By Amaury A. Reyes-Torres
After years of conflict and failed attempts to reach a peace agreement, there was a significant breakthrough in the latest round of negotiations, which began in 2010, between the Government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), the country’s largest rebel group.
On Sept. 23, Juan Manuel Santos, the President of Colombia, and Rodrigo Londoño Echeveri, FARC’s high commander who is also known as “Timochenko,” released a joint declaration outlining an agreement on transitional justice, victims’ rights and reparations, the most contentious negotiation point of the ongoing peace process. This step brings Colombia closer to a comprehensive peace agreement, which would mean the end of one of the longest-lasting conflicts in the region.
Despite this significant progress, there have been mixed feelings about transitional justice agreement reached between the government of Colombia and FARC. On one side, people are supportive and hopeful about what a peace deal may actually bring to Colombia; but on the other side, critics of the agreement have been skeptical about the content and practical challenges of the transitional justice deal. Nonetheless, the outline is a step towards legal accountability, reparations and reconciliation. But two questions remain unanswered: will FARC comply with the final peace agreement? And will this recent breakthrough truly serve the principles of transitional justice?
TRANSITIONAL JUSTICE: TRUTH, JUSTICE, REPARATION AND NON-RECURRENCE
According to the United Nations Guidelines on Transitional Justice, transitional justice is a conglomerate of judicial and extrajudicial mechanisms that help societies come to terms with widespread rights violations. These tools serve to facilitate the prevention of future conflicts or repressive rule through the promotion peace, reconciliation and rule of law. Transitional justice seeks to understand the roots of conflict, to adopt the necessary measures to prevent new ones and to pursue accountability.
Any process of transitional justice should be carried out in accordance with the principles of truth, justice and reparation, including institutional reforms, effectively addressing the need of the victims and the reconstruction of a country’s social fabric. Furthermore, the victim’s right to know the truth should carry great weight in this process. According to the Inter-American Court of Human Rights, states have an obligation under the American Convention on Human Rights to guarantee the right to know the truth. This may entail the creation of a truth commission to preserve historical memory and ensure accountability. After all, justice can only be served and due reparations awarded if the truth is uncovered.
Recently, a new principle has emerged that was arguably already implicit in the other three principles: the principle of non-recurrence. According to the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, a “general commitment to adhere to a right involves making efforts to ensure that its violation ceases and is not repeated.” Thus, ensuring non-recurrence should be part of a comprehensive transitional justice strategy. This may require substantial institutional transformations to prevent new recurrence of future conflicts and with them, new human rights violations. While truth, justice and reparations serve a contributive function, the guarantee of non-recurrence serves a preventive function.
Transitions take quite some time and the peace process in Colombia is a good example of this. The Colombian conflict has been ongoing for more than 60 years. Although there have been several failed attempts to reach a peace agreement, it has only been in the last few years that substantial progress has been made, and peace may finally be a reality.
THE JOINT DECLARATION ON TRANSITIONAL JUSTICE
The latest agreement on transitional justice places victims at the forefront of the peace agreement. Both parties believe that the victims should be compensated and by no means left out of the peace deal that is being negotiated. The agreement would establish a special jurisdiction for peace within Colombia’s justice system. Adopting the form of an international mixed tribunal, the jurisdiction will be integrated with Colombian and international judges in order to ensure its independence and impartiality. It will serve three main functions: 1) to end impunity for crimes committed during the conflict or in connection with the conflict; 2) to uncover the truth; and 3) to investigate, judge and sanction those responsible for the gravest crimes committed during the conflict, including those who participated directly and indirectly in the commission of gross human rights violations, regardless of whether they are FARC combatants or state agents. The sanctions system must satisfy the rights of victims, help consolidate peace and have an effective reparative and restorative effect
The special jurisdiction for peace will follow two different procedures depending on who will be tried within it. One procedure will apply to those who recognize and admit to their actions. The other procedure will apply to those individuals who would claim that they have not perpetrated any crimes, and will be subject to a full trial before the tribunal. The legal consequences will vary as well. Those who recognized and admit their actions will face a sentence between five and eight years in “special conditions” that restrict their liberty, but will not be sent to regular jail. However, those who deny their responsibility, but are found guilty, will face a sentence up to 20 years in prison.
