On 24 December 2014, Colombian President Juan Manuel Santos expressed his hope that the New Year could bring an end to his country’s 50-year-old internal conflict.
The negotiations between the central government and the Revolutionary Armed Forces of Colombia (FARC), which have been taking place in Havana, Cuba, since August 2012 have now reached their final stages.
But while the government and the guerrillas’ delegations discuss the remaining items of the six-point agenda, the negotiations are faced with a dilemma that is far from being solved. How, and to what extent, should those culpable of the conflict’s atrocities pay for their crimes?
The answer has so far been cashed out in terms of transitional justice: the successful overcoming of a conflict may justify, and indeed require, more lenient punishments for those involved.
To put it very roughly, so long as those responsible for the atrocities are committed to reparations and shedding more light on the barbaric acts they have caused, they could be granted alternative forms of punishments – that is, non-prison sanctions, or reduced terms in jail.
This idea has stirred up a hornet’s nest. Whether or not the FARC fighters and their leaders should be granted indulgent sanctions is a question that is bound up with the fate of the Armed Forces involved in the conflict.
One risk is that transitional justice may be tilted in favour of the guerrillas: while the FARC militants would enjoy the benefits of transitional justice, the Army would not.
How could the government ever justify a guerrilla militant being allowed to walk free upon repenting for his crimes, and a military official being kept for years in prison?
On 15 February, the debate took another turn. Former President César Gaviria published a proposal which would extend the potential benefits of transitional justice to involve other non-combatant groups that have taken part in the conflict.
The novelty is not so much the inclusion of the army, but the application of transitional justice to those who co-operated without ever fighting directly. With the debates on justice focused only on the FARC and the military before, this is no mean feat.
Gaviria’s suggestions received the backing of both the government and the guerrillas, with the latter welcoming it as evidence of the state’s responsibility for the conflict. But the proposal begs one fundamental question: if justice is to be applied to a much larger pool of those involved, then exactly what should this justice entail?
Today’s debates have a long history. Some of the first mechanisms of transitional justice were implemented in 2005 under the Law of Justice and Peace, approved by Congress to facilitate the demobilization of 35,000 members of Colombia’s United Paramilitary Self-Defence Forces (AUC).
Since then, a number of measures and norms have followed. Among the most recent is the 2012 Juridical Framework for Peace, which aims to address the legal settings underpinning the peace process with the FARC. But all these measures notwithstanding, the country has never come up with a single coherent transitional justice framework.
Most worryingly, the current government has contributed to the difficulties surrounding the pursuit of transitional justice.
According to Colombian legislation, impunity can only be granted in the case of political crimes, or crimes associated with them. The Penal Code defines a political crime as ‘an act of rebellion, sedition or riot’.
Those found guilty can, under the 1991 Constitution, avoid extradition, take part in elections and gain access to public-sector jobs – but only if a pardon is granted. No pardon can ever be issued in the case of war crimes or crimes against humanity.
Earlier last December, Santos added further controversy to the subject when he stated that the notion of political crimes required some degree of flexibility, so much so that even narcotrafficking crimes could potentially be classified as violations associated with political ones.
But in that case, not only would the judicial system be able to grant FARC members amnesty for their political crimes; it could potentially grant them pardon for their illegal drug trafficking, historically one of the most important sources of revenues for the guerrilla group.
The President retracted the statement a week later, but flexibility has remained a recurrent – and problematically seductive – trope. This is not to claim that room for manoeuvring should never be allowed at peace talks.
Some degree of flexibility is necessary in all negotiations, all the more so in a case as complex as Colombia’s conflict. The problem is when flexibility is conflated with impunity.
This is the worry with Gaviria’s proposal. By claiming that a successful end of the negotiations requires a halt to ‘all judicial proceedings against those responsible for war crimes’, Gaviria’s transitional justice looks like a dangerous mix of forgiveness and forgetfulness.
Applying this brand of transitional justice to non-fighters would allow those responsible for some of the country’s most atrocious crimes to benefit: state officials supporting the paramilitaries and guerrillas; corrupted judges; entrepreneurs who exploited narco-trafficking and other non-combatants who committed human rights violations.
After welcoming Gaviria’s ideas, the FARC delegation’s spokesperson, Ivan Marquez, stated on 23 February that the guerrillas would not be spending a single day in prison.
Yet no insurgent group has ever negotiated its own imprisonment (or avoidance thereof), and the FARC will be no different.
Colombia cannot, from a purely legal point of view, allow it. The Constitutional Court and domestic legislation forbid amnesty for the type of crimes the guerrilla group is accused of. In addition, the International Penal Court (IPC) and the treaties Colombia has ratified have turned this into an impossible scenario.
The IPC has already made clear that transnational justice and alternative forms of punishment can only be applied on the assumption that there are real sanctions: amnesties for war crimes and crimes against humanity are simply prohibited. And the Statute of Rome has ruled that such crimes must necessarily lead to prison terms.
But there is another worry that goes well beyond purely legal calculations.
A peace with impunity is a dangerous deal for both sides. The amnesties and pardons granted to the guerrillas during the peace process carried out under Belisario Betancur’s presidency (1982-86) did not simply destroy the victims’ hopes for justice – they had catastrophic consequences for those they were granted to, as well.
The negotiations led the FARC to create their own political party, the Unión Patriótica (UP). But the party’s success was short-lived: its members were soon massacred by those dissatisfied with the outcomes of the negotiations, and by the early 2000s the UP had ceased to exist.
And impunity is a political quandary that affects Santos, too.
If this is truly the people’s peace, and not the President’s own, then it is time for the government to question carefully whether a signature in Cuba will actually mean peace at home.
Should the final agreement be subject to the approval of the Colombian people – as the government has promised – then the people’s support will be crucial if it is to be successful and durable. And the people’s support Santos needs can only be obtained if the government does not forget the conflict’s victims.