Louise Mallinder joins JiC for this timely essay on the need to weigh competing prerogatives in Colombia: negotiating a peaceful transition and achieving accountability. Louise is a Professor in international law and human rights at the Transitional Justice Institute, University of Ulster. She has previously written for JiC on the relationship between accountability and amnesty.

Small arms seized by government troops from the FARC are put on display (Photo: RTÉ)

At the end of a conflict, calls to punish murderers and torturers for their crimes generally carry an intrinsic moral force. However, debates on the need to impose proportionate punishments on perpetrators can be one of the most divisive elements of peace negotiations, as the prospect of facing robust sentences may deter combatants from signing an agreement. The question of how to reconcile demands for amnesty and punishment has been an increasingly pivotal issue in Havana peace talks that are seeking to find a negotiated settlement to end the five-decade old conflict between the Colombian government and the FARC guerrilla movement.

Just this month, both parties agreed to set up a truth commission upon successful completion of the peace negotiations. The statements issued made clear that the evidence uncovered by this truth commission could not be used in criminal proceedings, and the commission would not be able to impose penalties on perpetrators. This does not rule out the possibility of criminal justice as trials could operate in conjunction with this truth commission.

Still, it is unclear at this stage to what extent FARC will acquiesce to some of its members facing criminal liability. For example, when the truth commission was announced, FARC reiterated its position that ‘no guerrilla is willing to do prison time for exercising [their right to rebellion]’. However, it may be possible that they are willing to accept some punishment for crimes against humanity and war crimes, provided state agents responsible for such crimes are also tried, and that FARC members responsible only for lesser crimes, such as rebellion, are exempt from punishment. The government of Juan Manuel Santos is facing strong pressure from right-wing forces within Colombia that guerrillas face criminal liability for serious violations and any proposed measures in this regard are also likely to face scrutiny from international actors, particularly the International Criminal Court and the Inter-American Court on Human Rights.

Given the vexed and highly politicised nature of debates on the need for prosecution and punishment of serious crimes resulting from Colombia’s civil war, a recent report by Paul Seils of the International Center for Transitional Justice using the Colombian context as a lens through which to explore the policy objectives of punishment, is particularly welcome.
A central question asked in this report is the extent to which commonly invoked rationales for punishment of ordinary crimes in peaceful, democratic contexts are appropriate or desirable in the exceptional circumstances of a transition from war to peace. While Seils is careful to make clear that he does not regard transitional justice as ‘criminal justice lite’, his analysis recognises that complex circumstances faced by post-conflict societies may mean that the ‘normal response to violations is unavailable and insufficient’ to meet the needs of victims.

The report then reviews the rather limited guidance on sentencing for serious human rights violations provided in international human rights law. Given that his focus is Colombia, his (as well as this) analysis understandably looks particularly at the case law of the Inter-American Court of Human Rights (IACHR). With respect to punishment post-conflict, two of the most notable decisions of this Court are Rochela Massacre v Colombia (2007) and the Mozote Massacre v El Salvador (2012). In the former, the Court made clear that punishment for serious violations must result from a judicial decision and should be proportionate to the gravity of the offence. Interestingly, this case related to Colombia’s Justice and Peace Law under which right-wing paramilitaries responsible for international crimes and serious human rights violations were able to benefit from substantially reduced sentences, in exchange for truth telling, contributing to reparations, and pledging to refrain from further violence. Given these leniency arrangements, it is hard to describe the penalties that resulted from the Justice and Peace Law process as proportionate. Nonetheless, in this judgment the IACHR found it to be compatible with the State’s obligation to punish under the American Convention on Human Rights.

The understanding of proportionality applied in the La Rochela case relates solely to the gravity of punishment imposed, whereas the later El Mozote case opens the possibility of weighing different issues when considering what is a proportionate response to serious violations. In the main judgment, the IACHR highlighted the state’s obligations to investigate, prosecute and, if appropriate, punish serious violations of human rights, and provide reparations to victims. The judgment did not grapple with the question of what punishment would be appropriate for such crimes. However, in a detailed and persuasive Concurring Opinion, Judge García-Sayan considered the tensions that can arise between states’ obligations to investigate, prosecute and punish serious violations and the duty on war-torn states to prevent future violations by ending conflict. With respect to punishment, he argued that it should be proportionate to the gravity of the violations. However, in keeping with the seeming contradiction of the IACHR’s judgment in La Rochela, he then favourably noted the possibility of sentence reductions and alternative sanctions for those responsible for serious crimes who admit responsibility and provide information. He concluded that:

in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately.

Here, the meaning of proportionality has shifted from solely being focused on imposing punishments that are proportionate to the gravity of the offence. Instead, he reframes proportionality to argue that any limitations or reductions in punishment should not be disproportionate to the aims being sought through holistic transitional justice approaches that seek to achieve peace and to fulfil victims’ rights to truth, justice and reparations. This in turn suggests that determinations of appropriate levels of punishment should take into account whether the application of punishment could have a detrimental effect on the state’s ability to fulfil its other obligations.

In his report, Seils argues that, given the impossibility of imposing proportionate sentences for serious rights violations, particularly where one perpetrator may be implicated in hundreds of abuses, proportionality should not be invoked as a guiding factor of punishment. He instead contends that social condemnation of the abuses is a more appropriate objective of punishment in Colombia.

Social condemnation of past abuses is indeed an important objective of many aspects of transitional justice policymaking and practice and, as I have argued elsewhere, I share Seils’ wariness of proportionality as I agree that it is impossible to impose proportionate sentences on those who are responsible for mass murder. Further, any sentences that appear severe enough to deal with the gravity of these offences could run the risk of appearing brutal and could consequently undermine the contribution that trials can make to expressing the rule of law and human rights norms that should be central to rebuilding post-conflict societies.

Still, if our understandings of proportionality are broadened along the lines of that which can be inferred from Judge García-Sayan’s Opinion, the concept could continue to have a useful role to play in helping states to balance their multiple legal obligations to fulfil peace and victims’ rights following a conflict.

The need to balance punishment with state’s obligations to prevent future violations, investigate and provide reparations is a central concern of the Belfast Guidelines on Amnesty and Accountability, for which I was part of the drafting team. I thus welcome Judge García-Sayan’s insistence on weighing the transitional prerogatives and obligations of a state and hope that overtime they will become the confirmed position of the IACHR. Approaches that seek to balance competing demands for peace and justice in ways that are human rights compliant have the potential to help us move beyond the peace versus justice debate by providing a viable framework for States like Colombia where failure to reach a negotiated settlement could result in more abuses being committed against the civilian population.

The author notes that she was invited to write a response to this report by the International Center for Transitional Justice.