By Susan Abad
“It’s harder to turn back than to reach the end of the conflict” was the phrase used in an interview a few months ago by Humberto de La Calle, chief government negotiator, to express optimism about that the signing of a peace agreement between Colombia and the Revolutionary Armed Forces of Colombia (FARC) this year.
Last September, in a move that took the country by surprise, President Juan Manuel Santos traveled to Havana, where peace negotiations have been held since 2012. There he met with the leader of the FARC, Rodrigo Londoño, also known as Timoleón Jiménez or Timochenko, and announced the basis for transitional justice.
Santos emphasized in his speech that the penalties to be imposed on the guerrillas, civilians and government agents who were involved in the armed conflict were chosen to maximize compensation to victims and meet the standards of international justice.
Under the agreement, there would be a restriction of liberty for between 5 and 8 years for those who accept responsibility for crimes during the war and up to 20 years in prison for those who deny responsibility but are later found to have been involved.
There is a component of restorative justice that could be translated into work of former guerrilla members such as humanitarian demining and illicit crop substitution.
The agreement also creates a Special Jurisdiction for Peace, composed of Colombian judges and with the possibility a small involvement of foreigners, who would be responsible for investigating, prosecuting and imposing sanctions on perpetrators of serious crimes. This court would also have jurisdiction over state agents and others with direct or indirect responsibility in the armed conflict, such as funders and collaborators of illegal armed groups.
Military members who have committed offenses during the conflict — even violations of the International Humanitarian Law (IHL) — “will receive special, simultaneous, balanced and equitable treatment based on the IHL,” states the agreement. This is consistent with President Santos’s promise that “any benefits given to the FARC regarding justice will also be given to members of our armed forces” and that it “would be different treatment, but no more severe.”
Truth, reparation and non-repetition
The text of the agreement states that all parties in the conflict must provide the full truth, compensate the victims and guarantee non-repetition of the events.
Reactions to the agreement were swift. Retired General Jaime Ruiz, President of the Retired Officers Association of the Armed Forces (ACORE), expressed to Latinamerica Press his satisfaction of the fact that military members would be judged differently, but warned about “the doubt on how the judges will be chosen” and the existence of “somewhat confusing mechanisms for such appointments.”
For other experts, the agreement is satisfactory. Nelson Camilo Sánchez, from Dejusticia, said in a column published in the information website Razón Pública that “if you look at the guerrilla’s initial position on justice, their opinion was that it should not be approached from the perspective of human rights and transitional justice, but it should be reduced to the collective responsibilities and therefore the capitalist order bears the most responsibility for the conflict. If you compare the agreement with the initial position of a renegade guerrilla who wants to bring down the State and does not believe in international law, who agrees to be tried by a court of law where it recognizes the legitimacy of the State to impose penalties and limits of international law when granting amnesty, it is unquestionable that we have come a long way.”
Last December, after conducting a “legal review” of the agreement, Human Rights Watch (HRW) called it “an impunity agreement”. For HRW, the only sanction for those who confess their crimes and cooperate with justice would be restorative and not an effective restriction of liberty as stipulated in international standards and asked for the intervention of the Organization of American States and the International Criminal Court.
After the meeting between Santos and Londoño, there was also an announcement that six months from that day — on Mar. 23, 2016 — the long-awaited agreement that would end half a century of war and leave at least 300,000 dead would be signed.
More technical than political differences
Several analysts expressed pessimism about the deadline, considering that in less than three years there have only been partial agreements on issues concerning rural reform, political participation and illicit drugs. Even the FARC, through their spokesman Carlos Antonio Lozada, hinted that the talks would last much longer. Lozada said that in “a debate that has to be performed on the negotiating table (…) will be seen starting from what day begins to run the six months.” Even Londoño asked in a statement published in November: “And what will happen if on Mar. 23 there is no Final Agreement? Would we throw overboard what we have achieved and worked on for so long? That would not be appropriate or fair. Or is the present delay aimed to corner us at the last minute to force us to accept obligations?”
However, experts such as Jorge Restrepo, Director of the Resource Center for Conflicts Analysis (CERAC), are confident that the agreement will be a reality at time announced. “The differences between the government and the FARC are more technical than political. The remaining points of discussion don’t have to do with the reasons why the conflict continues, such as land ownership, income from drug trafficking, access to political participation of the guerrilla and the issue of justice”, he told Latinamerica Press.
For the United Nations Representative in Colombia, Fabrizio Hochschild, “the issue of victims and justice is the most complex and has sparked the most difference in viewpoints in Colombia and generated polarization,” so close it is a “decisive signal that we have reached the final stage of the talks.”
While there is speculation about the final signing, President Santos announced on Jan. 8 that Congress will convene for special sessions in February to amend Public Order Law 418, that will enable it “to initiate the proceedings for the concentration of the FARC members in sites that were agreed on [at the negotiating table] and define the mechanism of disarmament.”