Transitional Justice for Victims Breaks New Ground
Yesterday’s breakthrough in peace talks between Colombia’s government and rebels reveals the outlines of a final deal and puts the grueling process firmly back on track, says USIP’s Virginia Bouvier. The agreement may serve as a model for resolving conflicts elsewhere in the world, according to Bouvier, who heads the Institute’s Latin America programs.
Here are Bouvier’ edited comments, in response to questions about the developments:
The breakthrough yesterday involves the treatment of victims in the conflict. Why was that so important and difficult to arrive at?
“There is no other peace process in the world where victims have been so central to the process.” –Virginia Bouvier, USIP senior advisor
There are 7.6 million registered victims in Colombia created during a half-century conflict that has touched most households in the country. That is the scale of reconciliation Colombia faces. Public opinion polls have long shown a widespread desire for the FARC [the Spanish-language acronym for the Revolutionary Armed Forces of Colombia] to serve jail time, demands for the FARC to disarm, and resistance to the FARC's incorporation into political life. But it has been clear, for example, that the FARC were unlikely to sign a peace deal that would land them in jail. In the joint communiqué, we see a solution that shows important compromises and commitments from both sides.
How did the FARC and the government arrive at this accord?
The agreement on victims is a clear example of how process affects outcome, and how inclusion of marginalized sectors can improve agreements. The talks included visits by delegations of dozens of victims over the course of six months. The United Nations and the National University created forums, at the behest of the peace table, for victims’ voices to be heard. Some 24,000 victims presented proposals to the talks. In addition, women’s and LGBTI organizations have made their proposals known through a Gender Subcommission and direct participation at the peace table.
These inputs in no small part have shaped the commitment of both sides to accept responsibility for damages inflicted and to promote the rights of the victims to truth, justice, reparations, and guarantees of non-repetition. How these acknowledgements of wrongdoing, which have already begun on both sides, will translate into real reparations, we don’t yet know, although the parties tell us that they have reached important agreements on the issue of reparations that will be disclosed soon.
You have called the agreement historic and innovative. How so?
There is no other peace process in the world where victims have occupied such a central role. We have here a design for transitional justice that is historic and innovative. It gives priority to truth-telling, but it does not eschew the need for justice. The model is innovative in its inclusion of restorative justice and its focus on repairing the damages inflicted on individuals and communities through a process of dialogue and healing. This bears watching as it could provide new models for other conflict zones seeking to find a way out of war.
What are the highlights of the agreement and the implications for a final deal?
Here are the key points:
- For the first time, the FARC recognizes the authority of the Colombian state and new judicial mechanisms that will be established to address crimes committed as part of the war.
- The parties agree that the transitional justice regime will apply to all of the armed actors engaged in the internal armed conflict.
- The FARC agreed to lay down arms 60 days after an accord is signed. Once that’s done, the government will back the group’s full incorporation into Colombian political life.
- The FARC has agreed to alternative sentences with yet-to-be defined conditions that will restrict the ex-guerrillas’ movement and guarantee victims will never again face violence.
- By admitting wrongdoing and contributing to truth-telling, potential defendants can see sentences reduced to five to eight years. Failure to come clean can result in 20-year terms.
- The agreement underscores the commitment to meet fully Colombia's commitments to national and international human rights and international humanitarian law standards.
Colombian President Santos said yesterday that it’s impossible the agreement will satisfy those most dedicated to justice and those most concerned about peace. If the deal does bring peace, what kind of justice will victims get?
The proposed justice courts and peace tribunal, in conjunction with other still-undefined structures, will seek to balance the rights of victims to truth, justice, reparations and guarantees of non-repetition with the government’s obligation to investigate, prosecute, and punish crimes committed as part of the war. But of key importance, there will not be impunity—no pardons or amnesty will be granted for crimes against humanity, genocide and war crimes. These are specified in the agreement to include the taking of hostages, torture, forced displacement or disappearance, extrajudicial executions, and sexual violence.
At the same time, there will be generous amnesties for political crimes and related activities. Such activities are in the process of being specified, but could easily include drug trafficking and money laundering. This formula is an advance for everybody—for the victims who will get some justice and whose voices will prevail.
What is the scale of accusations involved?
In an interview on ElTiempo.com following the announcements from Havana, Colombia's Attorney General Eduardo Montealegre, said his office has pending accusations against some 38,000 FARC members for crimes including international humanitarian law, sexual violence and recruitment of minors, and an additional 50,000 cases of forced displacement. Of these, he believes that some 15,000 could be classified as political and related crimes, and that they and an additional 1,689 FARC members who have already been convicted could receive amnesty under the Special Judicial Process for Peace. He announced that his office would continue with investigations, but halt the imputations of charges. Of course, this is only the tip of the iceberg, as the Special Process will also have jurisdiction over crimes committed by the Public Sector, including the Armed Forces, economic and political elites who supported the commission of violations of international humanitarian and human rights laws, and other guerrilla groups, such as the ELN guerrilla group, which is close to being brought to its own peace table.
What are the implications for a successful conclusion of these talks that could end the war?
The presence in Havana of President Juan Manuel Santos and FARC Commander-in-Chief Rodrigo Londoño Echeverri , known as Timochenko presents compelling evidence that there’s political commitment of both sides to end the conflict once and for all. It underscores the seriousness of the process and should help to erode the skepticism of the Colombian public, which has long complained that it’s taking too long. In light of this agreement, a ceasefire and details for the setting aside of arms should not be far behind. It will make little sense to continue to prosecute a war that both sides have agreed is ending.
What are the remaining issues before the FARC will demobilize and turn in their weapons?
The parties need to nail down the terms for disarming the rebels, demobilizing the rank and file, and reintegrating them into Colombian society. There are some pending issues on all of the three provisional accords that have been reached—on land reform, political participation and illicit drugs.
Finally, the terms and mechanisms for the endorsement of the final accord by the Colombian populace will then need to be ironed out. But, as Humberto de la Calle, the government’s lead negotiator noted yesterday, “We are now in the final countdown of the war.” Then the real work will begin.
What was the role of Pope Francis, who during his visit to Cuba this week said negotiators couldn’t afford to let this opportunity slip away?
The Pope’s words had a strong impact on the people who were sitting at the table and perhaps President Santos and Timochenko themselves, who are ultimately responsible for the final agreement and its implementation. The Pope’s warning that the country and the world were looking on and that the country and the world could not afford yet another failed process on the road to peace and reconciliation undoubtedly hit home and may have given a final push to an agreement that was already well under way.