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A member of the Revolutionary Armed Forces of Colombia (FARC) sits in his tent in the “Alfonso Artiaga” Front 29 FARC encampment in a rural area of Policarpa, Narino, in southwestern Colombia on 16 January 2017. AFP/Luis Robayo
Report 60 / Latin America & Caribbean

In the Shadow of “No”: Peace after Colombia’s Plebiscite

Revised and ratified after its shock rejection in October 2016’s referendum, Colombia’s peace agreement still lacks sustainable political support. Reversing public distrust will need swift and effective implementation of the accord – including full apologies for past crimes and the visible handover of weapons by insurgents.

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Executive Summary

Defeat by a wafer-thin margin in the October 2016 plebiscite on the peace agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) insurgency shocked Colombia’s society and political establishment, as well as the accord’s international backers. With the signed document suspended while rebel combatants tentatively gathered in sites across the country, prospects for an end to 52 years of armed conflict initially darkened. A revised accord, with numerous changes demanded by opposition leaders, was unveiled less than two months later, but the illusion of consensus was short-lived. Indignant that it was not able to review the new text and incensed that though many of its proposals were included, a few key ones were not, the opposition decried the agreement and its ratification in Congress. Peace with the guerrillas is again set to polarise parties and candidates in elections in 2018. A swift, effective start to implementation of the accord is needed to reverse public wariness and political resistance.

Victory in those elections for opponents of the peace agreement would be the harbinger of major challenges to the deal’s sustainability. Concentration of FARC combatants is underway, albeit problematically and with delays, and the six-month timetable for the handover of weapons has been set in motion. However, funding gaps, administrative delays and the political balance of power ahead of 2018 threaten to curtail transitional arrangements and structural reforms aimed at remedying the root grievances of the conflict. The opposition could financially starve institutions, programs or policies in the peace agreement if it comes to power. The terms of transitional justice, measures on rural reform and land access, and community-based approaches to removing coca crops and establishing alternative income-generating activities could all be in danger.

Defending the agreement will be an intrinsic part of the political battle ahead. Persuading a distrustful, urbanised public to give its backing depends in the immediate term on what happens in and around FARC cantonments. Over the next year, successful implementation will be the best way to bolster popular and political support and make it politically costly for opponents to reverse the peace process. Transparency in handover of weapons, full apologies for past crimes, continued progress on humanitarian actions such as de-mining, increased results in the search for victims of forced disappearance and eventual cooperation with the Special Jurisdiction for Peace would underline the insurgents’ commitment to peace and the dangers of reneging on the agreement.

Violence on the ground will also affect support for the agreement in the short term. FARC leaders and troops fear betrayal by the state, and some may seek to hedge their bets in face of the visible opposition from significant political forces. Promised peace talks with the country’s second insurgency, the National Liberation Army (ELN), have not begun, and various armed groups appear to be behind dozens of killings of social leaders that constitute a new wave of terror in remote rural communities. Only resolute commitment by the state to prevent battles for control of illicit economies and protect civilians and ex-combatants will give peace real local-level meaning.

The international community should continue its political support, using its delegates and special envoys to maintain dialogue with all sides and exerting discrete pressure when necessary on opposition leaders to preserve crucial parts of the agreement that could be in jeopardy. It should refrain from making calls for renewed aerial fumigation of coca crops and instead give the agreement on illicit drug substitution a real chance to have effect. It must also use its financial assistance to establish mechanisms for moving resources quickly on behalf of effective implementation on the ground, helping resolve and learn from problems as they arise.

Rebuilding Colombia's Trust in the Peace Process

In this video, our Senior Analyst for Colombia, Kyle Johnson, highlights the main findings of Crisis Group’s report “In the Shadow of “No”: Peace after Colombia’s Plebiscite”. Crisis Group

Recommendations

To build political support for sustainable implementation of the new peace agreement

To the government of Colombia:

  1. Strengthen dissemination of the peace agreement in both rural and urban areas, while increasing protection rapidly for social leaders under threat until the agreement on security guarantees can be implemented.
     
  2. Establish and fund new institutions and commissions tasked with key roles to implement the peace agreement quickly, while strengthening nascent and galvanising existing bodies to generate early peace dividends for victims and conflict-zone communities.

To the government of Colombia and the FARC:

  1. Continue with the established weapons handover schedule despite delays in FARC arrival at cantonment sites, while adopting a proactive communication strategy, including documenting evidence of the FARC laying down weapons and engaging in reinsertion and of progress on other aspects of implementation.
     
  2. Keep victims at the centre of the process as implementation begins, increasing cooperation in the search for victims of forced disappearance, releasing all children age fifteen and under in FARC ranks and continuing public apologies for notorious crimes committed in the war.
     
  3. Explore space for dialogue with the opposition on implementation.
     
  4. Prioritise improving security for local leaders in the short term with preventive measures, training and strengthened security schemes, while also setting up institutions for protection of FARC members.
     
  5. Include local and regional authorities more directly during the arms abandonment process and planning of other implementation aspects.

To the opposition:

  1. Reinitiate dialogue with the government on implementation and increase the frequency, strength and level of its denunciations of violence against social leaders.

To the international community:

  1. Continue peace process support by maintaining delegates and special envoys during implementation, supporting citizen security and sustaining funding for international actors with important post-conflict roles, such as the UN High Commissioners for Human Rights and Refugees among other key players.
     
  2. Press the government and FARC to keep their commitments on time and to involve local actors more extensively.
     
  3. Continue dialogue with the opposition so as to press for support especially of at-risk parts of the peace agreement, such as rural development, political participation, transitional justice and humanitarian measures.
     
  4. Make more frequent public statements showing concern for the killing of social leaders and demanding progress in protection and justice.
     
  5. Support new agreements for major alternative development investments to tackle illicit drug production before pressing for more direct eradication.

To the UN mission:

  1. Finish deployment as quickly as possible, including of the civilian component, to prepare for and receive FARC fighters as they gather in cantonments for weapons handover.
     
  2. Adopt a proactive communications strategy, publishing frequent updates on FARC concentration and weapons handover, using media beyond regular official reports.
     
  3. Press the government and FARC to follow the schedule for weapons handover in the peace agreement, despite early and likely future delays.

Bogotá/Brussels, 31 January 2017

I. Introduction

When Colombians voted in October 2016 on the peace agreement between the government and the Revolutionary Armed Forces of Colombia (FARC), the “no” vote edged the “yes” by less than half of one per cent, with a 37 per cent turnout.[fn]For previous Crisis Group work on the peace process, see Latin America Reports N°s 58, Colombia’s Final Steps to the End of War, 7 September 2016; 53, The Day after Tomorrow: Colombia’s FARC and the End of the Conflict, 11 December 2014; 51, Left in the Cold? The ELN and Colombia’s Peace Talks, 26 February 2014; 49, Transitional Justice and Colombia’s Peace Talks, 29 August 2013; 45, Colombia: Peace at Last?, 25 September 2012; and Briefing N°32, On Thinner Ice: The Final Phase of Colombia’s Peace Talks, 3 July 2015.Hide Footnote  An intense process of high-level political dialogue ensued, leading to a new agreement that the government, FARC and many in civil society defend. Voicing dismay at the government, which it accuses of undermining democracy, the opposition has also united, but with the aim of rejecting the new agreement.

Congress has ratified the accord, and the start of the calendar for the insurgency’s weapons handover was set for 1 December, initiating the countdown for the 15,000 FARC combatants and militia members to gather in 26 cantonments across the country. The opposition, despite the Constitutional Court having allowed the congressional ratification procedure, has argued that by relying on the previously established pro-government majorities in both houses of the legislature, President Juan Manuel Santos cheated the people. Attempts to persuade it to support the new agreement have failed.

The context in which peace is to be implemented is far from hospitable. The government will struggle, even with international aid, to fund all the activities envisaged. New institutions the accord requires – some already created – are skeletal, sorely understaffed and unable to undertake the programs they are designed for, such as the Agency for Territorial Renovation; other official bodies, including the attorney general’s office, have proposed policies contrary to those in the agreement.[fn]Crisis Group telephone interview, high-level diplomat, Bogotá, 28 November 2016; interview, government official, 9 December 2016.Hide Footnote Violence against local social leaders has increased, raising doubts about peace benefits and leading to further polarisation between supporters and opponents. The peace process with the National Liberation Army (ELN), Colombia’s second largest insurgency, is yet to begin.

Political support for the peace agreement is weak and will most likely flag as the presidential election campaign begins later this year that will bring a new leader to office in 2018. Full implementation is thus far from guaranteed. Even so, the government and FARC have a window of opportunity to build support via implementation over the next eighteen months that would raise the political cost of not continuing the process from mid-2018 onwards.

The research for this approach included extensive interviews with members of the opposition, FARC and government negotiating teams, members of the Tripartite Mechanism to monitor and verify the ceasefire, pro-peace agreement leaders and politicians, political and legal experts and members of the international community close to the peace talks.

II. Getting to a New Agreement

The journey from plebiscite to new peace agreement hinged on various decisive moments. The starting point was the document’s narrow defeat on 2 October, leading to a complex shift in the balance of political power. Neither government nor opposition could claim a clear mandate. Tensions worsened as renegotiation began on a new text, ending with the crafting of an accord that lacked the stable, sustainable political base that opposition support would have added to that of pro-peace political parties, many victims’ organisations and civil society.

A. What Explains the Plebiscite Result?

The surprise result stemmed from the diversity and levels of commitment of voter bases in the opposition and pro-accord movements. A combination of ex-President Álvaro Uribe’s devoted support, anti-“gender ideology” churchgoers and the most right-wing elements of the divided Conservative party made up the majority of those who rejected the agreement.[fn]“Gender ideology” is the phrase used by groups who claim the accord looks to convert children into homosexuals, attacks the traditional family and seeks to take away parents’ right to educate their children in traditional ways. They say the ideology is in those parts of the agreement that promote special treatment for lesbian, gay, bisexual, transgender and intersex (LGBTI) victims of the conflict. Crisis Group interview, pastor opposed to peace accord, Bogotá, 3 November 2016.Hide Footnote Though he remains extremely divisive, Uribe’s support is stable and high. His followers tend to be more active in promoting their views and encouraging others to vote than those who favour the accords. Uribe backers are in general also more inclined to vote than other groups. The plebiscite was ideal for mobilising his committed base, as it loathes the FARC, rejects its participation in politics and fears Colombia turning into chavista Venezuela. The “religious vote”, primarily concerned about an alleged “gender ideology” smuggled into the agreement, is assumed to have been higher than in previous elections and fundamental to the result. Finally, an unknown part of the “no” vote derived from disinformation targeted at voters according to their region and income level.[fn]‘La estrategia del Sí tuvo muchos desaciertos’: Francisco Gutiérrez”, Semana, 8 October 2016. Jennifer Cyr and Carlos Meléndez, “Colombia’s right-wing populist movement defeated the peace deal. Here’s how we know”, The Washington Post, 4 October 2016. The director of the “no” campaign said different messages were used for distinct population sectors to encourage anger-based voting. These included claims the FARC would receive impunity; images of Santos and FARC leader Timochenko together; that subsidies and pensions for the poor and elderly would be cut; and Colombia would turn into Venezuela. Juliana Ramírez, “El No ha sido la campaña más barata y más efectiva de la historia”, La República, 5 October 2016.Hide Footnote

The high-level battle also favoured the opposition. Ex-President César Gaviria, leading the “yes” campaign, was unable to counter opposition arguments effectively, and no strong, unifying figure similar to Uribe emerged. Vice President Germán Vargas Lleras, a candidate for the role given his power and direct experience of guerrilla violence, was almost completely silent and, if anything, gave indirect support to the opposition.[fn]Vargas Lleras said he supported the agreement, with misgivings on certain issues. The Uribe argument of supporting peace but with changes was conceptually similar, and Vargas Lleras’s lack of campaigning, plus some ideological similarities with Uribe, may have led part of his base to vote “no”. He is due to step down in March 2017 to begin campaigning for the presidency.Hide Footnote “Yes” campaign strategies were also questionable. President Santos’s and other establishment-based parties focused on regional and local politicians, depending mainly on political machines, powerful families and coalition-building, which proved less effective in a single-issue plebiscite than in regular elections and were not even fully activated. Civil society, while vocal, again showed its historical weakness at mobilising votes. Finally, some pro-accord voters may have been complacent due to polls pointing to a big victory.

Areas of higher poverty tended to vote for the accord, except in Bogotá where lower-income groups were strongly “no”. The periphery – defined by measures of typical rural attributes or state capacity – also tended to back the agreement. It has been argued that areas with higher victimisation levels in the armed conflict tended to vote “yes”, but that argument hinges on how victimisation is measured.[fn]Leopoldo Fergusson and Carlos Molina, “Un vistazo a los resultados del plebiscito”, La Silla Vacía, 4 October 2016. If victimisation is measured solely by displacement, there is a clear correlation with “yes” votes, but not when it is measured more generally.Hide Footnote

The opposition’s victory meant its proposals for a new agreement had to be taken into account if the process was to be saved. Early on, some opposition leaders argued that any new accord required their approval. But the close result also allowed the politically-weakened government to divide the opposition (or isolate Uribe) by absorbing some concerns, while maintaining the risky option of a new plebiscite, a tactic that deprived foes of an absolute veto. Moreover, at various stages, the opposition showed itself to be divided. It was not until a new agreement was reached and ratified in Congress, despite the omission of certain of its key concerns, that the opposition could unite in indignation.

B. Positions for a New Agreement

Shortly after the plebiscite, the political and social actors who actively opposed the original agreement handed in their proposed changes. The first document with the entirety of their proposals presented in Havana to the FARC contained more than 260 items from at least ten sources.[fn]Santos no recibe más propuestas sobre el acuerdo de paz”, El Espectador, 20 October 2016. “Propuestas de Gobierno”, Government of Colombia (GOC), 23 October 2016.Hide Footnote Part, especially those touching on rural reform, reflected political interests rather than the concerns of many “no” voters. Despite the diverse, in some cases contradictory universe of proposals, there was a handful the opposition considered indispensable.

The most politically important were unmistakeable. There was a consensus that punishments in the Special Jurisdiction for Peace (SPJ) – the system devised to mete out transitional justice for serious crimes committed during the conflict – must be harsher, especially (in some cases exclusively) for the FARC. The SPJ, the opposition argued, should become part of the normal judicial system. There was near agreement that the Armed Forces must receive preferential treatment, though what that entailed differed between factions. The opposition shifted from demanding permanent prohibition from political office for those convicted of crimes against humanity and war crimes to a ban until sentences were completed.

All opposition groups agreed that there should be no amnesty for drug trafficking, the FARC should hand over its assets to be used as reparations to victims, and FARC use of such resources for political activity should be explicitly prohibited. The opposition was also united in demanding the agreement not have constitutional rank.[fn]The constitutional rank, or bloc, is the series of norms not in the constitution but used as parameters for constitutional control of law, such as treaties. “Sentencia C-067/03”, Constitutional Court, 2003.Hide Footnote Private property, it insisted, must be explicitly respected. Finally, concerns were expressed over “gender ideology” and its alleged effects on what was argued to be traditionally defined family and society.[fn]Crisis Group interviews, opposition representative and negotiators, Bogotá, 19, 20 October, 8, 11 November; Christian pastor, Bogotá, 3 November; senior diplomat, 11 November, all 2016. “Propuestas de Gobierno”, op. cit.Hide Footnote

The government responded by identifying those it considered easy to resolve, those that were difficult but not impossible and those that were held to be completely unviable. The opposition then argued that ruling out anything meant Santos was opening the door to “cheating” “no” voters by discarding key proposals that were inconvenient. Nonetheless, Santos sent his negotiators to Cuba with orders to take tougher stances on certain points, leading to friction with the FARC on the political participation issue, for example.[fn]Santos dice que algunas propuestas para acuerdo de paz son inviables”, El Tiempo, 20 October 2016. “Santos quiere hacer conejo con el acuerdo: Alejandro Ordóñez”, El Espectador, 3 November 2016. Crisis Group interview, senior diplomat, Bogotá, 4 November 2016; opposition negotiator, Bogotá, 8 November 2016; FARC negotiator, Havana, 28 October 2016.Hide Footnote

Once renegotiations began in Cuba, attention turned to the FARC’s reaction. Soon after the plebiscite, the group announced it was committed to peace and, in a 7 October communiqué, to adjusting the agreement so that it could earn broad-based political backing.[fn]Comunicado conjunto: Acuerdo Final, plebiscito y cese al fuego”, GOC and FARC-EP, 7 October 2016.Hide Footnote But it also said it could not yield on eligibility for office, which it considered the essence of the negotiations: converting an armed insurgency into a peaceful political force. It also continued to reject prison sentences, insisting that any harsher punishment must be applied to all actors in the conflict, and opposed including the SPJ within the ordinary justice system. The FARC (and government) disagreed with the proposal to give landowners a permanent assumption of good faith in all land purchases, thus allowing them to avoid prosecution if the land had been stolen without their direct participation. Lastly, it pushed hard for the accord to have constitutional force, but eventually gave way.[fn]Crisis Group interview, FARC negotiator, Havana, 28 October 2016.Hide Footnote

C. Three Renegotiations

A new agreement depended on three negotiation processes. The first was between the opposition and government. In public, both spoke of productive talks; in reality, there was a mutual lack of confidence. The government believed the opposition wanted to drag talks on into the 2018 presidential election, while the opposition was unsure the government would genuinely represent its positions in Havana. After an early back-and-forth, the opposition handed in a document with all its original proposals, some of which were watered down to show flexibility.[fn]Crisis Group interview, opposition negotiator, Bogotá, 8 November 2016.Hide Footnote

The second track involved civil society supporters of the peace agreement and the government, as well as on occasion the FARC. Not so much a negotiation as a defensive move by the pro-agreement camp, organisations, movements and leaders met with Santos to urge him to find a new accord quickly and to retain the original principles. A series of marches across the country and creation of a Peace Camp in Bogotá’s central Bolívar Plaza kept pressure on all sides.[fn]Crisis Group interview, organiser of the Peace Camp in Bolívar Plaza, Bogotá, 12 October 2016.Hide Footnote Some movements travelled to Havana to urge the FARC to persevere in its search for peace.

