Drug trafficking and the FARC: Siamese twins?

According to the University of Hamburg's Institute of War Studies, the conflict between the FARC and the Colombian State can be classified as prolonged, high-intensity anti-regime warfare. It evolved from localized conflicts in a few geographic locations that reached national scale warfare financed by the FARC's operations in illegal markets (^{AKUF 2018}). The FARC was born as a self-defense group during the period known in Colombian history as La Violencia (1948-58). This non-state organization rapidly transformed into an insurrectional movement that questioned the Colombian economic and political system's nature. Its initial primary objective was to establish a Marxist regime based on socialism to address the injustices and redistribute wealth in Colombia (^{Felter & Renwick, 2017}).

During the FARC's first two decades, the armed conflict's complexity of was relatively low, given that the FARC was not considered a real threat to the Colombian State. During its first years (between 1960 and 1970), the organization was focused on survival. At that time, its armed forces were merely a peasant militia operating in areas where the State's presence was weak or nonexistent, like in the mountains or the Amazon jungles. It should be noted that during this time, the FARC had limited material and logistic resources, which were mainly provided by local supporters, making it a weak, ill-equipped organization with no strategy or military capacity. Moreover, its military personnel were poorly trained and could not contend with the governmental forces in those years (^{UCDP, 2018}).

This situation changed radically after the VII Conference (1982) when the Secretariat approved drug trafficking as the primary financial support for the FARC's strategic plan to improve its military equipment and fight in more front lines. The leaders and combatants effectively subordinated criminal activities to the FARC's political objectives based on the Soviet Communist Party's hyper-pragmatism. Theoretically, it allowed the FARC to make the systematic use of narcotics dealing and, as well as other illegal businesses, to finance a war against the Colombian State without eroding its command unit or troops' ideological commitment to the warfare effort.

However, in practice, the FARC's participation in drug dealing generated some organizational issues, like isolation and dispersion. Internal fractures and divisions arose when the FARC's leaders accused some of its middle-ranking members of being more immersed in illegal activities than political work (^{Boer, Garzón & Bosetti, 2017}). The profits obtained through drug trafficking made the units associated with these illegal markets more reluctant to restrain from using of force or demobilizing their troops in the peace process with the Colombian Government. In other words, the possibility existed that its greed undermined the FARC's identity and objectives, which ^{Makarenko's (2012)}Crime-Insurgency Nexus claims arose from political grievances. However, its motivational structure evolved because of its links with drug trafficking, achieving a motivational convergence, which made that organization able to use criminal and political strategies simultaneously, and in any order.

Conflicts on drug trafficking: State legitimacy and international law

The international legal order, structured by the post Second World War Nomos of the Earth (^{Schmitt, 2003}), is firmly based on land-appropriation as a foundational act of law and political power that comes before its division, as well as its usage for production and consumption (^{Schmitt, 2003}). Nonetheless, based on the appropriation of earth and sea and partially free air space, appropriation is currently in progress in the contemporary international system. In a spatial sense, contemporary international law, as a materialization a system of states' power, is in a transition toward a new nomos. According to ^{Schmitt (2003)}, the new nomos could be structured in three ways: 1) that a single sovereign of the world arises; 2) that the pre-World War II hegemonic balance structure prevails, and; 3) that a set of blocs or Groβraums that could constitute a balance and, then, to give birth a new order to the earth.

Philippe ^{Delmas (1996)} postulates that an international system structured by international law rests in a “juridical utopia.” In other words, the States embark on a progressive reliance on international law to reach solutions to a set of political and security conflicts. In this sense, the author distinguishes two subjacent logics within the international system, the “logic of power,” and the “logic of sense.” The first concept indicates that international law, in its current state, cannot become a political order because it does not propose a principles-based political project to achieve collective security. The latter refers to the legitimacy of a common imaginary to create and develop a political link between the State and society that allows them to be together (^{Delmas, 1996}). In this sense, the State's presence in its territory through the exercise of its public function and employment of its public services is a quintessential factor in preserving its internal sovereignty (^{Delmas, 1996}). However, drug trafficking is one of the major threats to the State's territorial control because the criminal organizations that profit from that illegal activity increase their legitimacy at the State's expense (^{Delmas, 1996}).

