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Transitional Justice and Colombia’s Peace Talks
Transitional Justice and Colombia’s Peace Talks
Table of Contents
  1. Executive Summary
Speech on Transitional Justice and Colombia’s Peace Talks
Speech on Transitional Justice and Colombia’s Peace Talks

Transitional Justice and Colombia’s Peace Talks

To secure a lasting peace, talks between Colombia’s government and FARC rebels need to include a clear, credible and coherent plan for reckoning with decades of human rights abuses.

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Executive Summary

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. 

Bogotá/Brussels, 29 August 2013

Speech on Transitional Justice and Colombia’s Peace Talks

Speech presented by Louise Arbour at the event “La justicia transicional y las negociaciones de paz en La Habana: En búsqueda de un modelo integral” held at the Universidad Externado de Colombia, Bogotá, 11a.m., 29 August 2013

Before I make my remarks introducing this report that we’ve produced on transitional justice in the framework of the peace talks that are taking place in Havana, I would like just to take a few minutes to tell you a little bit about who we are – International Crisis Group – and to some extent, of where I come from approaching these issues.

International Crisis Group is an organisation – an international NGO – whose mandate is the prevention of deadly conflict. So we are not, as such, a human rights organisation, although human rights issues always feature very prominently in our work. We are a field-based organisation. We have a small Latin American program; we have a larger program in Africa, in the Middle East and North Africa, in Asia and in some parts of Europe. We work in the field – we do field-based research. So the report that I’m presenting to you today is not exclusively the product of academic research. We have spoken to all kinds of interlocutors here in Colombia on the issue on which we work. So we are descriptive in our work – we are also prescriptive. We not only look at situations, but we make recommendations towards either the prevention of conflict, the mitigation of conflict, and on rare occasions – like here – we have a potential opportunity to speak on the potential resolution of deadly conflict. We also do what we call “high-level” advocacy. So we publish our reports, and then we engage. We have offices in Washington, offices in New York – where we engage with the United Nations. We are headquartered in Brussels, so we interface with the European Union. But our primary interlocutors are local and regional.

So it’s an enormous privilege for me to be here and to have an opportunity to talk to you today about an issue that – frankly – is your issue, but on which we hope we can bring a little bit of expertise, experience, possibly guidance, ideas, very much in the spirit of solidarity with those who believe that all Colombians are entitled to a peaceful, just and prosperous country.

I think we can offer you a framework, which may help addressing some of the issues that are confronting this peace process, which is otherwise, I think, on the right track of producing very important results.

I should mention that the fact that we have these strikes and protests today should be an opportunity for us to remember that those engaged on this peace process in Havana – and the Colombian public generally – must be made aware, by what’s happening today, that this process is not the only issue. It’s a critically important issue for the future of Colombia, but there are a lot of other issues that will come and that will compete for political attention – and for resources. So when I say we need to look at principled solutions, we also need to look at pragmatic solutions that will allow Colombia not to be completely hostage to its past, but also to keep the political energy and the resources to address issues that are very important also for its future.

So let me turn now to this report that we’ve produced. We are not dealing in this report with the entire peace process. Rather we have taken on a single issue that I understand is very divisive, but which is important to the efforts that are being made to obtain a satisfactory agreement in Havana.

Deals that could have been made twenty or thirty years ago are no longer available. Not just because international law has moved on, away from turning a blind eye to the past and providing amnesties and pardons – many of which were then repudiated by future generations. So not just because international law has evolved, but also because I think the aspirations of citizens everywhere have now made clear that they have an equal appetite for peace and for justice. So we’ve developed, over the past twenty years or so, a system of norms and doctrines that have tried to reconcile these two aspirations – to peace and justice. In my view, we have done very poorly at finding practical accommodations between the two perfectly legitimate ambitions. And what is taking place in Colombia today is probably the most dramatic case of our collective failure to come to a proper accommodation of these competing interests.

