Truth, Justice and Reconciliation in Colombia

Transitioning from Violence

Fabio Andres Diaz Pabon, Fabio Andres Diaz Pabon

• Editorial: Routledge
• Año: 2018
• ISBN:
  9781351373685
• Edición: 1
• Categoría: Política y relaciones internacionales
• Categoría: Paz y desarrollo global

The signing of the peace agreements between the FARC-EP and the Colombian Government in late November 2016 has generated new prospects for peace in Colombia, opening the possibility of redressing the harm inflicted on Colombians by Colombians.

Talking about peace and transitional justice requires us to think about how to operationalize peace agreements to promote justice and coexistence for peace. This volume brings together reflections by Colombian academics and practitioners alongside pieces provided by researchers and practitioners in other countries where transitional justice initiatives have taken place (Bosnia and Herzegovina, South Africa, Sri Lanka and Peru). This volume has been written in the south, by the south, for the south.

The book engages with the challenges ahead for the coming generations of Colombians. Rivers of ink have dealt with the end goals of transitional justice, but victims require us to take the quest for human rights beyond the normative realm of theorizing justice and into the practical realm of engaging how to implement justice initiatives.

The tension between theory—the legislative frameworks guaranteeing human rights—and practice—the realization of these ideas—will frame Colombia's success (or failure) in consolidating the implementation of the peace agreements with the FARC-EP.

1 Transitional justice and the ‘Colombian peace process’

Fabio Andrés Díaz Pabón

The signing of the peace agreements between the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (FARC—EP) and the Government of Colombia in late November 2016 has generated new prospects for peace in Colombia, opening up the possibility of redressing the harms inflicted on Colombians by Colombians.

The negotiation process and the agreements have been explicit about the importance of justice and the prioritization of victims. In fact, the negotiation agenda established the topic of justice for victims as central to the peace process. Other elements of the agreements relate to land, demobilization, disarmament and reintegration of cadres, illicit crops and illicit drugs, and political participation.

The agreements regarding victims and justice present a roadmap for a journey towards a more peaceful environment. They signal the intention and commitment of actors to reach this goal, but institution building and specific policies and programmes to implement these agreements are necessary to achieve it. Statehood and peace have never been built by decree; they are built by institutions, bureaucrats, and by government policies that are consistent across time.

Peacebuilding and state-building must not be seen as processes which are disconnected from justice. The strengthening of institutions, endowments, processes, and practices that realize the agreements signed in a peace process will condition the possibility of justice agreements being implemented. They also affect citizens’ perceptions of the credibility of their state.

For this process of state-building and for the consolidation of a justice framework to take place successfully, institutions and the state apparatus must assess the gaps between the commitments contained in the agreements and the realities of the country. This ensures that institutions can be designed to implement procedures and processes accordingly. If we are talking about peace and justice seriously we need to think about how to operationalize peace agreements, otherwise we risk pursuing armchair justice in favour of real justice, and using the peace agreements and their transitional justice frameworks as hollow rhetorical tools rather than pathways to peace.

Transitional justice is a broad label that refers to a series of different interim arrangements applied in post-agreement scenarios, with different outcomes (De Greiff, 2012). In the case of Colombia, the idea of transitional justice has been embraced as the primary framework through which the victims and perpetrators of the Colombian conflict will be engaged, and as the mechanism for the provision of justice and redress (Gobierno de Colombia y FARC—EP, 2016).

Transitional justice as a field of practice and study in intra-state conflicts is fairly new (less than 40 years old); claims with regard to what must be done in transitional justice initiatives thus seem, in some cases, to be driven by normative claims rather than by evidence (Teitel, 2000). Because of this, the process of making transitional justice initiatives a reality remains a great challenge in practice (Fischer, 2011). Determining how best to operationalize transitional justice in the context of the frailty of the state —a natural context to a post-conflict scenario—is thus no easy endeavour.

