The Five Challenges of Negotiating Transitional Justice in Colombia

As talks between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) make headway towards ending decades of conflict, it has become increasingly clear that sustainable peace requires reaching a viable agreement on transitional justice. This will not be easy. The agreement will need to be widely acceptable beyond just the negotiators in Havana.

But there is little common ground among the main transitional-justice stakeholders regarding how to deal with the human rights violations committed during the conflict. As Crisis Group explained in the report Transitional Justice and Colombia’s Peace Talks, the country needs to take the challenges of transitional justice seriously.

A regime that satisfies a broad range of actors and effectively upholds victims’ rights is within grasp – if negotiators and policymakers face up to five central challenges. They need to design a coherent and comprehensive transitional justice framework, respect Colombia’s human rights obligations, take resource constraints seriously, provide legal certainty to FARC members and ensure that state agents, FARC members, and paramilitaries are treated distinctly each from the other, but not disproportionately so. We summarise here each of these five challenges.

Designing a coherent and comprehensive transitional justice framework

In the agenda for the peace talks, the principles of transitional justice – truth, justice, reparations and guarantees of non-repetition – are fragmented across several agenda points and only partially represented. Rather than addressing transitional justice issues in an ad hoc manner, the negotiators need to lay the ground in a peace agreement for a coherent regime that will sustain the transition towards peace. To do so requires thinking about transitional justice holistically.

The Havana agenda does not favour such an approach: “truth” and, less directly, “compensating victims” appear under the agenda point “victims,” while guarantees of non-repetition, such as FARC’s reintegration into civilian life or institutional reforms, are under “end of the conflict”. Accountability through justice is not mentioned at all. Although it is unlikely that the parties will simply ignore transitional-justice matters, it is by no means certain that they will take a coherent and comprehensive approach.

This does not signify, however, that the parties need to agree on all the details of a transitional justice regime. This task would be better left to Congress. Instead, in the peace accord they should agree to foundational principles, avoiding overly rigid prescriptions.

Respecting Human Rights Obligations

Colombia has relevant obligations under various international human rights treaties and is a party to the Rome Statute of the International Criminal Court. These obligations have been incorporated into domestic legislation and form part of the “constitutional body of law”. The Constitutional Court’s recent decision that the Legal Framework for Peace is constitutional, but that Congress needs to stay within certain “parameters of interpretation” to prevent impunity in implementing legislation, affirms that international human rights obligations are not a barrier to a negotiated end to the conflict. Rather, they are an integral component to ensuring a peace agreement is sustainable in the long term.

Respecting the core of human rights obligations is a political, moral and legal necessity. Against a background of high social and political polarisation, this is crucial to constructing wide political support, including from (moderate) critics of the talks, and producing an agreement that is internationally credible. Moreover, an agreement that only weakly addresses human rights and transitional justice risks the adverse judgment of domestic and international courts.

This will require that the parties take tough decisions. In particular, they need to agree to credible trials on both sides for the persons most responsible for the most serious crimes committed by both sides. This would send a clear signal that legal obligations are being taken seriously. This is not to suggest that the most responsible should be the only ones to face justice; in particular, more accountability is needed for state agents’ crimes.

Nonetheless, the desire to hold thousands of FARC members accountable through criminal trials should not be allowed to become an insurmountable obstacle to Colombia’s best chance to end a conflict that has already cost the lives of over 200,000 people and has displaced more than five million. A sequenced and comprehensive approach to transitional justice offers the tools necessary to promote both peace and justice.

Taking Resource Constraints Seriously

Colombia already has significant experience with transitional justice. However, capacity and resource constraints need to be taken seriously.

The country needs to learn the lessons from the 2005 Justice and Peace Law which attempted to investigate, prosecute and punish every serious crime perpetrated by the 4,000 or so paramilitaries and guerrillas who are part of that scheme. Yet, in eight years of operation, only 14 individuals have reached the final sentencing stage. This underwhelming record motivated a 2012 reform to concentrate prosecutions on the most responsible.

This experience suggests that prosecuting large numbers of FARC members in a reasonably short amount of time simply is not possible. Worse, attempting to do so would risk reproducing the de facto impunity that has plagued the Justice and Peace Law regime. Based on a realistic assessment of available resources, policymakers will need to establish priorities among transitional-justice measures and other expenditure for the consolidation of peace. The future of Colombia cannot be constructed without acknowledging the past. But dealing with the past should not be allowed to perpetually hold back other necessary investments towards a peaceful future.

Maximising Legal Certainty for FARC

Transitional justice measures will need to provide FARC members with a maximum of legal certainty about whether they will be investigated, prosecuted and, if convicted, punished for conflict-related crimes. This is necessary in order to convince as many FARC members as possible to lay down arms.

Although political crimes can and should be covered by an amnesty, the inclusion of crimes against humanity, war crimes or other serious human rights violations (in which many FARC members have participated) would be legally impossible. An amnesty that went beyond political crimes would erode over time, as happened in Argentina, Chile and Peru. Nor could FARC’s preferred solution, a constitutional assembly, generate a stable outcome: constitutional assemblies also have to respect the framework of international human rights law.

Instead, legal certainty needs to come from individualised treatment. One option could be an administrative process to accord a certification – on conditions of contributing to truth, reparation and reintegration – to FARC members outside the most-responsible category and whose crimes are not covered by the amnesty. This certification would entitle recipients to reduced or suspended sentences in the event of their prosecution and conviction for conflict-related crimes.

Differential Treatment

Finally, a transitional justice regime needs to provide for differential treatment of conflict actors. State agents should be held to higher standards, as they represent a democratic state. However, concentrating criminal responsibility on state agents while being very favourable to FARC would risk provoking a political backlash. A carefully balanced solution for guerrillas and state agents must be devised. Developing the transitional-justice model for state agents, however, is not a task for the negotiators in Havana, but for Congress.

The guerrillas should also be treated differently from the paramilitaries because they have a recognised political character, which the paramilitaries lacked. But benefits for FARC should not be disproportionately generous. FARC members have committed numerous human rights violations, for which they should be held accountable. Otherwise, pressures will intensify to extend the benefits accorded to guerrillas to paramilitaries, and possibly to state agents as well. This would be politically controversial and, in the long run, hamper reconciliation.

These five demands cannot be fully satisfied at the same time, and finding the right balance between them will be anything but easy. But if they succeed, both negotiating parties stand to reap substantial benefits. A comprehensive transitional justice regime could foster a virtuous cycle of broad popular support, swift Congressional implementation, reasonable expectations about legal durability and a credible path to reconciliation. And Colombia would have proven to the world that it is possible to find a practical yet principled balance between the demands of justice and peace.