This dispute of state territorial control with criminal organizations implies that conflict can escalate to the point that regular armies can be required to control the threat emanated from the criminal organization's violence. Especially when the latter evolve into guerrilla groups, insurrectional movements, or other irregular armies' variants, in this case, the threat to the State becomes more complex. Low-intensity conflict commonly surpasses the strategy, tactics, and technologies usually employed by regular armed forces (^{Van Creveld, 1991}), giving rise to more casualties produced by the prolonged conflict and inherent violence. The latter is frequently used against the civil population when irregular armies prevent the regular armed forces from employing their most destructive weapons (^{Van Creveld, 1991}).

If the conflicts go on for too long or are ended by foreign military intervention, then the risk of civil war increases significantly (^{Gleditsch, Salehyan & Schultz, 2008}). Moreover, an international conflict's likelihood increases dramatically if civil war arises; this is especially menacing for neighboring countries (^{Gleditsch, Salehyan & Schulz, 2008}). International law imperium alone cannot stop this type of violence escalation. It is unable to couple the logic of power, indispensable to ending the conflict, and reach a compromise between the actors to resolve their disputes pacifically, especially in the case of criminal organizations that grow by eroding the legitimacy of the State and putting its very existence into high risk (^{Delmas, 1996}). An international-supported national solution is possible when the intervention is implemented in exact phases of the conflict and is legitimized by the other actors.

Relationship between political crime and related crime: a legal approach

Currently, a precise (national or international) definition of political crime does not exist, and there is no widely recognized international law instrument proposing a firm and specific concept. In this regard, Colombia's Constitutional Court provides the following in ^{sentence C-695}: a) only the legislator may indicate which behaviors will be classified as political crimes, considering the political and historical context of the behaviors, and b) the Court's normative configuration must be guided by reasonability⁵ and equality criteria. In turn, ^{Giraldo & Bustos (2018)} outline the following characteristics of the previously noted criminal definition:

On the other hand, in ^{Sentence C-928 (2005)}, Colombia's Constitutional Court stipulates that a political crime must meet objective and subjective criteria. Objectively, the Court only accepts the crimes stipulated in the Colombian criminal code as political crimes. These are rebellion (Art. 467), sedition (Art. 468), uprising (Art. 469), conspiracy (Art. 471), and seduction, usurpation, and illegal retention of political command (Art. 472). These legal definitions are intended to protect the State's structures and functions. However, sedition includes other political crimes that are not stipulated in the referred code. Moreover, this definition includes crimes that -although initially considered common crimes- following an ulterior legal investigation, were proven to encourage the perpetration of political crimes or those that allow the perpetrator to evade any penal sanction contemplated for these cases. Under this logic, the Colombian penal code classifies political crimes into the following two categories:

In other words, there are political crimes effectively established as such (objective criterion), and common crimes related to political crimes; this last scenario, given the common crimes necessary to consummate a specific political objective (subjective criterion).

According to ^{Sentence C-171 (1993)} of Colombia's Constitutional Court, the difference between these crimes lies in that political crimes receive a more benevolent treatment because the perpetrators seek an altruist end by political and social actions. The perpetrators are also seeking the constitutional regime's protection, and the State is the passive subject in this phenomenon. In the case at hand, the political character of political crimes, and its recognition as such, supports, on the one hand, the legitimacy of armed insurrections looking to overthrow the Colombian Government or its constitutional regime. On the other, it reinforces the idea of seeking a transformation in the current Colombian system to implement a new order, like the one proposed by the FARC. In turn, common crimes are punished more severely because their perpetrators seek to accomplish individual, egotistical objectives by exercising violent actions against the civil population. In drug trafficking, public well-being is the legal asset to protect, and the citizen is the passive subject.

