) to some sort of mutual agreement’ on how to solve the conflict by political means (Bell 2018, 416). Documents produced from such discussions that ‘set out a framework agreement or “road map” for resolving the substantive issues of the dispute’ are usually called framework/substantive peace agreements (Bell 2018, 421). Once consensus on the points of the agenda and on who sits at the peace negotiation table has been reached, the process design involves agreeing on the sequencing of the agenda. Practice-oriented knowledge recommends starting with soft topics, as this helps the parties to find common ground from the initial stages of the process. Soft and hard topics are both discussed at the main table, but the latter may need to first be discussed in sub-commissions or working groups that develop proposals on how to address these topics (Blunck et al. 2017). When the issues of the framework agreement are further developed and involve manifold policy reforms that will be implemented in the post-conflict phase, they become known as comprehensive peace agreements (Bell 2018).

Since it cannot be taken for granted that parties to the conflict convey the needs and interests of civil society (UNSG 2012), inclusivity makes it more likely that the underlying causes of violence and the needs of the affected populations are addressed in the negotiation process (UNSCR 2016). Wider inclusivity may enhance the legitimacy of the process and peace sustainability. Yet, inclusivity does not mean that all stakeholders should have a seat at the table (UNSG 2012). Inclusivity refers to the ‘extent and manner’ in which the needs and interests of stakeholders are represented in the negotiation and its outputs, whereas participation ‘implies the active involvement of key actors in a process’ (Hess Sargsyan and Möller-Loswick 2021, 34). Yet both criteria, inclusivity and participation, are at the core of the process design. They play a defining role when it comes to deciding who should be involved in the talks, in what capacity, and what the relations between participants at different levels or tracks will be (Hess Sargsyan and Möller-Loswick 2021).

Studies suggest that social and women’s movements affect peacebuilding positively through bottom-up strategies, by pressuring belligerent actors to engage in transitions to peace or maintain their engagement (Cárdenas and Olivius 2021). However, ‘[they] are rarely invited to participate meaningfully in formal peace talks’ (Dudouet 2021, 12). In processes using mediation, mediators may have to ‘deal with the skepticism of some negotiators’ when trying to expand the peace process’ inclusivity and transform its political power structures of gender, race, and class (Hess Sargsyan and Möller-Loswick 2021, 9). Although the UN Women, Peace, and Security (WPS) agenda has been seen as a tool to leverage women’s participation in peacebuilding (Francis 2010), in practice, women’s participation in peacebuilding has received limited attention at local and international levels. One reason is an overwhelming focus of the WPS agenda on sexual violence, which has overshadowed a wider and more detailed approach to women’s rights. Another key reason is the need to strengthen the WPS agenda’s local-sensitive approach to structural violence (Basu and Nagar 2021).

Such limitations notwithstanding, the interest in strategic inclusivity in peacebuilding has also found an anchor among peace institutions and peace practitioners through the so-called multitrack approach (Palmiano Federer et al. 2019) or multitrack diplomacy (Dudouet and Dressler 2016). The term ‘track’ is commonly used among international peace practitioners to denominate different ‘interconnected activities, individuals and institutions’ (Dudouet and Dressler 2016, 10) situated at various layers of society and working towards the common goal of peace (Hess Sargsyan and Möller-Loswick 2021). The track terminology is used in both direct and mediated negotiations, but it is not widely adopted among peace practitioners working at national levels. Another set of categories, such as national, regional, and local, is used to reflect the number of societal levels involved in peace work, whether horizontally within a specific level or between lower and upper levels or scales (Palmiano Federer et al. 2019). Recognising the relations and interactions between different tracks or societal levels enables mediators and negotiators ‘to evaluate where, when and how’ to set up or coordinate and influence peacebuilding activities (Dudouet and Dressler 2016, 23). Official governmental peace processes engage the track 1 level, which comprises activities undertaken at top leadership level by actors such as military, political, or religious leaders with high visibility. Track 1.5 represents less public or visible participation in high-level discussions of influential interlocutors or governments’ representatives (Blunck et al. 2017). Track 2 refers to work among middle-range leadership such as religious actors, academics, and NGOs. Track 3 identifies grassroots leadership exercised by local leaders, community developers, and community-based NGOs (Blunck et al. 2017; Palmiano Federer et al. 2019, 6).

Evaluating the capacities of the negotiating parties or the ripeness of the conflict for negotiation requires negotiators and mediators to use different analytical tools and information technologies. Multitrack interactions exemplified in national dialogues are one of the tools increasingly used to enhance inclusive processes. They allow peacemakers to gather people’s insights and identify whether the approaches developed at the table are grounded in people’s everyday lives and have the support of the general population. National dialogues are ‘inter- or intra-societal dialogue’ forums that bring together representatives from political elites (Dudouet and Dressler 2016, 8), including opposition leaders, representatives from civil society, women, youth, and marginalised groups (UNSG 2017). While different initiatives or tracks can contribute positively, they should be carried out in ‘coordination and consultation,’ particularly when they address the same issues and involve the same level of actors (Aans, Damman, and van Unen 2023, 11). Furthermore, the ‘ease of publicizing confidential contacts on social media’ can jeopardise the ability of negotiators to reach an agreement (UNSG 2017, 4).

