What Transitional Justice means to Colombia

The longest running internal armed conflict in the Americas could soon be over. On September 23rd, the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) pledged to sign a peace accord by March 23rd

The longest running internal armed conflict in the Americas could soon be over. On September 23rd, the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) pledged to sign a peace accord by March 23rd that would end a conflict that has taken more than 200,000 lives and displaced more than six million victims since the 1960s. The early announcement of a signing date was prompted in part by the additional announcement that the parties had come to an agreement on the single most contentious issue of the negotiations: whether, to what extent, and under what conditions the members of FARC would be punished for its crimes.

Not everyone thought the announcement was cause for celebration. Following the announcement several civil society groups and the Colombian government’s vocal opposition quickly denounced the deal as one where perpetrators of atrocious crimes would escape meaningful punishment.

While the final deal’s legitimacy, under international law and for the Colombian people, will largely depend on the details that are still being negotiated in Havana, the transitional justice scheme envisioned in the agreement has the potential to comply with both.

Ending an internal armed conflict today is not what it used to be. For decades Latin American governments seeking to transition from conflict to peace had the autonomy to offer rebels blanket amnesties in exchange for laying down their weapons and peacefully reintegrating into society. Although the Inter-American Court of Human Rights has recently led an effort to invalidate such amnesties, most of those statutes played a pivotal role in successfully transitioning right-wing dictatorships into democracies decades ago. Nowadays, governments must strike a delicate balance between their international obligations to prosecute perpetrators of grave human rights violations and sufficient incentives for insurgent groups to demobilize peacefully.

As party to the Rome Statute (the founding treaty of the International Criminal Court) and the American Convention on Human Rights, the Colombian state has a duty to prosecute and punish perpetrators of grave human rights violations. While that duty is well established, international human rights law does not require specific sentences for violations, so long as the punishment is proportional to the crime and sentencing is not so lenient as to amount to impunity.

The key innovative feature of the Colombian agreement on the issue of transitional justice is its different treatment of actors based on their levels of responsibility and the nature of their crimes. For example, the agreement grants a wide amnesty for political crimes such as “rebellion” to FARC foot soldiers, while offering reduced sentences and alternative punishments to perpetrators of grave human rights violations. While these punishments would be intolerable under normal circumstances because of their leniency, they must be understood in a transitional justice context as an extraordinary supplement when the scale of human rights violations overwhelms the capacity of domestic institutions.

The agreement contemplates the adoption of a limited amnesty law for political and “connected” crimes committed in furtherance of the conflict. The text of the agreement emphatically excludes perpetrators of crimes against humanity, war crimes, forced disappearances, torture, kidnapping, sexual violence, and extrajudicial executions from the scope of the amnesty. Moreover, the agreement restricts the scope of the future statute by replicating the language of article 6(5) of Protocol II of the 1949 Geneva Conventions, which encourages the authorities in power to grant the “broadest possible amnesty” to combatants at the end of an internal armed conflict.

The agreement also envisions a Special Jurisdiction for Peace (SPJ) as part of the final peace agreement: an integrated tribunal incorporating truth, justice, reparations, and guarantees of non-recurrence. This means that the tribunal’s focus is not solely on traditional criminal prosecutions but rather on a comprehensive, and victim-focused, strategy that emphasizes the acknowledgment of wrongdoing and truth telling as essential to restoring victims’ rights.

Under the terms of the agreement, even FARC leaders guilty of the most serious and representative crimes will be eligible for alternative penalties and reduced sentences if they confess their crimes, cooperate with the judicial process, and contribute to uncovering the truth about the conflict. Those that immediately confess will benefit from reduced sentences of five to eight years under conditions of “effective restriction of liberty” instead of jail time. The definition of “effective restriction of liberty” is still being negotiated, however, government officials have hinted that it could mean FARC members would be confined to do community restoration work in designated rural areas that were affected by the conflict. Those that confess once their trials have started will benefit from reduced sentences in ordinary jails, while those convicted without having confessed could face up to twenty years in ordinary prisons.

The possibility that FARC members responsible for gross human rights violations could completely avoid prison has been particularly controversial for civil society organizations and most of the Colombian population. The FARC has killed and abducted civilians, carried out enforced disappearances, and used child soldiers. If the international requirement on proportionality between crime and punishment is to be followed strictly, some members of the FARC should receive the harshest punishment possible. But while that kind of retributive justice has a deterrent effect on society in ordinary circumstances, in a transitional justice context, punishments need also to be geared toward reconciliation and a genuine effort to reintegrate former insurgents into society.

The crimes committed in internal armed conflicts damage the respect for fundamental values that bind society together. In order to restore those values, the transitional justice scheme envisioned by the announced agreement recognizes that a core aim of punishment should be to allow perpetrators to acknowledge the wrongfulness of their conduct and to re-embrace those fundamental values in order to reintegrate into society. This strategy also works to restore victims’ rights to truth and reparations by creating incentives to elicit the truth about the crimes committed and mandating that those convicted under the SPJ work to restore the communities that were most affected by the conflict.

The SPJ would have the power to conduct criminal prosecutions and order punishments that would not be exactly proportional to the gravity of the crimes, but nevertheless would retain a retributive effect. Moreover, any benefits derived from the SPJ would be conditioned on strict compliance with the penalties imposed by the tribunal as well as requiring FARC members to relinquish their weapons and reintegrate into society. Those who do not truthfully and thoroughly contribute to the reconciliation process would not be covered under the SPJ and would still face prosecution under ordinary criminal law.

In most modern societies, allowing those most responsible for mass atrocities to completely avoid prison would deny their victims the right to justice in any meaningful sense of the word. However, Colombia is a society negotiating a strategy to end a conflict that has shaped its last five decades. The exact provisions that will be negotiated in Havana over the next six months, including defining the crimes that will be amnestied as “connected to” political crimes and the definition of “effective restrictions of liberty”, will be crucial to the final agreement’s legitimacy. Throughout this process, it is worth keeping in mind that the agreement’s objective is to achieve, in President Santos’ words, “the maximum amount of justice that will allow us to have peace.”

Latinamerica Goes Global | By Gustavo Alvira Gomez

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