Talking Justice: Colombia’s Path to Peace

Talking Justice: Colombia’s Path to Peace

The conflict between the government of Colombia and the rebels of the Revolutionary Armed Forces of Colombia, or FARC, has been one of the world’s longest-running insurgencies. FARC’s rebellion, fueled by rural poverty, traces its roots back to the 1940s; it escalated in the 1990s, leaving an estimated 250,000 dead, and driving an estimated six million people from their homes.

Now the two sides are implementing an ambitious peace agreement: rebel forces are disarming under UN supervision, while FARC’s leadership is preparing for a new future in peaceful politics. But many Colombians remain skeptical about the terms of the deal—which was initially narrowly rejected in a referendum last October—particularly over the question of accountability for the crimes committed by both sides during the conflict.

In this edition of Talking Justice, we look at how Colombia is trying to balance these demands for justice with the demands of peace. Host James A. Goldston hears from Juliana Vengoechea, a Colombian lawyer at the Open Society Justice Initiative, and from Diego García-Sayán, a Peruvian judge and legal expert who is participating in the creation of the special judicial system that is at the heart of the peace plan.

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JAMES A. GOLDSTON:

(MUSIC) Hello, this is Jim Goldston of the Open Society Justice Initiative welcoming you to this month’s edition of Talking Justice, a podcast that brings you stories of law, justice, and human rights from around the world. This month, we’re looking at the prospects for peace and justice in Colombia. Can a new and complex peace agreement end decades of civil war between the government and rebels of the FARC, the Revolutionary Armed Forces of Colombia?

FARC’s communist rebellion fueled by mass poverty in Colombia’s vast rural regions traces its roots back to the 1940s. Low-intensity armed conflict began 20 years later and escalated in the 1990s and the first decade of this century. By the time it ended last year, the war had left an estimated 250,000 dead and had driven 6 million people from their homes.

There have been a series of failed efforts to negotiate an end to the fighting. When the last attempt fell short in 2002, then-President Alvaro Uribe adopted a “mono dura,” or hardline policy, that swiftly intensified the war and attendant abuses. Prospects for peace seemed to grow more remote. But after Uribe’s defense minister, Juan Manuel Santos, was elected president in 2010, he opened secret talks in Havana, Cuba with the FARC leadership.

MAN’S VOICE:

(FOREIGN LANGUAGE NOT TRANSCRIBED)

JAMES A. GOLDSTON

In August last year after four years of negotiations, President Santos went on national television to announce that agreement had been reached on a new plan for peace. The agreement went to the Colombian people in a plebiscite last October, which proved to be highly controversial. Juliana Vengoechea, a Colombian lawyer with the Open Society Justice Initiative just returning from Bogotá, explains.

JULIANA VENGOECHEA:

So the president set the date for the referendum or the plebiscite on October 2nd. And some people considered that the timeframe was very short for there to be enough of a campaign in favor of the Yes or the No. Both sides felt it was a very short period of time to engage the electoral with the issues.

So when the plebiscite came through on October 2nd, despite polls saying that the Yes was about 62%, it ended up being 49.8% in favor of the Yes and then 50.2% of the No. So the plebiscite fell.

JAMES A. GOLDSTON:

What happened after plebiscite went the wrong way in the view of the president of Colombia?

JULIANA VENGOECHEA:

So the president and-- and the people working with the peace agreement set up a series of meetings with some of the leaders of the No campaign to kind of reflect: What were the main issues they had against the agreement? Because they kept saying, "It’s not that we agree with the essence of the agreement. It’s just some elements of it that we disagree with." So after a series of meetings, some adjustments were made, and a new accord—or new agreement—was drafted. And that agreement was approved by Congress.

JAMES A. GOLDSTON:

So what is the most distinctive feature of this agreement?

JULIANA VENGOECHEA:

So, the agreement is quite ambitious. And its content is divided in five big groupings of reforms. The first is rural development or land reform. The second would be political participation of members of the FARC. Third, would be drug policy. Fourth is content or the issues with relation to victims. And finally, it’s the end of the conflict and ceasefire.

It doesn’t create a blanket amnesty for certain of the crimes, particularly human rights violations. Rather, it creates a system in which the persons become part of the special jurisdiction, recognize the responsibility. They will receive a sentence, but it’s not one that deprives them of their liberty.

So I think in that way it complements the concerns of the victims that want some kind of recognition of responsibility and a consequence to that recognition. But on the other side, it gives incentives to the people to become part of this special process and go through this special jurisdiction of peace.