Besides these communication concerns, tensions may arise between the very principles underlying mediation and negotiation, the legal standards that the peace agreement should meet, and the parties’ grievances. Reports and guidance on the practice of mediation and negotiation put the finger on tensions between achieving peace while ensuring accountability for human rights violations and enhancing women’s participation in accordance with the WPS agenda, as instruments to achieve these principles may jeopardise each other. Thus, special thematic groups, bolstered by third-party mediation support to track 1, can be created with regard to demobilisation, disarmament and reintegration (DDR), ceasefires, transitional justice, power sharing, and crosscutting issues such as gender (Stenner 2017).

Yet, reaching a peace agreement is only one of the first stages in resolving an armed conflict. Generating broad public buy-in for a peace process and promoting national ownership of the agreement to secure implementation remain difficult tasks. Communication campaigns and dissemination initiatives aimed at sharing the content of the agreement and ‘underscoring the tangible benefits of peace’ can positively impact citizens’ support and prevent peace spoiling (UNSG 2017, 8). Peace agreements’ implementation requires not only the will of the negotiators, but also the capacity to enforce the transformations they include (Saffon-Sanin 2021). The term enforcement entails that the state and its institutions need to have the power and legitimacy to apply those transformations. In order to ensure peace agreements’ enforceability, peacemakers are led to find mechanisms aimed at giving them legal status and enhanced legitimacy (Molloy and Bell 2019). A referendum is one among other mechanisms that provide a way to ‘widen the legitimacy of an agreement beyond the “elite deal” of the parties to the conflict’ (Bell 2016, 168). Thus, even in the presence of resistance to peace, if a peace agreement succeeds in a referendum, it is endowed with the necessary political leadership to foster its own implementation (Molloy and Bell 2019). But what to do when a referendum fails? The next section introduces the case of Colombia’s Peace Agreement signed in 2016 and rejected in a referendum a week later in October 2016. It highlights key points of the peace negotiation and topics around which resistance to peace emerged.

From the peace table to the elusive ballot

Since the launching of official peace talks in 2012 until the signature of the Peace Agreement in September 2016, it became public knowledge that the goal of the so-called Havana peace process was to resolve the internal armed conflict between the Colombian state and the FARC. Born from peasant self-defence groups formed between the 1920s and 1930s, the FARC was established in 1964 with the support of the pro-Soviet communist party of Colombia (Gutiérrez-Sanín 2018).

Yet the FARC has not been the only left-wing guerrilla or illegal armed actor involved in the Colombian conflict. Since the 1970s, Colombia has had at least five peace processes with different armed groups, some of which have impacted the design and outcomes of the Havana peace talks. In the 1980s, the Colombian government granted amnesty to the members of the M-19 guerrilla group, allowing their demobilisation and transformation into a political party. Between 1999 and 2002, the Caguán peace process sought but failed to reach a peace settlement with the FARC. In 2005, the right-wing government of Alvaro Uribe approved the Justice and Peace Law, a peace settlement whose goal was the DDR of the paramilitary group United Self-Defence of Colombia (AUC). Its ‘main marker was the reduction of penalties in exchange for confession’ (Garzón-Ramírez 2017, 65). However, the process lacked of logistical and security measures to enable victims to effectively participate in the hearings and allowed that ‘at least 90 per cent of demobilised paramilitaries (out of 30,000) were granted a de facto amnesty’ (Garzón-Ramírez 2017, 65). Despite its shortcomings, Justice and Peace represented one of Colombia’s first attempts of transitional justice in Ruti Teitel’s sense, as it was a legal response to paramilitarism in which the ‘law operate[d] differently, and often [was] incapable of meeting all of the traditional values that are associated with the rule of law’ (2014, 4). Justice and Peace provided a certain level of historical truth, while applying minimalist justice with low levels of accountability in exchange for achieving peace.

In October 2012, the Santos government launched the public phase of peace talks with the FARC. The process was conducted without formal mediation and the first track or level of negotiation comprised two negotiating teams of ten members each, representing the two conflict parties (Jaramillo 2021). These teams were later supported by three sub-commissions, which addressed three particular aspects of the agenda: gender, transitional justice, and the end of the conflict (Segura and Mechoulan 2017). The decision on the points of the peace agenda dates back to an exploratory or secret phase that took place between 2010 and 2012. On 26 August 2012, the parties signed a framework agreement covering six points: (1) Comprehensive rural development; (2) Victims of the conflict – a point that later crystallised in a comprehensive transitional justice system; (3) Political participation; (4) End of the conflict and DDR; (5) Solution to the problem of illicit drugs; (6) Implementation and verification mechanisms. The design of the peace process was completed with the sequencing strategy ‘nothing is agreed until everything is agreed.’ It meant that ‘the negotiation only finished when an agreement was reached on [each of] the six points of the agenda’ (Fabra-Zamora, Molina-Ochoa, and Doubleday 2021, 9).

