The agreement reached by government and FARC leaders provides for the establishment of a tribunal to investigate and prosecute serious crimes allegedly committed by both sides in the conflict, presided over by Colombian judges with a “limited participation of international experts.” In this sense, it envisions a form of hybrid tribunal – as established in the cases of Sierra Leone,Bosnia, Kosovo, Cambodia, East Timor and Lebanon – which blends domestic and international law and personnel to provide accountability and build institutional capacity in the aftermath of conflict. Such tribunals are typically established on an ad hoc basis, and thus vary widely in terms of the domestic-international balance, scope of jurisdiction, applicable law and prospective punishment.
Importantly, the tribunal will address alleged crimes committed by all participants in the conflict, including both FARC and government agents. While combatants will receive amnesty for minor infractions, no party will benefit from amnesty for serious violations of international law – namely war crimes and crimes against humanity in accordance with the emerging international consensus rejecting amnesties for serious crimes in the context of peace agreements.
Nonetheless, a number of victims’ and human rights groups have criticized the Colombian agreement for perceived leniency; as a compromise between the parties, it restricts the level of punishment such a tribunal may mete out. Earlier this week, President Juan Manuel Santosadmitted that in the interests of peace, punishment for guerilla leaders will be less severe than some would like. Under the agreement, reports the New York Times, perpetrators would be obligated to confess to a truth commission, and punishment would be limited to up to eight years, involving “community service or labor that helps the victims of the war,” as well as the possibility of “some limited form of detention.” Failure to disclose crimes could entail harsher punishment, including up to 20 years in prison.
The possibility of criminal punishment constitutes only one component of the more comprehensive transitional justice mechanisms proposed, which are aimed at truth, justice, reparation and guarantees of non-repetition, including through land reform, political participation of former rebels, measures aimed at reducing the drug traffic, and protection guarantees. These proposals bode well for the post-conflict period, and would serve to complement the transitional justice and victim-support measures already instituted in Colombia through the newly established Victims Unit. They also constitute recognition that after decades of armed conflict, peace is unlikely to be sustainable in the long term without meaningful justice, assistance and protection for victims of the conflict, and comprehensive efforts to reconcile the society as a whole. As the two sides continue to finalize the peace agreement over the next six months, Colombians and the international community should hold them to this high standard.
For a more detailed exploration of the how the ongoing peace process is affecting humanitarian action in Colombia, check out the latest ATHA paper, “Humanitarian Action and the Politics of Transition: The Context of Colombia.” This paper examines the challenges inherent to humanitarian action in the context of transition from protracted conflict to peace in a number of key areas, including: grappling with the politics of denialism; the gap between the political negotiation agenda and the humanitarian issues facing the country; interactions between humanitarian actors and national transitional justice measures; and building linkages between humanitarian organizations and actors operating in other fields, such as development and peacebuilding.
Colombia Nears a Peace Deal With FARC Rebels
“We are adversaries, on different sides, but today we advance in the same direction, the direction of peace,” Mr. Santos said at a news conference in Havana.
The president and the guerrillas, the Revolutionary Armed Forces of Colombia, or FARC, set a six-month deadline to sign a final agreement and the guerrillas agreed to begin handing over their weapons 60 days after a deal is signed.
In announcing his surprise trip to Havana on Wednesday, where the negotiations have been taking place for nearly three years, Mr. Santos said on his Twitter account, “Peace is near.”
Mr. Santos and Mr. Londoño shook hands at the Havana news conference, encouraged by President Raúl Castro of Cuba.
The latest movement in the talks involved three central elements that had long frustrated negotiators: the transfer of weapons; how FARC members and government military personnel will be punished for human rights violations committed during the war; and the deadline to complete the deal.
The first step came about a week ago, when negotiators finally agreed on punishment, according to a person familiar with the talks. The FARC had long insisted that its leaders should not be punished, while Mr. Santos had said he would not accept a deal that included immunity for human rights violators.
The final deal is a compromise, in which those who confess to major violations of human rights or war crimes would receive punishments of up to eight years, according to two people familiar with the talks. The consequences would involve community service or labor that helps the victims of the war. They could also be subject to some limited form of detention, but it was not immediately clear what that would entail.
The guerrillas would be obligated to confess their crimes to a truth commission, and failure to make full disclosure could result in more severe punishments.
A day before flying to Havana, Mr. Santos had tried to manage expectations, warning that many people would not be satisfied with the level of punishment.
“Not everyone is going to be happy but I’m certain that in the long run it will be for the best,” he said Tuesday in Bogotá, Colombia’s capital. “No one can be completely happy but the change is going to be very positive.”
Detractors of the peace process have hammered at the justice issue, warning that the guerrillas would get off too lightly for atrocities, bombings and kidnappings in a war that has left deep scars. Critics of the government have warned that atrocities committed by the military would be overlooked as well.
The agreement on issues of justice, which would apply to both sides, had long been a logjam. Once that part of the deal was in place, the FARC agreed to begin handing over weapons 60 days after a final accord is signed, according to the person familiar with the talks.
Then on Tuesday night, both sides agreed to set the six-month deadline to sign the final agreement, setting the stage for Wednesday’s announcement.
Still, there are many details to work out, including how the weapons surrender will take place, where weapons will be kept, who will monitor it, as well as aspects of the justice process.
There also remains the question of whether a final deal will be submitted to voters for approval.
The two sides have come further than ever before. The government and the FARC had tried three previous times to reach a peace deal, but each effort failed.
“This breaks the back of the war,” said Bernard Aronson, a special envoy from the United States. “These are the most important breakthroughs since negotiations began.”
Negotiators have already reached preliminary agreements on other aspects of the deal, including rural development, how former guerrillas will participate in the political process and how to combat drug trafficking.
The government estimates that 220,000 people have died during more than 50 years of war between its troops, guerrilla groups and right-wing paramilitary groups. Millions of people have been driven from their homes by the violence.