JAMES A. GOLDSTON:

This sounds like a complicated arrangement, and the details are still being worked out. But in one way, the Colombian agreement is another stage in the long-running global debate over the relationship between peace and justice. Some argue that for the sake of ending wars, it’s necessary to forgo justice, specifically prosecution of senior leaders or commanders who committed grave crimes in order to induce them to come to the bargaining table.

With equal fervor, others say that in the long run, no peace is sustainable if senior figures are not made to pay for their crimes. Colombia’s new transitional justice program seeks in some ways to split the difference, excluding amnesty for perpetrators of serious crimes while providing non-prison sentences for those who confess and make some form of reparation.

One of the key elements in the Colombian process will be the degree to which both sides trust the presiding judges. Those judges, who will have responsibility for assessing who deserves leniency, are being selected by a committee that includes two Colombians and three international experts. One of them is Peruvian judge and former foreign minister, Diego García-Sayán. Judge Sayán joins me now. Diego García-Sayán, welcome to Talking Justice.

DIEGO GARCÍA-SAYÁN:

Thank you for the invitation. Nice to be here.

JAMES A. GOLDSTON:

Judge Garcia, you have served many positions as foreign and justice minister of Peru at one time. You were president of the Inter-American Court of Human Rights. You are currently the U.N. Special Rapporteur on the Independence of Judges and Lawyers.

And now you have also been appointed—just this January by the U.N. Secretary General—as a Member of the Selection Mechanism for the Special Jurisdiction for Peace in Colombia. Can you say a little bit about this Selection Mechanism, what it involves, and what you’ll be doing?

DIEGO GARCÍA-SAYÁN:

After discussing during the peace negotiations between the guerrillas of the FARC and the government, the process of reconciliation combined with justice was a different combination because for some people justice means criminal sanctions to anybody that has committed a crime.

But at the same time, a peace agreement requires to achieve reconciliation, to achieve peace in a sustained manner, which at the same time is another human rights. So there’s rights of the victims to see the perpetrators punished and rights of the society to see that peace is sustained.

But the bet that the Colombians have made, it’s one of the most ambitious that I have seen in the last decades. Because, first, they have achieved that in this negotiation, the guerrilla of the FARC has accepted to be submitted to some form of criminal justice after signing the peace.

JAMES A. GOLDSTON:

And as far as we know, that is unusual if not unprecedented.

DIEGO GARCÍA-SAYÁN:

That’s unprecedented, which is very important. But a special kind of justice has been created; not the justice of impunity, not a light justice, but a different sort of justice in which all the theories that have been said and written about this kind of "package," in which justice is combined with truth, with reconciliation, and then with acceptance of responsibilities.

For that, special tribunals have been created with different hierarchies and levels so that the cases in which there are elect responsibility by the FARC, and the cases in which there are elect responsibilities by members of the army or the police, could be dealt by these transitional tribunals during the following years.

JAMES A. GOLDSTON:

And this tribunal will be composed of Colombian judges?

DIEGO GARCÍA-SAYÁN:

Of Colombian judges, and for amicus curiae—that means to give some opinion of some minority of foreign lawyers or judges.

JAMES A. GOLDSTON:

The the judges who will be selected by the selection mechanism will be dealing with former members of the FARC, the guerrilla, and members of security forces, armed forces of Colombia, who are alleged to have committed crimes?

DIEGO GARCÍA-SAYÁN:

In both cases, there will be a requirement that the persons being prosecuted should give some sort of information, some sort of repentance, because the idea is that the criminal sanctions first won’t be of the highest level as if a normal crime’s committed and they are following the criminal code.

JAMES A. GOLDSTON:

They will not be of that highest level?

DIEGO GARCÍA-SAYÁN:

They will not be because that will really impede the process of reinsertion of the former guerrilla in the society and in politics. It will be unfair to the other side, the army, while they should be theoretically still in prison while their enemies are in the streets. So that will be unacceptable for the Colombian society.

JAMES A. GOLDSTON:

So this is for people who are alleged to have committed crimes and they must, you say, acknowledge their responsibility about what they have done?

DIEGO GARCÍA-SAYÁN:

Or or give information if they have it.

JAMES A. GOLDSTON:

About the crimes themselves?

DIEGO GARCÍA-SAYÁN:

About the crimes or other crimes committed during the process.

JAMES A. GOLDSTON:

Now, the prosecutor of the International Criminal Court, just a few months ago, welcomed the peace agreement and said that she was satisfied that the final text excludes amnesties and pardons for crimes against humanity and war crimes.

At the same time we’ve heard other parties—including, I think, Human Rights Watch—have expressed some concern that in their view it will allow war criminals to escape any meaningful punishment for their crimes. Who’s right?

