The Colombian conflict is one of the world’s longest-running armed confrontations. For this reason, news in recent months of concrete progress toward ending this conflict between the Colombian government and the FARC Marxist guerrillas through a peace process has been greeted with much anticipation and congratulations from a large part of the international community. Within these positive developments was an announcement that both parties made at the end of 2015 regarding a special prosecution model that will be applied to those who committed serious crimes during the war.
President Barack Obama himself said that once the agreement comes into effect, “Colombia will be a model of how to achieve peace with justice.” The Delegation of the European Union gave a similar endorsement, highlighting the fact that the agreement puts victims at the center of the peace process. Weeks later, the international community as a whole gave its decisive support to the agreement. The United Nations Security Council accepted the parties’ proposal to create a mission to verify compliance with the agreement, regardless of whether the process formally concludes in a final agreement.
Others have been more cautious in their assessment of this prosecution agreement. Spokespeople for the human rights NGO Human Rights Watch(HRW) have called into question, for example, whether it is in accordance with international law. Others, like the Washington Office on Latin America (WOLA), which, although it does not share Human Rights Watch’s view, has rightly noted that there are still loose ends to be tied and that implementation of the agreement must be strictly monitored before giving it their stamp of approval.
There are four key points to better understand the importance and the dilemmas and challenges of this special prosecution agreement. The first is to understand the context in which it has been created. The second is to know the legal principles upon which it is based and that are to be applied. The third is to analyze the structure of the tribunal that will issue judgments. Finally, the fourth is to understand the forms of punishment that will be given to those that the court convicts.
Ensuring justice after war
Delivering justice after a war is always a difficult task, and the Colombian case is no exception. First, the more than five decades of conflict have not only left an alarming number of victims (over seven million), but the amount of acts committed and the time that has passed since many of these occurred make the task of investigating them very costly. That is why the agreement is, in the first instance, very ambitious.
Secondly, this special prosecution agreement stands out for having been negotiated and not imposed. Globally speaking, this is novel because, in general, justice measures are not the fruit of consensus between the government and an existing armed group – as in the case of the FARC – which is negotiating the end of the conflict and invoking a justice process. Instead, victors have generally imposed justice upon the vanquished.
Thirdly, although the government and the FARC have negotiated the agreement, the special prosecution agreement is not exclusively for members of the guerrilla group who have committed serious crimes. It applies to all those who have committed such crimes during the conflict. This includes members of the Colombian security forces and other public officials, as well as individuals who have sponsored or financed armed conflict. This is different from victor’s justice, in which the victors escape trial, thereby establishing a selective impunity.
Fourth, a feature that complicates this process is that it does not start from zero, but must be integrated with historical measures that have already been undertaken in Colombia. An example of this challenge involves the criminal trials against paramilitary groups that were part of the conflict but demobilized a decade ago. The risk here was twofold. On the one hand, there was the risk that the agreement with the FARC would erase all previous efforts. On the other hand, to avoid putting non-FARC-linked individuals and groups on par with the government’s enemies, the government could have negotiated an agreement that treated certain groups differently. However, this would have caused the process to lose legitimacy, since such differing applications of the law are very difficult to justify, especially when the aim is to promote reconciliation and put an end to cycles of violence and revenge.
The meaning of justice
Negotiated transitions have always faced the dilemma: how much justice can be sought without jeopardizing peace, and how much impunity a society can permit when it seeks peace? When peace depends on the will of an existing armed group, this group’s objectives will be more focused on finding an exit strategy with little justice than on achieving full clarification and responsibility for the facts. This is why the most ambitious legal proceedings have occurred when there is a clear winner at the end of a conflict. But even in these cases, experience has shown how difficult it is to account for every fact, every person, and every case. Because of their maximalist position regarding justice, many of these initiatives have failed.
The international community’s doubling down on heinous crimes means that countries like Colombia can no longer choose a formula that was widely used in the past to solve this dilemma: general unconditional amnesty (a route that was considered an easy way out, but that had many long-term complications, as demonstrated in Argentina or South Africa). But the other option (establishing a system with the objective of bringing all crimes to trial and punishing them as severely as possible) was also unfeasible.
The Colombian agreement thus seeks a middle ground. First, it divides crimes committed into two types: (1) international crimes, and (2) political crimes and those related to them (mainly armed rebellion, acts of war, and means of financing the war, which are not contrary to international humanitarian law). The first, which are those considered serious by the international community (including war crimes and crimes against humanity), are not subject to amnesty or absolute pardon. Those responsible for these crimes must appear before the court and be punished for them. The latter type may be subject to amnesty, as long as those seeking to benefit from it contribute effectively to peace, truth, and reparation for victims.
In addition, the agreement commits to a vision of justice that is broader than punishment. In other words, delivering justice to victims is not only accomplished by punishing the offender but by clarifying the facts, recognizing what happened and dignifying the facts through seeing the case tried in court, and making a commitment that such acts will not happen again. Consequently, the agreement provides for additional justice measures and calibrates punishment based on the cooperation of ex-combatants with the fulfillment of these other measures: greater contribution = greater benefits, and vice versa.
For example, with respect to truth and justice: if the ex-combatant works with the victims in an unqualified and timely manner, he/she may be punished with an alternative punishment instead of a prison sentence, with a duration of five to eight years. If she/he fails to do so, and a formal trial is initiated, but during that time the ex-combatant changes her/his mind and participates, the sanction could be a prison sentence of five to eight years. And for those that do not contribute to ensuring the rights of their victims, the system provides for penalties of up to 20 years imprisonment.
