Transitional Justice for Peace in Colombia

The narrow “No” victory in Sunday’s plebiscite on Colombia’s government-FARC peace agreement shocked both Colombians and the international community who were preparing for an end to 52 years of internal conflict. Countering polls that indicated that the accord would be widely approved by the country’s populace, the opposition victory has now created uncertainty about the product of 4 years of negotiations.  Many analysts and opposition voters have attributed the “No” victory to the view that the accord is too lenient on the FARC. According to the agreement, members of the FARC that admit their crimes through truth reconciliations will avoid incarceration and only suffer ambiguous “restrictions of liberty” and the guerrilla group will be able to organize into a political party following disarmament.

Many critics to the agreement see these concessions as impunity. A voter interviewed by the Washington Post whose brother and uncle were kidnapped by the FARC in the 1990s said: “they need to change the accord so that there’s some kind of punishment for those who committed these crimes.” This is a perspective not only common among Colombia’s “No” voters, but also fundamental to conceptions and debates on post-conflict justice throughout the last century, originating in the creation of individual criminal responsibility for war crimes, crimes against humanity, and crimes against peace in the Nuremberg trials. Transitional justice has been a tricky subject for countless divisive, violent conflicts, including the Holocaust, genocides in Rwanda and former Yugoslavia, South African apartheid, Chilean state terror, and Salvadoran civil war. The Colombian context can learn from these former cases.

Jack Snyder and Leslie Vinjamuri argue that the “legalist” perspective of criminal justice (punishment for perpetrators of war crimes and human rights violations) has often had devastating consequences for transitions to sustained peace, especially in places with a weak rule of law and institutional incapacity for effective justice. For example, in the former Yugoslavia: “the ICTY’s decision to investigate rebel atrocities led the guerrillas to destroy evidence of mass graves, creating a pretext for hardline Slavic Macedonian nationalists to renew fighting in late November 2001 and to occupy Albanian held terrain” (Snyder, Vinjamuri 12). Despite the legitimate desires to hold perpetrators accountable for crimes, strengthen the rule of law, and assign guilt following horrific violence, Snyder and Vinjamuri argue that trials can provoke backlashes from perpetrators in the short term and a culture of perpetual resentment and polarization in the long term. Through a thorough analysis of the results of different forms of transitional justice following 20^th century conflicts, Snyder and Vinjamuri conclude that amnesties and truth commissions have “often been the basis for durable peace settlements” (43).

 Similarly, Forsythe characterizes punitive solutions to post-conflict transitions as “judicial romanticism” in that it views criminal justice as “a panacea for violations of human rights” (Forsythe 90). On the other hand, he asserts that “there are ways of doing good for individuals, and maybe even advancing certain human rights over time, through delaying or bypassing criminal justice” (Forsythe 118). Following the South African apartheid, Nelson Mandela himself advocated for truth and reconciliation commissions rather than criminal justice in order to “build a multi-racial rights-protective society” (Forsythe 115). 

Victims and their families are absolutely justified in demanding closure, accountability, and reparations from perpetrators of violence. However, the question remains: is the long-term goal of transitional justice sustained peace or reprisal? The experiences of other conflict-torn countries demonstrate that amnesties, truth reconciliations, or other alternatives to criminal justice are often more effective in moving the country forward, particularly following long-term ideological conflicts. Furthermore, truth commissions often provide more meaningful and culturally sensitive closure and accountability than punitive criminal justice. 

The context of Colombia is even more complicated considering the variety of actors that have contributed to violence. Unlike the unilateral state terror in Argentina, or the genocides of Rwanda and former Yugoslavia, violence in Colombia has been perpetrated from different sides: from the FARC, the State, paramilitary groups, and other actors. Assigning responsibility for violence would then have to impute members from all of these groups, which is highly unlikely.

The peace accord in Colombia is far from perfect. Nonetheless, it demonstrates a resounding commitment to building peace in a country afflicted by internal conflict for half a century. Building peace takes sacrifice and negotiation, but is undoubtedly preferable to the alternative. Engaging in constructive dialogue about transitional justice is crucial to promoting peace in a country so desperately ready for it.