Peace, Justice, and Belligerence in Colombia: Much Room for Thought
By Pablo Kalmanowitz, Max Weber Fellow, LAW, 2013-2014
n October of 2012, representatives of the Colombian government and of the Revolutionary Armed Forces of Colombia (FARC) met in Oslo to officially begin peace negotiations. If successful, they will end one of the oldest armed conflicts in the world. The last peace negotiations with the FARC ended in bitter failure over a decade ago, leaving the generalized sense that they could not be trusted to negotiate in good faith. This perception contributed to catapulting president Uribe’s tough pro-war platform to the presidency. During Uribe’s eight-year term (2002-2010), the only official relationship with the FARC was military antagonism. Antagonism was taken to the extreme of referring to FARC exclusively as drug traffickers and terrorists, and of denying the very existence of armed conflict in Colombia.
Against this backdrop, nobody expected Uribe’s former ministry of defense and designated heir, president Santos, to start peace negotiations within two years in office. Santos appointed a high-profile team of negotiators, which agreed with the FARC on an ambitious agenda that includes development policies; post-conflict political participation; disarmament and security; drug trafficking; transitional justice; and implementation. Negotiations are now ongoing in Habana, with Norway and Cuba acting as guarantors of the process.
A central procedural rule of the negotiation is that “nothing is agreed until everything is agreed,” and so each item in the agenda has the potential to derail the process. Transitional justice may well turn out to be one of the most contentious items, particularly when it comes to the punishment of FARC leaders for international crimes. FARC representatives have openly rejected the authority of the Colombian legal system to try them, and have offered instead to investigate internally all allegations of wrongdoing. Moreover, in a recent speech marking the fifteenth round of talks, FARC delegates emphasized the value of national sovereignty and the need to shield the process from international criminal jurisdiction; the decision to make peace, they say, belongs ultimately to the Colombian people, and the terms of the peace must likewise be its sovereign decision. The International Criminal Court, to which Colombia is a party, is nonetheless keeping a watchful eye.
If negotiators get to the point of discussing transitional justice, a reenactment of a core dilemma between peace and justice is bound to happen: they will have to find terms of prosecution mild enough for the FARC to stay in the process, but hard enough to give the process the legitimacy and support it needs. It is to be seen whether such terms are feasible. A deep research question in this regard, one which ultimately concerns every actor seeking to contribute to a peace agreement, is what social goals should be pursued by criminal prosecution. The ordinary rationales for punishment—deterrence, retribution, incapacitation, rehabilitation—do not seem to apply in this context. On what basis, then, should the peace process be put under risk for the sake of punishment?
One possible answer exploits the connection between criminal proceedings and truth elucidation. For years, FARC have ranked at the bottom of public perception polls. Whatever electoral chances they have will depend on a radical transformation of their image. This will require, among other things, counteracting their deeply entrenched portrayal as greedy criminals. The public drama of a criminal trial, with its voice-giving and fact-finding dimensions, could conceivably play out in their favor. This, however, will require a skillful, balanced design of the transitional justice mechanism. At a minimum, transitional justice should not affect disproportionally FARC’s interest in participating in electoral politics. Recognizing FARC’s historical political orientation, and rootedness in certain rural areas, would have to be a premise of the criminal process.