By Luis F. Viveros, Teaching Fellow and PhD Candidate at UCL
“They’ll be back. Shame has bad memory.” (Gabriel García Márquez, La Mala Hora)
I have chosen the general title of this series to be ‘Peace Against Humanity’. The series will consist of three deliveries, the purpose of which is to provide analysis about the on-going peace process in Colombia. The analysis will focus on issues related to transitional justice (TJ), international human rights law (IHRL), and international criminal law (ICL). This is the first in the series of forthcoming posts about Colombia’s ongoing peace process with the Revolutionary Armed Forces of Colombia (Spanish: Fuerzas Armadas Revolucionarias de Colombia). FARC, as this group is more commonly referred to, is a Marxist guerrilla organisation, and one of the main parties to Colombia’s decades-long internal armed conflict. The Council on Foreign Relations, an independent, nonpartisan membership organization and think tank, estimates that the Colombian conflict has thus far resulted in over 200,000 fatal victims, some 25,000 disappeared individuals, and nearly 5.7 million victims of internal displacement.
On 24 August 2016 it was announced that, after almost five years of negotiations, Colombia’s government and the FARC reached a deal to end their decades-old confrontation. The full text of the agreement has been released and a plebiscite on the accord will take place on 2 October 2016. This post argues that any TJ scheme needs to be justified from the definitional traits of that concept, and that the Colombian deal subverts the rationale of TJ. Concretely, it is maintained that some aspects of the deal do not conform to the logic of necessity underpinning the exceptional nature of measures undertaken in order to achieve TJ’s ends: democracy, the rule of law and respect for human rights.
The Rationale of Transitional Justice
According to Teitel TJ is defined as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” The ‘need for political change’ is perhaps the central definitional trait of every TJ scheme, the very thread by which completely dissimilar processes might be characterised as such:
Either political change is thought necessarily to precede the establishment of the rule of law or, conversely, certain legal steps are deemed necessary to precede political transition. The privileging of one developmental sequence or another derives either from disciplinary bias or from the generalization of particular national experiences to universal norms. So it is that in political theory the dominant account of how liberalizing transition occurs comprises a sequence in which political change comes first (Teitel, 2000).
The underlying logic is a simple one: where the existing institutional arrangements of a state are insufficient, exceptional political reform is needed to achieve democracy, ensure the rule of law and respect for human rights.
Political reform materialises in transitional measures. Taking into account that the institutional environment in which transition takes place is always different, then those measures are bound to take very different forms. Thus, it is their characterisation as adequate means to achieve democracy, human rights and the rule of law that connects all those measures under the conceptual umbrella of TJ.
The Nuremberg Trials constituted the first time where an international adjudicative body passed judgment upon, convicted and sentenced (including to capital punishment) those responsible of war crimes and crimes against humanity. Conversely, transitional processes in the Southern Cone of South America, Eastern Europe and Central America focused on amnesties. Within that spectrum there are formulas with emphasis on truth commissions (e.g. South Africa), or watered-down judicial proceedings like the one adopted by Colombia with paramilitary groups. That TJ schemes have dissimilar, and even contradictory emphases, might convey the idea that the process of TJ is nothing but the post-rationalisation of unconnected phenomena. Political reform’s necessity (transitional measures) as means to achieve ends (TJ’s ends) provides an analytical framework capable of overcoming this conceptual challenge.
TJ as necessary political action also provides a standard against which to assess whether particular measures are justified in a given transitional process. This is important because transitional processes are built upon dilemmatic problems far more complex than the binary formulas of conflict/peace or authoritarian regimes/democracy. As Tietel explains:
The central dilemma of transition is how to transform a society that has been subjected to illiberal rule and the extent to which this shift is guided by conventional notions of the rule of law and responsibility associated with established democracies. A core tension emerges in the use of law to advance transformation, as opposed to its role in adherence to conventional legality. To what extent is transitional criminal justice conceptualized as extraordinary in the relevant societies or guided by the ordinary rule of law?
