On 23 September 2015, the Colombian government and FARC rebels reached an historic agreement on transitional justice, the fifth of six agenda items, paving the way for a final peace deal to be signed by March 2016. In a joint announcement in Havana, the Colombian president, Juan Manuel Santos, and the head of the FARC, Rodrigo Londoño, said they had agreed on a range of justice and reparations measures to address crimes stemming from the 50-year civil war, including murder, kidnapping, disappearances, forced displacement and torture. These measures include a truth commission, a criminal tribunal – the “Special Jurisdiction for Peace” – comprising domestic and international judges with powers to prosecute both government and rebel actors considered most responsible for grave crimes, and an amnesty provision for all remaining combatants. Those who cooperate with the tribunal and confess crimes early in the process will be eligible for reduced sentences of between five and eight years under “special conditions” that would involve “effective restraint of liberty” rather than jail time. President Santos told the press, “We have agreed to create a special jurisdiction for peace that is going to guarantee that the crimes committed during the conflict, especially the most serious ones, will not remain unpunished."
Short of international legal standards
The transitional justice agreement in Havana was lauded globally as a breakthrough in the three-year peace process, which has persisted through more than 40 rounds of talks despite periodic armed clashes between the government and the FARC. International human rights organisations, however, were scathing in their assessments of the agreement.
In a press release entitled, “Colombia: Dealing Away Justice”, Human Rights Watch (HRW) said, "While the special jurisdiction would encourage confessions, it would also allow those most responsible for mass atrocities to completely avoid prison, denying their victims the right to justice in any meaningful sense of the word…. Colombia has a legal obligation under international law to provide punishments for human rights violations that are proportionate to the gravity of the crimes".
In a similar vein, Amnesty International (AI) said, "Vague definitions and potential amnesties raise fears that not all human rights abusers will face justice…Colombia has a duty to investigate and, if there is sufficient admissible evidence, prosecute all those suspected of criminal responsibility for crimes under international law. This obligation is non-negotiable, even in the context of a peace process".
Both HRW and AI warned that the transitional justice processes agreed at Havana would fall short of international legal standards and may warrant the intervention of the International Criminal Court (ICC), which opened a preliminary investigation into crimes in Colombia in June 2004. In 2014, the ICC prosecutor, Fatou Bensouda, reported that the Court had “informed the Colombian authorities that a sentence that is grossly or manifestly inadequate, in light of the gravity of the crimes and the form of participation of the accused, would vitiate the genuineness of a national proceeding, even if all previous stages of the proceeding had been deemed genuine.” In other words, Colombia is on notice that if its domestic justice processes – the product of protracted arguments in Havana – don’t pass the ICC’s muster, the Court will claim jurisdiction over some of Colombia’s gravest cases.
The interventions by HRW and AI in debates over the Havana process are highly problematic and point to larger issues concerning their transitional justice advocacy. These organisations’ calls for “non-negotiable” criminal prosecutions of all actors suspected of committing serious crimes belie the complex and fragile nature of peace negotiations. Convincing powerful actors who have waged decades-long conflicts – with both sides committing atrocities – to lay down their arms requires patience, flexibility and a willingness to compromise. This includes having all justice options on the table at the outset. Without such an assurance, one or both parties are likely to walk away and resume hostilities. As Colombian academic, Clara Sandoval, argued in a JusticeInfo.net blog piece in June this year, “It is clear that the FARC is not going to demobilise and arrive at a peace agreement if the cost is imprisonment for what they consider to be a justified fight against the establishment, while they also forfeit all financial benefits from the conflict (territorial control, drug trafficking, extortion, etc).” The absolutist demands by HRW and AI, which display a tin ear to the trade-offs and concessions inherent in any peace talks, give the parties no incentive to negotiate.
Narrow set of justice obligations
Campaigns by HRW, AI and other international human rights organisations are making peace negotiations – and the task of mediators – harder by insisting on a narrow set of justice obligations. This lobbying has been particularly influential when the United Nations has played the mediating role in peace talks because the UN system increasingly hews to the view that those considered most responsible for genocide, crimes against humanity and war crimes must be investigated and prosecuted, regardless of the impact on the prospects for peace. This was evident in the 2006-2008 peace negotiations in Juba between the Ugandan government and the Lord’s Resistance Army (LRA), mediated by the UN. The first 18 months of the talks were consumed by the LRA’s desire to remove or stall the ICC arrest warrants issued for five of its commanders in 2005. In response, the government and LRA debated the modalities of pausing the arrest warrants as well as a range of so-called “alternative accountability and reconciliation mechanisms”, including the Ugandan Amnesty Act which had been in place since 2000. Throughout the Juba process, HRW and AI – as well as the ICC – produced a steady stream of (often highly emotive) communiqués insisting that Uganda had an international obligation to arrest and transfer the LRA commanders to The Hague and that any attempt to deploy the national amnesty, or any other domestic transitional justice mechanism that did not amount to full-blown prosecutions, would violate international law. Responding to this pressure, the UN mediators insisted that the ICC warrants remain in place, much to the chagrin of the LRA, which eventually refused to sign the final peace agreement and instead renewed its armed campaign. The Colombian peace talks have benefited from the absence of international mediators – with the governments of Cuba, Norway, Chile and Venezuela acting only as guarantors of the process – and less susceptibility to the rigid prescriptions of international human rights advocates.
The transitional justice agreement at Havana represents an attempt by the Colombian government and the FARC to find a way to deliver a form of justice that both parties can agree to and that sends neither of them scurrying back to armed conflict. Rather than “dealing away justice”, as HRW glibly claims, this represents a process of contextualising justice according to the unavoidable constraints of the peace negotiations and the broader domestic political and legal environment back in Colombia. The view of HRW, AI and other international human rights organisations is that justice comes in a single form, namely international prosecutions such as those by the ICC or domestic trials that mimic these. Anything less, they argue, equals impunity. Such thinking amounts to what Mahmood Mamdani calls “human rights fundamentalism” – the demand by disengaged actors, who have to live with none of the consequences if peace talks fail, that those doing the difficult work of negotiating peace must adhere to their narrow brand of legalism or risk international opprobrium or, worse, direct intervention by outside actors such as the ICC. Like all fundamentalists who insist that their particular credo is universal and “non-negotiable”, they should – as the actors in Havana have shown – be ignored.