Based on the previous, drug trafficking cannot be considered a political crime per se. The only available option is to subordinate it to the political crime of rebellion concerning this activity's funding. Therefore, the most appropriate category for this crime is relative or concurrent political crime, given that the motivation behind its exercise is the one related to political crime. Thus, a related crime occurs when a link between a common crime and a political crime exists. While, in some cases, the connection between the two latter crimes is direct and clear, in other cases (like drug trafficking), this link is not that clear, giving birth to a gray zone that requires clarification. To determine whether both categories are connected or not, and establish which behaviors can be classified as related crimes, it is important to consider the following criteria defined by ^{Sentence C-577 (2014)} of Colombia's Constitutional Court:

Sentence ^{SP-5200 (2014a)} of Colombia's Supreme Court addressed the definition of related crime as “all those behaviors focused on facilitating, supporting, funding, or hiding the development of a rebellion [...] from which any personal enrichment has taken place.” However, classifying a crime as a related crime does not necessarily make it political; it merely invalidates its legal implications because the related crime was necessary to perpetrate a political crime. Then, the most relevant questions would be, which crimes can be classified as related crimes? Which of these crimes meet the conditions to be classified as related crimes?⁶

Given the high specificity of the criteria to classify a common crime as a related crime, the Court must carefully examine each case, considering the context in which these behaviors took place, and determining the active subject in the related crime (^{Sussman et al., 2015}). Ultimately, the privileges associated with political crimes cannot be arbitrarily applied to behaviors that are not related to their nature. Doing so could cause the Court to incur in granting the perpetrators unfounded preferential treatment.

Drug-trafficking and the principle of related actions as an instrument for peace

Considering what has been explained so far on the connection between drug-trafficking and political crime, we set forth to determine whether judicial treatment is applicable to particular FARC actions during its armed conflict against the Colombian State, based on this connection.

In ^{Sentence CP-117}, the Colombian ^{Supreme Court (2015a)} indicates that drug trafficking could be treated as a related crime, given that the International Penal Court prohibits the application of the principle of the related facts, which, from an international humanitarian law perspective, includes only four penal types: genocide, crimes against humanity, war crimes, and crimes of aggression. However, drug trafficking is excluded from the International Penal Court's jurisdiction. Therefore, it does not appear in this list, allowing its association with political crimes. Although drug trafficking could be classified as an international crime, given its high transnational impact⁷, it certainly cannot be and international law crime because it does not infringe upon humanity or the international community.

With all this in mind, and considering that drug trafficking is not expressly prohibited by international humanitarian law, it could be considered a related crime “at the domestic level, in which the State has total autonomy to define the punishable behaviors that can be the object of a pardon right, either by an open catalog or by annexing it to a political crime applying the principle of related facts” (^{Supreme Court, 2015a}). Therefore, this principle's application to prove a link between drug trafficking and a political crime depends solely on national law. The Colombian State has a wide assessment range concerning the link between these two crime categories, and it does not have any international restrictions whatsoever. In this sense, a nexus between drug-trafficking and the political crime of rebellion by the principle of related facts is possible. Especially if we consider that these crimes, considered serious violations for international humanitarian law, were excluded from Colombia's constitutionality block by the signature of many international agreements, if that were not the case, Colombia would be violating international standards of transitional justice⁸.

However, ^{Traversí & Rivera (2016)} note that the Colombian State's international obligations must also be considered. First, drug trafficking cannot be considered a fiscal or political crime; it cannot even be classified as a politically-motivated crime because Article 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances impedes such a classification. In fact, the Colombian State could disregard this Convention if it considers drug trafficking as a politically-motivated crime. This situation would further complicate determining the existence of the principle of the related facts in this case. However, ^{Sentence T-006} of Colombia's Constitutional Court indicates that the Convention's compliance is relative in the sense that “no section of the Convention may be interpreted to force any legislative, legal, administrative, or any other kind of action that restricts or limits Colombian State's constitutional or its legal system, or forces it to violate any international agreement currently in force in Colombia.”

Because this Sentence is not a part of the Colombian block of constitutionality, the “Constitutional supremacy over all other norms that incorporate the legal system lies on its capacity to define the most basic State structure, institutes the entities by which public authority is exercised, attributes competencies to make rules and to apply them to resolve controversies and disputes in society. And in carrying all of this is what makes possible that same juridical order of State. So, the Constitution is the supreme and ultimate juridical order framework to establish any norm, rule, or decision formulated for any institution subordinated to her” (^{Constitutional Court, 1992}). In other words, if any controversy arises between a binding international obligation and a domestic constitutional disposition, the decision would favor the latter over the former.

