From Cornell International Affairs Review VOL. 9 NO. 2
Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice
Colombia's Current Route to Peace and Justice
The Legal Framework for Peace (Acto Legislativo No. 1, 2012)
The Legal Framework for Peace ("Framework") is a constitutional amendment adopted by Congress in July 2012 to facilitate negotiations with the FARC. A paradigmatic example of the growing crosspollination of the transitional justice and peacemaking fields, the Framework writes "exceptional" transitional justice instruments into the Colombian constitution with the "prevailing end of facilitating the end of the internal armed conflict and the attainment of stable and lasting peace."88, 89 The theoretical underpinning of such ambition is that transitional justice may not only work in concert with conflict resolution mechanisms such as peace negotiations, but that transitional jurisprudence can create the space for peacemaking and support the road to lasting peace.
The Act maintains that these exceptional transitional justice instruments will bring "guarantees of non-repetition" and "shall ensure, in as much as possible, the rights of victims to truth, justice and reparation." While this language aligns with the core principles of the international community's body of policy and law regarding transitional justice, the qualifying clause stands out starkly. As President Santos argues in the speech cited in this essay's epigraph, a state in the midst of conflict has competing duties and absolute positions might not serve the ultimate demands of either peace or justice.
The Framework also establishes "differentiated treatment" for the different armed groups that have been party to the conflict as well as for state actors. This provision recognizes that the distinct nature of the paramilitary and the left-wing guerrillas calls for different transitional justice approaches—a lesson learned the hard way through the JPL experience. The Act states that the guerrillas, unlike the paramilitary, can be considered "political offenders" and that they therefore may qualify for benefits in the context of peace negotiations, except in the cases of crimes against humanity, war crimes, or genocide.
The core principles of the Framework are "prioritization" and "selection," recognizing from the JPL experience that attempting to prosecute every violation is unfeasible. The Act assigns to the attorney general the task of determining the prioritization criteria—that is, on what grounds will some types of crimes most warrant prosecution.90 Congress has the responsibility to craft a statutory law— pre-examined by the Constitutional Court and embraced by a qualified majority— to determine the "selection criteria that will allow efforts to be focused on the criminal investigation of those most responsible for all offences that acquire the connotation of crimes against humanity, genocide, or war crimes committed in a systematic manner" (Art. 67). In the words of Sánchez and Uprimny, Congress is tasked with the challenge of preventing the Framework from becoming either a "blank check" or a straightjacket for the peace negotiations.91
These vague and undefined prioritization and selection criteria are of concern to analysts who believe they should have been complemented with a commitment to "necessity" and "proportionality."92 Put more plainly, case selection should only be considered when doing so is indispensable to secure peace. Further, proportionality to the gravity of the crime in question should be maintained.93
Critics have raised other concerns. The Framework specifies that these transitional justice tools may also apply to individual demobilizations––an application that does not seem appropriate for an instrument that compromises on prosecutions under the justification that this is necessary to achieve peace. While individuals who want to demobilize on their own should be offered benefits for collaborating with the judicial system and furthering the cause of peace, it does not make sense to apply exceptional transitional justice to individuals—at least not under the logic of this Framework. An individual who has perpetrated crimes and demobilizes on her own is not going to bring about peace in a level that is proportional to the sacrifice of accountability. Further, if this provision applies to state agents, it may open the door to self-amnesty for gross violations of international law.
Granted, state agents are still included among those susceptible to international standards of accountability, truth, and reparations. This alone can be considered a triumph considering the state's prior denials of any wrongdoing, particularly with respect to the armed forces. Yet as argued by Sánchez and Uprimny, applying transitional justice mechanisms to the military misunderstands the purpose of such extraordinary tools.94 Transitional jurisprudence in the context of accountability is premised on the understanding that an armed party may receive penal benefits or leniency because that party recognizes its role in a phase of widespread violence and seeks to be reintegrated into society. The Colombian military, however, continues to deny any institutional responsibility over human rights violations. For example, it describes the actions of the soldiers involved in the "false positives" scandal as "bad apples." Further, even if the Colombian military admitted to prior wrongdoings, the Framework requires no non-repetition guarantees of the armed forces: there is no mention of vetting or security sector reform for the armed forces.