Reflecting on the challenges related to the idea of justice within the Colombian agreements is vital. The implementation of the agreements on transitional justice can cement (or fail to) a social covenant to reassert the legitimacy of the Colombian state in its territory after more than 50 years of internal war and violence. Being aware of the challenges ahead of implementing the agreements with regard to transitional justice is as important as achieving the agreements themselves.

What has been agreed on in Colombia is neither good nor bad per se. It constitutes an opportunity, a roadmap, and a framework for attempting to consolidate state legitimacy within the country. This volume distances itself from debates regarding what justice is, what justice should be, and how should it be implemented. Instead, the focus is placed on how what has been agreed to relates to the implementation of the transitional justice initiatives, and what challenges they will face in their implementation in relation to the victims’ needs in the Colombian context.

It is these challenges that this volume considers. It focuses on identifying the challenges facing the implementation of the objectives of the transitional justice component of the peace agreement between the FARC—EP and the Colombian Government. By reflecting rigorously on some of the challenges to be encountered in realizing this vision of justice, this work hopes to inform the debate on what is required to bring justice to the victims of the Colombian conflict in accordance with the peace agreement and the transitional justice frameworks it establishes. A full understanding of these challenges should inform the implementation strategy and practice for the peace agreements.

This volume will explore the following challenges with respect to the conception and implementation of the transitional justice framework in Colombia: reconciliation, memory, education, land, gender, demobilization and reintegration.

This reflection is led by Colombian academics and practitioners, in partnership with researchers and practitioners in other countries where transitional justice initiatives have taken place (notably Bosnia and Herzegovina, South Africa, Sri Lanka, and Peru). This volume has been written in the south, by the south, for the south.

Transitional justice: Tensions and challenges of a field in the making

In modern peacemaking processes aiming to move countries away from civil war and internal conflict, it is common to see provisions for justice arrangements made as part of peace negotiations. These are commonly referred to as transitional justice mechanisms. Transitional justice has become a more popular approach to post-conflict reconstruction in the case of civil wars and internal conflicts since the late 1980s when Latin American dictatorships transitioned from dictatorial regimes towards fuller democracies (Sriram, 2010; Sriram, 2000).

The prevalence of transitional justice in ‘modern’ peacebuilding is illustrated by the fact that transitional justice initiatives now tend to be integrated into peace negotiations in order to facilitate post-conflict peacebuilding (Kostic, 2012). State-building initiatives, combined with mechanisms to deal with past atrocities, are expected to lead to stability and reconciliation (De Greiff, 2012). Transitional justice as part of peace agreements aims to establish channels to determine accountability for war crimes, to individualize responsibility, and to generate a comprehensive view of violent pasts (Kostic, 2012). The measures and mechanisms created to achieve these ambitious objectives constitute transitional justice: the addressing of human rights violations via the establishment of tribunals; truth commissions; lustration; reparations; and political and societal projects aimed at fact-finding, reconciliation, and remembrance (Fischer, 2011).

A number of debates and tensions exist within the field and practice of transitional justice: notions of justice—retributive or reparative—compete; international jurisprudence, institutions and norms often contrast with national and local legal frameworks; institutions and cultural practices, each of which may be employed to differing degrees, shape the transitional justice process; and finally, the end of the process is contested—should transitional justice establish truth, or deliver retributive justice? The Colombian peace process illuminates each of these debates and demonstrates the possibility of moving beyond the dichotomies implied in these debates to achieve a more holistic process.

Traditionally within the field of transitional justice the policy options for reparation, retribution, and restoration have been seen as mutually exclusive and debated in opposition to each other. This has limited the potential for transitional justice processes to be perceived and operate as an integral approach for peacebuilding, able to consider different needs and alternatives. One of the main examples of this opposition is the debate of peace versus justice: a legalist approach advocates for an emphasis on criminal justice in order to deter future human rights violations, while those in favour of focusing on peace agreements may allow élites related to the conflict to be included in post-conflict scenarios (Fischer, 2011).

