César Gaviria’s “transitional justice for all” proposal has generated a lot of discussion.
The Colombian government-FARC peace talks have begun to tackle what could be their most difficult subject. Transitional justice, especially the question of what to do with the armed conflict’s worst human rights violators, dominated coverage of the talks in Colombia’s media during the break between their 32nd and 33rd rounds (February 13–24).
This period was punctuated by two statements, both publicized on February 22.
- The FARC’s lead negotiator, Iván Márquez, told an interviewer, “For the guerrillas, zero jail. No peace process in the world has ended with the insurgency’s leaders behind bars.” Márquez has said almost the same thing before, but his words hit harder now because the talks have now begun tackling this issue. The Colombian government’s high commissioner for peace, Sergio Jaramillo, responded, “The guerrillas think that if we don’t guarantee them impunity, they won’t put down their weapons. If that is their thinking, there won’t be an agreement, there won’t be peace.”
- Cesar Gaviria, Colombia’s president from 1990 to 1994 and later secretary-general of the Organization of American States, issued a proposal to impose “transitional justice for all.” Gaviria suggests requiring not just guerrillas and soldiers, but also politicians, businesspople, landowners, and civilian officials, to confess their involvement in the most serious human rights abuses committed during the conflict. In exchange for such confessions and efforts to make amends to victims, Gaviria’s proposal would exempt non-combatants from serving prison sentences (it is vaguer about combatants). Among the Colombian military, the proposal would exempt lower-ranking officers, as well as those who committed crimes by “omission” (deliberate failure to prevent a human rights abuse committed by others).
Let’s look at these two statements.
Iván Márquez may technically be right when he says FARC members won’t spend a day in “jail.” The worst human rights violators among its members might not end up in regular prisons administered by Colombia’s National Prisons Institute. Nonetheless, guerrillas most responsible for the most serious abuses may end up in some sort of facility that deprives them of liberty. This facility might not be administered solely by the Colombian government: in order to avoid the appearance of “surrender,” some international involvement could be involved. While FARC leaders held there would be confined to the facility, the length and austerity of their detention would probably be significantly shorter than a normal criminal prison sentence for such serious crimes.
Last week, former UN Secretary General Kofi Annan visited Colombia and spoke to the FARC negotiators in Cuba. Rodrigo Pardo of Semana magazine asked him whether he thought the International Criminal Court would require prison for guerrilla leaders responsible for the worst human rights crimes. Annan more or less said yes:
“I think the determination here—obviously, judges will have to make it—but the determination will be to bring to account all those who are most responsible for the most serious crimes. So it will not be for the organization you belong to, but have you committed a crime or not? Obviously one is not going to be able to bring everyone to trial, but those most responsible will have to be held to account.”
Former President Gaviria’s proposal, meanwhile, made big waves in Colombia: it’s highly unusual for a heavyweight of the country’s political class to recognize that civilian elites bear some judicial responsibility for crimes committed during the conflict. (“My surprise was enormous,” wrote León Valencia, a demobilized ELN guerrilla leader who is now one of Colombia’s most-cited conflict analysts.) FARC leaders “hailed” the proposal as a good starting point.
Gaviria deserves praise for seeking to extend accountability to Colombia’s ruling elite. Civilian non-combatants played a large role—often larger than that of combatants—in ordering, planning, funding, and preparing some of the worst abuses committed during Colombia’s conflict, and they shouldn’t avoid accountability. Their participation in confessions, amends, reparations, and truth-telling could help Colombia make a historic break with generations of political violence.
Gaviria’s “transitional justice for all” proposal raises three questions, though: