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On December 15, 2015, Colombia’s government and the FARC guerrillas signed a draft accord on “Victims,” including a broad framework for one of the most difficult items on the entire agenda: how to hold both sides’ worst human rights abusers accountable.
This topic was so thorny that it halted progress at the talks for months. Colombia is the first International Criminal Court member country to negotiate a peace accord, and the ICC’s founding treaty prohibits amnesties for war crimes and crimes against humanity. As a result, even though the FARC was not defeated on the battlefield, those FARC leaders judged guilty for serious human rights abuses would have to turn in their weapons and receive some sort of punishment, including confinement. This has never happened before.
The December 15 accord would create a “Special Peace Jurisdiction” in Colombia’s justice system, with special tribunals to include both Colombian and international magistrates. It came up with the vaguely defined figure of “restriction of liberty”—something less severe than regular prison—for those who confess their crimes and provide reparations to victims.
On December 19, Colombia’s Presidency issued a two-page document indicating that similar standards would apply to members of Colombia’s armed forces. It is still not clear how this would apply to private citizens and politicians who aided and abetted armed groups.
A mainstream view, shared by the U.S., European, and Colombian governments, the UN, and most pro-peace analysts and human rights groups, holds that this accord is an advance for transitional justice. Though concerns exist about the severity of penalties, it appears to place a priority on victims’ rights and is the first time a non-defeated armed group has agreed to some degree of punishment for its human rights crimes.
Critics, like ex-President Álvaro Uribe and the NGO Human Rights Watch, have criticized this arrangement as a recipe for impunity. WOLA respects but does not share this broad view, which portrays a “worst-case scenario” of what might happen, but not necessarily what will happen, when the accord is implemented. Still, while we applaud the framework announced in December, our continuing support is contingent on greater clarity about several questions that remain unresolved (discussed in greater detail in this late-December blog post):
- How austere is “restriction of liberty” going to be?
- Are “false positives” going to be included, even though they occurred out of combat?
- How badly will the new jurisdiction weaken the concept of “command responsibility?"
- Might the first year of post-conflict see a mass exit of guerrillas and soldiers from Colombian prisons?
- Will narcotrafficking and hostage-taking be considered “political crimes” subject to amnesty?
- Does the FARC have the means to provide financial reparations?
- What does it mean to practice politics during time serving sentences?
- How are tribunal judges going to be chosen?
- How many civilian sponsors of paramilitarism will be sanctioned?
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