The field of transitional justice evolved from an initial legalistic view, focused on processing war crimes, and extending its aims and objectives to include a broader and transformative dimension (Teitel, 2000). Transitional justice mechanisms must support institutions seeking justice to redress aggressions, whilst also supporting future good governance (Andrieu, 2010) and the consolidation of institutional legitimacy and the rule of law (Betts, 2005). These multiple objectives have driven the implementation and design of transitional justice initiatives towards a more comprehensive interpretation of the field. Recent transitional justice initiatives combine provisions that aim to improve accountability and adherence to the rule of law, reform institutions, and rebuild trust. These mechanisms are believed to provide for reconciliation while consolidating justice and reparations (Fischer, 2011).

The objectives of the transitional justice framework contained in the agreements established between the Colombian Government and the FARC—EP relate to access to justice, the definition of a justice system that serves the Colombian society, and its contribution to reparation. Hence, the agreements combine elements of both restorative and retributive justice. In doing so, the agreements aim to create a system with the objectives of justice, restoration, reparation, and non-repetition (Gobierno de Colombia y FARC—EP, 2016).

The agreements between the FARC—EP and the Colombian Government pursue a third way in comparison to other agreements on justice for victims, by not applying the dichotomy of retributive and restorative justice. The agreements include a series of elements that combine reparation, retribution, and restoration of the rights of the victims. The Colombian agreements appear to constitute an example of what is referred to in the literature as a ‘hybrid’ justice system (Sriram, 2010). The ‘local versus international’ debate frames another set of opposing ideas within the transitional justice field. When transitional justice mechanisms are implemented, they are in some cases applied in accordance with international rules and standards to the detriment of local and national rules and practices. Where this is the case, tensions and legitimacy gaps may be created. This is especially true for communities that had no access to formal systems of justice before conflict emerged (as is common in weak states) and depended on customary law but that post-conflict are required to pursue justice and reconciliation processes outside of this through institutions shaped by international rules and standards. The introduction of new laws, institutions and trials that are perceived to be alien structures can be cause for concern and can be seen as colonial instruments. The literature refers to this privileging of the international over the local as the ‘liberal’ co-option of customary law and local forms of justice. These initiatives are commonly encountered as removed or distant, and often fail to support sustainable peacebuilding initiatives (Andrieu, 2010).

This should not make of local initiatives of justice a romantic goal for justice in opposition to international frameworks per se. Their advantages lie on the capacity of allowing a context-sensitive operation, empower citizens and link the processes of transitional justice with the experiences and realities of communities (Lederach, 1997).

However, local frameworks are not exempt of their own challenges. In some cases, “local” justice frameworks and customs ignore the rights of women, minorities and LGBTI communities, making of local initiatives means reproduction of existing inequalities through a local/localized “justice” system. Also there is the risk of spoilers, former warlords or remaining armed actors manipulating this process for their benefit (Hirblinger, 2017). Thus, assuming that local/localized processes are better than international processes can be a simplified description of the challenges of implementing these initiatives at a local level (Mac Ginty & Polanska, 2015).

The transitional justice framework contained in the agreements established between the Colombian Government and the FARC—EP speaks to local realities and necessities, and it relates to the international jurisprudence set by the Rome Statute of the International Criminal Court. The agreements were shaped by the interplay between international jurisprudence on human rights (and the obligations/restrictions imposed on nations by international treaties in this regard) as well as the demands of national legislation and context.