The year 2014 marked a turning point to increase citizen participation and inclusivity in the peace negotiations. After the pressure exerted by feminist and social movements, and on the basis of UNSC Resolution 1325 (Corredor 2021; Gillooly 2022), the negotiators created the gender sub-commission and invited delegations of victims to the negotiations in Havana. The delegates were 60 women and men victims of human rights and international humanitarian law. A national dialogue process was also convened by the United Nations and the National University of Colombia. Through discussions in public forums, this process generated proposals on each point of the agenda that were sent to the negotiation table (Jaramillo 2021). The gender sub-commission, composed of both members of the FARC and members of the government, was appointed with the mandate to ensure the inclusion of a gender perspective in the six chapters of the Peace Agreement (Corredor 2021; Oettler 2019).

The inclusion of the implementation phase among the points of the peace agenda sent a signal of both parties’ commitment to the whole process. But it was also indicative of the parties’ recognition of the Agreement’s enforcement being ‘the most serious challenge’ and of the ‘lack of state capacity and of adequate political support as the main obstacles to implementation’ (Saffon-Sanin 2021, 74). During the preparatory phase, the government passed laws to ensure the institutional capacity to implement the Agreement. Submitting the final Agreement to a democratic plebiscite or referendum was also a mechanism on which the negotiation parties agreed to endow the Peace Agreement with legitimacy in order to enforce its implementation.¹

As the interview below shows, there were tensions among and within the parties about the transformations included in the Agreement and their interpretations. Just as those tensions ‘expanded to other [political] parties,’ so too they found echo among their constituencies and crystallised into a campaign for a ‘No’ vote in the referendum (Saffon-Sanin 2021, 74). The ‘No’ campaign was led by ex-President Alvaro Uribe and its right-wing party the Democratic Centre, but was also promoted by Evangelical churches. Their arguments ranged from allegations that the Agreement was rewarding the FARC by allowing them political participation and reintegration, to the idea that its gender focus was threatening traditional family values and advancing LGBTQ agendas. Moreover, the ‘No’ campaign coined the term ‘Castro-Chavism’ to argue that the Agreement was a threat to Colombia’s free-market economic model and democracy. The final Peace Agreement was signed on 26 September 2016, but was rejected in a referendum on 2 October 2016. Following the defeat, President Santos’ government and the FARC proposed a national dialogue to revise the Agreement. Fifty out of 60 proposals made by the ‘No’ vote promoters were accepted, with three particular topics vying for attention: political participation, transitional justice, and gender.

Negotiators rejected proposals that sought to block the FARC’s possibilities to participate in politics and overturn the FARC’s refusal to serve prison sentences (Jaramillo 2021). However, with regard to the gender perspective, the ‘No’ vote promoters achieved the acceptance of 90 per cent of their proposed changes. Terms related to gender such as diversity and sexual orientation were removed from the Agreement, and the term ‘equality between men and women’ replaced the expression ‘gender equality’ (Mazzoldi and Cuesta 2017). Thus, the use of gender in the final Agreement does not transgress the heteronormative women/men binary (Corredor 2021; Rijlaarsdam 2020). On 30 November 2016, the Colombian Senate ratified the final Agreement, but despite these changes, the ‘No’ campaign leaders’ refusal of the Agreement did not die down. In 2018, the candidate of the right-wing Democratic Centre party, Ivan Duque, won the presidential election with hardliners of his party promising to destroy the Agreement (Gutiérrez-Sanín 2020).

Conversing on the battle for peace: An interview with Juanita Goebertus

The previous historical section shows how principles of mediation and negotiation such as justice, peace, and gender equality became points of tension from which Colombian resistance to peace arose. It also serves as an entry point to interview Juanita Goebertus on the difficult dynamics that peacemakers and politicians may face when they engage in supporting the making and implementation of a peace agreement that has met with high level of resistance.

Juanita Goebertus has been the director of Human Rights Watch’s Americas Division since August 2022. From 2018 to 2022, she was a congresswoman in the Colombian Senate for the Green Party, and between 2016 and 2017 worked as deputy director for Latin America at the Institute for Integrated Transitions. Juanita Goebertus acted as head of the transitional justice team of President Santos at the Office of the High Commissioner for Peace from 2010 to 2016. In the interview, Goebertus shows that beyond the power of law, normative frameworks and social demands, the horizon of peace is also shaped by political and cultural wars that peacemakers are driven to fight. The interview is divided into five topics: (1) Peace agreements: Popular endorsement and legitimacy; (2) Adversarial politics and the making of peace; (3) Transitional justice and peace; (4) Tackling conflict-related gender-based violence and countering fake news; and (5) Sowing the seeds of reconciliation.

Peace agreements: Popular endorsement and legitimacy

Sonia Garzón-Ramírez (SG): The Havana Peace Agreement was rejected in a popular referendum in 2016. While for many this referendum was needed to give popular legitimacy to the Agreement, for others it was an unnecessary risk and almost a mistake. Members of the opposition continue to argue that the implementation of the Agreement is not legitimate. Why and how did the negotiation team decide to use a referendum as mechanism of popular endorsement? Do you think that submitting peace agreements to a referendum is a risk worth taking, and why?

Juanita Goebertus Estrada (JG): This is always a very tough question as to how to make sure there is public support. I always supported the idea that we would have some kind of mechanism to publicly endorse the Peace Agreement. The first reason was based on the idea that we needed to make sure there was a mandate and that the Agreement would be implemented. There is a huge discussion in academia on how those agreements, whose implementation has not significantly advanced during the first five years, have a higher chance of failing, and of the need to gather momentum to be able to persuade all segments of society. To have a public endorsement mechanism seemed at the time like exactly the kind of momentum you would want to ensure that the implementation would start in full force during the first five years.

The second reason, which I describe as legalistic, is that in the Colombian case there were many elements of the Peace Agreement that required certain aspects of the Constitution to be amended and different bills to be submitted to Congress. Therefore, the public referendum was also a way to ensure that on top of the public legitimacy momentum, there was a sort of legal mandate too that would bind different parties and stakeholders to implement the Agreement. Hence, there would be less legal risks of different branches of power trying to interrupt the Agreement’s implementation.

The third element concerns the design of the peace negotiation, namely a closed negotiation with three different phases. In the first phase, which was completely confidential, we were drafting the agenda and the framework agreement. The second phase was, as we called it, the public phase. Although it was public knowledge that we were holding conversations, the negotiation itself, the conversation at the table, was not public. We designed mechanisms for the participation of civil society in the peace process by organising public forums in Colombia to make proposals to send to Havana, and by bringing delegations of victims and experts to the negotiation table.² However, when compared to the Caguán negotiations, it was still a very closed peace process. We were not having huge public consultations in the midst of the peace negotiations. Participation was rather a means towards an end, that of reaching a kind of agreement, and not an end in itself. So this is connected with the public referendum because it was always from the beginning a very important line of argument to be able to say that this is a closed negotiation. And to say that yes there are mechanisms for public participation, but more importantly it will be the citizens who will have the last word in deciding whether they like the Agreement or not. Therefore, it was a very important argument in order to defend this peace dialogue structure, which was a bit more closed than what we had experienced before.

This leads to your first question, which is why and how we designed it like that. I am a bit stubborn, so despite the fact that we lost the plebiscite, I go back to those ideas and I feel that we had, I think, solid reasons to think about this plebiscite. The experiences we were looking at were also the Good Friday Agreement in Northern Ireland, and how it had been taken up from above as well. So, it is obviously always easier to look at the past from the future, but I go back to it and I think that we had good reasons.

SG:

Would you recommend this kind of popular endorsement mechanism to peace negotiations or transitions taking place in other contexts?

JG:

I co-wrote an article about it with Juana Acosta, published in a book called Aprendiendo de la Transición [Learning from the Transition] (Acosta-López and Goebertus 2021). In this article, we conclude that in the case of Colombia, the plebiscite was not the disease but the symptom of what was happening. The reality of the matter is that Colombian society was completely polarised and we, as members of the government delegation, have been completely unsuccessful in being able to explain the peace dividend from the beginning. The ‘No’ campaign basically started in 2012, whereas we only started campaigning in favour of the Agreement in late 2015/early 2016. We put a lot of effort in making sure that we would include different sectors of society, and it was indeed very much a participatory process in terms of hearing out victims and peasants.

However, in the case of victims – on which I worked the most – there was a sector of society that was less organised. If you look at victims’ organisations, the majority are victims of either state agents or paramilitary groups. And this is not because there are no victims of the guerrillas, there are millions of them, but they are less organised. Therefore, it was difficult to bring many of those sectors to the negotiation table and into participatory processes. Despite the fact that we had an open system, it was a huge challenge to address the issue that not all sectors of society were equally organised to participate. There was thus the need to make more deliberate efforts to over-represent those who, at some point we realised, were not being represented.

