The question of how criminal justice and punishment should figure in the resolution of the armed conflict in Colombia is a genuinely troubling conundrum. To date the discussion has tended to focus on two aspects. First, the question of whether it is reasonable at all to require justice for the many serious crimes committed in the conflict, given the difficulties this poses for the ongoing negotiations to end the conflict; and second, if so, what are the best mechanisms to pursue justice?
It may be helpful to reframe the question. The International Centre for Transitional Justice (ICTJ) has recently published a paper exploring these ideas in more detail. It suggests that we need to first ask ourselves, what are the policy objectives of punishing the most serious crimes in the context of peace negotiations to end a conflict spanning half a century? Only then should we ask what measures are best designed to secure those objectives.
Instead of asking what right we have to punish, we should be asking what we aim to achieve by punishment.
A policy objective is not the same as a moral justification. Instead of asking what right we have to punish, we should be asking what we aim to achieve by punishment. In national justice systems, punishing crimes has many objectives: the incapacitation of criminals, the specific and general deterrence of crime, retribution, reformation of criminals and the idea of “communication”—a public condemnation that affirms core values, while allowing perpetrators the chance to reflect and seek reintegration.
If we consider the debate on punishing war crimes committed by the Revolutionary Armed Forces of Colombia (FARC), the first three of these objectives are of limited relevance. Incapacitation seeks to take threats to public safety off the street. Specific deterrence seeks to impose negative consequences to dissuade the particular offender from future misconduct. If the peace process is successful, however, the conflict will come to an end. Since the conflict provides the means, motives and opportunity for serious crimes to be committed by the most responsible in the FARC, ending the conflict would radically reduce the risk of re-offending by these individuals. Punishment arising from a peace negotiation would therefore not be about incapacitation or preventing the criminals from re-offending.
Similarly, general deterrence is not at issue. It threatens the public at large with negative consequences, and relies crucially on the idea of certainty of punishment. This requires that the justice system is generally effective and especially in the most serious cases. In Colombia it is expected that exceptional procedures will be introduced for a small group of offenders from the FARC because precisely the opposite is the case: the system has not done what it should do.
The best way, therefore, to understand the policy objectives for punishment in Colombia’s context is as a mix of retributive, reformative and communicative goals. First, we must understand that as a policy objective (as opposed to moral justification), retribution simply means causing suffering to an offender. It has no additional objective. But international human rights law also requires reformation and rehabilitation as a goal of any criminal punishment, and this means that the punishment should be designed to enable change in future conduct.
Perhaps the most important objective in Colombia’s context is punishment as communication. This embraces two ideas: the solemn act of public condemnation that reaffirms core social values, including acknowledgment of the the harm done to victims; and the opportunity given to the perpetrator to reflect on his wrongdoing, recognize it and embrace the same core social values he has violated. For those most responsible for serious crimes, this idea of communicative goals in punishment is especially persuasive. Conduct in the conflict has damaged respect for fundamental values that bind society together. A core aim of punishment must enable society to reaffirm those values and allow perpetrators to acknowledge and ideally embrace them.
What measures are necessary to secure these three goals? We hear frequently that the punishment must not only reflect the gravity of the crime but also the role of the offender. Proportionality makes some sense when dealing with relatively less serious crimes. But with very serious crimes proportionality becomes an illusion: the scale of atrocities outruns the range of available punishments quite quickly.
Colombia’s Justice and Peace law of 2005 imposed a maximum sentence of eight years imprisonment in cases that included senior paramilitaries confessing to several hundred murders. No one could honestly tell victims or their relatives that the penalty reflected the gravity of the crime. Yet, significantly the Office of the Prosecutor (of the International Criminal court—ICC) has indicated there is no problem in principle with this approach.
Calls for penalties to fit the crime distort the real focus of sentencing and in any event have been abandoned in practice by both Colombian state and ICC authorities. Such calls for proportionality are essentially rhetorical.
Demotix/Guille Legaria (All rights reserved)
In December 2014, worried that rebel crimes and human rights violations will go unpunished, citizens marched in several cities in Colombia to question peace negotiations.
But the question remains: accepting it will never be proportional, how much punishment is enough? The answer is as much as is necessary to be effective in meeting the goals described. It is broadly assumed that penalties will be much less than in normal circumstances but that some form of suspended sentence would be applied in connection with other measures. As far as the communicative goal is concerned, the punishment should focus the mind of the offender sufficiently to understand the harm done. It should represent a form of social penance, and allow victims to confront the offenders. It should be more than symbolic.
How then can Colombia meet the objectives of retribution, communication, and reform? First, the trial process must be public, accessible and serious. Secondly, victims from the cases selected should be entitled to meet with those convicted, and seek a response from them. Such a response might include acknowledgment and an indication of the acceptance of core social values. Third, any suspended sentence must be accompanied by additional measures, such as financial penalties, temporary exclusion from public office and community service orders in crime-affected areas. If prison sentences need to be so reduced as to be effectively symbolic, it may be that other means can better meet the real objectives of punishment.
Reframing the justice question to focus on the objectives of punishment helps to clarify what means will best achieve them. Ultimately however, which punishment measures will be acceptable will be a decision for the people of Colombia in a referendum. They will rightly have the last word.