Should States Negotiate with Non-State Criminal Actors?

Should States Negotiate with Non-State Criminal Actors? Implications for Peace Processes

This analysis discusses the classical differentiation between rebel and non-state criminal actors and the implications of negotiating with them for peace and transitional processes analysis.

As part of its effort to achieve “Total Peace,” which includes aims to negotiate with all violent actors, the Colombian government has decided to engage with a wide range of criminal armed groups that pose a threat to peace in Colombia. Notably, the government is negotiating not only with political rebel groups, such as the Revolutionary Armed Forces of Colombia (FARC) or the National Liberation Army (ELN), but also with organised crime groups, including gangs and cartels that do not claim to pursue political goals. This decision to treat organised crime groups as legitimate interlocutors for official negotiations is highly controversial. Organised crime groups can benefit from such negotiations, as their members may receive reduced penalties in exchange for disarmament and demobilisation. Given the extensive harm that organised crime groups inflict on society and the pervasive criminal violence in post-conflict scenarios, one must question whether it is acceptable for governments with low institutional capacity to offer to negotiate with these groups.

Over the past few decades, Colombian society, along with other countries experiencing internal armed conflicts, has suffered greatly from insecurity, corruption, murder, assault, extortion, and various other crimes routinely committed by organised crime groups. Victims of these crimes may have a legitimate expectation that the state will utilise its full repressive capabilities to bring perpetrators to justice. Consequently, engaging with organised crime through negotiations appears to undermine victims’ claims to justice.

To delve into this debate, I will first analyse the reasons and rationale behind negotiations with criminal actors in contexts of limited institutional capacity compared to negotiations with rebel groups. Then, I will discuss the potential benefits and challenges of such negotiations to finally analyse the implications of this debate for the analysis of peace and transition processes.

Negotiating with Rebel Groups versus Negotiating with Criminal Non-State Actors

One rationale for negotiating solely with political rebels and not with “ordinary” criminals is based on a traditional distinction: Rebels’ actions are motivated by political goals, while criminals’ actions are motivated by personal gain. Rebels are typically aligned with a broader political agenda that seeks to advance the interests of a subset of the population, which can sometimes justify negotiations under specific circumstances (Goodwin, 2001; Kalyvas, 2006). For example, some communist rebel groups have emerged in response to extreme wealth and land ownership inequalities. Their goal of resource redistribution promises to benefit deprived populations and thus enjoys at least a prima facie appearance of legitimacy. In contrast, organised crime groups do not aim to advance any population segment’s interests (Phillips, 2017). Given this important distinction, one must consider why the Colombian government would offer to negotiate with organised crime groups. Beyond the Colombian case, should states with low institutional capacity negotiate with criminal groups in post-conflict scenarios?

For the sake of argument, let us assume that there is indeed a meaningful and clear-cut distinction between political rebels and organised crime groups. While this assumption will be questioned later, it is helpful to retain it initially to appreciate the strength of a principled argument in favour of negotiating with criminal non-state actors. At a principled level, decisions to negotiate with criminals might be justified through a cost-benefit calculus, suggesting that the benefits of negotiations outweigh the benefits of repression. Negotiating with criminals could yield greater aggregate benefits than repression. The idea is that negotiations promote peace to a greater extent than repression, and the claims of the population to be free from further violence outweigh victims’ claims to bring criminals to justice. In other words, the positive outcomes of peace might outweigh the negative consequences of partial impunity.

The assumption that negotiating with criminal groups helps prevent violence receives some empirical support. Historical evidence indicates that state efforts to crack down on organised crime following violent conflicts have often resulted in escalations of violence. For instance, Mexico’s “super tough” policies against drug cartels, often referred to as the “War on Drugs,” have led to increased violence and instability rather than long-term solutions. The militarisation of law enforcement and aggressive tactics have resulted in significant civilian casualties and human rights abuses without substantially curbing the power of the cartels (Shirk, 2010). According to the Mexican Institute for Competitiveness (IEP), although Mexico has seen some recent improvements, the homicide rate is still close to its historical peak, standing at 26.6 deaths per 100,000 people, with over 34,000 victims. This translates to an average of 94 homicides per day in 2021. Compared to international figures, Mexico’s homicide rate remains high, but it is generally in line with other major Latin American countries like Brazil and Colombia (IEP, 2022).

Similarly, the Philippines’ war on drugs, initiated by President Rodrigo Duterte, has resulted in widespread human rights abuses. Extrajudicial killings and the use of excessive force by police have been documented extensively, leading to international condemnation. Despite these harsh measures, drug-related crime persists, and the underlying social and economic issues driving the drug trade remain unaddressed (Human Rights Watch, 2017). Reports from Amnesty International indicate that since 2016, over 12,000 people have been killed in anti-drug operations, demonstrating the severe human toll without significant crime reduction (Amnesty International, 2022).

