Transitional Justice and Colombia’s Peace Talks
Latin America Report N°49
29 Aug 2013
EXECUTIVE SUMMARY AND RECOMMENDATIONS
If the Santos administration and the Revolutionary Armed Forces of Colombia (FARC) are to lay the foundations for lasting peace as they continue to make headway toward successfully concluding talks underway since late 2012, they need to agree on a clear, credible and coherent plan for dealing with human rights abuses committed by all sides. This is not easy. Any sustainable agreement must be acceptable well beyond just the two parties. Finding common ground between the guerrillas, the government, the critics of the peace talks, victims and a public largely unsympathetic to FARC would be difficult at the best of times but will be even harder on the cusp of the 2014 electoral cycle. However, with courts, Congress and voters all having important roles to play in ratifying and implementing transitional justice measures, both parties’ long-term interest in a stable transition should outweigh the costs of agreeing to a deal that goes beyond their own narrow preferences. Otherwise, flagging popular support, political controversy and legal challenges risk undermining both justice and peace.
Justice for victims of all the parties to the conflict, including the victims of state agents, is an essential part of any viable transitional justice regime. Those most responsible for the most serious crimes, from whichever side, need to be prosecuted and appropriate penalties imposed that can be reduced if stringent conditions are met. An amnesty can appropriately cover FARC’s political crimes and offences related to political crimes but can never include war crimes and crimes against humanity. FARC members outside the most responsible category should be eligible for an administrative process that, under conditions linked to reconciliation, guarantees them reduced or suspended sentences if they are convicted of these or other conflict-related crimes outside the amnesty. The details of the transitional justice model for state agents should be left to Congress.
The above elements of the transitional justice model should be accompanied by truth-seeking and truth-telling, notably via an independent truth commission and grassroots memory initiatives. There must also be a renewed commitment to comprehensive reparation and a convincing plan for better governance, including strengthening institutions and establishing a credible vetting process, to help prevent a return to armed violence.
Agreeing on such a comprehensive transitional justice model will have costs for both parties. Attitudes towards wrong-doing during the conflict have begun to shift, but the government and FARC each still has much to do to fully acknowledge its respective responsibility for the many human rights violations. The negotiating agenda does not mention several critical aspects of an adequate transitional justice agreement, such as mechanisms for individual criminal accountability and reparation. Amid increasing pressure to conclude the talks before the 2014 presidential and legislative election campaigns begin, both sides may be tempted to settle for an expedient agreement that fails to meet domestic and international standards regarding victims’ rights. An easy-to-reach solution might satisfy short-term political imperatives but would be a long-term mistake. It would not only risk legal challenges but also embolden the opponents of the peace talks, who couch much of their opposition as rejection of “impunity” for FARC.
Both parties thus have an interest in a survivable deal. The best way to generate sustainability is to respect Colombia’s obligations under multiple human rights and international criminal law treaties. These and the country’s implementing laws and jurisprudence are not obstacles to peace but rather the basis for an agreement in which all social sectors – even moderate critics of the negotiations – could feel represented and that could pass judicial scrutiny. The parties should not attempt to spell out every aspect of a transitional justice model themselves, but they must lay out provisions that create legal certainty for FARC members, ensure victims’ rights and foster the social support that can prevent a transitional justice regime from unravelling in political and legal disputes.
Perhaps more than most countries emerging from conflict, Colombia is in a position to buttress its peace process with comprehensive transitional justice. Years of experience with demobilised paramilitaries under the 2005 Justice and Peace Law (JPL) have produced a wealth of lessons about what works or not. A mass reparations program for all victims is underway, and truth-seeking has advanced despite the conflict. Negotiators and policymakers still must take financial and administrative constraints seriously, however. They must avoid repeating the mistake of creating a regime that is ambitious in law but would struggle to uphold victims’ rights in practice. Admission of a long-term challenge should be the starting point for sequencing transitional justice measures and prioritising between competing demands on state resources, including those derived from implementing the peace accord. The international community should give financial and logistical support to new and existing transitional justice institutions and help ensure the guarantees of non-repetition are met.
Ending the armed conflict is essential to move toward a more peaceful, just and democratic Colombia. But a stable future cannot be constructed without acknowledging the past. Over five decades, the conflict has claimed the lives of an estimated 220,000, displaced over five million and made refugees of nearly 400,000. Innumerable serious crimes have been committed, including massacres, extrajudicial executions, enforced disappearances, kidnappings, torture and sexual or gender-based violence. Revealing the perpetrators and networks, punishing those most responsible on both sides, providing adequate reparations to victims and putting in place a political and social regime under which such atrocities will not be repeated are all necessary steps toward lasting peace. The complete process will take decades. What the government and FARC must do now is agree on the roadmap for a long but definite transition to peace.