The Havana Peace Talks
Negotiations between the Santos administration and the FARC were formally inaugurated in Oslo and are being held in Havana. So far, they have survived a contested presidential election, a series of military confrontations, and even the FARC's kidnapping of a high-ranking army general. Over the past three years of negotiations, the parties have achieved landmark agreements on an extensive array of issues. They have recently accelerated the pace of the negotiations, setting March as a deadline to sign a final peace agreement.95 Colombia entered the talks with a broad mediation agenda. It aimed to settle on institutional and social reforms as well as on the demobilization, disarmament, and reintegration (DDR) of FARC combatants to civilian life.96 The parties have thus far reached partial agreements on land reform, political participation for ex-combatants, the end to the illegal drugs trade, and victim's rights. The current discussions have dealt with the logistics of the demobilization of the FARC. A final negotiated settlement will be ratified by direct citizen participation, expected to occur in May or June of this year.97 Colombia is also keenly aware that any agreement with the armed group will need to withstand the scrutiny of the Inter-American Court of Human Rights and the International Criminal Court.
These negotiations have been facilitated by a transitional justice framework that emphasizes its peacemaking goals. In turn, they have incorporated elements usually identified with the aims of transitional justice, such as a victimssensitive approach to the conflict, provisions for reparations to victims of human rights violations, and language on the right to truth. The land reform and political participation agenda items can also be understood in the context of a transformative approach to transitional justice and peacemaking. Even in 2013, the High Commissioner for Human Rights recognized this opportunity, encouraging the parties to "maximize societal transformation and address historic inequalities, preventing repetition and a return to armed groups through the promotion of mass long-term employment benefiting and empowering those communities most affected by the conflict."98
The agreements reached so far may enable Colombia to substantially fulfill the preconditions for transition from conflicted democracy to integral, liberal democracy. Both peacemaking and justice have been deployed with a holistic and pragmatic eye: justice has not been reduced merely to criminal prosecutions, and the parties have recognized that addressing the marginalization and inequalities that lie at the root of the conflict is a crucial step toward both peace and justice. At the same time, the conflict resolution agenda has not been restricted to convincing the FARC to lay down its arms today—the mediation in Havana seeks to create sustainable peace by reforming some social, political, and economic foundations.
The land reform issue is particularly good news for Colombia. After all, inequities in socioeconomic power and political participation spurred the Colombian conflict and legitimized the Marxist guerrillas in the countryside; the plight of the rural poor was a motor for recruitment. A state cannot guarantee non-repetition— or, if not repetition, then the recurrence of violence in another form—if it leaves some of the key motivators of the conflict intact. In the land reform issue, there is an opportunity for real transformative justice.
In terms of punitive justice for crimes committed throughout the Colombian war, the parties have agreed to establish a Special Peace Jurisdiction—including special tribunals featuring international judges—to prosecute and judge conflict-related crimes committed by the FARC, state forces, and non-combatants. While purely political crimes, such as FARC membership, will be eligible for pardons, the special tribunals will handle war crimes and crimes against humanity. Those who acknowledge their crimes early will be eligible for sentences of five to eight years of restricted freedom while involved in activities such as demining the areas in which their crimes were committed. Those who admit their crimes belatedly shall pay with five to eight years of prison time. Finally, actors who do not admit responsibility and are found guilty, will be sentenced to up to twenty years in prison.99
These special tribunals will also determine reparations to victims.100 While many questions remain regarding this complex punitive justice formula, the preliminary blueprint aims to be practicable both in terms of being a formula the parties can agree upon and one that will not overwhelm the judiciary. At the same time, the scheme attempts to take some form of punitive action against the worst of crimes committed in the last fifty years of violent conflict.
Much still needs to be overcome. Security risks arise with demobilization in the midst of an ongoing conflict. These risks are particularly sensitive given the result of the FARC's last attempt to demobilize an arm of its cadres. In 1985, about 10% of the FARC demobilized and joined the Unión Patriótica (UP), trading guns for politics.101 The 1986 elections yielded surprisingly positive results for the UP, which elected fourteen congressmen and senators as well as a number of local councilmen. In response, paramilitaries, drug lords, and rogue military operatives waged a dirty war against the party. In only five years, 3,000 UP members, including several presidential candidates, had been murdered.102 One factor potentially lessening security risks, however, is the possibility of another armed actor dropping out of the conflict: ELN too is close to joining its own negotiation process with the Santos administration.