The third and final negotiation was between the government and the FARC. The government negotiators returned to Havana on 21 October and began a first round of talks, each one lasting roughly twelve hours. After these, the team returned to Bogotá to update the opposition. On 29 October, a new round began with the FARC, eventually leading to the announcement of a revised accord on 12 November. The latter talks had their difficult moments, particularly over FARC’s future political participation.[fn]Crisis Group interviews, high-level diplomat, Bogotá, 4 November 2016; FARC negotiator, Havana, 28 October 2016.Hide Footnote

During the negotiations with the FARC, a stable line of communication was established to keep opposition leaders up to date. However, concern that the government was not properly representing opposition positions was never fully dissipated. The “no” leaders expected further discussion on the new agreement before it was signed, but this never happened. With a few key concerns not addressed and amid politically motivated allegations that the revisions were little more than cosmetic, the opposition finally united against the document.[fn]Crisis Group interviews, opposition negotiators, Bogotá, 8, 11 and 30 November 2016.Hide Footnote

Throughout the renegotiation, the government and FARC felt under great time pressure due to concern the bilateral ceasefire could fall apart, despite an early consensus between them and the opposition that it was necessary. A new, detailed protocol included the pre-grouping of FARC fighters. With the government paying for FARC sustenance after 30 days, maintenance of the cessation of hostilities was possible, but the ceasefire was designed to last only three months.[fn]Crisis Group interview, member, UN mission, Bogotá, 9 November 2016. “protocolo para el cese al fuego y de hostilidades bilateral y definitivo (CFHBD) entre el gobierno nacional y las FARC-EP”, GOC, FARC-EP and UN mission, 13 October 2016.Hide Footnote On 13 November, the army killed two FARC fighters carrying out extortion activities on pretext of being ELN in Santa Rosa del Sur, a southern Bolívar province municipality.[fn]“GOC and FARC-EP violated ceasefire in south Bolivar incident”, Tripartite Mechanism communiqué, 30 November 2016.Hide Footnote While this event highlighted the ceasefire’s fragility, it also showed the robustness of the Tripartite Mechanism.[fn]The Tripartite Mechanism, which includes the government, FARC and UN mission, is to monitor and verify the ceasefire and weapons handover process. The UN mission is charged with investigating possible violations, helping agree protocols when necessary, assuring the parties fulfil their roles and providing recommendations after violations, among other tasks.Hide Footnote Both parties immediately turned to it to investigate, and it found violations by both sides. Government and FARC language then softened, and no further violent actions took place between them.

D. The New Agreement

The new agreement announced on 12 November included numerous changes based on opposition proposals. Some 58 per cent of the opposition’s original public proposals were included completely or partially. Some 58 proposals posited complete changes in form and underlying justification, of which 21 were included completely and six partially.[fn]See “Radiografía del plebiscito y el posplebiscito”, and “Radiografía del nuevo acuerdo: ¿Qué tanto se renegoció?”, both Fundación Ideas para la Paz, n.d.Hide Footnote Contrary to opposition charges, the revisions were beyond cosmetic.

Most of the opposition’s proposals and wording on Comprehensive Rural Reform were included and/or addressed, such as the rural tax system and legal protection for those who bought land in good faith. The same can be said for proposals and wording on political participation, for example on the role of political parties in designing a new statute for the political opposition.[fn]Many of victims’ leader Herbin Hoyos’s original proposals on victims’ participation in politics did not make it into the agreement, as they were either already implicitly there or proposed automatic seats in Congress for victims and a party with the same rights as the FARC, among others. The statute for political opposition is a legal measure to outline the special “guarantees for political parties and movements that declare themselves to be in opposition”. “Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera”, GOC and FARC-EP, 24 November 2016, p. 37.Hide Footnote Some proposals on procedures for ending the conflict and on guarantees for ex-combatants’ security were accepted, though the conditions under which ex-combatants could hold office, including automatic allocation of congressional seats, were not altered. Several proposals on illegal drug cultivation were also incorporated, including a FARC legal commitment to hand over all relevant information about the drug trade, and the state’s right to aerially fumigate coca crops, despite suspension of this method in 2015.

Regarding victims and justice, the FARC is to hand over its whole war economy to provide victims reparations. The SPJ system is to be connected to the penal code and judicial system and not have foreign judges nor give NGO reports the same weight in evidence as information from the state authorities. SPJ courts may rule that FARC drug-trafficking can be interpreted as having been for personal gain, not merely to fund armed political activity. Perhaps most importantly in light of “no” campaign rhetoric, the new accord defines the restriction of liberty of convicted guerrilla combatants as obliging them to reside throughout their sentences within a village, under UN surveillance, while doing reparations-oriented work.[fn]Ibid.Hide Footnote

Numerous implementation proposals were added, including clauses on the accord’s financial stability; definition of “gender focus” as the “recognition of the equal rights between men and women, the special circumstances of each …”; and explicit respect for religious liberty.[fn]Ibid, p. 193.Hide Footnote Nor will the agreement have constitutional rank.[fn]Sources for this information include a comparison of the new accord, GOC and FARC-EP, op. cit., and the first document used in Havana to discuss opposition proposals, “Propuestas de Gobierno”, op. cit.; and “Sistematización opciones y propuestas voceros del no y lo acordado en el nuevo acuerdo”, Oficina del Alto Comisionado para la Paz, 22 November 2016. For just changes, see “Documento de trabajo: cambios, precisiones y ajustes”, Office of the High Commissioner for Peace, 12 November 2016. Pablo Abitbol, “Comparación anterior y nuevo Acuerdo Final Gobierno de Colombia – FARC-EP”, n.d.Hide Footnote The government and FARC argued they made changes to 56 of 57 topics discussed with the opposition; FARC political participation was the exception.[fn]“‘Logramos precisiones y cambios en 56 de los 57 temas abordados en nuevo acuerdo’: Santos”, El Espectador, 12 November 2016.Hide Footnote

III. Peace Toward 2018

All opposition leaders and the government negotiating team met the evening of 21 November in Bogotá.[fn]On the morning of 21 November, the presidential candidates of the Democratic Centre Party met with government negotiators to cordially discuss agreement on implementation. But poor communication from the opposition and differences of opinion on the government side, as well as procedural disagreements, set the tone for the evening meeting. Crisis Group interviews, opposition negotiator, Bogotá, 29 November 2016; political expert, Bogotá, 2 December 2016.Hide Footnote It started poorly, and ended worse. Perceptions differed on whether changes had been made to key parts of the accord; whether the new agreement was to be discussed with “no” leaders before signing; and over the way forward. They settled for complete disagreement: the opposition publicly rejected the accord, backtracking on some of its offers of greater flexibility. The polarisation created by the plebiscite, after being briefly camouflaged during the renegotiation process, resurfaced intact during the new ratification process.[fn]No es No”, La Silla Vacía, 22 November 2016; “Comunicado de representantes del No y de las víctimas”, 21 November 2016; Crisis Group interview, opposition negotiator, Bogotá, 30 November 2016.Hide Footnote

A. The Politics of Congressional Ratification

On 29 November, the Senate approved the peace agreement, 75-0; 25 from the opposition took part in debate but abstained, arguing Congress had no legal mandate to approve the accord. The same occurred in the House of Representatives the next day, where the vote was 130-0 (out of 166 taking part). The votes were controversial for reasons that will continue to impair support for the agreement.

Using Congress gave the government and FARC a clear route to ratification, while putting the opposition at a patent disadvantage. The pro-government coalition has a clear majority in both houses, especially on issues relating to the peace process. With Congressional elections not due until 2018, there is no immediate way for the “no” movement to translate its support base into legislative power.

This has led the opposition to argue that the government is undemocratically “imposing” the same peace deal, but the assertion that the congressional ratification is “undemocratic” depends on two claims. The first is that the new accord has only cosmetic changes, which fails to recognise the opposition’s success in getting key proposals into the text. The second contests the government view as to what can be defined legally as a “popular referendum”. The opposition argues that a special congressional vote is not a valid “popular referendum”; the pro-agreement side, including Santos, insists it is. Forced to adjudicate, the Constitutional Court ruled in December that Congress could itself decide on the ratification process.[fn]The Legislative Act for Peace’s fifth article required any peace agreement to go through a “popular referendum”, which at the time included the options of local committees, Congress or a new plebiscite. When the act was passed, the “popular referendum” language referred to the plebiscite. The Constitutional Court’s ruling on the Legislative Act avoided answering if Congress was a valid option, letting that body decide. The response in effect was “yes” as Congress activated the fast-track in December. “Comunicado No. 52”, Constitutional Court, 13 December 2016, p. 2.Hide Footnote The result of these differences is that the opposition has begun to use more extreme language, ratcheting up political polarisation by questioning not just the terms of peace but also the government’s respect for basic democratic tenets.[fn]See the speeches made by the Democratic Centre Party (DCP) Senators Iván Duque, Carlos Holmes Trujillo and Óscar Iván Zuluaga during the referendum debate in the Senate on 29 November 2016.Hide Footnote

The Constitutional Court also allowed Congress to activate the fast-track system laid out in the Legislative Act for Peace for approving the more than 50 laws needed to implement the peace agreement while avoiding the standard four or eight congressional readings of each bill. Considered essential – the FARC even said it would otherwise return to war – fast-track enabled Congress to approve key legislation, including the amnesty law passed at the end of December.[fn]“‘Sin ‘fast track’ volveríamos al monte’”, Semana Video, n.d.Hide Footnote

Avoiding a second plebiscite and securing fast-track procedures for peace agreement legislation have been essential to rapid recovery of the peace process. However, the way in which the government has acted makes rejection of the peace accord and its implementation – partially or wholly – a profitable political platform for 2018, as the opposition will continue to argue there has been no new peace agreement, and that the 2 October plebiscite was thwarted. Implementation in the medium- and long-term thus is at serious risk.

B. To 2018 and Beyond

As in the 2014 elections, peace will be at the heart of the national vote in 2018. The peace agreement will be central in the opposition’s congressional and presidential platforms.[fn]Crisis Group interviews, opposition negotiators, Bogotá, 11 and 30 November 2016.Hide Footnote With Uribe and other leading opposition figures set against the peace agreement and portraying themselves as the saviours of democracy, and with Vice President Vargas Lleras another contender, the likelihood of an anti-agreement candidate winning the presidency is high.[fn]Colombian presidential politics is a mix of traditional patronage networks and political identities, powerful families and opinion-based voting. Uribe will be able to mobilise perhaps around four million supporters for his preferred candidate. Vargas Lleras has the highest favourability of any politician (61 per cent), followed by Uribe (57 per cent), though recent scandals in his Radical Change party, may weaken him. Nonetheless, his patronage networks are unmatched. Marta Lucía Ramírez, Conservative party, had a good first round in 2014, and has a favourable rating of 41 per cent, but her party is regionally weak. On the pro-agreement side, the likely Liberal party candidate, Humberto de la Calle, has a 54 per cent rating. His party, though, can no longer count on votes from its 2014 alliance with Cambio Radical and is still weakened by old divisions. The Greens and Democratic Pole are relatively weak. “Gallup Colombia Poll #116”, December 2016. “Elecciones Presidenciales: Resultados”, Registraduría Nacional del Estado Civil, s.f.Hide Footnote Full implementation of the accord would then be in jeopardy.

Coalition-building will be crucial for the next president and Congress.[fn]Alliances are a constant in presidential elections, as parties make agreements after the first round to support one of two remaining candidates. In 2018, many coalitions will likely already exist due to shared positions on the peace agreement. After the plebiscite, the power of various actors within those coalitions is hard to judge and not static.Hide Footnote The numerous possible presidential candidates within the “no” movement, including Marta Lucía Ramírez, Óscar Iván Zuluaga, Iván Duque, Carlos Holmes Trujillo, and Alejandro Ordóñez, as well as Vargas Lleras, will make competition within and between parties fiercer than normal. In general, the Democratic Centre Party (DCP) starts with an edge, as its vote threshold is high, and Uribe, though barred from a new term, enjoys a certain cult of personality.[fn]“‘La estrategia del Sí tuvo muchos desaciertos’: Francisco Gutiérrez”, Semana, 8 October 2016; Crisis Group interview, political expert, 10 November 2016.Hide Footnote It is difficult to imagine a realistic scenario in which the DCP candidate does not make it to the second round of voting. As other opposition contenders look to increase their vote share, they have tended to portray themselves more radically as saviours of democracy and security.[fn]Alejandro Ordóñez has charged that because of how the peace accord was handled, Santos is consolidating a “dictatorship”. “En Colombia estamos ‘desde hace rato en una dictadura’: Alejandro Ordóñez”, Oiga Noticias, 26 October 2016. Marta Lucía Ramírez has called for a Constitutional Assembly to “redefine the functioning of established state organs, such as the presidency, Congress and the Courts”. “Colombia se está adentrando en una crisis de legitimidad institucional”, Ramírez, 22 December 2016.Hide Footnote

Vargas Lleras will be something of a wildcard. Though he keeps a low profile on the peace issue, the influence of his Radical Change party and the extent of his political patronage networks mean he commands many votes. He regards as his main opponent Humberto de la Calle, the most likely Liberal Party candidate, who, as the government’s chief negotiator with the FARC, is a staunch defender of the peace agreement. However, Vargas Lleras and Uribe have a poor relationship, despite certain gestures from the latter that could be interpreted as an invitation to an alliance.[fn]Tatiana Duque, “La estrategia disidente de Vargas”, La Silla Vacía, 28 November 2016; Crisis Group interview, high-level diplomat, Bogotá, 4 November 2016.Hide Footnote A possible outcome is a second round in the presidential election pitting the DCP against Vargas Lleras, with neither candidate strongly for implementing the whole peace agreement.[fn]Crisis Group interview, pro-accord senator, Bogotá, 30 November 2016. Vargas Lleras never had a strong position on the accord; recent information suggests he may oppose. Tatiana Duque, “Así se prepara Vargas Lleras para cuando le llegue su hora”, La Silla Vacía, 15 January 2017.Hide Footnote If he does not reach the second round, Vargas Lleras’s support would likely be decisive for the winner. He currently appears inclined more toward the DCP than pro-peace agreement parties.