DIEGO GARCÍA-SAYÁN:

There are two different set of matters. Because one is amnesty. The other aspect is war crimes and crimes against humanity and so on. Amnesties, in general, not only are not excluded by international law, but are specifically mentioned in the rules of international humanitarian law, the Protocol 2 of Geneva of 1977, that after a war is finished—in Spanish, it’s (FOREIGN LANGUAGE)—the most ample amnesty should be implemented.

So, in Colombia, they adopted in December an amnesty law that was obviously consistent with international law and with the internal agreements because it was specifically addressed to combatants but excluding the persons that illegally committed crimes against humanity. And not only crimes against humanity, but forced disappearances, torture, raping of women, and so on. So that list of exclusions is very, very big.

Setting this aside, this kind of core big crimes, let’s say, will be part of that transitional justice process because they are not benefited by the amnesty. It’s too soon to discuss what will happen because let’s see what happens with the justice.

Our committee has no role at all to monitor how this new system of justice works. Our task is only to appoint the judges. But that set of provisions in this transitional justice mechanisms do not have as a conclusion to apply the same sort and the same level of criminal sanctions as in the ordinary law or in the ordinary tribunals because for that you don’t set a special kind of justice. For that you don’t fix a peace agreement.

So when you follow the international law—for instance, the international Convention against Torture or the international Convention against Disappearances or against summary executions, all of them—the key provision that establishes an obligation by the states that are part of those treaties is that the appropriate criminal procedures must be undertaken in the concerned state, in the elect state. That’s it.

There is no international provision in either of these—even in the genocide or war crimes treaties—in which a specific amount of years of sanction is established. And in the consideration of this whole peace negotiation, and even in the provision that has just been adopted by the congress in Colombia as a constitutional reform, all this is part of it because first it’s part of the peace process, and second because it is combined with other things, which is truth, which is the will of reconciliation, which is the will to share with that tribunal all the information that the elect person may have regarding the specific crimes.

I am personally sure that it is consistent with international law. Let’s see what happens in its interpretation and implementation process, which is a thing that we must of course follow with anybody.

JAMES A. GOLDSTON:

Now, we’re talking a lot about reconciliation. Now, Judge Garcia, you’re from Peru, but you know Colombia. You know many other countries in the region. Do you know, do you have a sense, do Colombians want to reconcile?

DIEGO GARCÍA-SAYÁN:

It’s a very difficult question to answer because more than 50 years of internal war, more than 200,000 people killed, nobody knows how many more people were affected, as with their displacement—at least 6 million people. So this has left a deep (FOREIGN LANGUAGE)

JAMES A. GOLDSTON:

Wound.

DIEGO GARCÍA-SAYÁN:

Wound in the society. So reconciliation by decree, reconciliation because there has been a peace agreement, of course it will be naive to imagine that that will occur. But following the transitions from war to peace during the 20th century—we are already in the 21st—the special advances have been more fruitful when that combination of components appear, which means a component of justice, and at the same time a component of truth. The acceptance of responsibility, the recognition of responsibility.

In cases of South Africa, in which many people that could be theoretically in prison, they have accepted the responsibility in the peace commission. They have even had the dialogue with their victims after that.

So I am not sure that this is enough to guarantee reconciliation in the short run. But I am sure that this is the best thing that could be done so as to achieve a reconciliation process in a country that has such severe and deep wounds. I am not naive to imagine that this will guarantee reconciliation in a couple of generations. But this is the best thing that could be done.

JAMES A. GOLDSTON:

Judge Garcia, thank you so much for being with us today on Talking Justice.

DIEGO GARCÍA-SAYÁN:

Thank you very much. (MUSIC)

JAMES A. GOLDSTON:

The peace plan is moving forward even as the details of the transitional justice mechanisms are still being worked out with the government conducting a public information campaign to explain what’s happening and why.

MAN’S VOICE

(FOREIGN LANGUAGE NOT TRANSCRIBED)

JAMES A. GOLDSTON:

Already, FARC rebels have moved into 26 rural camps set up under UN supervision and have began to hand over weapons, but there remains a long way to go.

As we heard from Judge Garcia, in Colombia’s case the road to peace is complicated by potential tensions over the illegal drug trade. The prospect of government compensation for coca growers who abandon the crop has actually pushed prices in the area under coca cultivation to an all-time high. Will the plan work?

Those of us who support international justice and recognize the challenges of applying (MUSIC) those principles in practice will be watching closely. I'm Jim Goldston. Thanks very much for listening. Please join us next month for another addition of Talking Justice.

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