Further, the bacrim and neo-paramilitary structures continue to be a problem—so much so that the FARC insisted on including their existence on its negotiation agenda with the government. This is a sensitive subject given the lasting network of neo-paramilitary actors and the state. Indeed, the High Commissioner for Human Rights all but encouraged the government to undergo a vetting and institutional reform process, noting in the 2013 Annual Report that the administration must uncover armed groups' "political and economic origins and their links to State agents" and that Colombia must "strengthen the State's internal control mechanisms."103 Putting such a process in place is a critical step toward a truly transformative transitional justice and peacemaking endeavor. The Colombian transition may well depend on the state's ability to identify and dismantle these networks and to divest itself from its unsavory past as a tacit oppressor.
The Road Ahead: Conclusions and Implications
Hence, the purpose is not to sacrifice justice to achieve peace, but how to achieve peace with maximum justice.
– Colombian President Juan Manuel Santos, UN General Assembly, September 2013
International justice, national justice, search for the truth, peace negotiations can and must work together; they are not alternative ways to achieve a goal; they can be integrated into one comprehensive solution.
– ICC Prosecutor Luis Moreno Ocampo, Building a Future on Peace and Justice, June 2007
This paper has explored the increasing overlaps between the transitional justice and conflict resolution fields. A state in conflict often finds itself weighing the needs for peace and justice against each other as it attempts to honor its many international and domestic commitments. Yet a holistic understanding of both enterprises reveals that peace and justice need not be mutually exclusive ideals. As Kofi Annan said in his Keynote Address in the recent ICTJ conference on transitional justice in Colombia, "justice is not an impediment to peace; it is an essential partner."
The judicial instruments reviewed in this paper show Colombia's growing embrace of this complementary approach to peacemaking and transitional justice. While the JPL and VL are examples of transitional justice instruments deployed during ongoing conflict, the Legal Framework for Peace is a tool that aims to facilitate an end to the conflict through a transitional justice instrument. Negotiating a final agreement with the FARC will involve striking a difficult equilibrium between the imperatives of full accountability and the desire to transition to a post-conflict scenario. An accord that forges sustainable peace in Colombia cannot neglect the human rights abuses committed by all sides of the conflict. Such an outcome would enrage victims and their advocates. It would generate mistrust among a public already wary of the guerrillas' commitment to peace and the legitimacy of state institutions. These suspicions could intensify the conflict, especially since those who oppose peace with the FARC would use this discontent to discredit the current administration. This would also disrupt the reintegration of ex-combatants, which could in turn cause the group to rearm or splinter. And additional mistrust in the government and the rule of law could worsen the already serious levels of criminal violence. While it is much debated whether transitional justice in fact facilitates peace and deters future violence, a peace process resulting in grave injustice would surely not only fail to bring lasting peace, but could even become a new source of violence.
Colombia has traveled a conflicted, tumultuous path in its complementary use of transitional justice and peacemaking efforts. Inevitably, the path will continue: the previous administration has already introduced the discourse of transitional justice—whether aptly or not—during the demobilization of the paramilitaries. Further, the international, regional, and national legal and normative obligations that Colombia faces today demand that any peace process address the satisfaction of victims' rights and the prosecution of the worst offenders of human rights and international humanitarian law.
Anything short of this result risks the demands of both peace and justice. A lax political deal could prompt the International Criminal Court, the Inter-American Court of Human Rights, or Colombia's own judiciary to intervene and reject the agreement. Even the threat of such scrutiny could instigate renewed violence. Since the FARC will want to rely on the fact that any agreement be honored, the silver lining is that both parties understand the need for a negotiated outcome to satisfy minimal commitments to justice—even if this requires some sacrifices. Further, the government needs its constituents' support both to ratify a peace treaty and to reintegrate the FARC into civilian life. A DDR scheme often clashes with victims' restitution programs and a country's general post–conflict development goals. Since the escalated violence and the guerrilla's drug-trafficking operations have eroded the group's legitimacy, a peace deal with the FARC must convince a skeptical Colombian public that the rebels are committed to abiding by the rule of law.