Evangelical Christian churches will also be another major player in the run-up to the election. They are believed to have provided between one and two million votes to the “no” camp, and various religious leaders expect to play a central part in 2018.[fn]Natalio Cosoy, “El rol de las iglesias cristianas evangélicas en la victoria del “No” en el plebiscito de Colombia”, BBC Mundo, 5 October 2016; “El voto evangélico, clave en la victoria del ‘no’ en el plebiscito de Colombia”, El País de España, 13 October 2016. There is no way of knowing how many votes the churches provided, though they are widely credited with contributing two million to the “no” campaign. Some church actors did favour “yes”, but they are perceived as a minority.Hide Footnote The Christian “no” vote, however, is not homogeneous. While references to lesbian, gay, bisexual, transgender and intersex (LGBTI) issues in the peace agreement were ripped out of context and used to anger most Evangelical voters, there is less consensus among these Christian communities on other issues, such as justice, the truth commission and land ownership. Some pastors and followers but not all seem interested in political influence.[fn]Cristianos: ¿el poder decisorio en la política?”, Semana, 29 October 2016; Crisis Group interview, Christian pastor involved in post-plebiscite negotiations, 3 November 2016.Hide Footnote

Crafting coalitions will also be a priority for parties looking to defend the peace agreement. Numerous parties favour peace but by themselves do not provide enough votes to secure a second-round candidacy, as their support is scattered. Creating a pro-agreement alliance would be a step toward assuring that a candidate willing to implement the accord reaches the second round. But such a coalition would feature a wide array of groups that disagree strongly on other issues.[fn]Crisis Group interview, pro-agreement senator, Bogotá, 30 November 2016. For example, Jorge Robledo, Democratic Pole party senator and its possible presidential candidate, favours the accord but strongly opposes the government’s new tax bill, which parties that also support the deal back. “La peor reforma tributaria imaginable: Robledo”, Jorge Robledo, official website, 20 October 2016.Hide Footnote

The pro-agreement coalition would feature the Green Party, a force whose ability to mobilise votes is likely larger than its current representation in Congress; the Liberal and U parties, in which Santos has his roots and currently belongs respectively, and which are unlikely to make it to the second round, having done so in 2014 only because of their alliance with the Radical Change party in the first round; and what remains of the divided, left-leaning Democratic Pole party. Pro-agreement candidates will also have to find the right balance between supporting the accord and distancing themselves from Santos. The tax reform passed toward the end of 2016, which hiked value-added tax by three percentage points, the troubled economic conditions due to declining oil revenues and the president’s unpopularity make it essential that candidates who favour the peace process differentiate themselves from him and his government on other issues.[fn]President Santos’s 60 per cent disapproval rating, “Gallup Colombia Poll #116”, December 2016, is likely to worsen after a very unpopular tax reform in December. In 30 November Bolívar Plaza protests, when the House of Representatives voted on the new peace agreement, some accord protesters also held signs and chanted against the tax reform, believing it was connected to paying for peace and FARC reincorporation.Hide Footnote

Coalitions will also be decisive for forming a majority in Congress.[fn]Eighteen parties are in Congress; five parties competed in the first round of the last presidential election. Regionally-based small parties can amass just enough votes to enter Congress but not enough to be on the presidential ballot. See “Partidos y Bancadas”, Congreso Visible, s.f. “Elección de presidente y vicepresidente – primera vuelta”, Registraduría Nacional de Colombia, s.f.Hide Footnote The plebiscite result suggests the DCP could well increase its Senate representation. In the House of Representatives, however, it may find the going harder. Others tend to have greater regional success, including the Conservative, Liberal and U parties.[fn]Crisis Group interview, political expert, Bogotá, 10 November 2016. In the House of Representatives, the DCP has nineteen seats, six from Antioquia, five from Bogotá and eight from different departments. It has only one governor (Casanare). All but one of 27 Conservative party deputies are from outside Bogotá, as are 36 of 39 Liberals and 35 of 37 U party deputies. See “Elegidos Congreso de la República 2014-2018”, Registraduría Nacional, s.f.Hide Footnote To form congressional majorities, the DCP must count on other parties, making preservation of opposition unity vital for it. Pro-agreement parties will also seek to stay united on the issue to keep their congressional numbers.[fn]Crisis Group interview, opposition negotiator and senator, Bogotá, 30 November 2016.Hide Footnote

If the opposition does take power with a mandate against at least part of the peace agreement, implementation of the most contested areas could end. One option would be to modify laws that were impossible to change when they were originally passed due to the fast-track. Another would be to starve politically and financially key institutions, programs or policies. By underfunding them or undercutting their political importance, it could quickly make the accord an irrelevance.

The government has tried to prevent this by tabling a bill that would oblige future governments to implement the peace agreement, but this could be repealed or ignored after a shift in the balance of power.[fn]Proyecto de acto legislativo 01 de 2016 senado“, law proposed by Interior Minister Juan Fernando Cristo, 19 December 2016.Hide Footnote Pressure from abroad and vocal parts of Colombian society, however, might make it prohibitively costly to jettison the agreement. In that case, a commitment to continue implementing key parts of the agreement, such as transitional justice and humanitarian mechanisms, and not undo progress on other points, could be a viable goal for renewed dialogue between the government and opposition throughout 2017.

IV. Implementation and its Effect on Political Support

During 2017, congressional and presidential support for the agreement will be strong and stable. But popular support for its implementation is fragile and uncertain beyond the short term, putting full application of the accord at risk. A small window exists during which implementation could decisively shift backing in either direction, depending on success in carrying out fundamental parts of the pact and altering conditions in conflict-affected territories.

A. FARC Concerns

The effect on the FARC of political opposition to the peace agreement is likely to become more pronounced in coming months. Throughout the ceasefire, and particularly since the plebiscite, it has faced the risk of increased internal strains. The ceasefire violation in southern Bolívar is telling: the front operating there was unable to control its fighters or had simply continued extortion. A later expulsion of five mid-level commanders in the eastern plains, including Gentil Duarte, who had been put in charge of the faction of the First Front that supported the peace agreement, shows the strains at that level, whether due to political uncertainty, connections to lucrative illegal economies or both.[fn]Crisis Group interview, Tripartite Mechanism member, Bogotá, 9 November 2016. “FARC-EP separa a 5 mandos de sus filas”, FARC-EP, 16 December 2016. In June 2016, a First Front faction in Guaviare announced it would not be part of the agreement. FARC leadership then selected Duarte, a Central High Command member, to lead the part that still supported the peace accord.Hide Footnote

The political climate fosters one concern above all within the FARC: that the government will not fulfil its part of the accord. While the group, in its tenth conference in September 2016, ratified the whole peace agreement by consensus, the possibility of returning to the battlefield resurfaced in December, when Timochenko reminded fighters they might have to prepare for “plan B”: resumption of war. Such threats could increase if implementation is jeopardised.[fn]Crisis Group interviews, FARC members, Yarí plains, 15-25 September 2016. “Timochenko alerta a la tropa de las Farc: preparemos el plan B”, Las 2 Orillas, 8 December 2016.Hide Footnote

FARC dissidents could cause violence, which would produce a chain reaction on implementation and national political support for the agreement. There have already been reports of First Front violence in Guaviare and Vaupés.[fn]Defensoría alerta sobre reclutamiento forzado y extorsiones de bloque disidente de las Farc en Vaupés”, El Espectador, 11 November 2016.Hide Footnote Dissidence in the ranks of the Daniel Aldana Front has been confirmed in Tumaco, though it is not clear whether this is related to the peace process or a schism caused by the character of the front (formerly a mobile column). The death of Don Y, a leader of the dissident faction, at the hands of the FARC in November showed how infighting can lead to violence.[fn]‘Don Y’, el disidente de las Farc que azota a Tumaco”, La Silla Pacífica, 31 October 2016; “Las Farc mataron a ‘Don Y’”, La Silla Pacífica, 16 November 2016. Eduardo Álvarez, “Disidencias de las FARC: ¿Por qué lo hacen? ¿Qué tan peligrosas son?”, Razón Pública, 14 November 2016.Hide Footnote With other armed groups looking to take over Tumaco, home to a dense concentration of coca crops, increased violence there is probable. The removal of five commanders, plus a skirmish between eight dissident members of the 14th front and pro-agreement members of the Teófilo Forero mobile column, provide further examples.

After the weapons handover finishes, the possibility of FARC members returning to violence could grow, through dissidence or individual desertion from the reincorporation program. That program for ex-fighters is notably weak when it comes to a specific approach for mid-level commanders, who are used to handling large sums of money and enjoying political and military power. Many key details of the reincorporation process will only be decided after the census of FARC combatants is finished and Ecomun – the cooperative business the FARC is to run for their reintegration – is created. The political and humanitarian costs of fighters leaving the process to return to violence would be extremely high.[fn]“Lo que tiene que pasar este año para aterrizar los acuerdos”, La Silla Vacía, 10 January 2017. For more on FARC reincorporation, see Crisis Group Report, Colombia’s Final Steps, op. cit.Hide Footnote The already-established National Reincorporation Council and Ecomun will have key roles in keeping fighters involved.

In the immediate future, the first, most critical part of the timetable for both guerrillas and government is the weapons handover to the UN mission.[fn]On D-Day +90, FARC combatants will have to hand over 30 per cent of their weapons; on D-Day +120, another 30 per cent; and on D-Day +150, the remaining 40 per cent. By D-Day +60, the FARC will have had to hand over all light weapons, grenades, munitions and militia arms.Hide Footnote The end of FARC existence as an armed organisation is the crux of the peace agreement and was the government’s principal argument to muster support for quick renegotiation after the plebiscite. Typically, many challenges arise in such processes, including delays, logistical issues and incomplete handover of weapons, and these have already affected FARC concentration. Arms abandonment by the FARC will likely face other problems that the opposition could easily highlight to argue the process is faltering. Discovery of hidden arms, for example, would fuel a wary public’s mistrust. At the same time, lack of medium- and long-term political support for the agreement increases the possibility parts of the FARC will hedge their bets on peace and so risk further undermining public backing.[fn]Crisis Group interview, opposition negotiator, Bogotá, 30 November 2016; Pro-agreement senator, Bogotá, 30 November 2016. For more on the arms handover process, see Crisis Group Report, Colombia’s Final Steps, op. cit.Hide Footnote

A pressing reason for the FARC to prevaricate in this way is the killing of and threats against local social leaders. At least 90 killings and more than 230 threats were recorded in 2016.[fn]Armando Neira, “Asesinatos de líderes sociales, el lunar que deja el 2016”, El Tiempo, 28 December 2016. Eduardo Álvarez, “Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016.Hide Footnote It is imperative that the government protect civilians in targeted communities, irrespective of who is doing the killings or whether paramilitaries are behind the wave of violence. If the hypothesis that armed groups moving into new territory and seizing control over illicit economies explains part of the killings, the government must make substantial progress on filling the power vacuum left by the FARC.[fn]Crisis Group interview, high-level diplomat, Bogotá, 28 November 2016.Hide Footnote Until then, the continued killing heightens the risk of fragmentation within the FARC and undermines the perceived benefits of peace locally.

The agreement on security guarantees, for the FARC and other activists and political actors locally, needs to be enforced quickly and effectively. The government should start by strengthening existing individual and collective protection schemes and work with local leaders on steps they can take to mitigate risks. This can be done while the FARC security system is set up during the weapons handover process. Opposition leaders should also increase the frequency and volume of their condemnations of such violence and clearly distinguish their arguments against the peace deal from the actions of violent saboteurs at the local level.[fn]This is not to say there is a connection between the opposition and this violence, but rather that perpetrators might be using opposition arguments to justify their actions.Hide Footnote The international community, already highly concerned by the violence, could raise the international visibility of these attacks by more frequent public condemnations and calls for justice.

B. Planning Successful Implementation

Weapons handover began poorly. Shockingly little had been done to install adequate infrastructure in the cantonment sites, causing delays in the first steps of the process.[fn]“Comunicado Conjunto Nº 10”, GOC and FARC-EP, 28 December 2016.Hide Footnote FARC fighters will gradually move from the pre-grouping sites as the 26 cantonments are finalised. By mid-January, land to house combatants had been rented in only seventeen. Only in two, Putumayo and Policarpa, Nariño, were FARC fighters able to stay and build the facilities they need to live. According to the government, preparation of cantonment infrastructure is moving fast.[fn]Gobierno acelera el paso para dejar listas las zonas veredales de Farc”, El Tiempo, 10 January 2017; “El 90% de los miembros de las Farc está a 10 km de zonas de desarme”, El Tiempo, 10 January 2017.Hide Footnote A renegotiated protocol has established that delivery of the materials needed to finish construction and the complete concentration of the FARC are to be accomplished by 31 January.[fn]“Acta de acuerdos de trabajo entre el gobierno nacional y las FARC-EP”, GOC and FARC-EP, 17 January 2017.Hide Footnote

While the first three deadlines – FARC concentration, destruction of unstable weapons and transfer of personal and militia-members’ small weapons to the cantonments – were not met, the government has insisted the rest of the handover process will go as scheduled. These targets could easily encounter problems, but it is essential they are met according to the accord’s terms to prevent feeding public mistrust of the group. To avoid this, fighters who arrive first in cantonments could be part of the 30 per cent to hand over their weapons at D-Day +90.

The UN mission and the Tripartite Mechanism to verify and monitor the ceasefire and weapons handover have key roles.[fn]UN: First 2 Deadlines in Colombia Cease-Fire Can’t Be Met”, The New York Times, 11 January 2017. “Ya tenemos 17 zonas arrendadas y 8 en trámite’: Carlos Córdoba”, Semana, 10 January 2017. “Para evitar más muertes, Sergio Jaramillo propone acelerar implementación de acuerdos”, El Espectador, 16 November 2016; “Intervención del Presidente Juan Manuel Santos en el acto de la Firma del Nuevo Acuerdo de Paz con las Farc”, Presidencia, 24 November 2016.Hide Footnote The former has already been engaged in verifying ceasefire violations but has also become entangled to some degree in a few incidents of improper behaviour. Though they were not directly involved, the governor of Antioquia’s accusations that under-age prostitution and heavy drinking by many FARC members in town centres suggested lack of clear information on the ceasefire process. The Tripartite Mechanism later confirmed there was no prostitution but verified a case in which a FARC member violated protocol, leaving the cantonment without permission and drinking and arguing with a civilian in a small hamlet. The governor toured the cantonments after the DCP openly supported him and subsequently backtracked on his original accusations. Still, the Tripartite Mechanism, including the UN mission, in effect became the arbiter between political rivals.[fn]La pelea entre las FARC y el gobernador de Antioquia”, Semana, 28 December 2016. “Mecanismo de monitoreo y verificación communicado de prensa”, Misión de la ONU en Colombia, 30 December 2016. “Uribe dice estar dispuesto a acompañar al gobernador de Antioquia a sitios de preconcentración”, RCN, 29 December 2016. “Así avanza la polémica revisión de las zonas de concentración en Antioquia“, Semana, 7 January 2016.Hide Footnote

More publicly, images of UN mission staff dancing with FARC members on New Years’ Eve led to an opposition outcry and claims that the mission’s credibility and impartiality had been impaired. The members involved were removed, though some questioned whether the incident had not been overblown.[fn]Misión de la onu en colombia separa a observadores de su servicio”, Misión de la ONU en Colombia, 5 January 2016. Marta Ruiz, “El episodio de los verificadores: un escándalo desproporcionado”, Semana, 6 January 2017.Hide Footnote

In its first report, which gained limited media and public attention due to the focus on the alleged scandals, the UN mission stated that 280 observers were in the country, with the number to increase to 450 in January, though the civilian component has lagged behind deployment of the military. A balance between the civilian and military parts of the mission is essential, especially in maintaining strong relationships between the mission, local authorities and communities. By 7 December, the mission had also successfully monitored 183 movements of FARC fighters and dealt with 27 requests for verification, only nine of which could be investigated as eighteen were not within its mandate.[fn]Primer informe de actividades del MM&V”, Mecanismo y Monitoreo y Verificación, 30 December 2016.Hide Footnote

The troubled start to concentration of FARC forces should not obscure the importance of the mission’s role in the future handover of weapons. Complete deployment of personnel across all cantonment sites and regular release of updates to the media beyond its regular reports, with consent of the government and FARC, would help enhance the mission’s effectiveness and public standing, as well as the public’s perception of progress. The mission should also work closely with the government and FARC to push them to follow the weapons handover schedule laid out in the peace agreement, despite early delays.

A robust communications strategy for when the FARC hands over weapons is crucial to gain support for the process. The opposition has not made the early delays the focal point of its complaints, concentrating instead on the relationship between the UN, the government and FARC. Its grievances have been based on mistrust of the guerrillas, which would only be fuelled by an insufficiently transparent weapons handover. To overcome scepticism, the FARC would be well advised to drop its long-held misgivings and allow publication of photos of fighters handing over weapons to the UN mission. Its new media savviness, which has bolstered its poor public image, and its interest in generating political capital suggest it may do so.[fn]Crisis Group interviews, FARC negotiator, Havana, 9 June 2016; high-level diplomat, Bogotá, 28 November 2016. “Nueva estética de las Farc, ¿Estrategia mediática o cambio verdadero?”, Semana, 12 November 2016.Hide Footnote The cost of not doing so could be proliferation of claims that the FARC have held back some weapons.

