English Summary of the September 23 Government-FARC Communiqué on the Transitional Justice Accord

The communiqué’s Spanish text is here.

  • Special Jurisdiction for Peace: The accord creates a separate, presumably temporary body in Colombia’s justice system. It will have two sections, and each will have a minority number of foreign magistrates. “The essential function” of these two chambers, the Chambers of Justice and the Tribunal for Peace, “is to do away with impunity, obtain truth, contribute to victims’ reparations, and to judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, particularly the most serious and representative ones.”

  • Political crimes will be amnestied: There will be the “broadest possible amnesty” for the crime of rebelling against the state. This amnesty will also extend to “connected crimes.” This is tricky, as narcotrafficking and extortion (and perhaps even some ransom kidnappings) may be defined as “connected” to political crimes—and thus amnestied—because they may have been committed in order to raise funds for the FARC’s “political” cause. “An amnesty law will specify the extent of this ‘connectedness.’”

  • What won’t be amnestied: The amnesty will not extend to crimes against humanity, genocide, serious war crimes, hostage-taking or other serious privation of liberty, torture, forced displacement, forced disappearance, extrajudicial executions, or sexual violence. “These crimes will be subject to investigation and trial by the Special Jurisdiction for Peace.”

  • Who must face justice: The Special Jurisdiction for Peace will cover everyone who, “whether directly or indirectly, may have participated in the internal armed conflict, including the FARC-EP and state agents, for crimes committed in the context and for the purpose of the conflict, with particular respect to the most serious and representative cases.”

    This may mean that crimes committed by armed actors outside the conflict—like the “false positive” extrajudicial executions—may have to remain in Colombia’s regular criminal justice system. It probably also means that civilians who participated in war crimes, such as landowners who generously sponsored paramilitary groups that committed mass atrocities, could be investigated and tried by this new judicial structure.

  • Penalties for “those who recognize truth and their responsibility”: These individuals’ confessions will be contrasted with Colombian authorities’ investigations and earlier verdicts, and with information from victims’ and human rights groups. If they are not found to be holding anything back, their punishment “will have a component of restriction of liberties and rights.” This will guarantee that they participate in “work, tasks, and activities” aimed at “the satisfaction of victims’ rights” by “compliance with reparative and restorative functions.” This punishment will last for five to eight years “of effective restriction of liberty, in special conditions.” (The 2005 “Justice and Peace” law, which governed demobilization of the AUC paramilitary group, foresaw similar five-to-eight-year terms for the most serious human rights abusers, which ex-paramilitaries spent in ordinary prisons.)

  • Penalties for those who deny “the truth and their responsibility,” or who recognize it later in the process: These individuals will be put on trial before the Tribunal for Peace. Those who recognize their guilt later will go to regular prisons for five to eight years, during which they will “contribute to their re-socialization through work, training, or study.” Those who persist in denying responsibility for serious crimes will be tried and, if found guilty, sentenced to up to 20 years in regular prisons.

  • Special Jurisdiction for Peace requirements: To receive reduced sentences and “special treatment,” the accused must “contribute full truth, provide reparations to victims, and guarantee non-repetition” of their acts.

  • Disarmament requirement: FARC members must cease to use weapons. (The text uses the phrase “dejación de armas,” which means “leaving behind” or “laying aside” weapons. This is different from an immediate handover or destruction of guerrilla weapons.) This disarmament or “laying aside” process must begin no later than 60 days after the signing of a final accord.

  • FARC future as a political movement: “The FARC-EP’s transformation into a legal political movement is a shared objective, which will receive all support from the government, in the terms that are agreed to.”

  • Deadline: While it is not in the text of the accord, President Juan Manuel Santos said that the sides have agreed to sign a final accord within the next six months.

Colombia and FARC to Make Crucial Announcement on Peace Process


September 23, 2015

Colombia and FARC to Make Crucial Announcement on Peace Process

Washington, D.C.—At about 5:00pm today in Havana, President Juan Manuel Santos and FARC guerrilla group leader Timoleón Jiménez are expected to announce an agreement on transitional justice, the most difficult item on their negotiating agenda.

The leaders may also announce a date for the signing of a final peace accord. The end of a 51-year-old armed conflict is now in sight.

The items that remain to be negotiated are not easy. The negotiators still must define what “disarmament” means, how fighters are to be demobilized, how to turn accords into law, and how to guarantee a ceasefire while all of that happens. But these issues will likely turn out to be less contentious than what is agreed today: a judicial framework to clear up the worst human rights crimes committed during the conflict, and probably to punish those responsible.

While we don’t know yet what is in this Transitional Justice accord, WOLA hopes that it includes real accountability for individuals on both sides who committed war crimes. Some basic human norms were violated, and even if the punishment is less severe than the crime, it is important that perpetrators face consequences. Nobody, meanwhile, should enjoy pardons or lighter sentences without first confessing fully to his or her crimes and making amends to his or her victims.

A final accord may come soon. The U.S. government and the international community will have to move quickly to help Colombia during the fragile post-accord phase. For Washington, that will mean an increase in assistance to Colombia, which has been slowly cut back nearly every year since 2007. As officials planning the U.S. foreign aid budget prepare their 2017 request, which gets sent to Congress in February, it is essential that they plan for a big increase for Colombia. It is essential that the post-conflict package guarantees restitution and support for the rights of Colombia’s diverse victims-Afro-Colombian, Indigenous, rural farmers, women and the displaced.

