Is it valid for Colombia to demand that Cuba turn over ELN negotiators?

Even at the risk of being labeled a terrorist or a lawyer for the ELN, I believe that the demand by the Duque administration that Cuba capture and turn over the ELN negotiators is not only a political error, but furthermore, is legally untenable.

I start by reiterating that the attack by the ELN on the police academy, la Escuela General Santander, was both atrocious and a grave violation of International Humanitarian Law (IHL), which the ELN claims to respect.

Counter to what the guerrilla group has argued in their communiqué, it is not true that cadets of a police or military school are legitimate military targets, as they have not yet participated directly in hostilities, but rather, are students. They could one day enter the Armed Forces and become combatants, but until then, they remain only students.

What’s more, if there were any doubts about the combative status of the cadets, the ELN should have applied IHL rules, as stated in Article 50 of Protocol I of the Geneva Accords: “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” These accords refer to international conflicts, but the majority of their norms and principles are also applicable to internal conflicts, as reiterated in ruling C-255 of 1995 by the Colombian Constitutional Court.

I don’t, however, want to enter the debate of whether or not this attack violated international humanitarian law; even if the attack conformed to IHL, I still consider it unjustifiable not only for the hurt that it caused, but also, as my colleague Currea-Lugo expressed so well, because with this attack the ELN shattered the peace process. It was entirely foreseeable that after an attack of such magnitude, the Duque administration would terminate negotiations, which had already been slowed by a lack of real will towards progress by both sides.

Yet even if the decision by Duque to break off negotiations was expected, I remain uncertain that it was the best option. His petition of Cuba to capture and deliver the ELN negotiators is both a political and legal error.

The principal point is that presidents (be it Duque today, Santos before, or Uribe in his time) act internationally as representatives of the State. Because of this, their actions create international obligations for the Colombian State as a whole.

Duque cannot, then, say that he is not internationally bound by the actions of previous governments, and as such, must in principle comply with the protocol that the Santos government agreed to for the negotiations in Havana—an agreement made not only before the ELN, but before all of the guarantor countries, including Cuba, Norway, Chile, Venezuela, and Brazil. According to this protocol, in the case of a rupture of negotiations, the government must give a reasonable time and certain guarantees to the ELN negotiators so that they might return to Colombia. After which, of course, the Colombian State can begin to combat them.

Such guarantees may anger some Colombians, particularly after an attack as appalling as that against the Escuela General Santander. Many may be tempted by the guile of the Duque government to demand that Cuba capture the ELN negotiators, as it would be a blow to the guerrilla group.

However, such guarantees are typical of peace negotiations. Without them a peace process would never be possible, and no country would agree to act as a third-party guarantor or provide a negotiation site because the State could, in any moment, unilaterally end negotiations and demand the capture of the negotiators, which is effectively what President Duque is doing.

In the past, Colombian governments that carried out peace processes agreed to and respected such protocols, as Juanita Goebertus has indicated. Pastrana did so in Caguán, and Alvaro Uribe in the peace process that he began with the ELN, which had several rounds of negotiations in Havana and Caracas. When negotiations were broken off, a protocol for the return of ELN commanders to Colombia was applied.

The Duque administration is using three legal arguments to defend its petition to capture the ELN leaders: i) that he is not breaking his word or any protocol because he never authorized the negotiations in Havana with the ELN, to the point that he never formally sent negotiators; that ii) these protocols are from the previous government and he is not bound to them—an argument for which Duque’s government, via the High Commissioner for Peace Miguel Ceballos, has invoked verdict C-379 of 2016 of the Constitutional Court, which, according to the government, supports this thesis; and in any case, iii) even if the protocol existed, it would not apply because the ELN is a terrorist group and certain UN Security Council resolutions, particularly Resolution 1373 of 2001, would oblige Cuba to turn over the negotiators so as not to be guilty of harboring terrorists. This thesis and these arguments, however, are not legally sound for the following reasons:

First, because, as I already suggested, the protocols established internationally by the Santos government for negotiations with the ELN, although not a treaty, represent an international obligation for the Colombian State that must be upheld in good faith.

This obligation includes future governments, who must carry out this agreement in good faith, unless they expressly decide to change the agreement’s terms via procedures established by international law. What would happen to international relations if a State said they were not going to abide by a previous international agreement because it was acquired by an earlier government? It would be the end of international law and of any possibility of peaceful international relations.

For this very reason, enshrined in Article 2 of the United Nations Charter—introduced by the Colombian delegation in the drafting of the document—is the obligation of States to comply in good faith with their international obligations.

Second, because it is not true that the Duque government did not recognize the negotiation table in Havana with the ELN.

It is true that Duque never sent delegates, as he believed that the conversations could not continue if the ELN did not first take certain steps, such as renouncing kidnapping and releasing all of those who had been kidnapped, which are demands also shared by many of us who have supported the peace process. This does not, however, mean that Duque had renounced the conversations. Not only did he maintain them (albeit without sending negotiators), but he upheld the suspension of the ELN representatives’ arrest warrants, which would not have made sense had there not been a peace process.

Furthermore, Ceballos, the Commissioner of Peace, as highlighted by Juanita Goebertus, had various telephone conversations with the ELN negotiators and was in constant contact with the Cuban ambassador, one of the State’s guarantors for the process. Such acts demonstrate an acceptance before the international community, and especially before the guarantor countries, that the peace process existed and could be revived, despite being at a standstill.

The government of Iván Duque, then, cannot now hold that there was no peace process with the ELN, when it had taken unequivocal action that demonstrated that the process existed.

Third, for these precise reasons the demand by the Duque administration that Cuba capture and turn over the ELN negotiators violates the “estoppel” doctrine of international law, which necessitates the principles of good faith and reciprocal trust.

Without delving too deeply into the technical complexities, this doctrine prohibits a person (in private law) or a State (in international law) from asserting something that is counter to their previous actions, when those previous actions have created a reasonable expectation of conduct among third-parties. It follows, then, that if a State has—through their actions, affirmations, or silence—led others to believe that their position on a certain matter is A, they cannot later change to support position B simply because it is now more beneficial to them, as this would be violating the good faith and reciprocal trust of other States.

In this case, the Colombian State, due as much to the actions of Santos’ government as to those of Duque’s own government, has given guarantor States, especially Cuba, reasonable cause to believe that there existed a protocol that would be respected should negotiations be terminated. These States agreed to be guarantors under this understanding, which derived from unequivocal actions by the Colombian state in that direction.

The Colombian State cannot now argue that the protocol does not exist and that the negotiators must be captured and delivered, as it would go against their previous positions that had generated legitimate trust with guarantor states.

Fourth, the conduct of the Duque administration could constitute a grave violation of IHL, being considered as an act of perfidy, or even a war crime.

Perfidy, according to IHL (See Article 37 of Protocol I), is when one side of an armed conflict captures, injures, or kills adversaries by giving them reason to believe they will enjoy some legal or factual protection, which is later betrayed, thus violating good faith. One classic example of perfidy is when one side feigns an effort to negotiate, and then proceeds to kill or capture their enemy.

In this case, the Colombian State offered protection to the ELN representatives for negotiations (in the case of a rupture in the conversations, a protocol would apply that would assure their return to Colombia), but now seeks to disregard this protection to proceed with their capture. Is this not perfidy? If it isn’t, it surely still looks like it.

Given these four elements, which indicate that Colombia is internationally bound to respect the protocol signed by the Santos government and the ELN before guarantor States of the peace process, the two counter-arguments provided by the Duque administration are invalid.

It is not valid to invoke the ruling of C-379 of 2016, because in no part does that document analyze the value of such protocols, but instead studies other aspects of peace processes. It is true that the ruling indicates that peace policies are the essential responsibility of the government, which is understood to mean that later governments can modify such policy. But in no way does the ruling declare that protocols signed between a government and an insurgent group before guarantor States to regulate the termination of a negotiation have no value to subsequent governments.

It is also not relevant to invoke the Security Council resolutions on combating terror or the resolutions that condemned the ELN attack against the Escuela General Santander as an act of terror.

Resolution 1373 of 2011, adopted shortly after the attack on the twin towers, does establish strong obligations for States regarding terrorism. It is also true that the resolution is binding, as it was adopted by the Security Council, thus invoking Chapter VII of the UN Charter. Among these obligations is that States may not give refuge to members of terrorist organizations and that they must jointly collaborate to bring to justice those who commit acts of terror.

It is equally true that the Security Council did condemn the attack by the ELN, classified it as an act of terror, and indicated that its authors must be punished.

However, the crucial point is that Cuba is not harboring the ELN negotiators with the goal of supporting this organization in its armed fight (a case in which one could accuse them of violating Security Council Resolution 1373); rather, Cuba is following a request by the Colombian government that was made and accepted by the Colombian State in order to advance a peace process, and is conforming to several protocols that define how to proceed should those conversations be broken off. Nowhere does the Security Council say that there cannot be temporary guarantees of this kind in order to achieve peace negotiations, including with groups considered to be terrorist organizations, for a simple reason: without these guarantees, peace negotiations would simply be impossible.

As such, it is not true that protocols for cases of ruptured negotiations with a group categorized as terrorist runs counter to resolutions by the Security Council. What’s more, the Security Council supported the entire peace process with the FARC, which included such guarantees.

In summary, I believe that the decision by the Duque administration to demand the delivery of the ELN negotiators is lacking any legal basis.

Beyond the legal discussion, however, the political consequences of this demand are very negative. With this decision, the Colombian State throws away the key to any future peace process, as no guerrilla leader will accept in the future to enter negotiations if they know that in any moment the government could capture them while in the process of negotiating. Likewise, no serious State will ever agree to be a guarantor of later peace processes in Colombia, as they will not want to end up in the same situation in which Colombia has placed Cuba: being asked to host negotiations and guarantee the peace process, with protocols should the negotiations end, and then being accused of complicity in terrorism if they don’t turn over the ELN negotiators, against what was agreed in said protocols.

Furthermore, the humanitarian labors of the armed conflict with the ELN (which may intensify), such as the delivery of kidnap victims, will be seriously compromised. With such a precedent, the guerrilla group will be wary of any guarantee that the Colombian state offers.

Beyond even that, this decision compromises the international credibility of the Colombian State across the board; if, in a matter as crucial as peace, Colombia flagrantly goes back on its word and its international obligations, it is logical that it would be viewed by other countries as an untrustworthy State in any area.

I understand and share the indignation of the majority of Colombians before this criminal attack by the ELN, which makes any negotiation with the guerrilla group incredibly difficult. I can even understand why some citizens might think that if the ELN doesn’t respect international humanitarian law, there is no reason why the Colombian State should respect its commitments to the ELN, including the protocol that guarantees the return of ELN negotiators to Colombia should negotiations fail.

But, ultimately, we cannot accept this logic. It implies the end of the rule of law, which was founded precisely on the idea that States must respect the law—even when faced with those who would disrespect it.