The handover is due to end six months after D-Day, but the Special Jurisdiction for Peace (SPJ) will not be operating by then. Given that justice was one of most controversial items in the peace accord, opposition scrutiny of the transitional justice system and misgivings about the SPJ will be prominent in the year’s debate. That benefits for FARC fighters, such as amnesties, security measures and reincorporation money will be provided early on, while SPJ sentences will be handed down much later, could create an impression that the FARC is being rewarded without having fulfilled any judicial or truth obligations.[fn]Crisis Group interview, member, international community, Bogotá, 14 December 2016.Hide Footnote As Congressional and presidential campaigns enter their final stretch, the SPJ will likely be hearing its first cases. How it handles them and how the accused behave toward the courts, will surely be closely scrutinised by the opposition and voters.

The FARC should cooperate as much as possible with transitional justice mechanisms, including the SPJ, the truth commission and efforts to find remains of victims of forced disappearance. By proving commitment to fulfilling their obligations even at personal cost, FARC leaders could sway opinions on peace and undercut opposition arguments. Not doing so or using the new judicial mechanisms to defend its war effort, point fingers and/or deny responsibility in high-profile cases would strengthen opinion against the guerrillas and the peace agreement. Members of the Armed Forces must also appear before the SPJ so as not to fuel a perception it is a mechanism aimed only against the FARC and protects state officials.

Public apologies for major war crimes should also remain part of FARC and government approaches to building support for the deal. FARC has apologised for killing eleven deputies in 2007; it should do the same for bombing the Nogal club in Bogotá in 2003. But these should not be public shows of remorse for political purposes.[fn]The public apology in La Chinita for a 1994 massacre had much show and little substance according to an attendee. Crisis Group interview, diplomat, Bogotá, 21 October 2016.Hide Footnote More generally, the focus on and participation of victims in early implementation and other peace activities should remain central, including efforts to find victims of forced disappearance and cooperation with the truth commission. Not doing so would undermine the argument that victims were central to the negotiation and the agreement’s legitimacy. Matters have been made more complicated since the plebiscite by disputes between different opposition and pro-agreement actors over the right to represent victims, a contest that will inevitably continue into the election season.[fn]Opposition actors claimed to speak for FARC victims, including Sofía Gaviria and Herbin Hoyos, as did government and pro-peace agreement leaders.Hide Footnote

The government also needs to continue educational work to create ownership of the accord by local and regional communities, as well as urbanites. Generating that sense would increase the political cost of non-implementation or diluting content. The opposition showed in the plebiscite that connecting the accord to people’s everyday lives, accurately or not, was an effective strategy.[fn]Crisis Group interviews, political activist and university professor, Bogotá, 16 November 2016; opposition negotiator, Bogotá, 30 November 2016. “El No ha sido la campaña más barata y más efectiva de la historia”, La República, 5 October 2016.Hide Footnote Proactive communication to show progress in implementation would be equally important.

A number of other important efforts related to the agreement, especially de-mining, will also be measures of tangible progress. It was recently announced that after 46 devices were destroyed over more than a year, Orejón, in Briceño, Antioquia, no longer has any landmines.[fn]Deicy Johana Pareja M., “El Orejón, la vereda que es ejemplo del desminado humanitario”, El Tiempo, 22 December 2016; “Vereda Orejón, municipio de Briceño (Antioquia)”, Dirección Contra Minas, n.d.Hide Footnote Such efforts, as well as coca crop substitution pilots and other quick-impact projects by different institutions, can help communities feel that peace has brought a major material change in their daily lives and create an expectation of economic and institutional development to come. The 700 projects that the post-conflict ministry recently announced it will begin or carry out in the first 100 days of peace, in addition to its Rapid Response Plan, will be crucial, but there is still a lack of financial and political backing within the government. Adequately managing local communities’ expectations will thus be essential.

Lastly, creation of a space to reinitiate and maintain political dialogue with the opposition on implementation should also be explored. This might begin by inviting “no” leaders to meetings on verification and/or implementation issues and help channel political debate toward serving the stability of the peace process rather than undermining it.[fn]Crisis Group interview, opposition negotiators, Bogotá, 8 and 30 November 2016.Hide Footnote

C. Peace and Other Armed Groups

Implementation of the renegotiated peace agreement faces major challenges at the regional and local levels due to the presence of other armed groups, which will in turn influence national support for the process. Foremost among these groups is the ELN, whose own putative peace process was not aligned with the FARC’s. Negotiations have not begun, though they are scheduled to start on 7 February.[fn]Fase pública de diálogos con el ELN se inicia el 8 de febrero”, El Espectador, 18 January 2017.Hide Footnote Trying to implement the FARC accord where the ELN is active poses acute dilemmas.

ELN violence will affect the government’s ability to implement the peace, especially as the group is expanding its presence and still operates in many priority conflict-affected areas, such as Catatumbo and Arauca (both on the Venezuelan border), as well as Cauca, Nariño and Chocó. Even aspects of the deal that have broad support are affected by the ELN presence, as shown in the Santa Rosa del Sur incident.[fn]“Tripartite Mechanism Communiqué: Government of Colombia and FARC-EP violated ceasefire in south Bolívar incident”, Tripartite Mechanism, 30 November 2016. The FARC fighters involved in the incident had presented themselves as ELN combatants, leading the army to attack them in the belief it would not be violating the ceasefire.Hide Footnote Establishing an effective state presence where control is still contested by armed groups will be costly in lives and resources. The integrity of peace with the FARC will also be at stake in areas where little is likely to change in terms of violence, such as Arauca, Cauca and Catatumbo.[fn]Some recent murders in Cauca, where killings have increased, have been attributed to the ELN. “Tres hombres asesinados en zona rural de Silvia, en el norte del Cauca”, El Tiempo, 20 September 2016. The ELN has also been accused of “killing communists” in Arauca. Carlos A. Lozano Guillén, “Mirador: Carta a Gabino (I)”, Periódico Voz, 2 September 2016.Hide Footnote The situation is aggravated where the FARC and ELN have made agreed or coordinated a transfer of territorial control, such as Cauca and Nariño.[fn]Crisis Group interviews, high-level diplomat, Bogotá, 2 August 2016; government official, Bogotà, 9 December 2016.Hide Footnote

Effective implementation of the FARC accord is also important to convince the ELN it can trust the government to fulfil agreements it signs with insurgents. After the plebiscite, the group internally questioned the merits of trusting the government to deliver on its promises, exacerbating mutual wariness that in any case has tended to be worse than what existed between government and FARC at the start of their negotiation.[fn]During secret government-FARC talks, the latter concluded that Santos was serious about peace. The ELN, years later and during talks to define a negotiation agenda, argued that Santos represented the same old political elite. This, for some in the ELN, has led to a view that negotiations with the government are the correct path, but not now. See Víctor de Currea-Lugo, “Eln dice estar listo para la paz, entrevista con Antonio García”, El Espectador, 9 December 2016. Crisis Group interview, ELN experts, Bogotá, 3 October 2016; Yarí plains, 23 September 2016.Hide Footnote Any further deterioration in ELN confidence in the state would imperil the possibility of a peace accord with it in the near future. It would also be calamitous with regard to public support if ELN presence became a reason for failure to implement the FARC agreement, which in turn would lead the ELN to continue to mistrust the government’s ability to deliver on peace.

Other armed groups, such as neo-paramilitaries and the remnants of the Popular Liberation Army (EPL) will also create difficulties for implementation on a local level.[fn]This report uses the term “neo-paramilitary” instead of criminal bands or Bacrim, per Soledad Granada, Jorge A. Restrepo and Alonso Tobón García, “Neoparamilitarismo en Colombia: una herramienta conceptual para la interpretación de dinámicas recientes del conflicto armado colombiano”, in Restrepo and David Aponte (eds.), Guerra y violencias en Colombia Herramientas e interpretaciones (Bogotá, 2009), pp. 467-499. The Libardo Mora Toro front, the remains of the EPL, operates in the Catatumbo region. It is the only dissident front from the 1991 EPL peace process that still exists.Hide Footnote Both have been moving into areas of former FARC control for some time and will continue to do so unless stronger judicial, political and law-enforcement action is taken against them. Colombia is witnessing a resurgence in coca cultivation, and crop substitution programs designed by the peace accord will take time to have an effect.[fn]According to the UN Office on Drugs and Crime (UNODC), coca cultivation in 2015 increased by almost 40 per cent, to 96,000 hectares. “Colombia: Monitoreo de territorios afectados por cultivos ilícitos 2015”, UNODC, July 2016.Hide Footnote If other armed groups take control of areas with illicit crops before the state can, they could directly stimulate new dynamics of violence and influence the success or failure of crop substitution.

Many social movements believe the neo-paramilitaries – mainly the Gaitán Self-defence Forces (AGC) – are behind the recent increase in killings of local activists, whether for political or economic reasons.[fn]The AGC, also known as the Gulf Cartel, Úsuga Clan or Urabeños, was created and became heavily involved in drug trafficking after the paramilitary demobilisations that ended in 2006.Hide Footnote Evidence for this is patchy, however, and there does not appear to be one specific phenomenon or organisation responsible.[fn]Some interpret the killings as done by paramilitaries under the direct influence of high-level political opposition, though there has been no evidence connecting the two. See Oto Higuita, “¿Por qué están asesinando a los voceros e integrantes del Marcha Patriótica?”, Prensa Rural, 2 December 2016. “¿Quién está ordenando matar a los líderes sociales en Colombia?”, El Colombiano, 27 November 2016. Eduardo González, “¿Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016. Crisis Group telephone interview, high-level diplomat, 28 November 2016.Hide Footnote The ELN is behind some killings, as in Arauca; local armed groups connected to local political elites play roles in others, such as in Urabá; and in yet other areas, such as Caguán, the possible arrival of new armed groups might be the main factor.[fn]Crisis Group interviews, government official, Bogotá, 2 December 2016; political analyst, Bogotá, 9 Jul 2016; high-level diplomat, Bogotá, 28 November 2016. Eduardo González, “¿Quién sigue matando a los líderes sociales en Colombia?”, Razón Pública, 28 November 2016.Hide Footnote Even so, the sense that political violence is on the rise makes implementation more difficult, not only because of its effect on FARC’s transition to civilian life, but also because community leaders may come to see participation in peace mechanisms as personally risky.[fn]This is already a risk, as the renegotiated accord weakens community participation. Juanita León, “La gran diferencia entre el Acuerdo I y el Acuerdo II”, La Silla Vacía, 15 November 2016.Hide Footnote

While the agreement includes various initiatives aimed against these groups, including the new investigative unit in the attorney general’s office, and calls for international support to the initiatives, these will be necessary but likely insufficient to constrain new patterns of coercion on the ground. A clear risk exists that implementation of the peace agreement could lead to greater violence in certain areas if the state does not move quickly enough to protect local populations and also to combat neo-paramilitary groups.

There are various explanations for the prospect of a spike in criminal and political violence once the peace accord gets underway. First, armed groups could clash over control of areas the FARC leave, as has occurred between the ELN and AGC. These will be areas with strong illegal economies, trafficking routes and militarily strategic points, such as Tumaco, Chocó and the Nudo de Paramillo, for example. Other reasons are more political. While some concerns of local land-holding elites regarding rural reform aspects were addressed in the new accord, others remain and have led some of those landholders to reject the renegotiated deal.[fn]Crisis Group interview, government official, Bogotá, 9 December 2016.Hide Footnote If the relationship between some of these elites and illegal armed groups and/or actors stays in place but is targeted toward the accord’s land distribution terms, violence could well increase, including in areas traditionally vulnerable to land conflict such as Urabá.[fn]James Bargent, “BACRIM Vuelve a sus Raíces Paramilitares en la Lucha por la Tierra en Colombia”, Insight Crime, 19 July 2013.Hide Footnote

Another possible source of violence prompted by the peace accord’s implementation is continuation of attacks against social leaders due to the perceived imminent opening of the political system regionally and locally, including the sixteen special circumscriptions in Congress for conflict-affected areas.[fn]The peace agreement creates sixteen special constituencies in Congress so that conflict-affected regions can have a stronger voice in legislation and policymaking. The idea is that those who run for these seats not be part of established political parties (including that to be established by the FARC), represent isolated regions and give a voice to victims. See “Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera”, GOC and FARC-EP, 24 November 2016, p. 54.Hide Footnote Such local, conservatively-minded political violence has history in Colombia and explains how the paramilitaries gained so much power in the 1980s and 1990s.[fn]Mauricio Romero, Paramilitares y Autodefensas (1982-2003), IEPRI (Bogotá, 2003).Hide Footnote A spike of violence in this spirit would be qualitatively similar to that against the Patriotic Union (UP) in those decades, though it is very unlikely to reach the same level. Too many international actors are already concerned and attentive, thus raising its cost.

D. Institution Building

Violence and security on the ground are not the only issues that could dent political support for the agreement in 2017. Much of the problem for smooth implementation stems from the institutions meant to manage the war-peace transition. Some national-level ones barely exist beyond paper, with little staff or capacity to execute budgets or projects: these include the National Land Agency, the Territorial Renovation Agency and the Agency for Rural Development.[fn]Crisis Group telephone interview, high-level diplomat, Bogotá, 28 November 2016.Hide Footnote If unable to execute on the ground, the state will risk losing the chance to gain local legitimacy. Since they are coming into existence at a time of tight caps on public spending, their financial and political support is also very fragile, especially given the current and historical resistance to rural reform. Facing the threat of being starved of resources or steered toward invisibility over time, as has happened with previous rural-focused institutions, they badly need an injection of high-level support, money and staff.[fn]For a quick review of land reform and institutional issue literature, see La política de reforma agraria y tierras en Colombia Esbozo de una memoria institucional, Centro Nacional de Memoria Histórica (Bogotá, 2013).Hide Footnote

Institutional fragmentation at different levels poses additional dilemmas. Political pressure to combat increasing coca cultivation has led various state actors to adopt rival strategies, some of which could be contrary to the accord’s spirit. This risk will grow if the opposition comes to power in 2018. Local political actors also have insufficient institutional and technical capacity to implement many parts of the agreement, and in some cases, their willingness will be fragile, unless they feel they can obtain financial resources for their regions.[fn]Crisis Group interview, political analyst, Bogotá, 3 December 2016.Hide Footnote

The Rapid Response Plan (RRP), designed by the post-conflict ministry (MPC) but to be implemented with and by various other institutions, needs both political and financial support. The friction between implementing institutions, the MPC and the High Commissioner for Peace’s Office remains a problem, as some institutions feel the latter two overstep their bounds and are too influential. Lack of a clear transition from the RRP to implementation of longer-term aspects of the peace agreement also raises broader concerns.[fn]Crisis Group interviews, government official, Bogotá, 9 December 2016; political analyst, Bogotá, 2 December 2016.Hide Footnote Stronger leadership from above, complemented by international community pressure, is needed.

V. A Role for the International Community

The international community has focused on supporting the peace process and ensuring it concludes with a feasible, robust agreement. It has done so by providing economic resources for state institutions and civil society actors working on peace issues; political backing for the process; delegates from the guarantor and accompanying nations and special envoys from the U.S., European Union and Germany; and technical support on implementation issues, such as support for local justice mechanisms and formalisation of land titles. Such backing remains essential.

A. Implementation and Political Support

In the current political context, a quick start to implementation, with early victories, is ever more required. Though the plebiscite suggested that high-level international support was less effective than anticipated, the delegates and envoys who aided the negotiations should continue to press for the agreement to be carried out. Not only could they be helpful in resolving disputes and influencing the government and FARC, but they will also be able to highlight the broad foreign commitment to peace in Colombia.[fn]The U.S. special envoy to the peace talks, Bernie Aronson, no longer plays this role, and no replacement is in sight. The U.S. Secretary of State nominee, Rex Tillerson, stated in a written response to questions as part of his confirmation process, that the U.S. would have to “review” the new peace agreement to determine which parts it would support. “Trump’s state nominee raises doubts on Colombia peace pact”, The Washington Post, 22 January 2017.Hide Footnote The rural reform pact in particular will face political resistance on different levels, and the international community can play a vital role in raising the cost of obstructing or ignoring it. Financial aid and pushing the government to get key institutions functioning would be major contributions.

International support can also influence FARC decisions, especially if an opposition government proposes changes to, rejects or is unwilling to implement parts of the accord. Given the group’s concerns with full implementation, a change in government could undermine its commitment to peace, leading to fragmentation as some of the organisation return to organised violence. Pressing the FARC to maintain its commitment to peace will be vital. Here the second UN mission, requested in the peace accord to monitor FARC political participation, reincorporation and security guarantees, will have a vital role in maintaining trust between the guerrillas and government. It will also be politically contentious, as its mandate covers the most controversial issue in the new agreement, namely the FARC’s participation in politics. It will need to be functioning quite soon in order to respond to its mandate; early preparation to take advantage of the period before its mandate begins is essential.

Financial aid will also be vital, especially beyond 2017. Colombia is currently unable to fully afford its post-conflict pledges, something that the international community has committed to make good. In the longer term, financial support might help persuade a new government to honour disputed aspects of the accord. Partners could also work directly with local governments, providing financial and technical assistance and ensuring that political differences between local, regional and national levels do not impede implementation.[fn]Crisis Group interview, political analyst, Bogotá, 3 December 2016.Hide Footnote Finally, international non-state actors will also need funding, such as the UN High Commissioners for Refugees and Human Rights, among others, who have important post-conflict roles on displacement, border issues and violence, all risks to a successful transition from war to peace.

B. The Special Issue of Drugs

It is unlikely that a decrease in coca cultivation resulting from application of the peace agreement will occur before 2018. New programs need time and will be largely emasculated if support wavers. Recent coca production increases have made the drug issue important again to preventing violence, but also politically critical. The opposition points to rising hectarage to argue that drug policy is not working due to concessions made to the FARC, including prohibition of aerial fumigation. Drug policy also is a source of tension within the government and between Bogotá and local communities.[fn]“Procurador colombiano acusa a Santos de proteger cultivos de las FARC”, El Nuevo Heraldo, 18 April 2016; “Uribe considera que fin de aspersiones con glifosato es exigencia de las Farc”, El Nuevo Heraldo, 10 May 2015. Between July and September 2016, protests by coca growers, mainly in Putumayo, lasted 39 days, as peasants rejected the use of fumigation chemicals applied on the ground during manual eradication. Peasants in Putumayo also have voiced concerns over drug policy and implementation of the peace agreements on crop substitution. See “Razones del paro cocalero en Putumayo”, El Espectador, 19 August 2016; “Levantan protesta cocalera en Putumayo”, El País de Cali, 7 September 2016; Crisis Group interviews, local leaders and coca growers, 20-24 March 2016. Within the government, new Attorney General Néstor Martínez has called for fumigation to be reinstated but with new chemicals. “Fiscal pide volver a la fumigación aérea contra los cultivos ilícitos”, El Tiempo, 4 September 2016.Hide Footnote When published this year, cultivation data will show another increase in 2016, before crop substitution programs derived from the peace deal begin. This may increase calls for traditional policy, including forced eradication. The government plan to substitute and forcefully eradicate 50,000 hectares each in 2017 is probably unreachable and will also create serious tensions on the ground. The forced eradication will also produce unnecessary tension with the FARC and close the state’s window to gain legitimacy in areas highly affected by coca cultivation.

The international community, especially the U.S., should give the agreement on illicit drugs a chance to prove itself and not expect immediate decreases in illicit crop cultivation. The focus should instead be on strengthening interdiction within and outside Colombia and supporting the rapid and effective implementation of the relevant points of the peace agreement. Prioritising such implementation over national and international political interests related to traditional counter-narcotics policy will be critical, not least because returning to costly forced manual eradication, the results of which are easily reversible, is no guarantee of success.

VI. Conclusion

Colombia has signed and ratified the peace agreement, and the whole of the FARC will soon be in cantonment sites, where they will hand over their weapons and begin transition to civilian life. While this is cause for celebration, how peace was signed and approved was highly controversial, and the agreement appears to lack broad, stable, sustainable political support. Implementation is threatened on several fronts, and with a united and strengthened opposition, the future looks somewhat bleak for pro-agreement leaders. The peace deal is likely to be a target for multiple grievances in the 2018 presidential election, which may produce a result not unlike that of the 2 October 2016 plebiscite.

Substantial and rapid progress on implementing crucial aspects of the agreement is needed in 2017 to shift the balance in favour of the accord. The difficult national and local contexts – a financial shortfall, a stuttering peace process with the ELN, weak institutions and internal government rivalries and high levels of targeted killings in rural areas – mean implementation faces concrete threats that have been partly aggravated by political disputes over the peace agreement. If efforts to apply the accord do not overcome these initial hurdles, parts of it may be condemned to failure before they have a chance to succeed. If that happens, FARC commitment to peace, the possibility of a similar negotiation with the ELN and prospects for addressing the root issues in the long armed conflict will all be in doubt. The immediate political battle to finalise the agreement has been won, but it is premature to declare victory for peace.

Bogotá/Brussels, 31 January 2017

Appendix A: Map of Colombia

Map of Colombia AB Carto/International Crisis Group
EU Watch List / Global

Watch List 2021 – Autumn Update

Every year Crisis Group publishes two additional Watch List updates that complement its annual Watch List for the EU, most recently published in January 2021. These publications identify major crises and conflict situations where the European Union and its member states can generate stronger prospects for peace. The Autumn Update of the Watch List 2021 includes entries on Afghanistan, Burundi, Iran, Nagorno-Karabakh and Nicaragua.

Table of Contents

Thinking Through the Dilemmas of Aid to Afghanistan

Afghanistan is in the throes of a humanitarian crisis – driven by displacement, drought, the COVID-19 pandemic and a struggling economy – that has sharply worsened since the Taliban’s takeover and the prior government’s collapse on 15 August. A fundamental challenge is the country’s extreme dependency on external funds, much of which are now suspended due to understandable foreign concerns about the Taliban government’s direction. Humanitarian aid continues to arrive, but other disbursements that before the political upheaval were used to underwrite development programs, pay civil servants, provide public services and keep government functioning have ceased. Joblessness and poverty are climbing as a result. Afghanistan’s dire straits mean that donors, including the European Union (EU), have to grapple with the dilemma of how to support a population in growing distress while adhering to principles – including protection of fundamental freedoms, equal rights for women and the rule of law – that conflict with emerging Taliban government policies and practices. Although the Taliban’s transition from insurgency to governance is at an early stage, the group’s history and its actions in government so far indicate that there will likely be a wide gap between the nature of their rule and donors’ values. This gap looks set to limit the extent to which the EU and member states can provide a funding lifeline that would inevitably accrue to the benefit of Taliban regime consolidation.

The EU has framed its criteria for engaging the Taliban government around five benchmarks. These entail the Taliban: (i) allowing the safe, secure and orderly departure of all foreigners and Afghans who wish to leave the country; (ii) promoting, protecting and respecting human rights, particularly for women and minorities, the rule of law and fundamental freedoms; (iii) enabling free access for humanitarian operations (including for female staff) in line with international humanitarian law; (iv) preventing anyone from financing, hosting or supporting terrorist activity from inside Afghanistan and ceasing all ties with international terrorism; and (v) lastly, establishing an inclusive and representative government through negotiations. Brussels has made clear that it will continue “operational engagement” – interactions with the Taliban on practical matters like evacuations and humanitarian operations that do not imply recognition or the resumption of normal diplomatic relations, though the concept is deliberately ambiguous to give the EU greater flexibility.

Consistent with this framework, the EU and its member states should:

  • Maximise humanitarian assistance. The EU has already answered a portion of a UN flash appeal for additional such aid. It could now take a lead role in funding the UN appeal for the rest of 2021, by making further contributions and rallying other donors. Particular attention is needed to ensure that the health care system, already in a precarious state, does not completely fall apart. Donors in this area will likely have to work with and through the Taliban’s health ministry to some extent, in addition to funding international NGOs still present in Afghanistan.
     
  • Adhere to the EU Council’s five-part framework for engagement with the Taliban but interpret it flexibly enough – meaning the EU should work towards the achievement of the five principles rather than using them as prior conditions – to help prevent the collapse of essential, life-saving public services, particularly health care, even though the Taliban are unlikely to meet all the conditions in the framework. Preventing such collapse will require provision of funding for some civil servants’ salaries, such as for health care providers.
     
  • Through diplomatic engagement with the Taliban, keep making clear the benchmarks that the new government would need to meet in order to receive European development assistance. The EU and European governments should set a small number of specific objectives drawn from the five-part framework for particular diplomatic focus, tied to a modest volume of development aid, as a means of testing the prospects for using aid as leverage. Because of its importance, educational access for girls and women could be a benchmark for the delivery of non-humanitarian aid. Earmarking aid for girls’ and women’s education is less likely to motivate the Taliban government to make changes than making aid available for other purposes of more interest to the group.
     
  • Emphasise in engagement with the Taliban that they should follow through on promises they themselves have made, such as their public assurances that restrictions on girls’ education will only be temporary.
     
  • Prepare for the possibility of increased migration to Europe of Afghan asylum seekers as the humanitarian situation deteriorates. Preparation predominantly should include increasing reception capacity in EU member states. Afghanistan’s neighbours, particularly Pakistan and Iran, already host millions of Afghans and are unlikely to welcome additional large numbers, even if Europe offers financial support.

A Severe Humanitarian and Economic Crisis

Since the Taliban seized power, the overall level of violence in the country has dropped considerably. But more than 3.5 million people remain internally displaced, and many of them have little prospect of returning home, due to property damage, crop failure and fear of Taliban revenge killings as well as fresh violence related to newly shifting power relations among tribes, clans and ethnic groups.

Meanwhile, the country’s economic woes are deepening. The Taliban have put at the helm of economic policymaking individuals without relevant experience or qualifications, and the suspension of non-humanitarian foreign aid has starved the public sector of resources. Before the Taliban took over, public spending was about 75 per cent financed by foreign donors; without such assistance, the vast majority of civil servants are not being paid. The Afghan National Defence and Security Forces had been a major employer, providing income to many rural families, but are now defunct. Most of the Afghan central bank’s reserves, managed by the U.S. Federal Reserve, are now frozen and unlikely to be released soon, contributing to a liquidity crisis.

The UN made a flash appeal for humanitarian aid that was the focus of a 13 September donors’ conference in Geneva, seeking $606 million to meet immediate needs. The EU increased its planned humanitarian aid spending for 2021 from €57 million to €200 million, almost a fourfold increase – but more money is needed. The UN’s appeal is only about 35 per cent funded as of early October.

This aid may help Afghanistan avert severe food insecurity, but with non-humanitarian assistance suspended, it is unlikely to prevent a sharp economic downturn. Whether or not to restart that assistance – and in what circumstances – presents the EU and other donors with a true conundrum.

EU Aid to Afghanistan and Conditionality

The EU has been one of the main financial backers of the heavily aid-dependent Afghan state, with €1.4 billion committed between 2014 and 2020. Brussels sent much of this aid as budget support for the Afghan government, to help finance agriculture and rural development programs, health care, policing, the justice system, anti-corruption initiatives and democratisation projects. Even before the Taliban seized power in August, however, the Afghan government’s uneven commitment to EU aid conditions (particularly enhancing governance and public institutions, fighting corruption, and fostering human rights and fundamental freedoms, especially for women, children and minorities) led the EU to slow or withhold the release of some of its assistance.

The Taliban takeover prompted the EU to suspend non-humanitarian aid altogether and re-evaluate its conditionality framework. On 21 September, the EU Council defined five benchmarks, outlined above, that would guide any future engagement with the Taliban government, though the EU has made it clear that for now it intends to keep what it is calling operational lines of communication to the movement open. Neither the EU nor any of its member states have yet clarified how stringently these benchmarks will be used as aid conditions. Yet, even as humanitarian aid for 2021 has been significantly increased, so long as the EU is not able to verify progress on the benchmarks, the €1 billion that Brussels was planning to deliver from 2021 to 2027 for development assistance will stay in European coffers.

Taliban Priorities and Reactions to EU Conditionality

The Taliban have not publicly responded to the EU’s conditionality framework. Indeed, few of the Taliban interlocutors who spoke with Crisis Group had even studied it. They were, however, aware of the broad contours of EU demands, given that various regional and other states have been pushing similar agendas to varying degrees.

The Taliban are pressing for the establishment of a working relationship with the EU.

The Taliban appear to have an optimistic set of objectives for what they want from the EU and its member states: formal recognition, normalised diplomatic relations and unconditional aid to the country. As an immediate priority, the Taliban are pressing for the establishment of a working relationship with the EU. They see the possibility of Europeans re-establishing diplomatic presences in Kabul as a stepping stone to formal recognition. The Taliban see these measures as warranted because they have unchallenged authority in Afghanistan and because they believe the country remains strategically important to the EU. Some Taliban interlocutors warn that if Western states shun their government, they could increasingly fall under the influence of meddling neighbours, particularly Pakistan. They also caution (whether genuinely or opportunistically is difficult to say) that if Western countries do not quickly display good-will, the group will assume that they are hostile and defer to hardliners who wish to reinforce the group’s Islamist and jihadist credentials.

Be that as it may, the Taliban leadership is increasingly cognisant they are unlikely to receive any time soon formal recognition or anything like the financial aid flows the previous government enjoyed. Their most pressing priority seems to be removal of sanctions. The Taliban leadership is aware that to maintain Afghanistan’s public services machinery and ward off state collapse, they will require financial and technical assistance that enables them to restructure their security and intelligence forces and build fiscal management, technological and service-delivery capacity. Without sanctions relief, almost none of that help is attainable. The Taliban’s leaders appear to believe that if they can get even a fraction of the aid the country previously received, then they would be able to run a functioning government. The Taliban seem to want to extract as many benefits as possible while offering little in return.

The Taliban will accept financial aid only if there are minimal conditions. However bad the situation in Afghanistan, at least so far they appear willing to forego assistance if it entails stringent conditions. Publicly, top government officials have emphasised the need to remove conditions for providing aid. Privately, Taliban interlocutors acknowledge the futility of asking for aid with no strings attached but stress that they will be unable to fulfil strict conditions. They say donors should set realistic goals, though have not defined what they would regard as realistic.

Conversations with Taliban interlocutors suggest that the group’s policies are first and foremost driven by concerns internal to the movement, particularly maintaining its cohesion, followed by broader domestic considerations, with demands by outside powers, especially faraway ones, coming a distant third. In practice, the group may frame its actions as ways to address EU concerns, where those concerns align with the Taliban’s own goals. Where they diverge, however, the movement will put internal and domestic imperatives ahead of EU demands.

The Taliban appear to believe they have already fulfilled some of the EU benchmarks. The group cites its cooperation during the post-15 August evacuation of foreign citizens and many Afghans as an example showing it can be a responsible, constructive counterpart. Interlocutors argue that with the main airports again operational, foreign citizens are free to enter and exit the country. Although concerned about brain drain, they say they are prepared to allow Afghans who want to leave the country to do so and they have facilitated some flights, even though there are also anecdotal indications to the contrary. For such cooperation to continue, they will want something in return. Taliban interlocutors also believe they are on track to meet the benchmark regarding humanitarian operations. The Taliban generally attribute occasional interference in humanitarian organisations’ work to lack of discipline among the rank and file, and the group claims to be taking steps to curb such behaviour. At the same time, it is likely that the Taliban will use engagement on humanitarian operations as an opportunity to maximise interactions with foreign states in the hopes of building informal diplomatic relations and implicit recognition.

On counter-terrorism issues, the Taliban believe that compliance with their February 2020 Doha agreement with the United States (which they claim to be honouring) is sufficient to meet this benchmark. The Taliban argue that the Doha agreement set up a framework whereby their government will treat foreign fighters as refugees, with all the rights and obligations this status entails. They say they will take action against any foreign militants who seek to abuse this status. Yet Taliban interlocutors are also keen to emphasise – probably at least in part to deflect responsibility – that they would require continued security and intelligence cooperation from the EU and U.S. to detect and stop threats emanating from the country. Given the increasingly dire challenges the Taliban face, they are unlikely to place a high priority on countering militant groups that they do not see as a threat to themselves. The Taliban also do not appear to have a comprehensive understanding of counter-terrorism obligations under international law and practice, including the obligation to cut off terrorist group financing. The group appears to believe that the Doha agreement, rather than Afghanistan’s broader international obligations, defines its commitments in this area. Taliban interlocutors say they believe the group would require the removal of sanctions as well as financial and technical assistance to fulfil financial counter-terrorism obligations.

The Taliban also argue that outside powers should interpret their latest appointments, which only slightly diversified the ethnic composition of their Pashtun-dominated government, as a sign of their willingness to form an inclusive government. Interlocutors claim that inclusion will be effectuated slowly and incrementally, as the group seeks to balance its fighters’ sensibilities against the need to fulfil its “obligations” to foreign countries. They also suggest that the government is preparing to form a specific ministry for women that will be led by a woman. If their conduct so far is any guide, however, it is likely that the Taliban will at best bring in one woman in a symbolic position, akin to the inclusion of a Hazara as a deputy public health minister, in order to claim that the government has now become inclusive.

One area in which the Taliban have not come anywhere close to meeting European conditions is the protection of rights and fundamental freedoms for women and girls.

One area in which the Taliban have not come anywhere close to meeting European conditions is the protection of rights and fundamental freedoms for women and girls. Taliban interlocutors insist that women will have the right to work and get an education, but they are studiously vague about when, and under what circumstances, women will be able to exercise these rights. On paper, the Taliban have extended girls’ schooling up to the sixth grade to all parts of the country, including the south, where, as an insurgency, local commanders forbade girls to attend even primary school. Anecdotal evidence about women’s access to university education is mixed; while some reports indicate that women have been allowed to attend classes in some places, other reports say new restrictions have made that practically impossible in others. At present, however, girls are not being allowed to attend school from the sixth grade through the twelfth, despite the fact that boys of equivalent grades have resumed schooling. The Taliban have claimed that the exclusion of girls is temporary. But they have set no timeline for when girls will be able to resume their studies, making vague excuses for the delay. The group has also curtailed women’s ability to work outside the home. They have allowed women to resume working in the health and education sectors as well as in a limited number of security roles that involve interaction with other women (such as at airports). Beyond that, the Taliban have generally barred women from going to work until further notice. While Taliban interlocutors told Crisis Group that these restrictions are temporary, the Taliban’s history gives reason for doubt. Scepticism is all the more warranted given many powerful Taliban commanders’ opposition to girls’ education beyond the sixth grade.

On some issues the Taliban see themselves as performing a balancing act between appeasing (as they see it) Western donors and not antagonising their hardline elements. This is seen in spheres such as media and moral policing. The Taliban have so far let many media outlets continue broadcasting. At the same time, numerous journalists report being harassed, arrested and even severely beaten by the Taliban. In the resulting climate, most media outlets are forced to self-censor lest they draw the Taliban’s ire. In deference to hardliners, the group has also reinstituted the Vice and Virtue Ministry, feared under the Taliban regime of the 1990s for its harsh and often violent moral policing. The ministry has thus far abstained from regulating citizen’s behaviour nationwide. There have been reports, however, of ministry officials banning music, the shaving of beards and Western hairstyles, particularly in Helmand province, although the government has rejected these reports as fabricated. As the Taliban government wrestles with a multitude of governance and security challenges, there is a risk that it will reverse these meagre concessions to international opinion – and to the views of many Afghans – to placate hardliners.

What the EU Can Do

The immediate priority should be making sure that Afghanistan gets as much humanitarian aid as it needs. The EU and its member states should contribute additional funds to the UN humanitarian appeal for the rest of 2021 and urge other donor governments to follow suit. In addition to addressing immediate needs, it will be crucial to find ways to prevent the health care system from collapsing. Although this can be partly achieved by providing funds to international NGOs that remain active in the country, it is unlikely that donors will be able to entirely avoid working with and through the Taliban health ministry in doing so, as even if they scale up their operations, these NGOs alone will never be capable of providing health services across the country without some kind of collaboration with the government-run national health system.

Although humanitarian assistance may be able to stave off disaster for the Afghan population, it will not replace the provision of public services. Nor will it prevent the country’s further impoverishment. Should the Taliban make sufficient progress toward the benchmarks set by the EU Council, the European Commission should at least prioritise resuming development assistance in the health sector. At the same time, the EU could evaluate the feasibility of a more expansive development aid program.

While aid conditionality is not likely to shape Taliban policies to any great degree, it is not impossible that renewed aid with conditions could bring some small improvements. The Taliban’s practices are driven primarily by ideology and the group’s perceived need to consolidate its grip on power. The group’s leaders generally appear to believe that, as the military victors, they need not compromise. They seem inclined to blame the country’s economic woes on Western donors, whom they regard as inflexible and bearing grudges, even if it is clear that their own policies and actions, many of which are anathema to European values, are the chief factor obstructing the resumption of non-humanitarian aid. Nevertheless, the EU should continue to test through engagement whether renewed aid with conditionality could bring worthwhile changes, all the while sticking to its five-part framework. It should also keep reminding the Taliban government of its own commitments, such as its statements that the suspension of girls’ secondary education is only temporary.

Lastly, the EU member states should prepare for large numbers of Afghans potentially fleeing the country. Even if humanitarian aid can stave off the worst in the approaching winter, the prospect of repeated humanitarian crises and possibly renewed violence in Afghanistan means that Afghans will continue to seek to migrate abroad. Many will probably head for Pakistan and Iran, the countries next door, where millions of refugees already reside. So far, the EU has suggested it will fund neighbouring countries to host Afghan refugees. But Afghanistan’s neighbours are baulking at accepting new arrivals. Moreover, past attempts to increase the reception capacity of other countries have not prevented large numbers of Afghans from attempting the risky journey to Europe. The EU and its member states should accordingly prepare – politically and operationally – to welcome large numbers of Afghans themselves.

An Opportunity for the EU to Help Steer through Reform in Burundi

After years of strained ties, the European Union (EU) and Burundi again are on speaking terms. The country’s president, Evariste Ndayishimiye, in power since June 2020, started talks with Brussels in February that could eventually lead the EU to resume direct budgetary support for Burundi. In 2016, due to concerns about Burundian government abuses, the EU invoked the suspension provisions in Article 96 of the Cotonou Agreement – its partnership pact with various African, Caribbean and Pacific states – as the basis for cutting that support amid the violent turmoil following former President Pierre Nkurunziza’s contested 2015 election bid. At roughly the same time, Brussels also sanctioned several Burundian officials for their repressive practices and their role in stoking the country’s political crisis. But President Ndayishimiye has sought to put relations between Burundi and its donors on a better footing. By loosening restrictions on civil society and taking a hard line against government corruption, he has tried to allay fears that he will govern like his late predecessor, Nkurunziza, while leaving the door open for dialogue.

Brussels can take heart that several rounds of negotiations with Gitega, Burundi’s official seat of government, have yielded a general Burundian commitment to embark on human rights and good governance reforms. The EU should not open the floodgates of aid money, however, until it can agree with Burundian authorities on more precise benchmarks for these reforms, in light of continued, widespread and destabilising abuses. In the past months, and notwithstanding President Ndayishimiye’s willingness to rein in repression, the intelligence services have cracked down harder on government opponents. The Imbonerakure, the youth militia of the ruling Conseil national pour la défense de la démocratie – Forces pour la défense de la démocratie (CNDD-FDD), which is dominated by the majority Hutu ethnic group, also continues to harass civilians and target dissenters. Certain members of the minority Tutsi ethnic group are at particular risk. Though Ndayishimiye may be open to addressing alleged abuses, ruling-party hardliners could press him to resist reforms that might loosen the party’s grip on power.

For Brussels to steer Burundi toward reform, it will need to adopt a consistent negotiating position with Gitega, and make sure it has the ability to monitor the latter’s adherence to the agreements it makes. Two obstacles could derail those efforts. First, EU diplomats themselves appear to hold different views as to how hard they should push for reform. Secondly, the pending conclusion of multilateral observer and monitoring missions, partly due to Ndayishimiye’s charm offensive, means that the EU will no longer have important sources of information about Burundi’s performance in meeting its commitments. Perhaps most importantly, the UN Commission of Inquiry on Burundi is likely to wind down its multi-year efforts after it reports to the UN Human Rights Council, which rounds off its 48th session on 8 October.

In negotiations with Burundi, the EU and its member states should thus:

  • Propose precise benchmarks concerning respect for human rights and political freedoms that they expect Gitega to meet before Brussels again provides budgetary support. These should include a plan for the Burundian authorities to rein in the Imbonerakure’s abuses and hold to account those of its members responsible for grave human rights abuses.
     
  • Ensure that the authorities’ compliance with any agreement to which Burundi’s government commits is monitored. In the event the UN Human Rights Council creates a new special rapporteur position to take the place of the Commission of Inquiry, which is likely to be disbanded, Brussels should provide the support needed to make it a meaningful oversight mechanism. In the event that the Council does not create this new position when it votes on 7 or 8 October, Brussels should as a fallback strengthen its own monitoring capacity. Brussels should also press Burundian authorities to cooperate with whatever monitoring mechanism it is relying on.
     
  • Maintain a clear, fixed negotiating position based on the precise benchmarks and monitoring mechanism being sought and avoid sending mixed messages to the Burundian authorities as regards EU expectations.

Challenges for Reform

Despite President Ndayishimiye’s attempts to convince international actors that he is serious about reform, the ruling party’s machinery of repression is still firmly in place. According to Human Rights Watch and the UN Commission of Inquiry, the Imbonerakure and intelligence services continue to violate human rights, mainly by targeting opposition members, young Tutsi and members of the army’s old guard, also mostly Tutsi, whom the CNDD-FDD sees as security threats.

The authorities often use the youth militia to supplement or replace the security forces, particularly in rural areas, giving them free rein to terrorise the population. The militia, which Ndayishimiye oversaw when he was CNDD-FDD secretary general, is known for shaking down, torturing, abducting, sexually abusing women and killing opposition members and ordinary citizens alike. Its members conduct night patrols and house visits to demand funds for CNDD-FDD coffers or personal gain. They also prevent the opposition from organising, by disrupting meetings and vandalising offices. While Ndayishimiye has taken some steps to reel in the Imbonerakure, for example by directing its members to stop extorting financial contributions from the population, he has achieved mixed results at best. The intelligence services, meanwhile, have stepped up abductions and arrests of people considered government opponents, often using internal and cross-border security incidents as cover for round-ups.

Any attempt by Ndayishimiye to roll back these practices is likely, however, to meet resistance from top generals in the CNDD-FDD, which started its life as a rebel outfit but has held power since 2005, when it transformed itself into a political party. Several top party and military figures, including many who enriched themselves during former President Nkurunziza’s fifteen years in power, are deeply suspicious of Ndayishimiye’s tentative rapprochement with the EU and baulk at the notion of conditions attached to renewed budgetary aid. The president will also likely take flak from hardliners who were Nkurunziza allies, such as Prime Minister Alain-Guillaume Bunyoni and Interior Minister Gervais Ndirakobuca, who is under EU sanctions for his role in the 2015 political crisis. Both of these powerful party chiefs supported Nkurunziza’s preferred candidate, Pascal Nyabenda, in the 2020 presidential election. Having appointed them to top posts, Ndayishimiye nevertheless faces a struggle to retain their loyalty.

Ndayishimiye’s engagement with Western, regional and other diplomats, meanwhile, has contributed to their support for a drawdown of multilateral oversight bodies tasked with reporting on Burundi, making it hard to establish whether change is genuine and sustainable. In December 2020, the UN Security Council removed Burundi from its agenda, noting improved security in the country and acknowledging Ndayishimiye’s reform efforts. The African Union Human Rights Observers and Military Experts Mission and the Office of the UN Secretary-General’s Special Envoy in Bujumbura, both established to monitor the situation in the country and find a way to end the violence, closed in May 2021.

The UN Commission of Inquiry is the only internationally mandated body still active in the country monitoring human rights abuses and the risk of further conflict. But the UN Human Rights Council will likely not renew its mandate, and it remains to be seen whether there is sufficient Council support for replacing it with another oversight mechanism. This matter will be resolved on 7 or 8 October when the Council votes on its Burundi resolution, which includes an EU proposal to create a new mandate for a special rapporteur who could take over some of the Commission of Inquiry’s monitoring functions.

What the EU Can Do

It is good news that Burundi and the EU are back in regular contact. Diplomats tell Crisis Group that the Burundian authorities have become significantly more forthcoming since President Ndayishimiye assumed office. Burundian officials show a clear appetite for dialogue, and the reasons why are readily apparent. The country needs financial support. Its economy is shattered following the 2015 political crisis and years of dysfunctional government. It never fully compensated for the loss of the EU as its biggest donor by turning to less traditional partners, such as China, Russia and Turkey, who offered only limited assistance. Even some CNDD-FDD hardliners may thus be inclined to continue negotiation.

This situation presents an opportunity for the EU, which should use negotiations to encourage the Burundian authorities to make reforms that can help bolster long-term stability and avoid the return to armed violence. Moving forward, the EU should focus on three priorities to ensure it can steer Burundi toward meaningful reform.

The EU should propose clear benchmarks on human rights that Burundi needs to meet if it is to receive renewed budgetary support from Brussels.

First, the EU should propose clear benchmarks on human rights that Burundi needs to meet if it is to receive renewed budgetary support from Brussels. The roadmap of reforms prepared by the Burundian authorities is an important first step, but it is not sufficient. A copy reviewed by Crisis Group details steps the government should take to adopt policies and strengthen institutions but makes no reference to the Imbonerakure. Nor does it define what authorities should actually do to curb abuses by the youth militia and intelligence services.

The EU should push for benchmarks that are consistent with the concerns expressed in the 2016 European Council decision to suspend aid in the first place, focusing in particular on setting out further commitments to corral abuses by the Imbonerakure, the main tool of CNDD-FDD’s repression, including by holding accountable those responsible for egregious abuses. Brussels should also draw upon the latest UN Commission of Inquiry reports, using the rights violations and other abuses documented as its reference points for the situation that Gitega must remedy. Benchmarks should also reflect the expectation that Burundi will cooperate with human rights monitoring mechanisms backed by Brussels.

Secondly, in the event that the UN Human Rights Council disbands the UN Commission of Inquiry and – as contemplated by the draft resolution on the calendar for 7 or 8 October – replaces it with a special rapporteur on Burundi, the EU and its member states should put their efforts behind making this reporting mechanism meaningful. The EU, which drafted the resolution that would provide the special rapporteur with his or her mandate, should also allocate sufficient resources to finance the work of local non-governmental organisations on which previous reporting mechanisms have relied heavily for information. In the event there are not enough votes for the special rapporteur position on 8 October, a fallback would be for the EU to strengthen its own capacity to monitor the authorities’ compliance with any agreement to which Burundi’s government commits.

Finally, when entering negotiations, EU officials should present a united front. At present, some EU delegates seem keen to turn the page and reach political normalisation with Burundi sooner rather than later. But other officials in Brussels appear convinced that Burundi requires meaningful reforms if it is to avoid further protracted crises, and thus are prepared for lengthy negotiations to see that Gitega adopts the best possible practices. Moreover, in order to revoke the suspension of financial assistance under Article 96, member states in the EU Council will need to adopt a legal act that requires unanimity, which may take time, particularly in the event of enduring concerns about Burundi’s progress.

The EU’s internal dissonance has distorted perceptions of the EU position in Burundian circles and could complicate talks going forward. Indeed, in June, after a meeting between Ndaysihimiye and the EU delegation’s head, the Burundian authorities wrongly announced on the presidency’s official Twitter account that Article 96 had been revoked. National and regional media reported this statement as fact, undermining the public’s understanding of the negotiations. Going forward, it will be important for Brussels to run a tight ship, with a coordinated position and messaging discipline, if it is to achieve its important goals in the negotiations.

Iran: Push to Revive the Nuclear Deal, but Prepare for Worse Outcomes

The fate of the Joint Comprehensive Plan of Action (JCPOA), the 2015 deal placing limitations on Iran’s nuclear program in exchange for sanctions relief, looms large in the country’s relations with Europe. The three European parties to the accord – European Union (EU) member states France and Germany, as well as the UK – have helped keep it alive, if not exactly thriving, since the U.S. unilaterally withdrew in 2018 and Iran subsequently began breaching its own obligations. Since April, with the U.S. wishing to rejoin the pact, the EU has coordinated six rounds of indirect talks between Tehran and Washington through the three European parties plus Russia and China (the other two JCPOA parties). The negotiations yielded considerable progress toward Washington and Tehran resuming mutual compliance with the JCPOA, but they stalled in mid-June as Iran held an election and inaugurated a new president. The urgency of compromise is growing as Iran’s nuclear program continues to expand and become less transparent with Iran limiting UN inspectors’ access to nuclear sites, potentially rendering a return to the existing agreement meaningless. Should the JCPOA collapse, the knock-on effects could hinder nascent efforts at de-escalating tensions in the Gulf and the wider Middle East.

The EU and its member states should:

  • Support the JCPOA’s full restoration, including through proactive steps aimed at bringing Iran meaningful sanctions relief.
     
  • Prepare contingency plans for the eventuality that JCPOA talks break down, including parameters for an interim arrangement to freeze mutual escalation, as well as a potential shift to “better-for-better” negotiations in which both sides gain benefits that go beyond the original agreement’s terms.
     
  • Encourage efforts at regional dialogue, particularly between Iran and Gulf Arab states.
     