Furthermore, amnesty will be granted for political and other related crimes. However, genocide, crimes against humanity, war crimes and other related crimes, as defined under Colombia’s national law, are not eligible for amnesty. The tribunals created under the special jurisdiction for peace will hear these cases.
Another interesting point in the joint declaration is how special treatment within the special jurisdiction for peace is regulated. Any special treatment will be afforded as long as the offender tells the truth, compensates the victims and guarantees non-recurrence.
Finally, the agreement imposes an obligation on FARC. If they want to pursue any political aim of their own in Colombia, they must lay down their arms as soon as the peace agreement is signed. If they adhere to this, FARC will be transformed into a political movement that the government will support.
CRITICISM, PROBLEMS AND CHALLENGES
Though the transitional justice agreement is a monumental step forward for peace negotiations, it is not without its own set of issues. For instance, only a 10 point outline of the agreement was publicly released. The formal agreement covering all the aspects of the new special jurisdiction, are undisclosed, unknown to the Colombian people.
The secrecy surrounding the final draft of the agreement has brought about public opposition. The Colombian Attorney General, Alejandro Ordonez, and the President of the Council of State, Luis Rafael Vergara, have called for the full disclosure of the text. To calm public dissatisfaction, Ivan Marquez, the Chief of the Peace delegation for FARC, recently stated that the agreement is a document of 75 points that includes restorative sanctions. Though this was a step in the right direction, it does not make the peace process fully transparent.
Furthermore, some fear that FARC’s potential transition from guerilla group to political party may foster impunity and social divides. Under the agreement, there will be no extraditions to the U.S., and former fighters will be allowed to run for political office. The former President of Colombia, Alvaro Uribe, now a Senator, worries that Timochenko, the leader of FARC, might be able to run for president, exacerbating social tensions and divides. Similarly, others fear that those who committed crimes may be able to hold political power and sway, an affront to the victims of abuses. According to the Joint Declaration, the possibility that the FARC may be allowed to pursue their goals through the political system will be detailed in the final peace agreement.
Another important question is whether the accountability and amnesty provisions as proposed in the agreement will deepen impunity. José Miguel Vivanco, the Director of the Americas Division at Human Rights Watch, stated that the agreement may allow those most responsible for human rights atrocities to escape accountability. By allowing those who committed human rights abuses to avoid time in prison, this agreement fails to administer proportionate punishments to the perpetrators of human rights abuses. Furthermore, the amnesty provision, which is meant to be broad, will extend to crimes connected to rebelling against the state, potentially including extortion, narco-trafficking and kidnapping. This, too, could contribute impunity and lack of justice.
The recent agreement on transitional justice constitutes a breakthrough that might close a complicated chapter in Colombian history. However, how both parties conduct their relations during the rest of the peace process and the implementation of the agreement itself will be crucial for justice to be ensured. Moreover, it remains to be seen if the final peace agreement will put a permanent end to conflict and paramilitary violence in Colombia, or if only FARC will be covered, among all the other paramilitary groups.
Camilo Sánchez, research coordinator of DeJusticia, said that this is not a perfect agreement but it is an agreement that will keep Colombia away from the perfect war. The agreement, however, must be as comprehensive as possible in terms of securing the rights of victims and holding those responsible of gross violation accountable. Only by doing this, Sánchez argues, can the two sides truly guarantee non-recurrence.
Time will tell if both sides are committed to truth, justice, reparations and non-recurrence. It is up to the public to demand a just and transparent peace process. Although peace is a complicated goal to achieve, it is a worthy one. However, peace without justice and accountability means nothing for the reconciliation process in the heart of any transitional justice paradigm.
Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.
The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.
Photo credit: Pedro Szekely/Creative Commons