Incidentally, there are some reservations on the issue of international juridical cooperation, particularly concerning extradition, which is underlined by the aut dedere aut judicare principle. This principle is referred to in the Colombian Constitutional Court's ^{Sentence CP-117} as follows: “States are obliged to prosecute those responsible at the domestic level or, when not possible, to place them at the disposal of another State. In this situation, the State's obligation is to cooperate with prosecution at an international level, but, once those responsible are captured, the States have the right to choose either national judicial action or extradition.” However, extradition laws and treaties “hardly ever define the concept of political crime, because this is a matter of juridical interpretation and administrative discretion” (^{Travesí & Rivera, 2016}, p.11). In this sense, whether a particular crime has a political nature or not is a decision that the Colombian State has to make.

According to Article 490 of Colombia's Criminal Procedure Code, extradition is inadequate to prosecute political crimes. Indeed, if drug trafficking was considered as a related crime, then extradition orders from the USA against FARC leaders would be invalid. For instance, in September 2015, during the Havana peace process, an extradition request was submitted in Colombia to prosecute the FARC's front line, number ten finance chief, Juan Vicente Carvajal (alias Misael), on drug-trafficking charges. According to the Colombian Supreme Court, Misael collected taxes levied directly from cocaine producers in his areas of influence, which proved the existing connection between drug trafficking and crimes of rebellion (^{El Espectador, 2016}). President Santos refused to hand him in, arguing that “the referred citizen has been condemned on political crimes charges as militant of the FARC [...], which leads the Government to reconsider its earlier decisión about extraditing him.” Santos also indicated that the “constitutional rules that authorize the Government to conduct the Colombian State's international relations and exercise its given discretion under the law on extradition allows it to assess national expediencies and discretionally make any political decision that the Government considers appropriate to achieve the aims stipulated in the constitution.” (^{Valero, 2015})

While it is true that Article 16 of Law 1820 on Amnesty, Pardon, and Special Penal Treatments provides a detailed list of related crimes, it does not include drug trafficking. The Colombian Supreme Court's jurisprudence has extensively addressed the existence of the principle of purpose and the principle of the related facts between drug trafficking⁹ and political crime. As the Court noted in ^{Sentence CP-117}, drug trafficking can be considered related to political crime as long as the crime was perpetrated to finance FARC's rebellion. In ^{Sentence AP501 (2014b)}, the Court states that “Under a strictly logical argument, if all the [FARC] has subversive ideals and it uses drug trafficking as a means to reach its aim, then, it must be concluded that its parts preserve the same interest, given that the parts take advantage from the referred crime to defeat the enemy and accomplish their common purpose.”

Similarly, in ^{Sentence AP2747 (2014c)}, the Supreme Court considers that it is “possible to address any punishable behavior if and only if it was perpetrated under any of the arrangements related to an illegal armed group. That is, from the moment of the perpetrator's demobilization and the perpetrator's assigned role in the organization.” This case law determines that no crime can be excluded from a transitional justice perspective. Its objective is to extend the Sentence and its application to all criminal behaviors by FARC combatants under all the conditions and circumstances indicated by the Court, including the impact of drug trafficking on the FARC's actions. Therefore, the imputation of a political crime, and the ensuing establishment of a related crime, is based on the defendant's motivation to join the FARC and not their role in the organization. However, meeting the penal demands requires the defendant “to be associated with the organization and fully share its ideas, regardless of the functions developed by the defendant.” Taking into account that a militant could be responsible for “performing drug trafficking activities to achieve the aims of its competence [...] so that the militant cannot be deprived of its right to access to the benefits of the transitional process.” (^{Supreme Court, 2014c})

