By Claret Vargas*
Colombian President Santos’ recent visit to the United States on February 4 highlighted US support for the increasingly likely peace agreement with the FARC, an agreement that could end the longest internal armed conflict of the continent. The EU Parliament has issued a resolution in support of the peace agreement and pointedly noted the legality of the agreement under international law. The UN Security Council unanimously adopted a resolution to create a mission to monitor and verify the definitive ceasefire and the laying down of arms, and the UN has begun preparing a detailed plan.
The international community is engaging productively in a peace processes whose success is looking more likely by the day. And it’s worth taking note, because this peace negotiation process is yielding important innovations to balance justice and peace, and to focus the process on victims’ rights and reparations.
The Emerging Agreement
Since the peace negotiations began in earnest, the government and the FARC agreed to six points in the negotiation agenda, under the principle that only once agreement is reached as to each of the six points can there be a final Peace Agreement. These are: 1. agricultural development; 2. political participation, 3. end of the conflict; 4 illicit drugs; 5. victims; 6 implementation, verification and ratification.
The negotiation process has put into place important best practices, including a structured way for the direct participation of victims in the process and the creation of a subcommission on gender to ensure that all aspects of the eventual agreement have effectively ensure the ability of women to enjoy their rights.
The agreement on victims (point 5) includes a truth commission, a unit for the disappeared, and a Special Jurisdiction for Peace (JEP, for its name in Spanish). The terms of point 5 that relate to the JEP caused some significant controversy when they were announced last October. These are the key points:
- The JEP will have exclusive jurisdiction over crimes committed in the context of the armed conflict in Colombia.
- The perpetrators of the worst crimes, including crimes against humanity, genocide, sexual and gendered crimes, will be subject to JEP jurisdiction and will face 5-8 years of effective restriction of freedom, so long as they confess to their crimes early on in the process, and fully participate, including by contributing to reparations of victims.
- Those who do not assume responsibility for their crimes during JEP proceedings will face graduated penalties of increasing severity, including transfer to the regular criminal justice system and up to 20 years of prison.
- Participation in these special proceedings requires full participation in truth seeking, victims’ reparations, and requires commitments to guarantees non-repetition.
- There will be amnesties for lesser crimes, for political crimes and related crimes. However, no amnesty is possible for gross human rights violations, such as crimes against humanity, genocide or the most serious war crimes.
The issue that raised the most consternation is that of “effective restriction of freedom.” The Colombian government explained that this system would restrict freedom through “oversight and control, but with a degree of flexibility” and that this flexibility is aimed at allowing the person to fulfill “reparatory and restorative” parts of the sentence, such as “contributing to removing mines or reestablishing crops.” (my translation).
The political debate—including whether this form of punishment is sufficient or adequate—is important, as the peace agreement must be ratified by popular vote. But the question of whether Colombia’s peace agreement is permissible under international law is also an important doctrinal question that can have an impact in peace negotiations elsewhere.
“Effective Restriction of Freedom”: Permissible Innovation or Amnesty by Another Name?
Colombia’s alternative form of punishment under the JEP eschews prison time and imposes a lenient form of restriction of freedom, along with work in reparation activities. It also requires a prior full participation in truth-seeking processes for victims. However, is the flexible restriction of freedom acceptable under international law?
Transitional justice scholarship is only partially helpful, as the debate about peace and justice is generally framed around the use of amnesties. But the state of international law on amnesties is relevant, so let’s get a sense of it with two examples:
- In Latin America, since the Inter-American Court (IACtHR) first ruled on the issue of amnesties in its 2001 Barrios Altos case, it has made it clear that amnesty laws regarding serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance are invalid, as they are “designed to eliminate responsibility […] and […] are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as ” (par. 41).
- In 2004, the Appeals Chamber for the Special Court for Sierra Leone ruled that amnesties provided for in the Lomé Peace Accord, which sought to foreclose accountability for gross violations of international humanitarian law crimes were invalid, violated the State’s obligations under international law, and they did not prevent prosecution in international tribunals.
Note the emphasis on the purpose of impermissible amnesties, which also sheds light on the purpose of prosecution and punishment. I’ll come back to this in a minute.
Colombia has been negotiating peace in the shadow of its Rome Statute obligations and in the context of much clearer international legal norms regarding amnesties for the worst crimes (they’re not valid), which no doubt helped to explicitly exclude from the negotiating table any discussion blanket amnesties.
Building on these welcome constraints, the proposed JEP still aims to fulfill the principal aims of transitional agreements: accountability, truth-seeking, guarantees of non-repetition, and a measure of condemnation for perpetrators that does not derail the peace process. In a context in which proportional punishment is impossible (what, after all, is proportional to the measure of mass atrocity?), how does one evaluate a genuine prosecution and sentencing process? Perhaps we should ask whether the proposed “effective restriction of freedom” framework fulfills the purposes of punishment, but is this an appropriate way of evaluating the validity of the JEP under international law? It seems so.
Even the Office of the Prosecutor of the ICC recently expressed a qualified openness to alternative punishment, the evaluation of which will depend on the type of alternative punishment, whether the aims of the Rome Statute—”to end impunity for mass atrocity crimes”—are fulfilled, and whether the punishment serves “appropriate sentencing goals, such as public condemnation of the criminal conduct, recognition of victims’ suffering, and deterrence of further criminal conduct.”
The JEP framework is not impermissible under international law, but whether it succeeds and becomes a positive model for the other peace negotiations will depend on how effectively Colombia implements the victim-centered, memory and non-repetition goals of the victims’ agreement, once the Peace Agreement is reached. It may very well be that Colombia is a test case for alternative forms of punishment whose effectiveness and genuineness require an examination of how victims have fared, how society has regained its stability, and how rule of law has been entrenched. And wouldn’t such a victim-centered evaluation be a positive change in how we view “successful” accountability mechanisms?
*Claret Vargas is a coordinator and researcher at the Center for the Study of Law, Justice, and Society (Dejusticia).of Dejusticia’s international work.