A protestor, rallying in support of a peace agreement between the Colombian government and FARC, stands under a banner reading "for peace" during a march in Bogota. Source: John Vizcaino (Reuters)
By Om Nagle
This is Part I of a two-part piece. Click here to read Part II.
The 2016 peace deal between the Colombian government and the Fuerzas Armadas Revolucionarias de Colombia (‘FARC’) which ended a 52-year long war was, undeniably, a remarkable achievement. The conflict between the state and the guerrilla group had led to indiscriminate violence, the explosive growth of drug cartels, and the normalisation of political assassinations, all of which has had a devastating impact on Colombian society. Violence related to the conflict included killings, enforced disappearances, and human trafficking. According to Human Rights Watch (HRW) estimates, it has resulted in the death of more than 220,000 civilians and the forcible displacement of more than 8.2 million Colombians since 1985. Some estimates suggest that the conflict still affects nearly 20% of the population, with numbers predominantly higher in the rural regions of the country.
The peace process leading up to the 2016 accord was unique in many ways, but its ambitious aspirations were largely fulfilled as a result of extensive international cooperation. The UN Security Council, in one of its few unanimous resolutions (A/RES/2261), supported the peace talks in Havana and praised the efforts of the international community. Norway and Cuba hosted the negotiations while the International Committee of the Red Cross (ICRC) transported the FARC rebels and played a vital role in hostage rescue missions. Additionally, Colombia’s regional neighbours, Venezuela and Chile, acted as observer states in the peace-process. Amongst its 600-odd sections, the accord aimed to achieve the permanent cessation of hostilities, disarm Latin America’s largest rebel group, reintegrate its former members into the civil and political society, and, most importantly, seek justice for the victims of the conflict. At the time, the peace deal’s far-reaching appraisal even won Colombia’s then-president Juan Manuel Santos the prestigious Nobel Peace Prize.
Domestically, however, the legitimacy of the peace deal had been undermined from its very conception. It was rejected in a nationwide referendum, which saw 50.2% of Colombians vote against the peace deal and only 49.8% vote in favour of it. Having lost the plebiscite, the government instead sought to legislatively implement its amended version through Congress. Subsequent elections also saw an increase in support for political parties critical of the peace deal. Critics of the deal believe that the accord lets the guerrillas off too easily. In particular, they criticise the Jurisdicción Especial de Paz (‘JEP’), an institution set up under the accord to investigate and adjudicate crimes committed during the conflict. The JEP is a unique judicial construction as it adjudicates such crimes through “restorative”, rather than retributive, justice. The Centro Democrático party, founded by former president Álvaro Uribe and presently under the leadership of his protégé, Colombian President Iván Duque, claims that the “JEP’s purpose is to go after government soldiers while securing impunity for FARC criminals”. Those who support Uribe and the Centro Democrático – the so-called ‘Uribistas’ –are particularly critical of reintegration efforts and of rural land reforms.
Founded firmly on the principles of transitional justice, the JEP adjudicates by recognising accountability for crimes committed during the conflict and giving out alternative sentences. Transitional justice, as a wider concept, refers to the judicial system developed by post-conflict nations to address the large-scale and systematic human rights violations so numerous or so serious that the normal justice system would be unable to provide an adequate response. This form of post-conflict judicial proceedings allows for truth and reconciliation between the victims and the aggressors, while preventing a sense of victor’s justice in preventing fair and free trials. In post-conflict nations, transitional justice asks the most pertinent and difficult questions about the nature of law and politics. By putting victims and their dignity first, it signals the way forward for a renewed commitment to make sure citizens are safe in their own countries, safe from the abuses of their own state and effectively protected from attacks by others.
The JEP’s revelations are proof that Colombia’s unique “transitional justice” system can succeed in post-conflict states, given that there is a commitment to peace between the warring parties and a political will from the state. Mosttribunals of similar nature have been paternalistically imposed by international bodies, such as the UN. The JEP is a first of its kind for prosecuting war crimes and crimes against humanity to have been created by the formerly conflicting parties through a peace accord. This source of legitimacy is also its biggest threat: over the last four years, the government led by President Duque has been working to cut the JEP’s funding and complicate the implementation of the peace deal.
On the 28th of January 2021, the JEP proved its critics – who had maintained that it was ‘too soft’ on the rebels – wrong by indicting eight FARC leaders for war crimes and crimes against humanity. All of the accused were indicted for promoting kidnapping as a systematic practice and inflicting human rights violations on hostages. More interestingly, the accused included the FARC’s former top commander, Rodrigo Londoño - known best by his nom de guerre Timochenko - and two sitting members of Congress. As of 18th of February 2021, all of the accused have accepted the charges and the JEP will now move to “restrict their freedom” by either ordering them to de-mine land or build schools in war-torn areas. The 322-page ruling revealed details of how the FARC kept some of its 21,396 hostages who were taken from 1990 until 2016. Unlike Colombia’s regular justice system which tried FARC rebels in absentia, the tribunal took the accounts of more than 2,500 kidnapping victims and the testimonies of the hostage-takers who, under the provisions of the peace-deal, are obliged to confess. The accounts of the victims and the hostage-takers revealed a pattern of inhumane treatment of hostages. A translated excerpt from the ruling says: “... they starved and beat the hostages. Many were forced to urinate in their clothes and not allowed to clean themselves for months. Some were locked in wooden boxes barely larger than their bodies. The rebels ordered some to dig their own graves as a form of psychological torture.”
The judge investigating the hostage-taking case stated that most of the FARC leaders were shocked by these gruesome accounts. The JEP has individually charged each FARC leader for committing these war crimes as, under international law, commanders are responsible for preventing subordinates from committing war crimes. The charges, the conviction, and the subsequent “restrictions on freedom” will be a major blow to the new-age FARC, now rebranded as a political party called ‘Comunes’. The peace deal ensured that the FARC would enjoy a 10-seat political representation in Congress until 2026. In the last congressional elections, however, it managed to secure less than 0.5% of the vote. Nevertheless, the new-age FARC deserves some credit: it has renamed itself in an effort to distance itself from its violent past, thereby sticking by one of its promises in the peace deal. The top cadre of FARC leaders have also fully cooperated with the tribunal by testifying and accepting the charges levied against them. Had they denied the charges, the JEP would have had to conduct a long trial which would have severely undermined reconciliation efforts with the victims, the latter of which relies on the former FARC guerrillas recognising the suffering they caused.
Given the conviction of the FARC leaders, the JEP is now faced with a crucial dilemma over whether the accused get to retain their Congressional seats. Taking the Congressional seats away would diminish the new-age FARC’s political representation and undermine an important pillar of the peace deal: to pursue their political aspirations democratically rather than through force. Uribistas and members of the incumbent political party, however, contend that allowing convicts of crimes against humanity would insult the sanctity of the Capitolio Nacional (the seat of Congress in Bogota) and enrage many ordinary Colombians.
Om Nagle is a second-year law student at SOAS, University of London. He is interested in exploring the intersection of law, international affairs and public policy. He thinks that Latin America is often forgotten while studying comparative and post-colonial law.