So our report tries to put forward not just an abstract series of norms and aspirations, but a very practical model that we believe can respond to both legal requirements and constraints and the need for political compromise and accommodation on the parts of all those who have an interest in that issue – which, at the end of the day, is all Colombians. So my first warning is that the biggest mistake we could make is to come to this issue from an ideological, rigid perspective. We have to come to this issue – as all negotiations call for – in a spirit of compromise. And compromise, of course, doesn’t just mean that the other side has to compromise.

The recommendations that we are making, I’m pleased to say, appear to be consistent with what I understand is the opinion of the Constitutional Court issued this morning. As a lawyer I won’t go too far in interpreting a decision that is now just in summary form. But globally, the validation of the constitutionality of the Legal Framework for Peace, I think – with the conditions and the caveats that the court seems to have attached to it – seems to me to be an important step in facilitating moving forward both on the legal side and on the political side, in coming to a peaceful resolution of armed conflict, which is, in my view, always the desirable result, even in cases where a military solution would not be completely excluded. There is no substitute for a commonly agreed resolution of armed conflict.

So on the difficult, challenging and controversial issue of transitional justice, we put forward what we call a “comprehensive”, “holistic” approach to transitional justice. The first, I think, important point that we make in the report is that the negotiating parties in Havana have to understand that they do not represent all interested parties. Some might argue that the government represents a broad public interest. Well, there are many voices that don’t have a seat at that table: the voices of victims, the voices of opposing political parties or formations, the voices of trade unions, the voices of Congress, of the courts – including the Inter-American Court, the International Criminal Court. So there’s a circle of outside interests that are not at the table, but that, if their views or contributions are not acknowledged, could completely sabotage, or spoil, or derail the agreement. So the parties must be attentive to these requirements. It’s a challenging thing because these outside voices are very conflictual – there’s a lot of chaos, in my opinion, both on legal requirements and, of course, on the political acceptability of any deal. But it’s, I think, part of the message we must send to them: you have to come up with an agreement that will be viable beyond the immediate interest of the two negotiating parties.

The second general point that we make in the report is that the agreement on transitional justice must be comprehensive. It must not be reduced – although it’s an important feature – to the fight against impunity. And it certainly, I would add, should not be hijacked by slogans, such as, “somebody should go to jail”, or “nobody should go to jail”. This is a complex legal and political exercise that should be approached in a sophisticated fashion and not on the basis of slogans. So it has to be a comprehensive agreement that is both principled and pragmatic. It must take into account the real capacities of Colombia to deliver on these requirements of international justice.

So, first, the position we take on this question of impunity: it’s possibly the most divisive one. On the question of impunity, we’re looking at, again, taking a principled but a pragmatic approach, and we argue that there should be basically three categories of treatment of potential perpetrators of serious human rights violations and by that, essentially, we refer to international crimes – war crimes, crimes against humanity.

On the first level Congress should pass laws that would regulate the necessity to investigate, prosecute and punish those most responsible for the most serious crimes. Now, I’ll leave that aside for the moment: we can have a debate as to what is appropriately considered “most responsible for most serious crimes,” but that should be the highest level of commitment. I should add, even within that branch, I believe that there should not be a blind, inflexible approach to punishment. Investigation is critical. When it comes to punishment – and I understand the Constitutional Court has agreed with that position – alternative forms of punishment should be contemplated. If it’s in the public interest to devise forms of punishment that include the recognition of voluntary participation, truth-telling, personal restitution or reparation, all this can be taken into account to provide for alternative forms of punishment.

Second, we recommend amnesties for the so-called political crimes. Traditionally treason and sedition are seen as political crimes. But essentially, as I think is already defined in Colombian law, we’re talking here about crimes that were perpetrated in the pursuit of the political engagement of the parties to the conflict. Again, it’s not totally clean-cut, but I think it’s reasonably easy to define that category and to implement.

