Abstract
The relationship between organized crime and political order in the contemporary developing world and in transition countries is still little understood. Building on the seminal accounts of political order by Weber, Fukuyama and North, Wallis and Weingast, this article introduces the concept of crimilegality. Crimilegal orders are neither ‘modern’ nor ‘non-modern’ but combine and integrate elements of both types of order. They are characterized by the blurring of the social boundaries between legality and illegality and/or criminality. What is formally illegal and/or criminal may be deemed legitimate, while what is formally legal may be considered to be illegitimate. The resulting crimilegal governance arrangements, which involve coordination between a range of state and non-state actors, serve (illicit) economic interests but are also reflective of broader particularistic concerns about guaranteeing political stability and the de facto exercise of political authority, as well as the physical security of those in power and, somewhat paradoxically, their judicial impunity. In such orders the state’s monopoly on the use of force tends to be replaced by oligopolies of coercion and high levels of violence are not uncommon, though they are also not standard. Using the current Colombian peace process as an example, this article argues that due to eminently political reasons violently contending state and non-state actors, both with notorious criminal pedigrees, can reach agreement on ending armed conflict and decide to cooperate to recover the primacy of legality. However, whether this type of bargaining game can ultimately lead to the positive ‘legalization’ of a crimilegal order, such as the one in Colombia, remains an open question.
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Notes
For a recent contribution on Nigeria see, for instance, Schultze-Kraft [6].
This has not been helped by the fact that over the years different disciplines and strands of political and social research have picked up the topic of organized crime in rather ad hoc fashion and without much reflection on its conceptual and methodological underpinnings.
Von Lampe identifies three types of organized criminal activities: “(a) market-based crimes involving the provision of illegal goods […] and services […] to willing customers, (b) predatory crimes such as theft, robbery, and fraud characterized by offender-victim relations, and (c) what could be termed “control-oriented” or “regulatory” or “governance” crimes involving the setting and enforcing of rules of conduct and the settling of disputes in the absence of effective government regulation and, in turn, the taxation of illegal profit-making activities” ([9]: 31).
Examples for these three different types of criminal structures would be a burglary gang (entrepreneurial), an outlaw motorcycle gang (associational) and the Cosa Nostra family (quasi-governmental) ([9]: 100).
While the study of organized crime originated in the United States and was subsequently adopted in Europe, over the past two decades we have witnessed the emergence of a growing literature on organized crime in developing countries and so-called ‘fragile and conflict-affected states’. For Latin America see, for instance, Garay-Salamanca and Salcedo-Albarán [15] and López [16]; for Central Asia Kupatadze [17]; and for Sub-Saharan Africa Ellis and Shaw [18] and Shaw [19]. For an overview of the debate about the nexus between development and organized crime see Schultze-Kraft [20].
See Naylor [43] for a biting critique of this perspective.
Distinguishing between illegality and criminality is of some analytical importance. Not everything that is considered illegal is also criminal because “not all illegal acts are violations of criminal law and can thus be classified as crimes” ([45]: 6). In other words, while all criminal activities and structures are by definition illegal, it is not the case that all illegal acts are also criminal acts.
They differ in as much as Fukuyama adopts Weber’s ideas rather unreservedly, while North et al. forge their arguments in critical dialogue with them.
Following in the footsteps of his late teacher, Samuel P. Huntington, Fukuyama is unwavering in his normative treatment of the “practical and moral necessity for all societies” of “a political system resting on a balance among state, law and accountability”. According to the author, “development of these three sets of institutions becomes a universal requirement for all human societies over time” ([3]:37).
For a critical treatment of the discourse and international donor practise on good governance see [56].
A crimilegal approach to governance is famously reflected, for instance, in the words of Colombian ex-President Julio César Turbay (1978–82) who while in office stated that “corruption [in Colombia] has to be reduced to its right proportions” ([59]:18), not eliminated. Crimilegal orders can also morph into outright criminal ones. This is what Nuhu Ribadu, a former Nigerian anti-corruption chief, referred to when remarking that the Nigerian state is “not even corruption. It is organised crime” (The Economist, 28 April 2007:56, cited in [60]:650).
