The Colombian Referendum: A Lesson on Peace Without Justice

Co-authored by Tiffany Sommadossi

Colombians reminded us that to some, peace can come at too high of a cost, and for them, attaining greater accountability is worth postponing peace

Today, Colombian President Juan Manuel Santos was awarded the Nobel Peace Prize for his work on the peace deal with FARC, which was rejected by a referendum vote last Sunday. In its announcement, the Prize Committee highlighted how “striking a balance between the need for national reconciliation and ensuring justice for the victims will be a particularly difficult challenge.” President Santos has stressed that “perfect justice would not allow peace.” His comment and the Committee’s announcement highlight this inherent tension in balancing the need for peace and the desire for holding perpetrators responsible for their acts. Importantly, there is no blueprint for finding the right balance between peace and justice. The people of Colombia made it clear, however, that in their view the restorative justice based peace agreement, as opposed to an accountability (criminal prosecution) based peace agreement, was something even less than imperfect justice—and that for them, the cost of peace came too much at the sacrifice of accountability.

Specifically, the referendum underscored two fundamental aspects to the pursuit of peace and justice. First, to achieve justice each category of perpetrators must be held accountable for atrocity crimes committed during an armed conflict. This includes individuals who orchestrated crimes—those most responsible for crimes committed during an armed conflict—and those who carried out the most serious crimes. Second, the nature of the punishment those perpetrators receive can significantly influence perceptions on the robustness of the accountability process.

Over the past twenty-five years, there have been serious efforts worldwide to hold accountable both those who orchestrate the commission of atrocity crimes and those who carry them out. Some criticism of the hybrid accountability framework proposed in the Colombian peace deal stems from concerns that neither those most responsible for the crimes committed during the conflict nor those who carried out the most serious crimes would be held sufficiently accountable.

Several types of justice mechanisms can be woven into peace processes. Notably, those mechanisms tend to deal differently with lower-level perpetrators than with command-level perpetrators. In this regard, some justice mechanisms may emphasize restorative justice—particularly for lower-level perpetrators. However, most post-conflict countries rely on some degree of accountability for those most responsible.

With the assistance of the United Nations, international tribunals for the former Yugoslavia, Cambodia, and Rwanda were established to prosecute international crimes. Although early indictments by the Yugoslavia Tribunal were primarily against lower-level perpetrators, the Tribunal eventually indicted the top political and military leaders, including the former President of Serbia, which it deemed responsible for mass atrocities committed in the Balkans. The Cambodia Tribunal prosecuted atrocity crimes committed by senior members of the Khmer Rouge. Rwanda relied on an ad hoc international tribunal, domestic courts, and traditional gacaca courts to seek justice for the genocide. This three-pronged approach allowed Rwandans to tailor forms of justice to reflect the perpetrators’ level of involvement in the genocide. The Rwandan Tribunal focused on prosecuting high-ranking individuals in order to deny impunity for those most responsible for the genocide. Both the domestic courts and the gacaca courts primarily prosecuted lower-level perpetrators. To facilitate community reconciliation and the reintegration of lower-level perpetrators into society, the gacaca courts emphasized restorative justice as an alternative to prison sentences. Those lower-level perpetrators received alternative penalties like community work and acts of reparation.

Some countries use domestic courts to prosecute even high-level perpetrators. The detention of Chilean dictator Pinochet emboldened victims to come forward with cases involving human rights violations. As the Chilean courts were purged of Pinochet-appointed judges, some military officials from the Pinochet-era were prosecuted. Likewise in Brazil, federal prosecutors pursued cases against military leaders involved in violations of human rights committed between 1964 and 1985, when Brazil was ruled by a military regime.

Peace agreements may sometimes contain provisions guaranteeing protection from prosecution, but this does not necessarily bar the prosecution of international crimes. For instance, the Special Court for Sierra Leone was a hybrid tribunal that prosecuted acts criminalized under both international law and the domestic laws of the country. However, the Lomé Peace Agreement contained an article on amnesty that effectively prevented the Special Court from prosecuting acts criminalized under Sierra Leonean law. Ultimately, the article was interpreted by the Special Court as inapplicable to the prosecution of international crimes, and the United Nations agreed.

In 1998, 120 states came together to adopt the Rome Statute, which established the first permanent International Criminal Court for the prosecution of atrocity crimes. The ICC is empowered to carry out justice in member countries where domestic authorities are unwilling or unable to prosecute perpetrators, especially higher-level perpetrators. The Rome Statute gave the ICC the power “to exercise its jurisdiction over persons for the most serious crimes of international concern.” In many ways, the ICC’s creation reflected a growing global consensus that more needed to be done to fight against impunity for atrocity crimes. Notably, Colombia adopted the Rome Statute in 2002, thus giving the ICC jurisdiction to prosecute atrocity crimes committed in Colombia.

