The roadmap that the negotiators must follow in coming months according to the established negotiation protocol is clear. The negotiators will begin motions to set up a truth commission to attribute responsibility for crimes committed during the FARC insurgency. They will also have to reach an agreement on victims' rights, which could result in the government paying compensation to victims of the war. Most important, the two sides will have to reach an agreement on the subject of amnesty for militant leaders.
For the FARC's leaders, the issue of amnesty is crucial, because it will allow them to demobilize their militant units without fear of subsequent incarceration or extradition. But the negotiators' impasse over amnesty has delayed the signing of a final deal to end the 51-year insurgency by over a year. FARC negotiators have maintained that the group's leaders must not face imprisonment for outstanding crimes once the FARC demobilizes. Over the next several months, the government and FARC negotiators will have to make progress in discussing amnesty or face the risk of dragging the talks on for too long and endangering a final agreement.
The amnesty debate centers on penalties — criminal or otherwise — to be incurred after demobilization. FARC leaders believe their demobilization should occur without the risk of being arrested and extradited to the United States for numerous outstanding criminal charges. Consequently, they insist that they must face no risk of going to jail (or possibly even being penalized by transitional justice mechanisms) once they sign an agreement. However, though the transitional courts proposed in the negotiations do not carry the risk of criminal convictions — they will place unspecified non-criminal burdens on specific members of the FARC and the Colombian military — not all FARC members, or even leaders, are likely to be able to access those courts. Evidence collected for the courts will be given in FARC statements to the truth commission, which will only function for three years, inherently limiting who can access the courts and who cannot. The government intends to prioritize prosecutions of individual FARC members via statutory law, likely contributing to the FARC's resistance. Therefore, the struggle over which members get to face a transitional court, which must face a criminal court and whether it is worth demobilizing at all is likely behind the current stalemate in the Havana talks.
The Colombian government could conceivably sign and legally approve a potentially unpopular peace agreement with hefty amnesty concessions to the FARC leaders, but such an agreement may not survive a public referendum. If public approval for the FARC talks continues to decline, the government could choose not to put a final deal up to a vote. Such a course would help finalize a deal but would be an unpopular move among the Colombian public and, in turn, could limit demobilized militants' ability to participate in national politics outside of confined political enclaves.
At this point, the risks that accompany Bogota's available choices probably will influence the government's final decision on amnesty for the FARC. The government likely cannot place strict requirements on the FARC (such as refusing to even negotiate the issue of jail time), whose leaders have demonstrated a strong unity in their demands and in their actions to pressure the government at the negotiating table. If the government remains entirely intransigent at this stage, the negotiations could collapse. The government is likely to give some concessions to the militants, though exactly who will benefit from being able to access transitional courts is likely still up for debate in Havana.
Over the coming months, the FARC's top leaders and lower-level field commanders will continue to discuss a final agreement with the government. The talks will be aided by a four-month truce proposed by the militants that began July 20 and a de-escalation of attacks against the FARC promised by Colombian President Juan Manuel Santos. Progress on victims' rights would indicate that the amnesty discussions have likely moved forward and would increase the likelihood of a final peace agreement occurring. However, the level of public approval for a negotiated settlement with the FARC will ultimately determine whether a final deal goes to a referendum or whether the deal remains subject to agreements between the militants and the Colombian government.