This echoes the analysis of Mayntz, who points out that “in social contexts of contested legality, where “the law”, whether because of its source or its content, is not considered legitimate, the legal/illegal boundary is only weakly drawn, and what is formally illegal may become accepted everyday practice” ([45]: 5).
The negotiations between the Uribe administration and the AUC leadership were anything but a peace process. According to ‘Ernesto Baez’, a former paramilitary commander, the talks in Santafe de Ralito (2004–2006) on the paramilitaries’ disarmament, demobilization and reintegration were a bargaining game between “disloyal friends” [77]. In effect, in May 2008 the government decided to extradite almost the whole paramilitary top brass to the United States, where they stood trial and were sentenced for drug-trafficking offenses.
Such situations could be classified as ‘softer’ forms of crimilegality, as opposed to the ‘hard’ ones in which the criminal element is of significantly more ‘weight’ than the legal one.
The parties’ public announcement of the imminent start of formal talks came in the wake of a first exchange of messages in September/October 2010, more than a year of covert preparations, including four meetings of government and rebel delegations in different locations in Colombia and Venezuela, and six months of so-called “exploratory talks” in Havana. This first covert round of talks resulted in the signing of the “General accord on the termination of the conflict and the building of stable and lasting peace” laying out the guiding principles of the subsequent negotiations and a six-point agenda. The government and FARC went to great lengths to keep the initial stages of the process secret and minimize the risk of leaks, both to the Colombian and international publics and elements of the state, particularly the military. Henry Acosta, an economist and development expert based in the city of Cali who, according to his own account, established a close connection with FARC commander ‘Pablo Catatumbo’ in the early 2000s and likewise is well respected in influential circles in the capital Bogota, served as a facilitator and messenger during the preparations of the talks [80,80,82].
For the sake of accuracy, it should be noted that Uribe attempted to establish contact with FARC, as he did with Colombia’s second leftwing insurgency, the National Liberation Army (ELN, in Spanish), to gauge the possibility of negotiations. These initiatives did not prosper, however, not least because the president failed to make up his mind as to whether he would be prepared to start political talks with FARC or whether he should persist in his administration’s endeavour to force the rebels into military surrender. [80]; author’s interview, former government negotiator, Cali, 27 November 2015. Shortly before the end of Uribe’s second term, his government made a last-ditch attempt to reach out to FARC, which a military heavily besieged Cano reportedly turned down as “little serious and all-too-hasty” (translation from the Spanish original by the author) ([81]:14).
Author’s interview, senior officer of the Colombian army, Bogotá, 29 November 2016.
It should be noted that FARC and observers close to the rebels do not tire to point out that Marulanda died of old age in 2008 and was not killed by government forces, as the official propaganda at the time would have it (see, for instance, [81]). Yet it is likely that both factors played a role in the historic rebel leader’s demise.
Author’s interview, former member of a Colombian insurgent group, Bogotá, 11 November 2015.
Author’s interview, former government negotiator, Cali, 27 November 2015.
Author’s interview, former member of a Colombian insurgent group, Cali, 4 March 2016.
One of the mutually-agreed guiding principles of the process was that there would not be a bilateral ceasefire prior to the commencement and during the negotiations.
Author’s interview, former member of a Colombian insurgent group, Bogotá, 11 November 2015.
Author’s interview, former member of the Colombian National Police, Bogotá, 12 November 2015.
The two parties had agreed that the signing of the framework agreement would be made public a week later but were pushed to come out in a hurry on 27 August because the accord had been leaked to two broadcasting companies, Colombian RCN and Venezuelan Telesur [87]
Alongside Cuba, the governments of Norway, Venezuela and Chile played only a limited facilitating role in the peace talks not intervening in any of the substance discussed by the parties.