To reach a final peace agreement that is sustainable, socially and legally, in its treatment of matters relating to transitional justice
To the negotiating parties:
1. Include in the final agreement acknowledgement of responsibilities and apologies for human rights violations, commitment to upholding victims’ rights and clear language affirming, in relation to transitional justice, that:
a) truth about the conflict should be known, particularly regarding enabling and support networks, and revealed via an independent, credible truth commission that considers all actors;
b) trials of the most responsible on both sides for serious international crimes (crimes against humanity and war crimes) are essential;
c) the 2011 Victims and Land Restitution Law reparations framework is a major advance but can be complemented by further measures; and
d) guarantees of non-repetition require institutional reforms, including robust vetting of officials for past human rights abuses.
2. Deal comprehensively with transitional justice in the final agreement but leave the design of specific measures to the appropriate institutions.
3. Commit to participating in truth commission proceedings; contributing to mem-ory initiatives; providing answers about the dead or disappeared; and preserving and making available state archives and FARC records to the truth commission, prosecutors, judges and other public authorities.
4. Facilitate civil society’s and victims’ participation in the talks by advancing the public debate on transitional justice measures.
To ensure the implementation of a sustainable transitional justice regime
To Colombia’s government, Congress and Attorney-General’s Office:
5. Set up a truth commission strong enough to meet victims’ expectations, build up the state’s legitimacy in communities and establish a collective narrative about the conflict by:
a) creating mechanisms to consult, including with victims, prior to adopting legislation to establish the commission; and
b) giving the commission time to fulfil a mandate that allows it to examine all actors in the conflict and includes making recommendations to preserve memory, enhance reparation and develop institutional reforms to dismantle illegal networks and prevent repetition of violence.
6. Do not give the commission judicial functions.
7. Provide amnesty for all political crimes (and crimes connected to political crimes) committed by FARC members.
8. Facilitate prosecution of those – whether from FARC or the state – most responsible for serious international crimes committed during the armed conflict; ensure that the charges adequately capture the spectrum of crimes committed during the conflict and that gender crimes are appropriately represented; allow for flexibility on sentencing the most responsible that is conditional upon truth-telling, reparation and (for FARC members) dismantlement of armed structures.
9. Establish, for demobilised FARC members not among the most responsible an administrative process, linked with reintegration programs, to accord reduced or suspended sentences, subject to conditions such as truth-telling and reparation, in the event that they are tried and found guilty of offences relating to the conflict.
10. Exempt FARC members from extradition so long as they comply with specific conditions, including demobilisation and non-participation in new criminal activities.
11. Work towards timely implementation of the 2011 Victims and Land Restitution Law as an instrument for comprehensive reparation, by strengthening local institutions so they can be effective partners; making national institutions tasked with protecting victims’ rights more responsive to local concerns and more present in the former areas of conflict; and helping develop the institutional capacity of victims’ groups and human rights’ organisations.
12. Obtain the deposit of FARC assets in the Reparations Fund for Victims (whether voluntarily by FARC or via confiscation by the state), so that the victims unit can draw on them to make compensation payments.
13. Ensure guarantees of non-repetition are met through effective measures for the reintegration of FARC members (including a comprehensive protection plan); greater efforts to fight new illegal armed groups; and comprehensive vetting of officials, including members of the security forces.
14. Redouble efforts to strengthen civilian institutions and democratic governance in conflict regions, drawing on lessons from previous efforts.
To the International Community:
15. Provide funding, technical support and advice to the truth commission and other relevant institutions and make available all relevant information about the armed conflict and serious crimes, particularly disappearances.
16. Give financial and logistical support, both to non-state organisations for community-based truth-seeking and memory initiatives and to new and existing transitional justice institutions; and oppose any obstacles to prosecutions carried out under the transitional justice framework.
17. Organise, with the government, a multi-year donor effort to help ensure that the peace agreement’s guarantees of non-repetition are met, including by:
a) focusing on technical and financial cooperation to strengthen civilian authorities, prioritising local institutions, providers of social services and institutions tasked with protecting the rights of victims;
b) encouraging and giving financial and technical support for civil society and private sector participation in community-based economic opportunities for reintegrating demobilised FARC members; and
c) supporting the strengthening of civilian law enforcement, human rights and judicial institutions in the most conflict-affected areas.
Bogotá/Brussels, 29 August 2013