Graffiti in Bogotá, Colombia. Flickr. Some rights reserved.
The Colombian conflict is one of the world's longest-running armed confrontations. For this reason, news in recent months of concrete progress towards ending this conflict between the Colombian government and the FARC Marxist guerrillas through a peace process, has been greeted by much anticipation and congratulations from a large part of the international community. Within these positive developments was an announcement made at the end of 2015 by both parties for 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 centre 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 a proposal made by the parties to create a mission to verify compliance with the agreement, whether or not 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), who, although not sharing the view of Human Rights Watch, have rightly said that there are still loose ends to tie up and 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 which underpins it. The second is to know the legal principles on which it is based and that are to be applied. The third is to analyse the structure of the tribunal that will pass judgements. Finally, the fourth, is to understand the forms of punishment that will be given to those who are convicted by the court.
Delivering justice after war
Delivering justice after a war is always a difficult task and the Colombian case is no exception. Firstly, 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, measures for justice 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. Justice has generally been imposed by victors onto the vanquished.
Thirdly, although the agreement has been negotiated by the government and the FARC, 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 the same during the conflict. This includes both members of the Colombian security forces and other public officials, and individuals who have sponsored or financed armed conflict. This is unlike a victor's justice where 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 fit together with historical measures that already had been undertaken in Colombia. An example are the criminal trials against paramilitary groups that were part of the conflict but de-mobilised 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 old 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, their claims will be more about finding an exit with little justice than achieving full clarification and responsibility for all the facts. That 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 maximalism, many of these initiatives have failed.
The international community's doubling down against heinous crimes means that countries like Colombia cannot now opt for a formula that was widely used in the past to solve the dilemma: general unconditional amnesty (a route that was considered an easy way out, but which over the long term had many complications, as demonstrated in Argentina or South Africa). But the other option (establishing a system with the purpose of bringing to trial all acts and punishing them in the most severe way possible), also was unfeasible.
The Colombian agreement then seeks a middle ground. Firstly, it divides crimes committed into two types: international crimes, and 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 through the punishment of the offender but also the clarification of the facts, the recognition of what happened and dignifying them through seeing the case tried in court, and the commitment that such acts will not happen again. Consequently, the agreement provides for additional justice measures and calibrates punishment based on the cooperation that ex-combatants provide for the achievement of these other measures: greater contribution, greater benefits, and vice versa.
For example, with respect to truth and justice: If the excombatant works with the victims in a 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 fail to do so and a formal trial is initiated, but meanwhile the excombatant 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 the rights of their victims, the system reserves 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 regular national justice system to take on the cases. This option in the Colombian case however was rejected both by members of the FARC (who see regular justice as the "justice of the enemy"), and by members of the armed forces (who have accused regular judges of not understanding what happens in an armed conflict).
An alternative option was an international tribunal. But the proposal was not attractive to the government, especially because it does not want to appear unable or unwilling to deliver justice, which would tentatively open the door for an intervention of a body such as the International Criminal Court.
The middle-way (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. It would not be the first time that exceptional national mechanisms have been created to handle cases arising from conflict. Recent experiences, which were thoroughly analyzed by the Colombian negotiators, include the War Crimes Chamber in Bosnia-Herzegovina and the International Crimes Division in Uganda.
But the end result in Colombia is not simply a copy of these experiences. It is a complex system, which although inspired by the successes of other experiences, was drawn from 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", which from the beginning has made it clear that it is not only a court of law. It is a comprehensive system by which it seeks to guarantee the rights of victims to truth, justice, reparation and guarantee of non-repetition. It also includes both 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 make up 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, also cannot be chosen by those who will be brought to justice. That 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 and that 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 atrocity has been committeed 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 that were mentioned at the beginning of this article. The issue is as follows: international standards require that there is proportionality between the seriousness of the offence and the severity of the punishment. Therefore, the most serious crimes should be punished more severely. That includes, obviously, the aforementioned international crimes. Now, a negotiated formula for justice seems impossible to achieve if the only option is for those negotiating to submit themselves to severe penalties, especially when these are normally 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 ourselves, argue that it is possible, as international treaties at no time require that the sentence must be understood as meaning only prison. Besides, there are those who argue that alternative punishments are not only suitable in 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 the punishment may be given by means of an "effective restriction of rights and freedoms".
This open language makes it possible that alternative measures to prison can constitute punishment, but with three objectives in mind. The measure (which could be 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 receive it as punishment, fulfilling the requirement that the sentence be a reproach and an effective sanction. Secondly, the measure must be a proportionate reparation for the victims. And, in parallel, the measure must seek to repair the damage that the excombatants 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 and can only be implemented to determine to what degree these three objectives can be met by a particular punishment. But if it were possible, the three objectives reinforce each other in a way that would make it very difficult to assert that a prison sentence is more respectful of the rights of victims and more oriented towards reconciliation and non-repetition than a process of this type.
Nothing is finalised and the debate is not over. The comprehensive peace agreement between the government and the FARC may seem to be close, but it has not yet been concluded. Therefore, the justice agreement is an objective that is yet to be achieved and yet to 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.
Translated from Spanish by Katie Oliver, member of Democracia Abierta's Volunteer Program