El Salvador, under President Nayib Bukele, provides another example of an aggressive approach to criminal activity. Bukele’s administration has implemented strict measures against gangs, including mass incarcerations and militarised policing. While these tactics have led to a significant reduction in homicide rates, dropping to 20 per 100,000 in 2022 from over 50 per 100,000 in previous years (World Bank, 2022), they have also raised concerns about human rights abuses and the potential for long-term instability (Human Rights Watch, 2022).

On the other hand, criminal organisations view negotiations with the state as pragmatic opportunities to secure advantages, such as reduced penalties, legal protection, and the potential for political legitimacy. Their willingness to negotiate depends on potential gains, such as avoiding prosecution and maintaining control over territories, particularly in areas where the state’s presence is weak. These groups are concerned about potential losses, which could involve restrictions on their illegal operations, reduced revenue, or internal conflict as members resist demobilization. However, the promise of institutional benefits or amnesty often outweighs these concerns, making negotiations a viable strategy for them to preserve influence and avoid total dismantlement. This has been observed with criminal groups like “La Oficina de Envigado”, which has shown interest in engaging with the state to reduce violence and seek pathways for reintegration in the current negotiations between the Colombian government and non-state criminal actors.

Benefits and Challenges of Negotiating with Non-State Criminal Actors

Even when tough policies have been shown to be ineffective in promoting peace, not everyone agrees that the benefits of achieving greater peace can outweigh the victims’ desire for justice. Critics argue that the benefits of reduced violence are distributed across the entire population, affecting individuals statistically and with a certain probability (Lederman & Loayza, 2002). Some contend that these benefits do not fully compensate victims for the harm they have endured, nor do they address the injustice of perpetrators evading punishment through negotiated deals. Furthermore, criminal actors do not offer a clear path for rebuilding the social fabric and promoting reconciliation.

On a principled level, there is another reason to consider negotiating with criminals, which relates more directly to the interests of victims. Victims have a profound interest in truth, whichcan be advanced through negotiated deals. They deserve to know what exactly happened in the context of various crimes. For example, families of individuals who have been murdered often have a deep and unfulfilled interest in knowing how and where their relatives died and who is responsible for their deaths. Negotiated deals can reveal such information and thereby provide a degree of closure to victims. This advantage is distinct from the broader societal benefits of peace, as it specifically benefits the victims rather than the general population.

However, the strongest reasons in favour of negotiations are more pragmatic. Countries like Colombia have limited institutional capacity to enforce the rule of law across their entire territory. Unlike many industrialised countries, there are large regions of Colombia where the state has limited control. This means that attempting to deliver full justice through uncompromising prosecution is likely to only partially succeed. On the other hand, negotiated deals promise to benefit even those regions where the state lacks control by incentivising negotiations with criminal actors to make the presence of non-state criminal actors visible in these areas.

Moreover, it is extremely difficult to distinguish between politically motivated rebel groups and organised crime groups. As Paul Collier and others have pointed out, rebel groups often engage in criminal activities to fund their operations. Many rebellions are motivated by political goals and economic gains, and rebel groups often engage in activities such as looting, kidnapping for ransom, and illicit trade (Collier, 2000). This rent-seeking behaviour makes them similar to criminal organisations and blurs the line between political rebels and criminal actors. Weinstein (2007) argues that rebel groups often rely on economic resources to sustain their efforts, making their activities indistinguishable from those of criminal organisations. Similarly, Keen (1998) highlights how economic incentives can drive conflicts traditionally seen as politically motivated, further underscoring the economic motivations of these groups. In addition, in states with limited institutional capacity that are unable to ensure equal access to rights and are affected by violent conflict, crime is also influenced by the political dynamics of wealth and land concentration in the hands of elites (Pino & Cardenas, 2016; Vogt, 2018). In such cases, the state is unable to ensure fair redistribution of resources, which exacerbates poverty and contributes to crime.

Furthermore, Mary Kaldor’s concept of “new wars” helps us understand the approach to contemporary conflicts and negotiations. Kaldor suggests that contemporary conflicts involve a mix of war, organised crime, and significant human rights abuses on a global scale. She acknowledges that contemporary conflicts often involve a blend of political and criminal motives (Kaldor, 2013). Additionally, organised crime groups often masquerade as having noble political goals and gain local support by offering benefits. Moreover, there are instances where groups that initially begin as political rebels are infiltrated and corrupted by regular criminal groups.