The system and its structure
The debate surrounding justice is not only about what will be decided, but how, and above all, who will render the judgment, especially when the negotiation is with an insurgent group whose platform of action is based on the rejection of the State and its institutions. The question then is about ensuring that the justice system guarantees four conditions simultaneously: impartiality, integrity, efficiency, and effectiveness.
The first option would be for the ordinary national justice system to take on the cases. However, in Colombia, both the FARC (which sees the ordinary justice system as the “justice of the enemy”), and members of the armed forces (who have accused ordinary judges of not understanding what happens in an armed conflict), rejected this option.
An alternative option was an international tribunal. But the proposal was not attractive to the government, especially because the State does not want to appear unable or unwilling to deliver justice, which would tentatively open the door for intervention of international bodies, such as the International Criminal Court.
The middle path, (which has been implemented in contexts such as Korea, East Timor, and Kosovo) was to use a mixed tribunal, even one composed mainly of international judges. This would not be the first time exceptional national mechanisms have been created to handle cases arising from a domestic conflict. Recent experiences, which the Colombian negotiators thoroughly analyzed, include the War Crimes Chamber in Bosnia-Herzegovina and the International Crimes Division in Uganda.
The Colombian path is not a mere copy of these experiences. It is a complex system, which, although inspired by the successes of other experiences, is based on the unique challenges of the Colombian transition and the experience of its own institutions.
This system has been referred to as the “Comprehensive System of Truth, Justice, and Reparation.” From the beginning, this System has made it clear that it is not only a court of law, but rather a comprehensive system that seeks to guarantee the rights of victims to truth, justice, reparation, and guarantees of non-repetition. It also includes judicial bodies (such as a tribunal and other courts), and others of an extrajudicial nature (such as a Truth Commission and a missing persons search unit). All of these conform a robust, albeit complicated, system.
Some questions remain regarding the judicial organs of the system—for example, the mechanism for selecting judges, the number of international members (the agreement states that international representation must not be a majority, but does not set a number), among others. The task is not easy, as the mechanism must be acceptable to the combatants, but, to be truly independent, those who will be brought to justice cannot chose it. This would be unacceptable from any point of view. The best practice seems to be a mechanism that is based on the merit of the candidates, has guarantees of transparency through the support of the international community, and is open to scrutiny by civil society and victims.
Punishment: squaring the circle
When atrocities have been committed so repeatedly as to become massive and routine, it is difficult to establish the precise meaning of terms like “justice” and “appropriate punishment.” How does one confront absolute evil, as Kant would call it and as echoed by Argentine jurist Carlos Santiago Nino more than two decades ago?
This is one of the issues that has most spurred legal debate, starting with the objections of Human Rights Watch mentioned at the beginning of this blog. The issue is as follows: international standards require that proportionality between the seriousness of the offence and the severity of the punishment. Therefore, the most serious crimes should be punished most severely. This includes, obviously, the aforementioned international crimes. However, a negotiated justice mechanism seems impossible to achieve if the only option is for those negotiating to submit themselves to severe penalties, especially when these are generally long prison terms.
The question that must be asked then is the following: Is it possible to think of alternatives to imprisonment to address these crimes? Some, like HRW, say no, because the most severe penalties consist of deprivation of liberty. Others, such as Dejusticia, argue that it is indeed possible, as international treaties at no time require that the sanction must only include prison. Additionally, there are those who argue that alternative punishments are not only suitable for peace processes, but also may be more effective in general, given the limitations and problems of the concept of “prison,” an institution that today faces a serious crisis.
However, comparable options are rather limited and not very promising. On the one hand, the most successful policies of restorative justice have not necessarily been developed in the context of armed conflict and in many places have been reserved for minor crimes. On the other hand, the most systematic examples of restorative justice measures in post-conflict contexts have occurred in contexts of very entrenched traditional justice (as in Uganda, Rwanda, and East Timor) and their results have received mixed feedback.
With this scenario of a glass half full and a glass half empty, the Colombian agreement made a bold decision: combine a system of more traditional trials (with a formal prosecutor and a court dispensing justice), but with the possibility that punishment may include an “effective restriction of rights and freedoms.”
This open language makes it possible for alternative measures to prison to constitute punishment, but places restrictions on these measures. The measure (which may include humanitarian demining, construction of public infrastructure or services for the benefit of victims, among many others) must serve a primary purpose and must be an effective restraint. In other words, it must produce a limitation that burdens those who undertake it as punishment, fulfilling the requirement that the measure constitute a reproach and an effective sanction. Secondly, the measure must include proportionate reparation for victims. And, consequently, the measure must seek to repair the damage that the ex-combatants caused directly or indirectly to the community, that is, the measure must also have a restorative function in mending broken social ties.
It is an ambitious formula only through implementation will it be possible to determine to what degree a particular punishment meets these three requirements. But if it is possible, the three objectives mutually reinforce each other in such a way that makes it difficult to argue that a prison sentence is more respectful of victims’ rights or more oriented toward reconciliation and non-repetition.
Nothing is finalized and the debate is not over. The comprehensive peace agreement between the government and the FARC may be close, but it has not yet concluded. Therefore, the justice agreement is an objective that has yet to be achieved and become a reality. Moreover, even if the agreement is signed, the work that lies ahead to implement what is on paper will be difficult and costly. But it is promising news after a long period of war and injustice.
*Nelson Camilo Sánchez is a researcher at the Center for the Study of Law, Justice, and Society (Dejusticia).