Another agenda item of significance in this respect is the one on transitional justice contained in the chapter on victims in the peace accord. For reasons of space, this item cannot be discussed in the present article.
Enrique Santos is the older brother of President Santos. He was called upon by the president to participate in the preparatory and exploratory talks in the period 2011–2012.
This is not very difficult to see and, guarding the differences, also applies to peace processes in other parts of the world, such as in Liberia, Sierra Leone and Guinea-Bissau in the 1990s and early 2000s. In relation to these West African countries, Jeremy Levitt points out that ‘the Accra, Lomé and Abuja accords did not offer any legal basis or authority to legitimize their power-sharing provisions, let alone the accords themselves; rather, they prescribed extralegal rules and processes for sharing power that abrogated constitutionally based superior rules’ ([91]: 86). In Colombia, for the government FARC was an illegal armed group that was seeking to destroy the existing constitutional order and was deeply implicated in serious and heinous crimes, such as drug trafficking and kidnapping for ransom. In 2010 (and even today), it would have been politically next to impossible for the Santos administration to provide a legal base for negotiations with FARC prior to presenting proof of the existence of a convincing plan for ending the armed conflict through negotiations without running the risk of being seriously harmed by political and social but also criminal forces and interests – both inside and outside of the state - virulently opposed to any rapprochement with the rebels. In a mirror image, for FARC ‘unilateral’ government legislation on issues related to ending the conflict would not have been legitimate because it would have come without the explicit approval of the insurgents and would not have been the outcome of a political negotiation with them. In effect, FARC took an open distance, for instance, to the legislation on transitional justice that was passed in mid-2012, i.e., prior to the commencement of the formal stage of the peace talks [81].
Here it is noteworthy that President Santos and his peacemakers – and obviously also FARC - did not trust the military with anything, including flying government delegates to remote negotiation sites and airlifting rebel commanders out of the jungle. Instead they relied on a select group of police officers loyal to former Director of the National Police General Oscar Naranjo, who later would form part of the official government delegation in Havana, and the International Committee of the Red Cross (ICRC) to provide air and land transport services to government and FARC delegates [81, 87]. Government chief negotiator Sergio Jaramillo is also reported to never having used a computer equipped with an online facility due to concerns that it might be hacked [92].
The plebiscite on the final peace accord took place on 2 October 2016, when the peace deal was narrowly voted down by a minority of the Colombian electorate that bothered to turn out that day. In early December, the Santos administration submitted an amended version of the final agreement to Congress, where it was approved by a large majority of congresspersons.
Author’s interview, Colombian expert-informant, Bogotá, 30 November 2015.
This despite the fact that the government has all along been perfectly aware of the alliances that certain FARC units have been building with drug-trafficking outfits, such as Autodefensas Gaitanistas or Águilas Negras. Author’s interview, Colombian expert-informant, Bogotá, 30 November 2015.
Author’s interview, Colombian expert-informant, Bogotá, 30 November 2015.
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Acknowledgements
I wish to thank Klaus von Lampe, Hans-Jörg Albrecht, Pablo Galain, Wolf Grabendorff, Julia Gorricho, Rodrigo Reyero, Fernando Chinchilla, Marcelo Moriconi and two anonymous reviewers for their useful comments on earlier versions of this article. At Icesi David Alzate helped with the Colombia research. The Max Planck Gesellschaft and the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau kindly provided financial, material and intellectual support, as did Icesi’s Centro de Estudios Interdisciplinarios, Jurídicos, Sociales y Humanistas (CIES). As always, I am solely responsible for any faults in interpretation and errors of fact the reader might encounter.
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Schultze-Kraft, M. Making peace in seas of crime: crimilegal order and armed conflict termination in Colombia. Crime Law Soc Change 69, 475–496 (2018). https://doi.org/10.1007/s10611-017-9759-2
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DOI: https://doi.org/10.1007/s10611-017-9759-2