With the historic accord on transitional justice announced by Colombian and FARC negotiators in Havana, Cuba last week, the question arises of whether it will truly mean “never again” for a country whose past has been plagued by violence. In the deal, which is supposed to apply to all actors in the conflict—state forces and FARC rebels alike—the FARC will not automatically get prison sentences.
Instead, depending on whether they confess their crimes and cooperate with a truth commission, they will have restricted liberty and receive alternative punishments within six demobilization zones. The “maximum possible justice” (as the Colombian president termed it), surely it is not (unless by “possible” he means “politically feasible”). Nevertheless, the agreement has already been welcomed by some victims groups and begun a paradigm shift as people begin to view the resolution of the conflict as inevitable. But will it be enough for “never again” in Colombia? I offer a few reflections:
- A good justice “balance.” According to recent cross-national research on transitional justice, the recipe that was announced is a good combo for preventing conflict recurrence, future human right abuses, and political repression. The tribunals and truth commission should help provide accountability, while amnesties should help provide stability. The agreement also appears to adhere to the doctrine of command responsibility, since severe rights violators and commanders are eligible to receive stiffer punishments.
- Moral hazards in confessions? From what we know, it looks like fighters will fall into three categories: those who did not commit (severe) crimes (will be amnestied); those who admit war crimes (will serve alternative penalties, such as a maximum of eight years of community labor, etc.); and those who committed war crimes but cooperate “reluctantly” or do not offer full cooperation (will be punished in regular prison for maximum of twenty years). However, with the current ambiguities in what it means to be adequately forthcoming, it is not clear why the “best response” for those accused of crimes will not be to simply fib their contrition, which could make talk “cheap.” For the sake of victims, the hope is that admission of guilt in public and the possible shame that comes with it will be an adequate substitute for harsher penalties.
- The military. The justice arrangement is also supposed to apply to state forces. It is not clear, though, how they will be punished, since it seems unlikely that they too will fulfill community service in the six holding zones. It is also still not clear how the process will handle the notorious “false positives” scandal, in which during the mid-2000s, the Colombian military has been accused of extra-judicially targeting an estimated 5,763 of its own citizens, killing mostly poor young men and dressing them up as insurgents for vacation, pay raises, and other incentives. Put in perspective, that’s almost as many casualties as the U.S. suffered in the wars in Iraq and Afghanistan, combined (6,856 casualties).
- What is enough for victims? The contours of the alternative punishments could loom large in how satisfied victims may feel with the agreement. How restrictive will the living conditions be in the demobilization zones? How hard will the community work be? How much will it contribute to victims’ wellbeing? Although the International Criminal Court issued a preliminary statement in support of the arrangement, Human Rights Watch says it doesn’t have enough teeth, so it may end up being the victims’ decision if they will be satisfied and accept the pact, whatever the misgivings, in the name of peace.
- Input from victims? Although victims groups were consulted in various roundtables during the talks, it appears there will be no direct way for them to influence the terms that were negotiated, since the Colombian President recently declared that a referendum of the final agreement would be political “suicide.” Instead, it looks like there will be a special congressional session. So, victims may be left with indirect democracy to voice any concerns.
Polls have shown a large proportion of Colombians have felt that requiring prison terms must be part of the peace agreement. But there are no polls yet about alternative arrangements or the actual terms that were hammered out now that they have been announced. So, support for a final agreement could rise after this breath of optimism and the setting of a date for the conflict to end next March.
The justice sub-agreement is truly a historic step toward justice. Hopefully it will also be a big enough step toward “never again.”