This core dilemma implies many others. Who should be held to account and for what offense? Under what legal order? International or national? Military or civilian? These are the dilemmas successor societies struggle with; ultimately […] they commonly strike a transitional compromise, the ‘limited criminal sanction,’ which is, more than anything, a symbolic form of punishment.
“Does Colombia want Peace or Justice?” – under such heading ran a piece in a Colombian news magazine in 2013. This paradoxical statement, which perfectly embodies TJ’s dilemmatic nature, reflects the greatest obstacle to Colombia’s current transitional process. In that sense, polls consistently find both that Colombians support the peace deal, but overwhelmingly reject the lack of effective punishment (imprisonment) to FARC’s leadership. A comprehensive statistical inquiry was conducted by Universidad de los Andes, USAID, and Vanderbilt University, showing in detail how these ‘contradictions’ extended to other areas of the agreement (A graphic overview of the study is available here and the full study can be consulted here.)
There is an inter-temporal dimension to the analysis that can be easily overlooked. Blanket amnesties are inconsistent with IHRL and may prevent states from fulfilling its ICL obligations. Thus, the level of injustice acceptable as a matter of TJ has narrowed over time due to the developments in ICL and IHRL. Still, TJ allows for a wide range of acceptable measures so as to permit each society to design successful transitional schemes. It is within that spectrum of acceptable political reform or action where transitional measures are deemed as necessary. Conversely, political action falling outside that spectrum is at odds with TJ’s ends.
An analysis in those terms matters for Colombia. It provides a framework of social discussion parallel to that focusing on the legality of TJ’s measures as a matter of international law. In that sense, TJ’s language and concepts enable the articulation of policy concerns that in Colombia have been framed within the broad concept of ‘peace’, an aspirational value that sits at the centre of Colombian political and legal narratives. In fact, the Constitution enshrines it as “a right and a duty of mandatory compliance” (Art. 22), and both the accord and the plebiscite establish themselves as means to achieve “stable and enduring peace.”
While international law provides for external limits to TJ, the rationale of necessity of political change constitutes TJ’s internal limits. Besides serving as vehicle for domestic political debate, necessary political reform serves an important purpose in transitional processes: it allows to understand the dilemmas at the centre of transition by explaining how much impunity is acceptable in order to achieve the rule of law.
The FARC-Government Peace Deal in light of Transitional Justice’s Rationale
The FARC is perhaps the most violent of all the groups involved in the decades-long armed conflict in Colombia. FARC resorted to systematic kidnapping of civilians and extortion, in addition to drug trafficking and environmentally-shattering mining, so as to fund its so-called revolution. To illustrate the FARC’s modus operandi and pointedly on the issue of kidnappings, according to the The National Center for Historical Memory (Centro Nacional de la Memoria Histórica), it is responsible for 33-37% of kidnappings out of a total reported of 39.058. Markedly, the US State Department formally deems FARC as a Foreign Terrorist Organization, and Forbes ranks it as the third richest terrorist group in the world (annual turnover USD600 million), trailing only Hamas (2) and Isis (1).
The negotiation with FARC has finally yielded a full accord addressing six issues: (i) integral policies for agricultural development, (ii) political participation, (iii) cease of hostilities, (iv) [eradication of] illicit drugs, (v) victims (i.e. justice), and (vi) a process to hold a plebiscite on the agreement in its entirety. The justice section provides for a sanctions regime that raises serious concerns from a TJ point of view. It is argued that, while there are transitional justice-based reasons for applying a special justice framework, (i) the sanctions regime is inconsistent with the notion of necessary political reform that defines TJ, and (ii) application of the said regime to members of the military responsible for international crimes seriously undermines the TJ goals.