“A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.”—José Ayala Lasso, former UN High Commissioner for Human Rights

The reality is that in any peace process it is rarely obvious how to adequately punish those most responsible for crimes committed during an armed conflict, without deterring them from genuinely supporting the peace process. Colombia exemplifies the dramatic repercussions that can result if people feel the two have not been properly balanced.

The Colombian peace deal was not devoid of accountability-based mechanisms. According to 50.2% of voters in Colombia, the agreement simply did not provide enough accountability. Ultimately, Colombia tried to implement an innovative hybrid accountability model that emphasized restorative justice as a means to accomplish peace. The hybrid model would have used judicial mechanisms to administer protections from prosecution, alternative penalties, and criminal sentences—to all categories of perpetrators.

If the peace deal had been ratified, a comprehensive transitional justice plan would have been implemented. Under the plan, the Special Jurisdiction for Peace would have served as the overarching accountability mechanism. That mechanism would have been composed of two justice components: the Chambers of Justice and a Tribunal for Peace. The Chambers of Justice would have facilitated a triaging of cases by adopting criteria for selecting cases for prosecution before the Tribunal for Peace. In theory, both lower-level and command-level perpetrators of atrocity crimes would have been under the mechanism’s jurisdiction.

FARC members that committed serious crimes—such as torture, sexual violence, crimes of genocide, and crimes against humanity—would not have been eligible to receive amnesty and would have faced criminal prosecution. If they immediately confessed their crimes, however, they would have been eligible to receive an “effective restraint of liberty, under special conditions.” In other words, they could have received a yet unspecified alternative to traditional imprisonment. Conversely, if perpetrators denied involvement in the commission of atrocity crimes and were later found guilty, then they would have faced up to 20 years in prison.

FARC members who committed less serious crimes, and who wholly confessed their acts could have received alternative penalties, such as community service and acts of reparation. If, however, they refused to confess, provided false testimony, or failed to make an honest confession in a timely manner then they would have been prosecuted and sentenced in the Colombian criminal justice system. A partial confession could have provided them with a reduced sentence. Additionally, amnesty would have been provided for “political and related/connected crimes.”

The ability of the FARC to restructure into a political party under the peace deal was also a divisive issue. As a consequence, FARC members not serving prison sentences because they confessed their crimes would be able to run for office. The Colombian government also pledged to give the FARC 10 congressional seats for two terms.

Although innovative, the Colombian hybrid accountability model in the recent FARC peace deal is not novel. The agreement effectively repackaged an earlier iteration of a justice-framework designed to facilitate the demobilization of pro-government paramilitaries. Under the Justice and Peace Law, paramilitaries that voluntarily came forward were diverted into special criminal proceedings. If they gave full and honest accounts of their acts, they could receive reduced sentences for their crimes. To many Colombians, it appears that this piecemeal transitional framework has overpromised and underdelivered, especially with regards to accountability. The process effectively provided around 90% of the approximately 30,000 paramilitary fighters that participated in the process with what many consider de facto amnesty. Learning about the provisions of the recent FARC deal must have been déjà vu for many Colombians.

Accountability frameworks implemented in places like the former Yugoslavia, Sierra Leone, Rwanda, and Cambodia illustrate the importance of developing tailored forms of justice to deliver sufficient accountability, particularly for those most responsible for crimes committed during the conflict and those that carried out the most serious of those crimes. Each category of perpetrator need not face equal punishment. However, justice mechanisms in existence elsewhere demonstrate that peace is more durable when justice encompasses sufficient consequences for both the orchestrators of conflict-related crimes and the individuals who carry out the most serious of those crimes.

The Colombians have shown us that seemingly inadequate punishment can undermine the perception of sufficient accountability to the point of postponing peace. Without adequate penalties, prosecutions can appear hollow—a lesson that will be important to remember as countries like Syria and Yemen contemplate how to weave justice into the peace process. If the Colombian hybrid accountability model can be successfully adjusted to strike the right balance between peace and justice, it could solidify peace in Colombia and be a valuable model for others in the future.

Dr. Paul Williams holds the Rebecca I. Grazier Professorship in Law and International Relations at American University and is the co-founder of the Public International Law & Policy Group (PILPG). He is a leading world expert in peace negotiations, post-conflict constitution drafting, and war crimes prosecution. In the course of his career he has assisted in over two dozen peace negotiations and post conflict constitutions.

Tiffany Sommadossi is a Law Fellow with the Public International Law & Policy Group and has assisted PILPG clients in the MENA region with peace negotiations, post-conflict constitution drafting, and transitional justice planning.

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