Finally, the outcome of the peace process and success of the transitional justice framework will test the legitimacy of the Colombian state, especially following the "parapolitical" and "false positives" scandals of the Uribe regime. The Santos administration must rebrand a governmental structure widely perceived as repressive, neglectful, and corrupt. A successful peace process and a victim– centered transitional process will advance this aim, but guarantees of non-repetition might also require a vetting and institutional reform of the government's most compromised structures. Rural development measures and guarantees of political reintegration are positive indicators that the parties are using the transitional process as an opportunity for "transformative" justice that will not merely seek to restore the pre–conflict status quo. Rather, measures such as land reform and opening the political arena address the crucial socioeconomic and political oppression at the root of Colombia's fifty years of armed struggle.
In conclusion, there are serious obstacles to simultaneously deploying transitional justice and conflict resolution agendas. A complementary approach requires a holistic understanding of both fields as well as recognition of the relationship between justice and sustainable peace. Developing and implementing transitional justice while armed violence is ongoing is not unlike "repair[ing] the boat at high seas, amidst high winds and furious waves."104 A pragmatic, victimsoriented transitional justice architecture that ambitions to improve upon rather than restore the status quo may very well buttress a transition toward peace. There are no guarantees: transitional justice instruments, even when carefully deployed, cannot assure a transition. Nevertheless, Colombia's strong institutions, judicial tradition, and prior experiences with transitional justice agendas offer the country a robust chance to pioneer the complementary use of transitional justice and peacemaking.
Appendix 1: List of Acronyms
AUC: Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia) is an umbrella organization of far-right paramilitary groups in Colombia, each intending to protect their local political, economic and social interests by fighting left-wing insurgent groups in their regions. While the AUC was officially demobilized in 2006, some local successors remain.
Bacrim: Bandas criminales emergentes, criminal bands.
CNRR: Comisión Nacional de Reparación y Reconciliación was created under the 2005 Justice and Peace Law. The Commission, which operated for eight years, was tasked with publishing a report on the causes of the Colombia internal conflict and the emergence of armed groups.
DDR: Disarmament, Demobilization, and Reintegration.
FARC, or FARC-EP: Las Fuerzas Armadas Revolucionarias de Colombia Ejército del Pueblo (Revolutionary Armed Forces of Colombia Army of the People) is Colombia's main left-wing insurgent group. A Marxist-Leninist revolutionary guerrilla, the FARC opposes Colombia's central government advocating agrarianism and anti-imperialism, and has been involved in the ongoing armed conflict since the group's foundation in 1964.
ELN: The Ejército de Liberación Nacional (National Liberation Army) is Colombia's less known remaining left-wing guerrilla. The ELN's Communist political platform is a combination of Marxism and Liberation Theology. Also established in 1964, the ELN as an organization is an outgrowth of university unrest, founded by Colombian rebels trained in Communist Cuba, and later by a series of Catholic priests, advocates of Liberation Theology.
ICC: The International Criminal Court, which sits in the Hague in the Netherlands, is an international tribunal with jurisdiction over the international crimes of genocide, crimes against humanity, and war crimes. Its jurisdiction is governed by the Rome Statute. Colombia, which has ratified the Rome Statute, accepts the jurisdiction of the ICC over crimes against humanity and genocide from 2002 onwards and over crimes of war from 2009 onwards.
JPL: Ley de Justicia y Paz (Justice and Peace Law) was Colombia's first transitional justice instrument, passed in 2005 under the Uribe regime.
M-19 Movimiento 19 de Abril (April 19th Movement) was a Colombian guerilla movement. It was the second largest guerilla group in Columbia by mid-1985, but was demobilized in the late 1980s. After its demobilization, it formed the political party M-19 Democratic Alliance, or AD/M-19.
VL: The Victims and Land Restitution Law is Colombia's first well-known transitional justice instrument in Colombia that revolves entirely around victims' rights to reparation. It has been in forced since 2012.