(i) The sanctions regime as incompatible with the rationale of TJ
The Deal establishes a ‘Special Peace Tribunal’ for the purpose of judging crimes perpetrated by all parties to the armed conflict. Subject to corroboration and substantiation, the tribunal has jurisdiction to determine sanctions to be imposed on perpetrators. According to paragraph 60 of the Deal’s justice chapter these sanctions are “effective restrictions to liberty and [other] rights such as freedom of movement and residence deemed as necessary for their execution and to ensure non-repetition.” Although it is not yet clear what these restrictions entail in practice, the same provision clarifies that:
Effective restriction means adequate mechanisms for the supervision and monitoring to ensure compliance in good faith with restrictions ordered by the tribunal […] under no circumstances these should be understood as jail, prison or any other equivalent measure. (emphasis added).
Imprisonment could only be an imposable sanction if an individual fails to fully comply with truth-telling obligations or does not recognise responsibility for all crimes committed. However, the Deal does not establish means to ensure full compliance with those duties. This makes it highly probable that the majority of individuals under the jurisdiction of the Special Peace Tribunal will be subject to mere ‘restrictions’ to liberty as described above.
This sanctions regime raises concerns regarding its consistency with the exceptional character of TJ. Leaving aside concerns from an ICL and IHRL perspective, TJ’s rationale requires that measures are adequate to achieve the rule of law, democracy and human rights. This entails the balancing of different interests at play in the overall justice scheme adopted in the Deal, particularly in terms of truth and justice. The framework, however, disincentivises both truth-telling and justice.
Firstly, truth-telling is discouraged because the Deal does not provide for mechanisms to verify and confirm whether an individual provides a full account of crimes committed. There are already signs that the FARC does not consider itself bound to full truth-telling and unconditional atonement for crimes perpetrated against civilians. In a speech delivered after the Deal was signed in Havana, FARC’s lead negotiator, a.k.a. Ivan Marquez, stated that “in all armed conflicts, especially in long-lasting ones, mistakes are made and the civilian population is involuntarily affected” (emphasis added). Nowhere in that speech did the FARC express its willingness to tell the truth and recognise responsibility for their crimes.
The issue of child soldiers forcibly recruited by FARC provides an additional good example of this point. Although in February 2016 the FARC announced that that they would stop recruiting minors, on 27 August 2016 a.k.a. Jesus Santrich twitted that minors in FARC’s ranks were being held for their own ‘protection’. The US Department of State 2015 Human Rights Report on Colombia concluded that “[t]he FARC and the ELN routinely engaged in forced recruitment of persons under age 18.” Although the report does not provide an exact number of minors in that situation, it reproduces reports “that more than 5,800 children demobilized from illegal armed groups between 1999 and July 2015.” A study by Universidad Sergio Arboleda concluded that around 47% of FARC’s members were forcibly enlisted while still underage. A March 2016 New York Times video-report shows many children in a single FARC camp in an non-designated location, most of them in uniform and heavily armed.
In other words, FARC systematically denies facts regarding the true scope of their responsibility in child recruitment, framing their statements in a manner inconsistent with the responsibility to recognise the crimes committed. Stronger sanctions coupled with effective means of verification of compliance with these obligations might serve as deterrent to this type of conduct. Given that the Deal does not provide for them, the risk exist that this sort of conduct becomes endemic at the implementation stage.
Secondly, justice expectations are watered-down by a sanctions regime, which in practice will put the FARC in better conditions than the current ones. The blanket exclusion of prison or similar sanctions subverts the retributive function of sanctions in the context of serious criminal offences and therefore raises serious legitimacy concerns. In that sense, in terms of sanctions within the Special Peace Jurisdiction, there is no difference as regards responsibility between serious and minor offences.
Further, this system of justice will operate alongside the ordinary Colombian judicial system for many years. This will inevitably result in a situation where the petty criminal will continue being subject to years of imprisonment, while those responsible for war crimes and crimes against humanity will face penalties which, for all practical effects, entail no significant restrictions. In sum, by eliminating imprisonment as an available sanction, the FARC Deal breaches the fundamental principle enshrined in Riggs v. Palmer that “[n]o one shall be permitted to […] take advantage of his own wrong”.