And this of course would leave us with potentially a large group of offenders who would neither be in the most serious categories nor eligible for amnesties. And for those we recommend a kind of administrative treatment: a certification process that would bring, in a sense, some certainty and finality to their interaction with the justice system.

So this is the “basket” of initiatives that we recommend to deal with questions of accountability, responsibility, fight against impunity. The wisdom of each cannot be examined in isolation. I think this is a very important point. The acceptability of the scheme is dependent on all the other branches of transitional justice, such as the second one we recommend: a comprehensive, inclusive, transparent Truth Commission. This will be very critical, because the right to truth – I think it’s clear enough – cannot be accommodated exclusively by criminal prosecutions. Their focus is too narrow: it’s too difficult to be able to use criminal prosecutions to account for the complexity of the root causes of the conflict and of the activities of all those engaged in it. So a Truth Commission will be a very important investment on the part of Colombians in understanding their past and will go a long way, I think, in affirming the position of victims.

I should have also added, in the impunity section, that we explain in the report how state agents should be treated. At the outset we say all victims need to be recognised, that is, both the victims of crimes perpetrated by FARC, but also victims of crimes perpetrated by state agents. We also explain why the state has a different set of obligations. And so they cannot all be put in the same basket. At the end of the day though, even though state agents may not be entitled by law to the same kind of inducements or benefits that FARC members might be entitled to, I think as a matter of political acceptability and fairness, at the end of the day there should be an effort to dispense justice in a manner that will be seen as fair and equitable. And this is fleshed out in more detail in our report.

So after criminal investigations and prosecutions, after a truth commission, we also stress the importance of comprehensive reparations. I know that Colombia has already been engaged in some efforts to produce and procure reparations to victims of crimes perpetrated by paramilitaries, for instance. There’s a rich experience here in ambitious efforts to use criminal prosecutions and reparations. So I think learning from that, one has to put forward something that, at its core, preserves the dignity of the victims. It’s very clear that it goes beyond financial compensation. But again, linked to the efforts of a Truth Commission, I think monetary and other forms of reparation will probably go a long way in victims’ accepting the gesture of the state, which I think – realistically – may not be able to fully and totally compensate the magnitude of the harm that has been inflicted on victims.

And finally – and not an unimportant piece – international transitional justice requires what are called “guarantees of non-repetition”. These are institutional reforms, security sector reforms and so on, that will require first of all guarantees of security for demobilised FARC members, who, if they participate, after a peace agreement, either in the certification process or are the object of prosecutions for the most serious offences, will obviously need to disarm and demobilise and should be entitled to efforts of reintegration into society, in a secure environment. And this calls, of course, for profound reforms of the security sector and improvement of all institutions in Colombia that will give some guarantees that even political views will no longer, in the future, be expressed by violent means.

In general terms, we also warn that the Havana talks should give enough clarity and certainty so that the parties walk away from the agreement with some confidence that they have a deal that is enforceable, but should avoid getting into too much detail since much of that will then have to be put before Congress for enactment.

On the question of impunity, I know it may end up being the most controversial part of the peace agreement. The only message I want to send is that this is an investment by Colombia in its future: it has to be done in a spirit of compromise.

And I will leave you with a thought that certainly my old hard-core human rights friend may find very provocative, but at this stage of my life and career, if there is one thing I believe very firmly, it is that all good things – all of them, peace, truth, justice, all of them – can be pursued with too much zeal and can be obtained at too high a price. That’s where I think judgement has to come into play. And if you don’t believe me, I will challenge you with concrete examples. Do you think truth should be pursued with torture? I don’t think so. That would be too high a price. Do you think peace should be obtained by subjugation of populations to hostile, foreign dictatorial rule? I don’t think so. Peace would then be obtained at too high a price. And justice itself, if it were to sacrifice, for its own pursuit, other interests of other parties, I think, again, would be obtained at too high a price.