Colombia Needs to Reframe the Discussion on Punishment for International Crimes

6/3/2015

BOGOTÁ, June 3, 2015 –As Colombia struggles to bring an end to its 50-year armed conflict, a key issue to be resolved concerns the criminal responsibility and punishment of individuals responsible for committing serious crimes, both in the institutions of the state and the Colombian Armed Revolutionary Forces (FARC).

Recognizing that different objectives may apply to different actors, a new paper by the International Center for Transitional Justice considers the competing goals of punishing members of the FARC who are deemed most responsible for committing serious crimes.

The 16-page paper, Squaring Colombia’s Circle: The Objectives of Punishment and the Pursuit of Peace, argues that many of the standard objectives of punishment are less than persuasive given the current bid to end the conflict.

In particular, the punishment of FARC members has to occur in a context that does not damage an underlying objective of the peace process, namely, transforming the FARC from an insurgent group into a political actor.

“The objectives have to be balanced with the need for compromise,” says Paul Seils, ICTJ’s vice president and the author of the paper. “Any punishment depends on those deemed responsible for crimes being willing to submit themselves to prosecution, as the Colombian authorities have been unable to arrest high level-suspects throughout the conflict.”

According to the paper, discussion of “proportionality,” or making punishment fit the crime, is unhelpful and misleading.

“In normal circumstances the punishment for serious crimes would mean incarceration, but these are not normal circumstances,” says Seils. “A successful peace negotiation would mean an end to the conflict, so using punishment to incapacitate or deter these offenders becomes less relevant, and other objectives become more so.”

The paper suggests that the best way to understand the policy goals of punishment in the current context is as a mixture of reformative, retributive, and communicative goals.

“In transitional contexts, like Colombia, where a society is seeking to address atrocities and reaffirm core rights and social values, the communicative goal of punishment is especially important,” explains Seils.

“It means that the justice system’s penalty expresses appropriate condemnation for the acts and the offender has to be able to show that he or she understands that the actions weren’t acceptable. This requires a meaningful act of penance, not mere symbolism.”

According to the paper, to meet the policy objectives of punishment in this case: 1) trials must be public, accessible, transparent, and serious; 2) punishment should include the possibility of offenders meeting with victims so that they can express their suffering; and 3) measures of punishment should include disagreeable consequences, such as financial penalties, asset seizure, temporary exclusion from political office, and community service orders, as well as reformative measures.

The final settlement of the negotiations will be put to a public referendum. As Seils explains, “Ultimately, the objectives and the means of punishment will be for the Colombian people to decide.”

The full paper can be downloaded in English and Spanish.

Contact

Refik Hodzic
ICTJ Director of Communications
Email: rhodzic@ictj.org
Phone: +1 917 637 3853


PHOTO: A Colombian indigenous walks next to a graffiti of late FARC commander Alfonso Cano, in Toribio, department of Cauca, Colombia, on November 8, 2014. (LUIS ROBAYO/AFP/Getty Images)