Devil Is in the Detail of Colombian Justice Deal


There has been much understandable excitement generated by the outline agreement presented by Colombian President Juan Manuel Santos and FARC leader "Timochenko." The deal sketches out how the parties will address justice for crimes committed during the conflict. There are a number of unexpected elements, not the least of which is the FARC's willingness to accept punishment for members of up to eight years of "restricted liberty" for serious crimes.

One has to recall that we are talking about a negotiation that not only seeks to end combat operations in Colombia, but that will require all parties to submit voluntarily to some form of criminal justice. It is, therefore, a significant success for the peace process.

However, the test of the proposals is not whether they are enough to get a deal done, but whether they will provide an adequate measure of justice for victims of serious crimes, in all circumstances.

Three things stand out immediately. First, there is no public information yet that explains exactly how the process will work. I have written elsewhere that the quality of the justice delivered will depend even more on the process than on the quantity of information that comes out of it.

“What is essential is that the process is public and serious”
    What is essential is that the process is public and serious. That means it must be capable of taking the dignity of victims seriously and enable the public to determine whether the accused, in their confessions, are prepared to accept the values of society. If the model appears to be nothing more than a processing machine for the perfunctory declaration of facts, its value will be greatly diminished. Unfortunately this is precisely what we have seen in the much-devalued confession process under the Justice and Peace law.

The second unknown is the precise nature of the punishments. Again, there is certainly scope for imagining a meaningful concept of punishment other than imprisonment for the convicted. The measures, however, have to be serious and capable of indicating that the accused express an acceptance of the harm done and a commitment to society's core values.

We know that the period of five to eight years in "effective restricted liberty" excludes traditional imprisonment. The question is, what does it include? It is unclear at this point if the parties even have an agreement on this. Again, an effective restriction of liberty has to mean just that - not the pretense of limited liberty.

Third, it remains uncertain how crimes committed by the Colombian armed forces will figure into this scheme. Since 2012 the Prosecutor of the International Criminal Court has made it clear that her primary concern is that there has not been enough progress in prosecuting those in the army who are likely to be most responsible for the murder of civilians and prisoners over recent years. Indeed, that message was transmitted by the court as far back as 2008.

We are now at the end of 2015 with no serious indication of real progress in investigating allegations that senior military officials are responsible for alleged crimes. It is unclear if there will be a separate process for the military, or if the military accepts the scheme outlined last week. But time is running out for serious progress to be shown on investigating alleged violations by those in the military's upper ranks.

Besides these issues, there are two underlying concerns. One is that the experiences that have fed the proposals serve more as cautionary tales than as genuine inspirations. There is a general assumption, for example, that South Africa's "truth for amnesty" process was not only innovative but hugely successful.

That process allowed self-confessed perpetrators to exchange amnesty for a full confession of their politically motivated crimes. Those who did not apply, or whose applications were rejected, were told they would face criminal prosecution. This was supposed to be the incentive for giving truthful testimony to the national Truth and Reconciliation Commission.

Ultimately, just over 1,000 people received an amnesty, with most of these coming not from state security forces but from ANC-aligned structures. Only 293 people from state forces applied for amnesty. Very few, if any at all, came from the upper reaches of the police, army, intelligence or political circles. Although a good deal of information was shared indicating that those at the very top were responsible for Apartheid-era plans and policies, almost nothing was done to follow up on those who had not come forward to confess and seek amnesty.

Even if one argues that, nonetheless, some important elements of truth were uncovered, the promise of prosecution for those who did not tell the truth has proved to be not just an empty promise but an increasingly corrupted one. The government of South Africa has done virtually everything possible to extend amnesty and pardon, and nothing to pursue prosecutions. It is for this reason that one should be circumspect in seeking to reproduce the "South African experience."    
“To avoid the difficulties of the past it would be preferable for detailed mapping and costing to be carried out before a decision is made on structures, budgets, prioritization and processes”

The second concern is the tendency in recent times for Colombia to design complex structures and procedures without adequate planning or preparation. The complexity of accountability processes, like the Justice and Peace Process, have ended up delivering too little too slowly and at great expense, with frequent need for revision. Indications in the proposal suggest a process that is even more complex than those that have come before it. This is frankly a cause for serious concern.

To avoid the difficulties of the past it would be preferable for detailed mapping and costing to be carried out before a decision is made on structures, budgets, prioritization and processes. If the process begins to show signs of stress within a short time, it will indicate that not only have lessons not been learned from the past, it will raise questions about how serious the intention was to do justice at all.

While the agreement is, indeed, a most welcome and unexpected surprise, it is much too early to say that it is capable of delivering the kind of truth and justice that Colombia must provide to its injured citizens.

Paul Seils is Vice President of ICTJ.

This article originally appeared on the Huffington Post.

PHOTO: The President of Colombia, Juan Manuel Santos, and the leader of the FARC, "Timonchenko," shake hands after the announcement of the agreement on criminal justice in Havana, Cuba on September 23, 2015. (Government of Colombia)