Of course, the difficulty in distinguishing between rebels and criminal groups does not provide a straightforward reason for states to negotiate with all of these groups. On the contrary, one might argue that it gives states a reason to refrain entirely from such negotiations. However, this seems unfeasible. As long as states are relatively weak, they must choose to negotiate with at least some of the groups that pose a threat to their rule. When it is challenging to differentiate between rebels and other criminal groups, it seems logical to extend negotiation efforts to all such groups.

It is important to note that Colombia’s “Total Peace” strategy and similar efforts in conflict and post-conflict societies come with risks. One such risk is that negotiating with criminals in governments with weak institutional capacity can further undermine public trust in the state’s authority and legitimacy (Cohen, 2021). Even if negotiations do not lead to a loss of trust in the state, they might still be seen as legitimising criminal groups, giving them more confidence and emboldening their activities. Additionally, negotiations may reduce the deterrent effect of criminal law, making criminals more confident in their activities when reduced sentences are possible.

Beyond those potential risks, negotiating with criminal groups presents challenges at both international and local levels within the context of a globalised world. External mediators and peace initiatives often influence these negotiations. International organisations such as the United Nations and the Organization of American States (OAS) play a crucial role in facilitating these negotiations by providing incentives for agreements (Böhmelt, 2011, 2012; Bell, 2024). For example, in Colombia, international organisations have supported the negotiation process with non-state criminal actors by offering dialogue facilitation, legitimacy, and oversight. At the same time, local dynamics are relevant, especially in areas where criminal groups have substantial influence, such as Medellín and Buenaventura in Colombia. Local peace processes aim to reduce immediate violence, while national agreements address broader issues such as reintegration and amnesty. Consequently, criminal groups are more likely to engage in negotiations when external and international mediators offer frameworks that consider their interests, such as economic incentives and power-sharing, while also integrating local needs and perspectives into the process.

Overall, negotiating with non-state criminal actors paints a complex landscape of multiple actors, risks, incentives and challenges in Colombia, and beyond this case, it raises broader questions about these types of negotiations in transitional processes. It may suggest that there is no conclusive reason to endorse such negotiations. However, it is important to observe that the aforementioned risks associated with negotiations are based on theoretical assumptions. We know relatively little about the likelihood of these risks manifesting. Partly, this is because comprehensive negotiations of the kind underway in Colombia are much rarer than the heavy-handed responses adopted in Mexico, El Salvador, the Philippines, and elsewhere. This means there is much less evidence on the risks of “Total Peace” approaches than on the risks of “super tough” policies. Faced with a choice between “super tough” policies that are likely to fail and the uncertainty of the “Total Peace” approach, it seems rational to adopt the latter.

Implications for Peace Processes and Transitions Analysis

Recognising the blurred distinction between non-state and criminal actors in contexts where state institutions have limited institutional capacity highlights the need for analysts of peace processes and transitions to expand their focus to include negotiations with non-state criminal actors. This necessitates a deeper exploration of the political drivers of crime, particularly in settings characterised by significant inequality. Understanding how economic and political disparities fuel criminal activities is crucial for developing more effective strategies for engaging these actors in peace negotiations and agreements.

To achieve this understanding, researchers and policymakers must prioritise analysing negotiations and peace processes involving non-state criminal groups, especially in areas with limited state control. Studying these negotiations can provide valuable insights into the complex relationships between crime, politics, and inequality, offering perspectives that could inform future peace processes. This approach may reveal new ways to integrate criminal actors into broader peace and transitional justice frameworks, ultimately contributing to more sustainable and inclusive peace outcomes in regions affected by prolonged conflict, limited institutional capacity, and fragmented non-state criminal actors.

The former approach is particularly relevant in a context where the rising trend of violence perpetrated by non-state actors, as highlighted by the Uppsala Conflict Data Program (UCDP, 2022), is especially pronounced in Latin America, Africa, and Europe, where transnational criminal organisations are increasingly gaining control. This global prevalence of fragmented and interconnected non-state criminal actors in conflict settings reveals that the challenges faced in Colombia are not unique but part of a broader, more complex dynamic. Initiating a pilot programme to explore negotiations with these actors could offer critical insights into how such negotiations might unfold across different regions. By learning from these pilot efforts, the international community can better prepare for the complexities of engaging criminal groups in future peace processes, potentially paving the way for more comprehensive and sustainable resolutions to conflicts with non-state actors worldwide.

About the author

Dr Johanna Amaya-Panche is a Postdoctoral Research Fellow at PeaceRep, based at the University of Edinburgh Law School.

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