Appendix 2: The Legal Framework for Peace
Appendix 3: Exc erpts From the Negotiation Agenda105
General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace
The delegates of the Government of the Republic of Colombia (National Government) and the Revolutionary Armed Forces of Colombia-People's Army (FARCEP):
As a result of the Exploratory Meeting held in Havana, Cuba, between 23 February 2012 and 26 August 2012, that counted on the participation of the Government of the Republic of Cuba and the Government of Norway as guarantors, and on the support of the Government of the Bolivarian Republic of Venezuela as facilitator of logistics and companion:
With the mutual decision to put an end to the conflict as an essential condition for the construction of stable and lasting peace;
Attending the clamor of the people for peace, and recognizing that:
With the government's and FARC-EP's full intention to come to an agreement, and the invitation to the entire Colombian society, as well as to the organisations of regional integration and the international community to accompany this process;
WE HAVE AGREED:
1. To initiate direct and uninterrupted talks about the points of the agenda established here thatare aimed at reaching a Final Agreement for the termination of the conflict that will contribute to the construction of stable and lasting peace.
2. To establish a Table of Talks that will be opened publicly in Oslo, Norway, within the first two weeks of October 2012 and whose main seat will be Havana, Cuba. Meetings can take place in other countries.
3. To guarantee the effectiveness of the process and conclude the work on the points of the agenda expeditiously and in the shortest time possible, in order to fulfill the expectations of society for a prompt agreement. In any case, the duration will be subject to periodic evaluations of progress.
4. To develop the talks with the support of the governments of Cuba and Norway as guarantors and the governments of Venezuela and Chile as accompaniers. In accordance with the needs of the process and subject to common agreement, others may be invited.
5. The following agenda:
1. Integrated agricultural development policy
Integrated agricultural development is crucial to boost regional integration and the equitable social and economic development of the country.
1. Access and use of land. Wastelands/unproductive land. Formalisation of property. Agricultural frontier and protection of reservation zones.
2. Development programs with territorial focus.
3. Infrastructure and land improvement.
4. Social development: health, education, housing, eradication of poverty.
5. Stimulus for agricultural production and for solidarity economy and cooperatives. Technical assistance. Subsidies. Credit. Generation of income. Marketing. Formalisation of employment.
6. Food security system.
2. Political participation
1. Rights and guarantees for exercising political opposition in general and for the new movements that emerge after signature of the Final Agreement. Media access.
2. Democratic mechanisms for citizen participation, including direct participation, on different levels and on diverse issues.
3. Effective measures to promote greater participation of all sectors in national, regional and local politics, including the most vulnerable population, under conditions of equality and with security guarantees.
3. End of the conflict
Comprehensive and simultaneous process that implies:
1. Bilateral and definitive ceasefire and end of hostilities.
2. Handover of weapons. Reintegration of FARC-EP into civilian life, economically, socially and politically, in accordance with their interests.
3. The National Government will coordinate revising the situation of persons detained, charged or convicted for belonging to or collaborating with FARC-EP.
4. In parallel, the National Government will intensify the combat to finish off criminal organisations and their support networks, including the fight against corruption and impunity, in particular against any organisation responsible for homicides and massacres or that targets human rights defenders, social movements or political movements.
5. The National Government will revise and make the reforms and institutional adjustments necessary to address the challenges of constructing peace.
6. Security guarantees.
7. Under the provisions of Point 5 (Victims) of this agreement, the phenomenon of paramilitarism, among others, will be clarified. The signing of the Final Agreement initiates this process, which must be carried out within a reasonable period of time agreed by the parties.
4. Solution to the problem of illicit drugs
1. Illicit-crop substitution programs. Integral development plans with participation of communities in the design, execution and evaluation of substitution programs and environmental recovery of the areas affected by these crops.
2. Consumption prevention and public health programs.
3. Solution to the phenomenon of narcotics production and commercialization.
Compensating the victims is at the heart of the agreement between the National Government and FARC-EP. In this respect, the following will be addressed:
1. Human rights of the victims.
6. Implementation, verification and ratification
The signing of the Final Agreement initiates the implementation of all of the agreed points.
1. Mechanisms of implementation and verification:
These mechanisms will have the capacity and power of execution and will be composed of representatives of the parties and society, depending on the case.
1. International accompaniment.
4. Tools for dissemination and communication.
5. Mechanism for ratification of the agreements.
Signed on 26 August 2012, in Havana, Cuba.