  • Engage with Iranian authorities on Afghanistan, notably on areas of common interest, including helping refugees and interdicting narcotics.
     
  • Explore opportunities for strengthening maritime security in the Gulf, including through military-to-military hotlines.

The Nuclear Deal: Heading for Revival or Ruin?

No issue on Iran’s foreign policy agenda is more consequential than the JCPOA, which has steadily unravelled since the Trump administration pulled out of it in 2018 and faces deeply uncertain prospects of restoration. Although the Biden administration and the Iranian government agree in principle on the need to revive the accord, progress has been halting. Beginning in early April, negotiators convened for six rounds of talks in Vienna, tackling the specifics of what the U.S. would offer in terms of sanctions relief, what Iran would do to reverse its breaches and in what order the parties would take these steps. Though significant gaps remained, a text was emerging when the sixth round of talks concluded on 20 June.

The U.S. sanctions architecture ... remains substantially in place, with deleterious consequences for ordinary Iranians, especially women.

Since then, however, Iran, which had a presidential transition in August that completed a conservative takeover of all centres of elected and unelected power, has moved slowly to resume negotiations. Iranian officials indicate they plan to return to the table in the near future, but have not offered an exact timeframe. In the meantime, Iran has continued to expand its nuclear activity while limiting verification and monitoring by the International Atomic Energy Agency (IAEA). The U.S. sanctions architecture set up under President Donald Trump also remains substantially in place, with deleterious consequences for ordinary Iranians, especially women, who have seen their gains in employment, advances to senior management positions and promotions to leadership roles in multiple sectors reversed by the economic downturn. Exacerbated by the impact of the COVID-19 pandemic, these pressures have also reduced women’s capacity to pursue legal reforms and protections. The impasse in negotiations is concerning, particularly as Iran’s advances in nuclear capability risk making the JCPOA’s restoration ineffective as a non-proliferation arrangement within a matter of weeks or, at best, months.

If and when the parties resume talks, there are three scenarios for how Tehran might approach them. At one end of the spectrum, it may continue constructive deliberations based on the progress made in the previous six rounds; at the other, it may push for an altogether new negotiating paradigm that jettisons the JCPOA as a frame of reference. In between, and for now this scenario is most likely, it may enter the fresh talks with maximalist demands that could deepen the present impasse.

The JCPOA standoff occurs against the backdrop of a mixed bag of regional developments of significance to Tehran, as well as to its friends and adversaries. The most positive recent news is that Iraqi mediation has facilitated three confirmed rounds of talks between Iran and Saudi Arabia, a positive development that could help ease frictions between the long-time rivals. But success is far from assured, especially if relations between Washington and Tehran grow increasingly adversarial and reinforce a zero-sum contest in the region. As for more concerning developments, tensions between Iran and Israel are running high on several fronts, with tit-for-tat attacks, including covert operations against Iranian nuclear facilities and maritime intrigue that could rapidly escalate. In Afghanistan, the return of Taliban rule raises major strategic concerns for Iran, even as Tehran cautiously comes to terms with a government led by men who were once its bitter foes but with whom it has built better, if still uneasy, relations over the past decade. The UN refugee agency has warned that as many as half a million people could leave Afghanistan for neighbouring countries by the end of 2021, including an estimated 150,000 to Iran.

Brokering between Rivals

Europe has a clear interest in seeing the JCPOA restored.

Wishing to avoid another destabilising crisis in the Middle East, Europe has a clear interest in seeing the JCPOA restored. But while the two central protagonists in such an effort are the U.S. and Iran, whose respective sanctions policy and nuclear program are the core issues that must be addressed, the EU and its member states are not mere bystanders. European actors can contribute to diplomacy in two important ways.

The first will be relevant in the event of a revived agreement. In this scenario, the EU should move swiftly to put in place measures to give Tehran an economic shot in the arm, including through EU lending institutions. Exploring avenues for such institutions to work with Iran could facilitate project financing and private-sector engagement.

In addition, the EU and member states can support the deal’s long-term viability by shielding European trade with Iran from the risk that the U.S. again pulls out of the deal and reimposes unilateral economic sanctions. The impact of the Trump administration’s “maximum pressure” strategy on Iran-EU trade was and remains substantial. Such trade dropped in value from around €20 billion per year after the JCPOA went into effect to just €5 billion in 2019 and 2020, thus nullifying much of the economic relief Tehran had expected in return for its JCPOA compliance. The dropoff in trade exposed the limits of efforts to retain private-sector interest in Iran, including through the Instrument of Support of Trade Exchanges to facilitate commerce notwithstanding the Trump administration’s reimposition of economic sanctions, but it should not dissuade the EU from preparing further initiatives aimed at insulating legitimate Iran-EU commerce from a future U.S. withdrawal. Brussels could, for example, put in place a new and upgraded blocking statute (a law that shields EU companies from U.S. sanctions by prohibiting compliance as a legal matter) linked to the anti-coercion instrument that the EU plans to establish as part of its new trade strategy.

The second contribution that the EU and member states could make, particularly in the absence of direct U.S.-Iran talks, is to ready options for the parties in the event that JCPOA negotiations continue to sputter or break down altogether. For example, the Europeans could propose an interim agreement in which Tehran suspends some of its most proliferation-sensitive activities (eg, uranium enrichment above 3.67 per cent, advanced centrifuge work or uranium metal production) in return for limited relief from sanctions on oil sales and/or access to frozen assets. This temporary deal might head off an escalatory spiral and buy time for a more comprehensive understanding. Such a JCPOA-minus arrangement could be a way station toward a JCPOA-plus pact. That sort of deal, in turn, would put more substantial sanctions relief on the table in return for longer-term nuclear restrictions than Iran agreed to in the 2015 deal as well as more rigorous monitoring. By expanding the original agreement into a better-for-better framework, Western powers would secure stronger non-proliferation terms while Iran would reap larger economic benefits.

Beyond the JCPOA, the EU and member states can also help bolster diplomacy among the six Gulf Cooperation Council states.

Beyond the JCPOA, the EU and member states can also help bolster diplomacy among the six Gulf Cooperation Council states, Iran and Iraq in locally led, internationally backed dialogue. European support can be particularly useful in facilitating discussions about certain areas of mutual concern to the parties, including public health and water scarcity. While the recent conference in Baghdad, in which most of Iraq’s neighbours, including Iran, participated along with France, was a step in the right direction, an inclusive and focused sub-regional dialogue among states on both sides of the Gulf has a better chance of achieving regional de-escalation by opening regular channels of communication between officials of similar rank, brief and expertise.

The EU and member states should also work with Iran to develop a common approach to the humanitarian crisis in Afghanistan. The inclusion of Iran in the group of states the EU seeks to work with to address the spillover of the Afghanistan crisis, along with other neighbouring countries, is a positive step in this regard. Still, given the prospect of increased numbers of refugees crossing into Iran as they flee Taliban rule in the coming months, and with Iran still struggling to contend with the COVID-19 pandemic, Tehran will need all the help it can get from the EU and member states.

Finally, the EU should seek to prevent further deaths like those of a UK and a Romanian national in a July drone attack upon the MT Mercer Street tanker off Oman’s coast, which the EU, U.S. and G7 have all determined bore Iranian fingerprints. The nine European states participating in the European-Led Maritime Awareness in the Strait of Hormuz could increase coordination or merge with other international efforts, including the International Maritime Security Construct, a parallel naval operation established in 2019 with U.S. and UK participation alongside six other members, to make key shipping routes safer. If the participating states are transparent about their intentions, Tehran need not see these measures as yet another way to exert pressure on Iran. Still, as a precaution, the European and other Western states should supplement the maritime security efforts with structured military-to-military communication with the Iranian side, including through a hotline that might be created to reduce the risk of miscalculation or misunderstanding that could lead to confrontation.

Helping Stabilise the New Status Quo in Nagorno-Karabakh

Almost a year after a Russian-brokered ceasefire ended the 2020 war in Nagorno-Karabakh, Azerbaijan and Armenia remain at loggerheads. With Armenian forces withdrawn, Russian peacekeepers now patrol the part of Nagorno-Karabakh that remains outside Azerbaijani control, but they are operating without a detailed mandate and risk being stretched too thin. Meantime, Baku and Yerevan have not begun to talk about resolving post-war tensions, much less wrestle with the political status of the breakaway region, over which Azerbaijan and Armenia fought a war in 1992-1994. The Organization for Security and Co-operation in Europe (OSCE) Minsk Group, charged with managing the peace process, stands ready to help, but Baku has been recalcitrant, saying that after the 2020 war that format is no longer relevant.

The situation thus remains unstable, with soldiers fortifying positions along the new front lines that separate Azerbaijani troops from local forces under the control of Nagorno-Karabakh’s de facto authorities. Tensions are also running high along the new, undemarcated sections of the border between Azerbaijan and Armenia, where opposing forces regularly exchange fire, resulting in casualties. Meanwhile, politicians on all sides trade barbs addressed both to their own constituencies and to one another.

This status quo affords international actors little space for engaging the conflict parties. Nonetheless, the European Union (EU) should keep facilitating the communication necessary to dampen tensions, as it has been doing since combat ended. It should also devise incentives that could, at some point, help bring real progress. To this end, it will need to work with Moscow, which has peacekeepers on the ground and the most leverage over the conflict parties.

The EU and its member states should:

  • Press Baku and Yerevan to begin talks to address post-war issues, including demarcation of the new borders between Armenia and the regions reclaimed by Azerbaijan in the 2020 war and other measures to stabilise the situation on the ground.
     
  • Urge the sides to enable aid to reach people in Nagorno-Karabakh who need it, even if resolution of the region’s long-term status remains elusive.
     
  • Work with Russia, France and the U.S. to keep possibilities open for the OSCE Minsk Group’s return to a mediating role, and continue shuttle diplomacy to mitigate tensions and resolve immediate problems.
     
  • Explore the extension of development assistance to uncontested border areas, beginning with a comprehensive needs assessment. Based on that assessment, be prepared to support separate projects in Armenia and Azerbaijan, cross-border cooperation on non-political issues, or both.

Continued Tensions

Six weeks of fighting from 27 September to 9 November 2020 took over 7,000 lives in and around the disputed region of Nagorno-Karabakh – an ethnic Armenian-majority enclave in Azerbaijan that declared its independence in 1991 and has been at the centre of tension and conflict between Yerevan and Baku. The 2020 hostilities fundamentally changed the situation on the ground. Azerbaijan regained control of a key town, Shusha, along with some of Nagorno-Karabakh’s mountainous areas and most of seven adjacent territories that Armenian troops had seized in the 1990s. Two weeks after the Moscow-brokered ceasefire came into effect on 9 November, Armenia withdrew its soldiers from the remaining adjacent territories, leaving them in Azerbaijan’s hands. Russian peacekeepers deployed to the parts of Nagorno-Karabakh that remained outside Azerbaijan’s control and along the road corridor that connects the region to Armenia through Lachin, the main town in one of the adjacent territories returned to Baku.

While the 9 November ceasefire ended the fighting, it did not bring a stable peace or resolve the longstanding questions about Nagorno-Karabakh’s political status.

While the 9 November ceasefire ended the fighting, it did not bring a stable peace or resolve the longstanding questions about Nagorno-Karabakh’s political status that underlie regional instability. Before the ink had dried on the ceasefire statement, Azerbaijani and local forces under the direction of the de facto Nagorno-Karabakh defence ministry began building new barracks and digging trenches along their new, much longer front line. The peacekeepers Moscow has deployed have kept things fairly quiet in the spots where they are stationed. But in places where there are no Russian forces, including along some sections of the Azerbaijani-Armenian state border, troops regularly exchange fire, leaving casualties on both sides.

The area between Armenia’s Gegharkunik region and the neighbouring Kelbajar district, now regained by Azerbaijan, has been the most volatile. In May 2021, as the snows began to melt, Azerbaijani soldiers established new observation posts in the mountains overlooking the new, but as yet undemarcated, border between the two regions. Armenia accused the Azerbaijanis of invading its territory and deployed its own soldiers forward. In late July, clashes culminated in a six-hour battle, with the sides using small arms, machine guns and grenades. While the bullets that strayed into nearby villages did not kill any civilians, the fighting left seven soldiers dead and eight wounded before calls from the Russian general staff to counterparts in Baku and Yerevan brought it to a halt. The casualty count from this and other clashes subsequent to the 9 November ceasefire is ten dead and twelve wounded.

More fighting seems likely if Azerbaijan and Armenia do not demarcate a border that takes into account changes in territorial control following the 2020 hostilities. But talks on this and other issues require a go-ahead from political leaders in both countries, and that approval has thus far not come. Baku and Yerevan are also impeding the delivery of humanitarian aid by each insisting that access arrangements must mirror their respective visions for the region’s political status. Armenia wants aid to flow both through its territory and Azerbaijan’s, while Azerbaijan insists on treating the territory as under its sovereignty and fully controlling access. Both governments refuse to budge, fearing that acquiescing in these matters would prejudice the eventual resolution of the territory’s status. This inflexibility when it comes to issues that touch in any way on the region’s status not only has humanitarian implications but creates risks for civil society actors on the two sides, who may be painted as traitors for wishing to engage one another and to tone down the increasingly antagonistic rhetoric in both countries.

Relations are so strained that the very framework for negotiations is now in limbo. For over 25 years, the OSCE Minsk Group co-chairs (Russia, the U.S. and France) have mediated between Azerbaijan and Armenia. But in the aftermath of the 2020 war, Azerbaijani President Ilham Aliyev declared the Nagorno-Karabakh conflict “resolved” and the OSCE Minsk Group process created to mediate it was therefore obsolete. Russia, the U.S. and France disagreed and convened the first meeting of the Armenian and Azerbaijani foreign ministers since the war under the auspices of the OSCE Minsk Group on the sidelines of the UN General Assembly on 24 September. Nevertheless, it remains to be seen whether they will be able to sway Azerbaijan to rejoin talks.

The two sides’ failure to talk about borders or Nagorno-Karabakh has forced Russian, U.S. and European diplomats to engage in painstaking shuttle diplomacy, by telephone and in person, to make incremental progress on basic humanitarian issues like sharing information about the location of landmines and detainee exchanges.

Meanwhile, the renewed fighting has imperilled plans for broader regional cooperation, in particular the reopening of transport and commercial links between Azerbaijan and Armenia promised in the 9 November ceasefire deal. Such cooperation is the one thing that Azerbaijani and Armenian leaders have tentatively begun discussing since the 2020 war, participating in Russia-led talks on the subject. But even this dialogue was derailed for some months following the recent clashes. After three months of no meetings, representatives from Russia, Armenia and Azerbaijan met in August to discuss transport and communications – but further fighting could stall progress once more.

Engagement with Purpose

The goal for the EU, its member states, Russia and the U.S. is to coax Baku and Yerevan to the negotiating table to discuss immediate post-war issues such as border demarcation and other measures to stabilise the situation on the ground, with a view to the potential launch of talks to normalise relations among the conflict parties. Pending such talks, however, they must do what they can to help defuse what remains a dangerous situation.

Brussels and its member states should persevere in the careful shuttle diplomacy [with Armenia and Azerbaijan] they have already undertaken.

To both ends, Brussels and its member states should persevere in the careful shuttle diplomacy they have already undertaken. For all the inherent challenges, the EU is well placed to play this role. For years, the institution’s engagement in Nagorno-Karabakh negotiations was limited because it was not a formal part of the OSCE Minsk Group. Today, Baku’s rejection of that process renders EU involvement crucial. Brussels’ direct channels with Baku and Yerevan have already helped, for example, make possible a June exchange of fifteen Armenian detainees for maps of Armenian-laid mines in the territories Azerbaijan regained in the war.

But EU engagement does more than fill gaps left by Baku’s rejection of the OSCE Minsk Group. EU diplomacy with Baku and Yerevan can also help define what role, if any, the OSCE Minsk Group might have in future discussions, whether concerning borders, Nagorno-Karabakh’s political status or humanitarian issues. The EU special representative for the South Caucasus is particularly well placed, and indeed mandated, to continue this work.

Given Moscow’s many roles in this conflict, including as mediator and peacekeeper, the EU will be required to work closely with Russia. Fortunately, and in sharp contrast to the many regions where European and Russian interests clash, Russia is amenable to collaboration with Western states when it comes to Nagorno-Karabakh. While it has taken the undisputed lead in setting the post-war agenda for Armenia and Azerbaijan, and is the only state with peacekeepers on the ground, it has also consistently reached out to the other OSCE Minsk Group co-chair countries, the U.S. and France, sharing information and coordinating calls and meetings. Paris and Moscow discuss Nagorno-Karabakh directly at the highest levels. In August, Russia appointed a new representative to the OSCE Minsk Group, Ambassador Igor Khovayev, who has sought to re-energise the format by travelling to the region to meet with and urge both sides to return to negotiations. He will likely welcome the EU’s help in doing so – and perhaps also in nudging Armenia and Azerbaijan to agree to a clear mandate for Moscow’s peacekeepers.