Furthermore, there were issues of lack of strategic thought in the campaign. For example, on gender issues, there was this huge fake-news campaign against the Agreement according to which it was supposedly going to push forward gay and lesbian adoption and gay and lesbian marriage in Colombia. Of course, we said it was not true, that the Constitutional Court had already set this debate. We explained it was a different discussion and that we were talking about a gender approach in the Agreement. We spent a long time on that discussion, without realising that we were being driven into a cultural war. We could have had a more strategic approach by not trying to fight this cultural war with them, clearly saying that we cannot put peace at risk in this debate. So on issues like gender, we lacked strategy on how to have this discussion with the public. Where I am now is that it was reasonable to think about the plebiscite, but we committed many mistakes throughout the process. I would recommend to any country that if they want to have some kind of public endorsement mechanism, they should think much more strategically about campaigning and public support, explaining from the beginning the dividends at stake as a result of the peace agreement.

Adversarial politics and the making of peace

SG:

Implementing the Peace Agreement has been a challenge. You said it is no secret that Duque’s government (2018–2022) was elected criticising the Peace Agreement. Despite this adverse context, as a congresswoman in the Senate you have taken up the challenge of working with the opposition on initiatives to support the implementation of the Agreement. Could you tell us about this experience?

JG:

I will start with a brief note on the diagnosis. At the end of the Santos administration (i.e. 2017), we undertook a process called the legal preparation. It referred to laws and constitutional amendments that needed to be taken to Congress to be able to legally implement the Agreement. That produced a list of 107 bills, out of which 33.6 per cent are still pending. Today, my analysis of the work we did in the Congress is that we were very successful in blocking the attempts of the Duque administration to amend the Peace Agreement or some of its elements. They included the objections to the Special Jurisdiction for Peace (JEP)’s Statutory Law,³ and a dozen other attempts. We succeeded in this by building a coalition between what we called independent and opposition parties, therefore not including those that declared themselves as government parties. By forging this coalition, we were able to block any attempt to repeal elements of the Agreement.

SG:

How were you able to get politicians from the opposition to work with you on the Agreement’s implementation?

JG:

Most of them were people who had been part of Santos’ coalition and had supported the peace process. They were not willing to take the risk, for example, of losing financial resources for the territory they represent. I particularly worked with representatives who had a larger constituency in areas that we called PDET zones (Territorially Focused Development Program). These are the 170 municipalities most affected by the armed conflict and poverty. Implementing the Peace Agreement in these zones was in those representatives’ own interest, even if it was not for the sake of peace but for the sake of representing those communities that were their constituencies.

SG:

What were the challenges and main achievements of this coalition?

JG:

We were quite unsuccessful in actively promoting laws that were pending. So, for example, we failed to pass the political reform that came out as a result of the recommendations of the electoral mission created at the end of the peace process (MEE 2017). We failed to approve what we called the ‘Agrarian Judicial Speciality,’ in which ruled judges could decide on land use and ownership at the rural level to ensure that there are fewer confrontations over property rights and that they do not turn violent. We failed to amend the Victims’ Law;⁴ we failed to add a law to ensure that criminal gangs are brought to justice; we failed to discuss the law on coca croppers so that they are not prosecuted since they are the weakest link in the chain of drug trafficking. On those issues that demanded from larger opposition parties a commitment to go a step forward, they took a conservative position. They were not going to play the game of the government of overturning the Agreement, but neither were they going to play the game of the independents of going a bit forward in implementing the Agreement.

But we had some achievements as well. Even if it was small, we succeeded in passing a school transport bill for kids in rural Colombia and a public purchase law supported by the Liberal Party that obliges municipalities to buy food from local growers. Those bills have to do with a project called ‘From the Capitol to the Territory.’⁵ With the support of the UK embassy and the Ideas for Peace Foundation, we have brought a group of congressmen and women from different parties to the municipalities most affected by armed conflict and poverty. Together, we have met with victims, former combatants, peasants, local authorities, armed forces, and discussed the state of the implementation of the Agreement. We have met with people who had very different views about the Agreement and its implementation. This created a sense of reality and empathy with the people of these territories. Indeed, most congressmen and women had never been to these municipalities before, even if they were representatives of those departments. This is partly because it was very dangerous before, but also because it was never something that weighed very much in their political power. So, despite our different views on peace, this work has created a coalition in terms of defending these places.

Transitional justice and peace: The creative search for a just legal design

SG:

One of the pillars of the Peace Agreement that has been more controversial is the transitional justice system. Could you tell us about the background of this transitional justice system design and how it addresses concerns about impunity?

JG:

Although in the past, both in Colombia and in many other countries, peacebuilding had worked on the basis of a ‘forgive and forget’ approach, we realised that this would not be possible. That was the whole premise upon which the Victims’ Agreement was built, drafted, and eventually signed.⁶ We started investigating this topic within the Santos administration as early as 2010. The peace process had not yet started, but it became very clear to every member of the presidency’s transitional justice team that the days of arguing that we need to give up justice to make sure we would have peace were long past. This argument and the one saying that giving up justice is a sacrifice we need to make were weak, both internationally and nationally. This was particularly so in terms of victims’ and human rights organisations, very strong movements that would not buy the idea that it was a sacrifice we needed to make.