A recent poll suggests that 90% of Colombians reject the idea of FARC’s leadership not serving prison time. But even if all of the above were to be accepted, the question whether the adoption of such sanctions framework is the only means available to achieve the termination of armed confrontation remains. Colombian recent experience suggests that not to be the case. Starting in 2005 Colombia adopted a transitional scheme in a negotiation with a federation paramilitary groups (‘AUC’ for its Spanish acronym) which outmatched FARC in terms of size and influence. That framework, also known as the Justice and Peace Law, required inter alia truth-telling in judicial procedures and reparation to victims. Justice, truth and reparation were balanced in order to justify reduced prison sentences of 5 to 8 years. Non-compliance with full confession obligations resulted in exclusion from the framework. Those excluded were transferred to ordinary criminal courts where prison sentences of up to sixty years can be imposed.
The terms agreed with FARC seem particularly lenient taking into account that this group negotiated in a weaker position in relation to the Government than the AUC did a few years before. The AUC had ample links with influential politicians, had a significantly bigger membership (AUC: 34,000/FARC: 7,000-10,000 members), and the Colombian military had just started to consolidate the results of a huge US-backed military strategy dubbed ‘Plan Colombia’ (Rochlin, 2010). By 2011, when the FARC negotiations were in its preliminary phase, that group’s military capabilities were in a historic low and its morale had been heavily decimated due to successful air raids with US-provided smart bombs. Thus, the statement that the FARC Deal’s sanctions regime was the best attainable transitional measure under the circumstances appears to be unsubstantiated.
(ii) The applicability of benefits to the military subverts TJ’s logic
The applicability of the above described sanctions regime vis-à-vis members of the military is unjustified in the Colombian context owing to the lack of transitional grounds. In the case of FARC and AUC the transitional reason justifying the application of exceptional frameworks is that the state lacked the capabilities to bring those responsible of crimes before existing judicial institutions.
In contrast, members of the military have already been investigated, prosecuted, and tried before independent and impartial tribunals, which ensured victims’ access to justice in terms consistent with IHRL. This is due in part to a series of decisions by the Inter-American Court of Human Rights in cases involving allegations of human rights violations by members of the military. In those cases, the Court held that where allegations of human rights abuse against civilians are at stake, military tribunals lack minimum independence standards necessary to guarantee the victims access to justice.
Getting there was a hard-won victory for human rights advocates in Colombia, and one which has yielded results in terms of effective accountability. As reflected in the ICC’s Report on Preliminary Examination Activities 2015, Colombian judicial authorities have seized jurisdiction from the military justice system in over 3,000 cases, over 800 members of the military have been handed down guilty verdicts coupled with prison sentences of up to 40 years, including “since 2012, one Colonel, two Lieutenant Colonels, nine Majors, six Captains and 35 Lieutenants.”
Further, if the argument for the applicability of the sanctions regime to the military were grounded in the political need of ‘reconciliation’, that too would be unjustified from a TJ perspective. In fact, one reason why amnesties for serious human rights violations have been rejected in Latin-America is the need to strengthen the perception that members of the military do not enjoy privileges for crimes committed in their official capacity.
Historically, it was the common practice of Latin-American dictatorships to enact statutes which effectively amounted to self-amnesties. Similarly, the application of the Peace Deal sanctions regime to members of the military who are being prosecuted or have already been tried and found guilty, will have an effect akin to those of self-amnesties. Those already serving sentences will be freed on time-served grounds, and the retroactive application of the Peace Deal on the basis of the most favourable standard will preclude further action by Colombian criminal courts.
In this case, as in those of the past, society will be stripped of reasonable expectations of truth, retribution and full reparation for crimes committed by members of the military. The only difference is that in Colombia justice was already being made. Garcia Marquez was right, “shame has bad memory.”