The EU should also seek to work with Russia to facilitate border demarcation. Moscow has tried to press Baku and Yerevan to begin talks on the subject, and Brussels can help define incentives to bring them to the table. In June, foreign ministers from Romania, Austria and Lithuania visited the South Caucasus to discuss confidence-building and border issues with Armenian and Azerbaijani leaders. The EU has followed up with offers of assistance. In addition to expertise on border management gleaned in the Balkans and between member states, the EU can offer to help mediate and provide technical support for the increasingly urgent challenge of water sharing across the new borders and lines of separation and other critical environmental and climate matters.

Then there is aid. The EU is already a substantial supporter of post-war rehabilitation efforts. Brussels allocated €7 million during the war to support direct humanitarian aid. In the spring of 2021, it promised €10 million more, to assist with post-conflict needs, including demining. Baku and Yerevan would welcome more help, but there are complications.

Azerbaijan would like more support to demine and rebuild in the seven regions it regained in the war, so that those displaced from those regions in the 1990s (and their families) can return. Per recent EU pledges, it will likely get more help with demining. But the EU prefers to offer development support in the form of loans, which Baku has long rejected, preferring grants.

Moreover, Brussels is leery of granting such support to these territories absent two things. One is a better understanding of what Baku plans for both reconstruction and resettlement of the previously displaced in earlier phases of the conflict. The second is a clear path to assist the nearly one third of Nagorno-Karabakh’s ethnic Armenian population displaced from territory now controlled by Azerbaijan as a result of the mid-2020 fighting, many of whom still lack sustainable housing. This last matter requires Azerbaijani-Armenian agreement on rules for international organisations’ access to the conflict zone. The impasse shows no sign of ending, but Brussels can and should keep the topic on its agenda with both capitals.

There are also things the EU can do right away, even as Baku and Yerevan remain unwilling to talk about most items. In July 2021, Brussels announced an ambitious multi-year assistance program in the EU’s eastern partnership countries, including Armenia and Azerbaijan. The EU’s support for Armenia includes potential financing of a road cutting deeper through Armenia’s mountainous territory and bypassing the existing route crisscrossing the border with Azerbaijan that has proven problematic. In September, Azerbaijani police established a new checkpoint on that main transit road, which is used by Iranian truckers shipping goods to Armenia and other parts of the Black Sea region.

Additionally, around €80 million in EU funding is allocated for investment in the economic development of the southern border region of Armenia, which not only suffered in the 2020 war, but now hosts both people displaced from Nagorno-Karabakh and new military positions that put civilian settlements at risk. The EU could consider expanding these development programs along the uncontested parts of the border between Azerbaijan and Armenia. Brussels would have to work out with Armenia what additional programs might be needed. It would also have come to terms with Baku both on what the EU is to offer Azerbaijan and how to resolve the problems of grants vs. loans and access to territories on its side of the line. But unlike activities in Nagorno-Karabakh, border region assistance raises no questions of status. For starters, the EU could offer a comprehensive needs assessment mission in the border regions. Based on this beginning, it could support separate projects in Armenia and Azerbaijan, cross-border cooperation on non-political issues, or both.

Nicaragua: Dealing with the Dangers of a One-Sided Poll

An unrelenting crackdown on the political opposition by the Nicaraguan government has turned November’s elections into a potential flashpoint and spurred a sharp deterioration in relations between President Daniel Ortega and other Latin American nations, the U.S. and the European Union (EU). At the start of 2021, almost three years after security forces met mass protests with violence – over 300 people, most of them demonstrators, died in the unrest – Ortega appeared to have consolidated his hold on power, in spite of the pandemic, and reaffirmed his political supremacy over a weak and fragmented opposition. Even so, the government has proven unwilling to take the risk of confronting an electoral challenge, opting instead for the iron fist. In recent months, state repression in Nicaragua has reached levels unseen in Latin America since the region’s dictatorships waned in the 1980s, with the government arresting at least 37 high-level opponents, including seven presidential hopefuls, and compelling many others to flee into exile. The government has also proscribed the parties on whose ticket the opposition candidates would have run.

These draconian steps have brought Nicaragua back into the international spotlight, and on to the EU’s radar, but as of yet outside powers have not mounted a concerted response capable of swaying Managua. Nor are they likely to do so. To date, neither punitive measures from Western governments nor the more diplomatic approaches of left-leaning Latin American states like Mexico and Argentina have made inroads with Ortega, who has reacted furiously to what he perceives as interference. As election day draws nearer, it seems increasingly likely that Ortega will stroll to victory in a one-sided election, creating the conditions for further instability, humanitarian crisis and emigration, and setting a dangerous precedent for a region seeing increasing movement toward greater authoritarianism.

Against this backdrop, the EU has called on Ortega to halt his autocratic drift and imposed individual sanctions on eight of his allies, bringing the total of sanctioned persons since 2018 to fourteen. The Nicaraguan government has pushed back hard. Member states who have been vocal in their criticism of Ortega have been condemned publicly by Nicaraguan officials or received private threats that Managua will expel their ambassadors. The European Parliament has called on the EU to increase pressure on Ortega, including by suspending Nicaragua from its association agreement with Central America, which establishes a free trade area with the region.

With the aim of mitigating the risks of repression, deepening instability, diplomatic isolation and a migrant exodus from Nicaragua, the EU and its member states should design a sequenced approach comprising the following steps:

  • Continue to press the government to stop arresting opponents, release political prisoners and meet certain basic electoral standards, such as allowing opposition campaigning, civil society observation of the polls and free press coverage of the process, with a view to rebuilding relations with European countries. The EU should also liaise with governments that still have communication channels open with Ortega in an effort to drive this message home to him.
     
  • Work with the U.S., Canada and other regional governments on a coordinated response at the bilateral and multilateral levels in the event of a non-credible election, potentially including expanded targeted sanctions and disciplinary measures by the Organization of American States (OAS) so long as these are calibrated to mitigate their humanitarian impact.
     
  • In coordination with the U.S., Canada and other regional governments, draw up a roadmap including clear conditions for lifting sanctions and restoring better working relations with Ortega’s government. The roadmap should include the resumption of dialogue with opposition forces on humanitarian and electoral issues, as well as a general framework for future political coexistence.
     
  • Step up humanitarian aid and technical support to neighbouring countries facing a rise in arrivals of Nicaraguan migrants and refugees, as well as support to humanitarian agencies liaising with migration authorities, shelters and processing systems in those countries.

An End to Electoral Competition

Since mid-2019, when the second round of talks between the Ortega government and the Civic Alliance, an opposition umbrella organisation, ended, the tug of war between the government and its political opposition has been frozen. But the balance of power between the sides has progressively shifted. Despite their initially egregious mishandling of COVID-19, the ruling couple of President Ortega and his wife, Vice President Rosario Murillo, managed to reestablish a firm grip on the country by late 2020. Infighting between the two main opposition blocs, spearheaded by the Civic Alliance and the Blue and White National Unity, hindered efforts to create a cohesive political front that could stand up to the government. Meanwhile, most foreign governments engaged with Nicaragua became absorbed in their own pandemic-related woes.

Notwithstanding its already strong hand, the government has sought to quash anyone who might pose an electoral challenge to its rule. Mindful of the 1990 election, in which the Sandinistas led by Ortega suffered a surprise defeat at the tail end of a decade-long civil war, the government has rolled out an unabashed strategy of coercion and intimidation. Between late 2020 and early 2021, the Sandinista-controlled National Assembly took a number of steps to entrench the current government’s power. It passed laws relating to foreign agents, cybercrime and treason that expanded its powers. It also extended the permissible pre-trial arrest period from 48 hours to 90 days. As 2021 proceeded, it appointed new loyalist magistrates to the Supreme Electoral Council.

At first, many observers assessed that the new legislation would be little more than a latent threat. But, starting in late May, judicial authorities proceeded to order the detention of 37 high-level opposition figures, including seven possible presidential candidates, on conspiracy and treason charges, while the Supreme Electoral Council stripped three parties of their legal accreditation and the National Assembly did the same to 45 civil society organisations, including six international NGOs. The government has also targeted the free press: press associations have privately reported attacks on at least 98 reporters in the first semester, including 35 women who were also victims of gender-based threats and harassment. The arrested men and women were held incommunicado for months, until authorities finally allowed brief family visits in late August. The state held their hearings in secret and sometimes in the absence of their lawyers, and relatives have alleged that prisoners are facing physical and psychological mistreatment – particularly women, according to the UN and Inter-American human rights organisations.

With politicians, business leaders, dissident Sandinistas and journalists among those detained, opposition groups [in Nicaragua] find themselves in complete disarray.

With politicians, business leaders, dissident Sandinistas and journalists among those detained, opposition groups find themselves in complete disarray. Most of their leaders are either in jail or in exile, while the remaining five candidates set to run against Ortega in November come from parties that most opposition forces consider to be government collaborators. The few opposition leaders who remain in Nicaragua have fallen silent and seem unable to agree on whether to boycott the polls or to ask supporters to spoil their ballots.

The Consequences of a Rigged Election

Ortega’s authoritarian moves risk stirring up the grievances at the heart of the country’s unresolved crisis. Enjoying only roughly half the popular support he enjoyed before 2018 (surveys show his ratings are stable at around one third of the population) and having damaged, perhaps irreparably, relations with the private sector and the Catholic Church after the crackdown on mass protests, Ortega is operating in an increasingly hostile environment. Three consecutive years of recession have piled ever more hardship on a population that was already among the poorest in Latin America.

The recent wave of arrests has fuelled discontent among Ortega’s adversaries and may raise the prospect of episodic political violence, which tends to increase in election years. Urnas Abiertas, a civil society organisation that monitors elections, recorded 1,375 acts of political violence, most of them harassment, between 1 October 2020 and 15 August 2021. Even though mass protests are unlikely to resurface in the short term given the highly repressive climate, state violence and economic despair could rekindle the “protest spirit”, in the words of a Nicaraguan security expert. An additional uncertainty is that Ortega, who turns 76 in November, has reportedly been suffering health problems. His sudden demise could spark unrest as potential successors jockey for power, given that he has no heir apparent with strong support in Sandinista ranks.

The combination of economic stress and political persecution is also likely to prompt yet more Nicaraguans to flee.

The combination of economic stress and political persecution is also likely to prompt yet more Nicaraguans to flee. After three years in which Nicaragua’s GDP contracted by more than 3 per cent, the World Bank predicted the country to be the third worst economic performer in the Western Hemisphere in 2021, behind Venezuela and Haiti, though its recent update is more optimistic. A rigged election would only isolate the government further, driving away more private investment (which has already nosedived in recent years) and hindering Managua’s access to multilateral loans, as the U.S., the EU and other stakeholders are likely to vote against their disbursement.

Already, these conditions plus stepped-up repression are having an effect: more than 16,000 Nicaraguans booked hearings to file asylum requests in Costa Rica between June and August, marking the start of a second wave of arrivals, according to a UN official. But with Costa Rica’s migration system overwhelmed since 2018 with a backlog of 89,000 unresolved asylum requests, Nicaraguans are increasingly looking to other destinations, above all the U.S. The number of Nicaraguans apprehended at the U.S. southern border has dramatically increased in 2021, from 575 in January to 13,391 in July, when it topped the number of Salvadorans for the first time in decades. The Nicaraguan surge toward the U.S. border is set to hit a record for the 2021 fiscal year, with 43,327 apprehensions so far, many of them people travelling in family units.

Events in Nicaragua could well resonate beyond the its borders. Other political leaders in Central America may feel emboldened to follow in Ortega’s footsteps, particularly if the U.S. prioritises cooperation on migration control and counter-narcotics and imposes few costs for democratic backsliding. In El Salvador, President Nayib Bukele has already been concentrating power and chipping away at judicial independence; among other things, the Salvadoran Constitutional Court – newly packed with the president’s political allies – has overturned a constitutional prohibition on presidents running for immediate re-election at the end of their term. In Honduras, voters will also head to the polls within weeks of the Nicaraguan elections to choose a successor to President Juan Orlando Hernández, who has been cited several times as a co-conspirator in drug trafficking trials in New York courtrooms – including that involving his brother, sentenced to life imprisonment in March. (Hernández has denied all accusations of involvement in the drug trade.) Although he is not eligible to stand for election again and has publicly ruled out doing so, Honduran analysts fear that Hernández may meddle in presidential politics, either to impose his preferred candidate, Nasry Asfura, or to keep a grip on state and judicial institutions.

The Way Forward: A Sequenced, Coordinated Approach

Against this backdrop, the EU and its member states, along with other outside actors with influence in Managua, should step up their engagement in Nicaragua. While there is little if anything outside actors can do to change Ortega’s immediate electoral strategy, looking away is not a good option, either. A failure to criticise increasing repression or impose costs for election fixing would send a dangerous signal, and increase the risk that other Latin American leaders resort to destabilising anti-democratic tactics in their own countries. Although the targeted sanctions and critical messaging that the EU has deployed to date have prompted a bristling response from Managua, Brussels should not back down. It should, however, choreograph its next steps carefully.

First, Brussels and EU member states should work with the U.S. and regional partners to prioritise the demands that they will be making in advance of the elections. They should continue to call on Ortega to halt the crackdown against political dissent; to release political prisoners; and to allow national and foreign journalists and civil society organisations to monitor the election. They should work through their few remaining diplomatic channels and with parties to which Managua might be receptive (including the Vatican and friendly regional governments such as Bolivia and Peru) to persuade Ortega that his best interests lie in meeting minimum electoral standards in order to restore working relations with foreign partners and financial institutions, and to warn that without improvements in these areas, they will respond robustly – including with additional targeted sanctions – to credible accounts of election rigging. Imposing additional sanctions before the polls, on the other hand, runs the risk of fuelling Ortega’s ire and attacks on the opposition rather than taming them. Once the vote has been cast and he has achieved his goals, the president’s calculations are likely to be different and pressure tools of greater use.

The EU and its partners ... should calibrate the measures they take [to sanction Nicaragua] to mitigate the humanitarian impact they might have.

Meanwhile, the EU should work with the U.S. and others to prepare a firm and coordinated response to the election if (as is likely) it does not meet minimum international standards. That response should include the expansion of the existing sanctions framework to include targeted measures against individuals, businesses and institutions that contributed significantly to the election-related crackdown. Brussels and member states should additionally explore with the Organization of American States the possible activation of procedures for Nicaragua’s temporary suspension on the grounds of Ortega’s interruption of the country’s democratic order. But the EU and its partners, including the U.S., should calibrate the measures they take to mitigate the humanitarian impact they might have, particularly in light of Nicaragua’s ailing economy. In particular, they should refrain from ejecting Managua from free trade agreements such as the EU association agreement and the Central America Free Trade Agreement (CAFTA), which would severely affect the country’s export-oriented economy and could spur migrants to leave at an even greater pace. Because further migration seems inevitable, donors should also scale up financial and technical assistance – such as legal counselling to migrants – and humanitarian aid to neighbouring countries’ shelters and civil society organisations, as well as to multilateral agencies that support migration authorities and Nicaraguan migrants and refugees.

At the same time, the EU, U.S. and OAS countries should draw up a roadmap for how Ortega can revitalise declining diplomatic relations, including eventual reintegration in the Inter-American system (should Nicaragua be suspended) and the lifting of sanctions. The milestones that they set forth should draw on the requests made by the EU upon adopting its sanctions framework in October 2019, namely: government compliance with the agreements struck with the Civic Alliance in March 2019, including respect for civil and political rights and release of political prisoners; access to Nicaragua for international human rights bodies; and resumption of talks with the opposition. These objectives should be coordinated with other concerned states, and all should make clear that their focus is on persuading Managua to end the crackdown and restart talks with the opposition.

As for future negotiations between the government and opposition, these should aim not only to address the country’s humanitarian emergency and achieve electoral reforms, but also to forge an agreement on political coexistence that could enable the two sides to begin overcoming their enmity. The sides could decide to create a truth commission with a broad mandate going beyond the events of 2018, for instance; such a body would have to ensure fair representation from both the government and opposition as well as international experts among its members. Signs of progress in negotiations facilitated by Norway in Mexico to heal deep rifts between the Venezuelan government and opposition may help lure Ortega into contemplating a similar process.