As early as October 2010, we recognised that we needed to prove that we were willing and capable, in the wording of the Rome Statute, to investigate, prosecute and punish those most responsible for the most serious international crimes committed during the armed conflict. We would do it, but in a different way, because trying to address millions of crimes committed during more than 50 years of our conflict was a titanic effort. It would have essentially resulted in de facto impunity if we would not have had a strategy as to how to take into consideration all these cases. That was the premise from which we started. In analysing lessons from Colombia, particularly the experience with former paramilitary groups in the Justice and Peace Law, and from the Yugoslavia and Rwanda tribunals, we started embracing the idea that we needed to create prioritisation and selection criteria. So, from the beginning, we decided that we needed to concentrate not on what was easier to prosecute, but on those most responsible and on the most serious crimes.

There was also a huge discussion on what the duty to punish was and what kind of sentences were admissible, both nationally in terms of legitimacy, and internationally in terms of the ICC’s principle of complementarity. The question posed was: What would actually constitute a severe sentence but would allow us to sign a peace agreement? The FARC’s leaders have constantly said that ‘yes’ they will respond to their victims, but ‘no’ they will not go to jail. So, we needed to find a creative solution regarding what it would mean to fulfil the duty to satisfy victims’ rights and to investigate, prosecute and punish, but without sending FARC’s leaders to jail. That was essentially the red line as to what sentence they were willing to accept if they were going to demobilise.

Bearing this in mind, we started working on the so-called ‘Legal Framework for Peace.’ It was an amendment to the Constitution submitted to Congress between 2011 and 2012, which created what we called a ‘constitutional space.’ They were two articles of the Constitution stipulating that at the end of the armed conflict, we could develop a comprehensive transitional justice system that would include both judicial and extrajudicial mechanisms to satisfy victims’ rights. We did this Legal Framework for Peace three years before we actually signed the Agreement on transitional justice. On the basis of this constitutional space, we went to Havana to discuss with the FARC delegation on building this comprehensive transitional justice system. And that is the origin of its three transitional justice institutions: the JEP, the Truth Commission, and the Unit to Search for the Disappeared.

Going back to your question about the plebiscite, the strongest public claim against the Peace Agreement at that particular moment was probably the idea that it allowed impunity. In part this has to do with what we, the majority of Colombians, understand by justice, which is equivalent to jail time as opposed to identify responsibilities. Ensuring that those responsible are prosecuted and that they acknowledge their responsibility are so symbolic of justice to victims regardless of the sentence imposed. But the assumption of impunity was very strong and is still a challenge. We need to ensure that despite the fact that there is no jail time, there is what we called in the Agreement an ‘effective restriction of liberty,’ that is between five- and eight-year sentences to be served in what will probably be some kind of rural penal colony. Those found guilty will be deprived of their liberty there. That has not happened yet, but when it does happen, it will have a very important symbolic effect. One would like it to be different, but it remains true that jail is what most Colombian people equate to justice. Therefore, it will be key to have some form of restriction of liberty as stated in the Peace Agreement.

SG:

To what extent has the implementation of the Agreement been able to provide justice for the victims? Is the possibility of the JEP opening new cases, for instance on sexual and gender-based violence, an example of this?

JG:

On the question of whether this system has provided justice, the process is huge. What we have seen over the last year is unprecedented in terms of attribution of responsibility. The JEP attributed responsibility to the eight most responsible members of the FARC for the crime designated by the JEP as a crime against humanity and a war crime, namely the FARC’s policy of kidnapping.⁷ Last week (26–28 April 2022), we saw another major public hearing in the case against former commanders, colonels and generals, of the Colombian Armed Forces for the war crime and crime against humanity of the heinous phenomenon known in Colombia as ‘false positives.’⁸ These were extrajudicial executions of civilians who were passed off as guerrilla members killed in combat. These two cases (i.e. kidnapping and false positives) have made great advancements regarding the attribution of responsibility. In both cases the indictees have recognised their responsibility, which is something that international justice has in many respects failed to achieve. The Yugoslavia Tribunal has made huge efforts to prosecute those responsible. Former prosecutor Louise Arbour (2002) would say that it takes years and years of sustained effort, of collecting evidence and presenting charges and in the end, even if convicted, those responsible would say: ‘but we’re not responsible, they deserved what they got.’ This undoubtedly revictimises the victims, and this is exactly what the JEP seeks to avoid. As I mentioned, acknowledging responsibility before the victims is very important in terms of redress.