To enforce the principle of the related facts, the Supreme Court's ^{Sentence SP-5200} established the prerequisite that the FARC “had not been organized merely for narcotics traffic or illicit enrichment nor that any of its members have had these aims.” In fact, Articles 10.5 and 11.6 of the Justice and Peace Law “seek to hinder any person or groups exercising drug trafficking as their sole or primary economic activity from the opportunity to access alternative punitive measures or any benefit to enhance the demobilization of armed groups” (^{CEJIL, 2005}). In this regard, it is worth recalling the case of the United Self-Defense Groups of Colombia (AUC; Autodefensas Unidas de Colombia) when, soon after taking office (2002-10), Álvaro Uribe negotiated the demobilization of approximately 36,000 AUC members (^{Miklaucic & Pinzón, 2017}). In this case, the boundary between the political and criminal dimensions was a fundamental factor in making the mediation politically viable. Moreover, the Government emphasized the paramilitaries' political nature to legitimize the peace process.

However, instead of a combatants' demobilization, the dialogues sounded more like the surrender of the Colombian justice to drug trafficking organizations. ^{González-Bustelo (2016}) stated that the armed conflict allowed the Colombian State to approach to the AUC like it would reproach a political actor. The Colombian State eluded two key aspects in the dialogues during this process, 1) the support from the political and economic sectors and the armed forces, and 2) the AUC's hybrid nature and its criminal agenda. Thus, the mediation resulted in a set of concessions that neither approached the AUC's criminal agenda nor severed their ties with legal and criminal actors. Ultimately, only a few victims obtained adequate economic reparation, and most of the AUC units preserved their illegally acquired assets. Furthermore, the Government's demobilization tactic to enable the paramilitaries' legalization provided them a double condition as demobilized combatants and active leaders of criminal groups (^{Gil Ramírez, 2013}).

However, a sustainable peace process requires dismantling the criminal organizations' strategic nodes, namely, their economic, social, and political networks to prevent the paramilitary group's reorganization and illegal activities (^{Villa & Viana, 2012}). The Organization of American States' Mission for Peace Process Support in Colombia expressed its concern regarding the demobilization process, addressing paramilitary groups' reorganization. These groups assumed various illegal markets managed by their predecessors and gave birth to criminal gangs called BACRIM (Bandas criminales). In this regard, ^{Villalobos (2016)} stated that “any pacification process entails the risk of creating a transition from organized to anarchic violence. Thus, producing individuals entirely dedicated to illicit activities as a consequence of paramilitary demobilization was an undesirable but unavoidable consequence.” In any case, it is worth noting that approximately 20% of AUC members relapsed because of a breakdown in the peace process (^{Verdad Abierta, 2015}).

Based on the AUCs experience and to prevent the peace process from being infiltrated by mere drug smugglers, the Colombian Supreme Court has made sure to differentiate the FARC members' motivation to enter the drug trafficking market. Thus, it set the prerequisite to enter the peace process, that the involvement in the narcotics market was not motivated to enrich themselves illegally. With this in mind, the Supreme Court stated in Sentence ^{SP-16258 (2015b)}, concerning FARC members, that the magistrates must guarantee the previously noted criteria “by a strict, rigorous, and detailed analysis of the contexts and means of proof added to any legal proceeding.” Therefore, the JEP revises aspects of these illicit activities, like the amount of drug produced or the infrastructure of the activities, to ensure that the demobilized combatants have, in effect, been trained or enlisted attuned with the insurrectionist struggle.

In summary, we can state that the Colombian Supreme Court's sentences indicate that the principle of the related facts in drug-trafficking cases must be considered directly connected and subordinated to the concept of political crime. Domestic Colombian jurisprudence recognizes a connection between drug trafficking and the armed conflict. The former supporting the latter by financing it entirely or partially. Therefore, based on the principles of purpose, proportionality, and related facts, the Court recognizes drug trafficking as a means and not an end in itself. The Special Jurisdiction for Peace's (JEP; Jurisdicción Especial para la Paz) Amnesty and Pardon Tribunal, and each of its magistrates, must ponder this criterion to determine whether the FARC's members resorted or not to drug-trafficking with a personal or profit-based interest. Regardless, the concrete cases in which it is applied should be used to set judicial precedents to guide dogmatic discussions on deciding future cases.