Sophie Haspeslagh joins JiC for an analysis of the recent breakthrough on transitional justice in the Colombian peace process. Sophie is a PhD candidate at the London School of Economics where she is researching the engagement of armed groups and the effects of proscription on peace processes.

An awkward handshake but a remarkable breakthrough (Photo: AP)

It wasn’t long ago that the peace process between the FARC and the Colombian government seemed stuck. Little if any progress was being made and the biggest barrier to a final accord – agreeing on how to achieve justice and accountability for past atrocities – was proving impossible to overcome. But just this week all of the parties agreed to a plan to achieve transitional justice. It was undoubtedly a remarkable development. But did Colombia and the FARC strike the right balance between peace and justice?

When I was interviewing the FARC on the peace negotiations in Havana earlier this year, the atmosphere was tense. The FARC, the rebel faction fighting the Colombian government since the early 1960s, responded to renewed military offensive by suspending their unilateral ceasefire. At that moment, reaching an agreement seemed like a distant prospect, despite the fact that the parties had already been negotiating for three years. Energy and stamina were at their lowest point and those closely involved in the negotiations confided that discussions had been at an impasse for over a year on the issue of justice. After having reached substantive agreements on the three previous agenda points (land reform, political participation, and the illegal drug trade), the talks had stalled on the age-old dilemma of peace versus justice.

Fast-forward to this week and President Juan Manuel Santos met with the leader of the FARC, Timoleón Jiménez (in itself an unprecedented event) in Havana, to sign an agreement on the issue of transitional justice and the establishment of the ‘Special jurisdiction for peace’. As the end of the negotiations approaches and the government announces that the final peace agreement will be signed by 23 March 2016, here are some thoughts on how we got to this point and whether the Colombians have succeeded in finding the right balance between peace and justice.

The Victim’s Delegations: An Innovative Scenario

One innovative development during the peace talks has been the efforts to ensure that victims had access to the negotiating table. This is a unique occurrence in peace negotiations across the globe. Five different delegations of victims travelled to Havana to meet and share their stories and recommendations with the negotiating parties. The sixty people who made up the five delegations were chosen based on the principle that they represented a particular category of victimization. They had suffered from all types of crimes (land mines, kidnapping, homicide, threats, extra-judicial execution etc.), from range of armed actors (the FARC, paramilitary and the Colombian army) and came from a diversity of Colombian communities (Afro-Colombian, indigenous, different social-economic classes, human rights defenders etc.).

Not only did these victim’s delegations put a human face on suffering of the 7.6 Million registered victims of Colombia’s conflict, they also had a profound impact on the negotiating parties. Speaking to the FARC in Havana, it was clear to me that they had been deeply moved by their interaction with these delegations. One central message the victim delegations effectively promoted was their demand that the government and the FARC remain at the table until they had an agreement. They also focused on the importance of truth telling so that their experiences and trauma would be recognised.

Indeed, the yearning for truth has been at the centre of the victims’ demands. As Virginia Bouvier points out, a third of the 24,000 proposals put forward by victims have focused on the importance of truth.

‘Special Jurisdiction for Peace’ – Restorative Not Punitive Justice

The FARC had long maintained that they would not allow any of their fighters go to prison. Indeed, why would a group that does not consider itself defeated readily agree to have its members shipped off to jail? Why would they negotiate their way into prison? This has been a central sticking point as a large part of Colombian society rightly expects to see justice achieved, especially for the most heinous crimes committed during the war. Unlike the previous negotiation with other left-wing insurgent groups in Colombia in the late 1990s that led to widespread amnesties, the fact that Colombia ratified the Rome Statute of the International Criminal Court (ICC) in 2002 has meant that a blanket amnesty is no longer an option.

The compromise presented on Wednesday focuses on truth telling and it strikes me as the right balance. If an individual recognises his or her responsibility for grave crimes the sanction will be a ‘restriction of liberty’ instead of a jail term for a period of five to eight years. Only if an individual denies his or her participation would an incarceration be considered for up to twenty years. This sets the agreement squarely in the middle ground between restorative and punitive justice.

In its reaction to the announcement on transitional justice measures, the ICC noted “with optimism that the agreement excludes the granting of any amnesty for war crimes and crimes against humanity, and is designed, amongst others, to end impunity for the most serious crimes”. Amnesty International’s reaction was more cautious. The organization warned that “[t]he focus on the “most responsible” could ensure that many human rights abusers avoid justice since the term has not been clearly defined.”

From Violence to Politics: Amnesty for Political Crimes

A more restorative approach to justice allows the FARC to contemplate a political future. The one area where amnesties will be considered is for ‘political crimes’, i.e. crimes of rebellion against the Colombian state. This goes hand in hand with point 10 of the Agreement which states that the “transformation of the FARC-EP into a legal political movement is a joint objective” which will receive all the support of the government. Alongside the (awkward) handshake between President Juan Manuel Santos and FARC leader Timoleón Jiménez, these points in the agreement set the scene for the transformation of the FARC away from violence into politics, which is the essence of what a peace negotiation should be about.

It is sometimes said that reaching an agreement is the easy part of a peace process. Implementing it is the biggest challenge. In striking a sophisticated balance between the prerogatives of peace and justice, Colombia and the FARC have made remarkable progress. How they proceed now will determine the future outlook of the country.