Obviously, the road ahead is very difficult. And there are new cases that need to be opened on sexual violence and on illegal methods and artefacts, such as anti-personnel mines, that have indiscriminate effects on civilians. The JEP also opened a case on child recruitment,⁹ although it has not yet provided sufficient results. Many other cases are still pending. But the largest challenge facing the JEP is to execute sentences and ensure that even if they are not jail sentences, they result in actual deprivation of liberty. That would enable the majority of Colombians to say: ‘they actually had to serve their sentence,’ which is something that the Colombian people are still waiting for.

Tackling conflict-related gender-based violence and countering fake news

SG:

It is often said that in times of war, the first victim is the truth. This was the case in Colombia where fake news were used regarding the inclusion of a gender perspective in the Agreement. It has even been argued that achieving the Peace Agreement would have been easier if gender would not have been included (Álvarez-Vanegas, Mazzoldi, and Cuesta 2016; Céspedes-Báez 2016). Why was it important to include gender in this peace negotiation? Is it a risk worth taking and why?

JG:

I not only recognise LGBTQ rights but have always fought against homophobia and the constant gender-based discrimination. However, the way in which the argument about gender was used in Colombia, which was very different from the true purpose, poses a controversial and difficult question as to whether one should try to fight all battles at the same time. But let me here put some elements on the table.

Long before the gender approach became a contentious public issue, there was common ground on how the armed conflict has had a special impact on women. Abundant evidence-based research has shown that the majority of internally displaced persons are women. During the war the majority of those killed have been men, while in many cases it is women with children who end up being displaced. With regard to sexual violence, it was widely acknowledged that a vast majority of the victims are women. Moreover, property is unevenly distributed between men and women, particularly in rural areas of Colombia, and there was a significant gender gap in political participation.

So there were concrete evidence-based elements which showed that a gender approach needed to be applied in the peace process. At that point of time, the gender approach was understood as the recognition of an existing gap between the fulfilment of men’s and women’s rights. The need to address this gap in the peace process was clear and accepted by pretty much everyone. In fact, gender has been a category of analysis often used in Colombia and in the work of women’s movements and initiatives for peace (Corredor 2021). At the same time, a gender approach allowed to understand that the armed conflict has also had a particular impact on the LGBTQ population. For instance, armed groups have carried out different violent actions against LGBTQ people: they have banned the wearing of certain types of clothing and banished them from their territories when they fail to conform to traditional gender norms.

Therefore, a broad discussion began about the inclusion of a gender-based approach in the Agreement, and the wording of this technocratic approach was that we needed to incorporate it in all points of the negotiation agenda. For instance in the rural reform, a gender-based approach would require addressing gender inequalities in access to land and formalisation of land property titles. When it comes to the DDR process, we should take into consideration the needs and interests of women and LGBTQ ex-combatants. The gender-based approach would also require enabling women victims to participate in transitional justice processes and development projects implemented in PDET zones.

However, the most controversial part of the debate began when a huge discussion that was not part of the Agreement opened up. Issues such as furthering marriage and adoption rights for LGBTQ couples are completely valid discussions in the Colombian Constitutional Court, but were not necessarily issues we needed to address within the Peace Agreement. I know this is controversial but when we realised that the debate was becoming so contentious, we could have included a paragraph in the Agreement, saying: ‘the peace agreement does not take forward nor backward the Constitutional Court’s decision with regard to homosexual marriage or adoption rights. This discussion ought to be addressed by the Colombian Congress and the Colombian Constitutional Court.’ Asserting directly in a text that these issues would not go through the Peace Agreement would have made it much more explicit. That did not happen and instead left room for the misuse of the gender approach and the cultural war that was waged.

A report of the International Crisis Group (2017) asserts that within Evangelical Christian churches, between one and two million people cast a ‘No’ vote in the plebiscite. Mauricio Albarracín (2017), deputy director of Dejusticia and a very prominent leader in LGBTQ rights in Colombia, made a similar analysis. He estimated that within Evangelical churches, at least one hundred thousand ‘No’ votes had to do specifically with this whole issue of gender rights ripped out of context, and with whether the Peace Agreement was advancing or not marriage and adoption rights for LGBTQ couples. This was double the number of votes by which the ‘No’ vote won (ICG 2017). My conclusion is that, without denying any rights, we could have been much more explicit by asserting in the Peace Agreement that it would not take forward the decision of the Constitutional Court with regard to LGBTQ marriage or adoption rights. In so doing, we would not have had to fight all the battles at the same time. Because we ended up fighting too many battles at once.

Sowing the seeds of reconciliation

SG:

How would you describe the reconciliation that the Colombian Peace Agreement promotes?