Another dilemma that often arises in discussions around transitional justice relates to the role that ‘truth’ and the role truth and reconciliation commissions, as opposed to trials and courts, can play in reconciliation. Truth commissions have been presented as viable alternatives to trials and prosecutions and as effective mechanisms for countering denial about human rights abuses. Truth has the potential to provide partial redress for victims, contributing to healing and reconciliation (Fischer, 2011). In addition, it is argued that truth commissions can promote public dialogue (Sriram, 2010). However, critics of truth commissions assert that revealing the truth about human rights violations can become an impediment to reconciliation as it can also promote animosity, reopen wounds, and increase political instability (Skaar, 2013). Some academics are in fact sceptical of the very idea that truth-telling mechanisms in themselves can bring healing and maintain peace in a post-conflict society (Mendeloff, 2004). Another critique to the use of truth commissions is the fact that these commissions often lead to the creation of official, state-sanctioned versions of a violent past. This can impose particular versions of the conflict, often making the multiplicity of individual experiences and interpretations of an armed conflict less visible (Andrieu, 2010). Where this happens, it creates controversy regarding whose truth is presented by truth commissions when these processes are undertaken (Loyle & Davenport, 2016).

The task of implementing transitional justice mechanisms as part of peace processes and agreements is riddled with different dilemmas. These dilemmas are inherent to the transition from war to peace, and in moving from agreements to practice, and require decision-making on how to proceed and effectively achieve justice in accordance with the requirements of particular contexts. Context-specific requirements relate to the actors and the histories of the particular contexts that suffered violence and war. Framing discussions about transitional justice as centred merely on theoretical dichotomies and debates will illuminate the type of initiatives undertaken, but may also obscure reflection on the capacity of the agreements and the instruments set in place to achieve peace and to incorporate the voices of the victims. A strong focus on the context/s in which the transitional justice process will be undertaken is necessary for the latter.

We must not forget that transitional justice is a mechanism that is used to deal with pasts comprised of mass human rights violations within reconciliation and peacebuilding processes in contexts of state weakness and fragility. The prefix transitional is not given loosely, and we need to reflect on how to effect these transitions to take place. This requires researchers to see transitional justice through a peacebuilding and a process lens, and not solely from a human rights perspective (Andrieu, 2010). Transitional justice is thus likely best served by a toolset that allows for the combination of different mechanisms to achieve these ends (De Greiff, 2012). The final goal of transitional justice is peace, and that is where our focus should be oriented.

Transitional justice in the ‘international’ context: restorative and retributive debates meet the Colombian agreements

The decision about what justice means also depends on whom the justice system is focused on: the perpetrator (amnesty, prosecution, and lustration) or the victim (financial compensation, truth telling, and memorialization¹).

In the case of Colombia, the agreements reveal a holistic model of restoration and retribution. On the side of restoration, the Colombian example uses an existing legal framework defined by the existing Victims’ Law. The Victims’ Law establishes a mechanism for repairing the harm done to victims by different actors in the conflict (Gobierno de Colombia, 2011). In addition, some of the agreements hint at a reparative role for the perpetrators of crimes, in that they outline a possible role for the latter in activities such as de-mining processes,² the participation of victimizers in illicit crop eradication programmes, and the construction of infrastructure projects by perpetrators. Such activities can be seen as a twofold mechanism that is both retributive and reparative (Gobierno de Colombia y FARC—EP, 2016).

The agreements between the Colombian Government and the FARC—EP may break new ground in relation to the abandonment of the dichotomy of international/national/local definitions and standards of justice, reaching a middle ground that is able to comply with national needs and international standards, and that incorporates notions of both restorative and retributive justice.

In combining elements of restorative and retributive justice, and in bridging international and local understandings and standards of justice, the agreements outline a system that aims toward justice, reparation, and non-repetition, and which serves as a guideline for institutionalizing this process. However, its implementation will prove challenging.

The legalistic language of the agreement can be seen to give preponderance to penal sentences. It does not clarify how the reparative aspects of the agreements speak to the needs of the victims. This is as a result of the fact that the previous peace processes, and the institutions which emerged from them, were not as focused on the needs of the victims. The ‘what’, but not the ‘how’, is clearly stated. The work to operationalize and implement the plans to reach the objectives defined by this transitional justice framework is left to the existing institutiona...