2016 might very well become the year in which one of the world’s oldest armed conflicts is finally brought to an end. The Colombian civil war, which has been ongoing for about half a century, has claimed the lives of hundreds of thousands of people, while tens of thousands more have been disappeared. The conflict continues to force many Colombians to leave their homes every year, with the total number of internally displaced persons now at slightly over 6 million. And yet Colombia’s president Juan Manuel Santos has promised his citizens, and the world, that Colombia will see the end of this conflict by the spring of this year.
His optimism stems from a breakthrough in the peace negotiations between the Colombian government and the FARC, which was achieved in the final months of 2015. On 23 September 2015, during an historic press conference in Havana, Cuba, President Santos and FARC leader Timoleón Jimenez announced that an agreement had been reached on what had been the most sensitive issue in the negotiations: the issue of transitional justice. A full draft of the transitional justice agreement has been published through a government website on 15 December.
The transitional justice agreement represents a step forward not only in the Colombian peace process, but also in the ongoing controversy over how to balance the interests of ‘peace’ and ‘justice’ in the context of negotiated peace agreements. Historically, it has been understood that convincing warring parties to lay down their weapons necessitates broad amnesties for crimes committed during an armed conflict. In previous attempts to negotiate peace with the guerillas the Colombian government had done exactly that and the FARC had expected that this time would be no exception.
However, the Colombian government has come to see things differently. In the words of President Santos, “the world of today is different and we have legislation and national and international case law which does not allow for the pardons and amnesties of the old days”. The international case law to which the president refers here comes primarily from the Inter-American Court of Human Rights, which has consistently held that amnesties for grave violations of human rights violate victims’ rights under the American Convention on Human Rights. Meanwhile, the International Criminal Court is keeping its eye on Colombia as its preliminary investigation into the Colombian situation remains open, putting further pressure on the State not to leave serious crimes committed on its territory unpunished. In other words, the Colombian government sees its negotiation space in the area of transitional justice limited by international law.
As evidenced by the text of the transitional justice agreement, the FARC has also come to accept that a full amnesty is no longer an acceptable option.
The transitional justice agreement creates an ‘integral system for truth, justice, reparation and non-repetition’, which includes, amongst other transitional justice mechanisms, a Special Jurisdiction for Peace. And while this mechanism will have the power to grant amnesties for certain categories of crimes, amnesties are not allowed for serious crimes which can be qualified as international crimes or grave violations of human rights. For the latter category, the transitional justice agreement requires an investigation and the determination of individual guilt, with the possibility of imposing alternative sanctions on accused who actively participate in the truth-finding process.
The solution found in the transitional justice agreement is still a compromise, of course, and far from perfect. Many valid criticisms can be (and have been) made of the agreement and much of its success will depend on the manner in which it is eventually implemented. However, the fact that the parties to the Colombian conflict have expressed a shared will to make peace while taking the parameters set by international law seriously is a ground for cautious optimism in the new year.