By Lily Rueda –
Thursday, 23 June 2016, was a historic day for Colombia. From Havana (Cuba), the President of Colombia, Juan Manual Santos, and Timoleón Jiménez, commander of the FARC-EP, announced that they have reached an agreement on a bilateral and definitive ceasefire to end the world’s longest-running internal armed conflict. The deal also encompasses the terms of the FARC-EP laying down of arms, security guarantees and mechanisms to fight against criminal organizations. This is a major breakthrough in the peace negotiations which, until now, have lasted almost four years, adding momentum towards a historical and final peace agreement.
The peace talks, which formally commenced in 2012 under the premise that nothing is agreed until everything is agreed, have progressed following an agenda of six points. In 2013, the parties agreed on a new comprehensive agricultural development policy. The same year, the parties announced the terms for the future political participation of the FARC-EP. In 2014, negotiators dealt with the issue of the illicit drugs and in December 2015 parties agreed on the creation of a Comprehensive System to Satisfy the Victims’ Rights to Truth, Justice, Reparations and Guarantees of Non-Repetition, which is also known as the justice agreement. A decision on the mechanisms that will be used for the implementation, verification and endorsement of the final agreement is still pending.
Out of the five points that have been agreed thus far, the justice agreement, dealing with the issue of victims’ rights, was one of the most challenging and politically charged. Indeed, while reaching an agreement took approximately six months for every other point, the so-called justice deal saw the light after one year and a half of talks only.
The justice agreement represents the Colombian formula for how to achieve justice for the most serious crimes without jeopardizing peace. It also marks the first time that a country that is under preliminary examination of the International Criminal Court reaches the final stages of a peace process that contemplates a particular arrangement with judicial and non-judicial bodies to deal with international crimes. What is this particular formula and what are its implications, now that an agreement seems closer than it has ever been?
Provided the parties arrive at a final agreement, a new comprehensive system of transitional justice will be put in place. The arrangement is innovative and will follow the current understanding of transitional justice as a holistic and comprehensive set of mutually supportive measures. It will include a Special Jurisdiction for peace with several chambers, a Tribunal for Peace and a Unit for Investigation. The judicial system will operate in coordination with a Truth Commission and schemes for reparation and non-repetition and it will not be part of extant judicial system.
International crimes will not be subject to amnesties or pardons, as usually happens within peace negotiations. Instead, a special set of reduced, alternative sanctions with a strong restorative dimension will be put in place for perpetrators who acknowledge their responsibility. They will be offered non-traditional, reduced sentences between 5 to 8 years and they will not be subjected to imprisonment. The envisaged sanctions include for instance, participation in community projects for the reparation of victims and territories affected by the conflict. On the other hand, those alleged perpetrators not willing to confess the truth and to admit their responsibility will face adversarial proceedings before the Tribunal for Peace. If found guilty, they will be punished with imprisonment from fifteen to twenty years. Reduced terms will be granted to those changing their minds and belatedly recognizing responsibility within prosecution or trial. To put the severity of envisaged sanctions in context, it is enough to state that under the Colombian Criminal Code, conducts amounting to international crimes, are subjected to possible imprisonment of up to 60 years. Therefore, the envisaged accountability mechanism provides for highly mitigated sentences with the aim to achieve the greater good: peace.
Given the large scale character of international crimes committed during more than 50-year conflict in Colombia, the special jurisdiction will specifically target those considered to be the most responsible, instead of every single person with a possible involvement in the commission of the offenses. Finally, participation in this accountability scheme is conditional. In order to receive and be able to complete the reduced or reparatory sanctions, it will be necessary to comply with obligations related to truth, reparation and non-repetition that will be set up when all the components of the system are functioning.
Arguably the whole system is designed to alter the perpetrators’ costs-benefit calculations in order for them to realise that they have more to gain by entering and fulfilling the judicial process than by avoiding it. Some, including the U.S. President Obama, believe this is a new model for achieving peace while delivering justice. Yet, others, such as former Colombian president Alvaro Uribe and Amnesty International, believe the system will result in impunity. When seen in its context it could be said that this arrangement is a little bit of both. On the one hand, it was tailored for particularities and political and practical necessities of the Colombian context. On the other hand, this arrangement includes a form of accountability and punishment, but not the usual one guided by mainly retributive purposes.
More interestingly, this justice arrangement faces particular challenges when considered as a mechanism for doing justice for international crimes. Colombia is obliged under international human rights law to provide for effective remedies to victims of human rights violations, including the duty not to relieve perpetrators of individual responsibility by means of amnesties and any other procedural impediments. According to international criminal law, the state is obliged to prosecute and punish crimes of genocide, apartheid, torture and in general, acts amounting to international crimes. The extent to which the context of a peace negotiation can justify reparatory or non-traditional sanctions, and whether they could satisfy international standards is a question that remains unanswered.
In addition, and regardless of the strictly legal analysis, this an ambitious and complex transitional justice mechanism that will during its implementation almost unavoidably face the challenge of being effective and expeditious, all while maintaining its internal logic of operation. The available statistics reveal the grave nature and large scale of conflict-related crimes committed during the sixty years of war in Colombia. As of June 2016, the Unit for Victims’ Reparation counts 8,040,748 officially-registered victims. The Office of the Prosecutor General estimates that at least 10,000 persons that are potentially responsible for 100,000 instances of different crimes will be eligible to participate and benefit from this special judicial regime. Putting aside the human and economic resources this system will require, it will also need to follow a judicial strategy and operative approach in order to deliver meaningful results within a reasonable timeframe.
An adequate, serious and transparent operation of the Jurisdiction for Peace could lead to vindication of decades of mistreatment to victims and to construct trustworthiness in the judiciary. Additionally, given their special nature, sanctions have a significant potential of repairing the harm caused by politically motivated violence. However, the imposition of sanctions that could satisfy not only international standards but also national calls for justice will remain a challenge. The justice mechanism in a future peace agreement in Colombia faces the major challenge of doing so without making imprisonment front and centre of its design. Undoubtedly, it will impact on the current understanding of the relationship between the ICC and countries dealing with domestic formulas to promote peace while delivering their own formulas for justice.