Mark Drumbl joins JiC for this post on the role and relevance of international law in the Colombia peace process. Mark is the Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law. To read the other contributions to JiC’s symposium on peace and justice in Colombia, see here.
“Breakin’ rocks in the hot sun
I fought the law and the law won.”
— Sonny Curtis and the Crickets (1959), redone by many (my favorite being The Clash (1979)).
International criminal lawyers take the ‘duty to prosecute’ seriously. This duty fuels the powerful normative calling that systematic human rights abusers are to face the reckoning of the courtroom and, if convicted, the sanction of the jailhouse. Amnesties and pardons have become démodés. These duties and callings, in turn, color the self-portraiture of international criminal lawyers: they tincture how we see (our)selves. And, mostly, my impression is that we see (our)selves as fulfilling progressive causes and energizing the march of history and national politics eschatologically towards freedom, fairness, and justice.
Colombia however tells a different, less comforting, slightly more confronting, and certainly a much more complicated story. This story involves how the duty to prosecute international crimes, and to convincingly punish, can energize a right-wing ‘law-and-order’ agenda to the detriment of progressive interests. In light of the tangibility of a firm duty to prosecute, a decision by a state to prosecute too little and to sentence too leniently can unleash anger. All sorts of politics (ant-leftist, anti-Chávez, anti-establishment, anger over evictions and land ownership, relations with Cuba) can be pretextually articulated under the guise of a palatable and otherwise attractive oriflamme, that is, the duty to prosecute FARC members. Certainly the need to prosecute and punish the FARC presented as a powerful rhetorical device for Álvaro Uribe. It allowed him to chastise the peace agreement as too soft, too permissive, and as simply wrong on moral grounds. What is more, the peace agreement failed to comport with best practices and international standards, which require prosecution and punishment. The peace agreement, painstakingly negotiated over four years, was seen my many as a ‘dubious giveaway’ that imperiled Colombia’s ‘judicial integrity.’ The ICC in its increasingly permanent preliminary examination was consistently skeptical of reduced sentences, though it grudgingly tolerated them.
Another lesson from Colombia is that punishment matters. In general, as I have written elsewhere, sentencing presents as an afterthought in international criminal law. So much attention is focused on the conviction, and so little on why we punish and for how long we ought to punish. Yet, the Colombian case clearly indicates that people care about jail-time. In Colombia, much of the ‘no’ vote was galvanized – whether earnestly or pretextually – around the notion that certain FARC members were being punished too little with their five to eight year reduced sentences. The ‘no’ voters wanted more. They wanted the FARC ‘to pay’. They wanted payback. The ‘no’ voters also were frustrated by the FARC’s insistence on continued eligibility to run for public office. And in parallel the ‘yes’ turnout was less than expected, suggesting a lack of enthusiasm, some lackadaisical anemia, or a great deal of complacency.
Retribution matters, as well. International lawyers euphemistically justify retribution as a penological goal on the basis of channeling the ‘outrage of the international community’ rather than an ‘eye for an eye’. But for many victims, eyes for eyes matter or, at least, meaty prison sentences are required to mollify and pacify and justify. Clearly this was the sentiment for some Colombians. Perhaps, then, it is right for international criminal law to engage more vividly with a more visceral, and less abstract, understanding of retribution. And peace agreements that demobilize large numbers of fighters, including child soldiers, are not well-served when they overrule very human cravings for transitional accountability.
Colombia also instructs on victimology. Who is a victim? Who has a say? Who should have more of a say than others? In Colombia, many of the most afflicted regions – among the poorest in the country — voted overwhelmingly for peace. Many of those least affected voted no, as did relatively affluent socio-economic regions.
In sum, Colombia instructs on certain aspects of the war crimes trial that international criminal lawyers tend to overlook. The need for retribution may be visceral. Jail time matters. People are angry. People may advocate for selective justice. Putting a peace agreement to democratic vote may be risky. Peace may become imperiled by calls for justice. Populations may divide, if not rupture, when it comes to transitional policies. Prosecutions and punishment for international crimes may be invoked by right-wing ‘law and order’ agendas no differently than exhortations for ‘tougher’ and ‘stronger’ national criminal justice systems to give those horrible rule-breakers the treatment that they deserve.
In the end, Santos fought the law and won a Nobel Peace Prize. But all the same, he fought the law and – for now – the law won.