JG:

During the negotiation, we deliberately decided to use the wording ‘peaceful coexistence’ rather than reconciliation. We saw reconciliation as a personal process, therefore the guiding idea was that peaceful coexistence should be the foremost objective, in which the state could participate. The seeds of reconciliation, if I may call it so, would most likely be nurtured by our society’s commitment to peaceful coexistence. Given that the Peace Agreement has this property of being comprehensive and that all its elements are interrelated, the idea was to reach this peaceful coexistence through the implementation of the whole Agreement. So, this is through rural development and the reduction of rural poverty, through strengthening civil society participation, redressing victims’ rights, supporting the demobilisation of armed groups, having a territorial security policy whose actual focus is on protecting citizens with citizens and not against citizens, and shifting drug policy from condemning coca croppers to providing them with real opportunities and sustainable alternatives. And as a result of all this, we could have a sense of peaceful coexistence.

Conclusion by Sonia Garzón-Ramírez

Each peace process is unique. Yet Goebertus’ twofold experience as a negotiator in track 1 and as a congresswoman in the Colombian Senate provides a window from which to see how methodologies of mediation and negotiation are actualised and challenged throughout and beyond the time–space of peace talks. The interview has shown that decisions in the exploratory or secret phase are not only made with a view of designing the peace process. They also aim at laying the ground for providing constitutional legitimacy and political enforceability to the agreement, thereby ensuring its implementation.

The article has expanded the discussion on inclusion and representation from a concern on the integration of people’s interests and needs to a strategic focus on how and when mechanisms of participation should be made available. While mediation tools that involve different societal levels or tracks can enable inclusive peace processes, the very use of a referendum to obtain public endorsement is in itself a mechanism of participation in which ideally citizens would have the final word.

However, just as creating a confidential space allows negotiators to reach an agreement, so too engaging with mechanisms of democratic participation to obtain public endorsement requires setting up communication channels with the general public from the early stages of the public phase. The cultural war waged on gender and misleading communications about transitional justice during the Havana peace process provide some lessons on how resistance to peace may emerge. Resistance to peace may not necessarily be directed to peace and its institutions but rather, in Bernath and Rubli’s (2016) sense, resistance may be an inherent reaction against the transformations that the power of peace promotes. Thus, especially when using a referendum, peacemakers need not only to communicate the benefits that peace can bring, but to clearly and timely state what a peace agreement is not intended to transform. Comprehensive peace agreements are seen as opportunities to address the structural causes of violence and social injustice, yet they may be insufficiently equipped to fight all the battles against inequality.

The benefits of peace may continue to leverage support during the implementation phase. If political will exists, politicians can use the peace dividend as a leverage to bring in political adversaries who, while having agonistic visions of peace, can see opportunities to reap benefits for their constituencies from the work for peace.

Acknowledgements

I would like to thank Juanita Goebertus for her generous commitment to this interview. My thanks go also to two anonymous reviewers and to the editors of the Journal, Pol Bargués, María Martín de Almagro, and Katrin Travouillon, for their insightful and productive suggestions. I wish to express my gratitude to Berit Bliesemann de Guevara and Carine Middelbos for being my critical readers and discussants.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This project has received funding from the European Union's Horizon 2020 research and innovation programme under the H2020 Marie Skłodowska-Curie Actions grant agreement No 894411.

Notes on contributors

Sonia Garzón-Ramírez

Sonia Garzón-Ramírez is a lecturer at the Department of International Politics, Aberystwyth University, UK. From 2020 to 2022, she was a Marie Skłodowska-Curie postdoctoral fellow in the same department.

Notes

1 The terms referendum and plebiscite are used interchangeably. Both terms refer to a form of direct democracy through which voters are invited to accept or reject a measure, project, or policy. However, in Colombia the specificity of a plebiscite is that it can only be convened by the President.

2 Members of the peace talks received technical and expert support in specific areas related to the Peace Agenda: rural reform, end of the armed conflict and DDR, gender approach, solution to the problem of illicit drugs, historical memory, and victims’ rights.

3 The JEP’s Statutory Law was necessary for this jurisdiction to start working. The objections presented by Duque’s government on 9 March 2019 delayed the work of the JEP, the judicial mechanism of the transitional justice system, which consequently could only start operating in June 2019.

4 Also known as Law 1448 of 2011, the Victims’ Law is a transitional justice measure adopted during Santos’ first presidential term (2010–14), which provides for the restitution of land and the reparation of the victims of the armed conflict. https://congresovisible.uniandes.edu.co/proyectos-de-ley/por-medio-de-la-cual/10340 (accessed May 24, 2022).

5 https://delcapitolioalterritorio.com (accessed May 25, 2022).

6 The Victims’ Agreement describes a comprehensive system of transitional justice that consists of the JEP, the Truth Commission, and the Missing Persons Search Unit.

7 https://www.jep.gov.co/macrocasos/caso01.html (accessed July 17, 2023).

8 https://www.jep.gov.co/macrocasos/caso03.html (accessed July 17, 2023).

9 https://www.jep.gov.co/macrocasos/caso07.html (accessed July 17, 2023).