Josepha Close joins JiC for this post on the issue of amnesty in the peace agreement between the FARC and the Colombian government. Josepha PhD graduate from Middlesex University. Her research focuses on the status of amnesties granted for serious crimes under international law. She is also the author of the International Law Blog.

(Photo: AFP)

Colombia’s Final Accord for the Termination of the Conflict and the Construction of a Stable and Lasting Peace, signed on 26 August 2016, was hailed by the UN Secretary-General as ‘a bright flare of hope that illuminates the entire world’. Its rejection by Colombian voters in the referendum of October 2nd has been attributed in part to the view that it offers impunity to persons responsible for international crimes and serious human rights violations. This post considers the extent to which the peace agreement provides for an amnesty compatible with international law and human rights.

The Amnesty

Different types of amnesties have been endowed with different degrees of legitimacy under international law. While amnesty laws covering international crimes and serious human rights violations are generally considered to be contrary to international law, those applying to political crimes against the State, such as rebellion, are less controversial.

Article 6(5) of the Second Protocol to the Geneva Conventions prescribes that, at the end of non-international armed conflicts, the ‘broadest possible amnesty’ should be granted to persons having participated in the conflict. Accordingly, peace agreements concluding internal armed conflicts have often included an amnesty clause.

Over the last quarter-century, there has been a growing tendency to consider that amnesties extending to serious crimes are incompatible with international conventions requiring the prosecution of international crimes and the provision of redress to the victims of human rights violations. This trend has been driven by the UN, which has adopted a policy of rejection of amnesty for serious crimes in the late 1990s. International courts and human rights bodies have also considered that amnesties are generally incompatible with international law, though some of them have qualified their position in respect of amnesties forming a necessary part of a peace and reconciliation process.

The UN policy has had an impact on the practice of including amnesty clauses in peace agreements. According to my PhD research, while only a small proportion of peace agreement amnesties introduced in the 1990s excluded serious crimes, about a third of those issued since the turn of the 21st century have made such an exception.

The Colombian peace agreement is a case in point. It extends an amnesty for political and related crimes, such as rebellion, sedition, mutiny, the lawful killing of enemy combatants and the illegal possession of weapons. However, pursuant to international standards, this amnesty makes an exception for international crimes and serious human rights violations, including crimes against humanity, serious war crimes, torture, the taking of hostages, enforced disappearances, extrajudicial executions, sexual crimes, forced displacement and the recruitment of child soldiers.

The Alternative Sentence Scheme

The Colombian agreement thus explicitly excludes amnesty for perpetrators of serious crimes. However, subject to two main conditions, those perpetrators are eligible for an alternative sentence entailing reparative labour and some restrictions on their liberty of movement but no prison term. First, they must confess their crime and acknowledge responsibility for it. Second, they must devise an individual or collective reparation project covering a period of 5 to 8 years, which needs to be approved by a special tribunal. Offenders who refuse to submit to those conditions face terms of imprisonment of up to 20 years.

This restorative justice scheme aims to establish the truth about the violations committed during the conflict, repair the harm done to the victims and the communities, facilitate the reintegration of offenders and foster reconciliation. Though it falls short of criminal punishment, it goes a long way towards addressing the rights of the victims.
According to Professor Cassel, this holistic transitional justice approach satisfies Colombia’s obligations under international law since it upholds the rights of the victims to truth, reparation, justice and non-repetition. In his opinion, in situations of armed conflict, ‘transitional justice measures must be assessed by international standards applicable to peace processes, not by standards that apply in a society already at peace.’

The same point was stressed by several Judges of the Inter-American Court of Human Rights in El Mozote v El Salvador (see the concurring opinion of Judge García-Sayán), which concerned an amnesty issued as part of the Salvadoran peace process. They observed that Sates facing an armed conflict have an obligation to achieve peace having the same intensity as their obligation to address the rights of the victims. They further recognised that, as ‘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.’ Thus, they considered that ‘the degree of justice that can be achieved is not an isolated component from which legitimate frustrations and dissatisfactions can arise, but part of an ambitious process of transition towards mutual tolerance and peace.’

The Colombian alternative accountability system may be equated with a conditional amnesty in so far as it requires offenders to fulfil certain conditions in order to avoid criminal punishment. Whereas there is a broad consensus that blanket amnesties are incompatible with international law, conditional amnesties have generally been viewed in a more favourable light. A group of experts has notably emphasised that conditional amnesties may be conducive to both peace and justice by encouraging offenders to engage with transitional processes and alternative accountability mechanisms.

The Colombian system is similar to the one put in place in South Africa to deal with the crimes of the apartheid, which involved the grant of amnesty in exchange for the public disclosure of the truth. Referring to that conditional amnesty process, the Extraordinary Chambers in the Courts of Cambodia’s Trial Chamber has recognised that it had ‘met widespread approval’ because it ensured a degree of accountability and permitted the victims to access the truth (para 52). The Colombian process, however, goes further by requiring offenders to repair the damages done by the war and get involved with the communities most affected it.

Colombia’s transitional justice scheme appears to meet international standards, at least those applicable to peace processes, and to respect international human rights law. This is corroborated by the strong support the peace agreement has enjoyed at the international level. However, the question of its compatibility with international law does not presuppose that of its legitimacy for the Colombian people. The negative votes cast in the referendum indicate that further steps need to be made to ensure that the agreement achieves the fairest balance possible between peace and justice and is perceived as such by the population.