CERAC, a Colombian think-tank that monitors conflict events, reported this week that the past two months have been the most peaceful that Colombia has lived since 1975. A peace accord will bring uncertainty and new challenges as Colombia struggles to implement it. But for now, let’s enjoy today’s breakthrough and share in the hope that these gains might be permanent.

“Instead of making the puzzle pieces, we’re now putting them together”

The Colombian investigative website Verdad Abierta published an interview with legal expert Rodrigo Uprimny that has been getting a lot of attention on social media. Uprimny, director of Dejusticia, a Bogotá-based justice think-tank, is close to the peace negotiations going on in Havana.

His message here combines optimism and alarm. A peace accord could come sooner than we think, he says, because negotiations are advancing fast. However, Colombia’s legal system is not prepared either to ratify or to implement it, and the government has not won the fight for public opinion.

Here are excerpts in English; the whole interview in Spanish is at Verdad Abierta. Emphasis in blue boldface is ours.

Verdad Abierta: This isn’t the first time that the government has tried to put forward a mechanism for ratification [of a peace accord]. It had already done so in the bill that would have allowed a referendum alongside the [March 2014] congressional and presidential elections. What’s the hurry?

Rodrigo Uprimny: Contrary to what many people think, I believe an accord could come quickly because the discussions are now happening in parallel. Instead of making the puzzle pieces, we’re now putting them together and creating the pieces that are still missing. What would be very problematic is an accord being reached without a mechanism to ratify or implement it.

VA: Do you think time is being wasted?

RU: If everything is to have a solid legal underpinning, the foundation must be a prior reform. …The best outcome would have been for the people to vote this October [alongside scheduled local elections] in a referendum to say whether or not they approve of that reform. It’s a shame that it hasn’t been done because the problem now is one of timeframes. Now it may have to come through legislation, and that takes a year plus the time taken up by possible constitutionality challenges [in Colombia’s Constitutional Court]. That’s why I think the issue must start being discussed at the [negotiating] table and in society.

VA: But the response in Havana is that they still haven’t come to this point of the discussion, that it’s the last point.

RU: They have to discuss it. Just like they’ve started discussing at the same time the issue of victims along with that of justice and that of the end of the conflict, they should start with a subcommittee on ratification and implementation.

VA: What is the other option to gain time?

RU: Preparing a special mechanism [like a small congressional committee to handle constitutional reforms]. Something that should be flexible and open, foreseeing the options of the government and the FARC, but one that people can be assured is not a blank check. That is done by saying that the citizens will approve everything at the end.

VA: And if they disapprove it?

RU: I start with the assumption that if we don’t manage to win the peace politically, the peace is already lost. Colombian society is divided in three. Some are enemies of peace due to ideological stubbornness or specific interests. Others are very much in favor and are willing to do almost anything for peace. And in between are some skeptics who sometimes are more in favor and at other times more against. The point is that those of us in favor of peace must win over the skeptics with formulas that are appropriate for a negotiation. Peace will not materialize without 70 percent in favor of the final formula.

VA: How can those skeptics be convinced?

RU: It’s crucial that in a sensitive topic like justice, the government and FARC come out with an accord that Colombian society, and especially that skeptical 30 percent, considers to be acceptable. Another method is that, as the war’s de-escalation yields results, the dynamic in favor of peace could be expected to grow.

VA: You say that [peace accord] implementation should be in phases, and that it is important to leave the most difficult issues to be dealt with in a few years. Why?

RU: Let’s suppose that peace is approved, the accords are ratified, the legal formulas are defined for the FARC and the military. At that point, the atmosphere will become relaxed. But if the most radical points are voted on immediately, it’s likely to become polarized again. It’s better to wait three or four years for the benefits of peace to begin, to show that this isn’t “Castro-Chávezism” [a term often used by the rightist opposition] but a more robust democracy, that the non-repetition guarantees are functioning.

VA: Beyond ratification and implementation, another point to discuss is how to guarantee that what was agreed doesn’t fall apart over the ensuing years. How can this process be hardened?

RU: The idea of ratification has three purposes. That the citizenry says yes or no in a democratically legitimate way, to generate agile implementation mechanisms, and finally to put a padlock on the peace process. The only thing that can give the peace process a padlock in a divided country with a long war, is the combination of: the maximum possible political accord, certain legal formulas, and international legitimacy. Without that, it’s possible that peace could be reversible.

VA: And how are those three pillars going?

RU: Pretty well with regard to international support and the construction of ideas for legal security, but only so-so with regard to political construction. The risk now is that of trying to use legal maneuvers as a way to avoid building political consensus around peace.

What Are They Thinking?

The last seven months have seen the pendulum of Colombia’s peace process swing back and forth rather wildly. The year began with optimism: the FARC was observing a unilateral ceasefire that began on December 20. Armed violence dropped to levels not seen since the early 1980s.

An April 15 FARC attack on a military column in Cauca, in southwestern Colombia, dashed this optimism. The three months that followed were marked by a dramatic re-escalation of the conflict, with June the most violent month since talks began in October 2012.

Then—almost as abruptly—the FARC declared a new unilateral ceasefire on July 8, for one month starting July 20 (Colombia’s independence day). Government and FARC negotiators went further four days later, signing an accord making the FARC ceasefire indefinite and committing the government to de-escalating its own military actions if the FARC maintains its ceasefire. The July 12 accord raises the priority of negotiating a bilateral ceasefire (something the government had resisted) and accelerating discussions of what remains to be negotiated, especially transitional justice for the worst human rights violators.

This is a positive development, though perhaps not a breakthrough. We can expect real progress in the next few months, but not miracles. There will likely be further setbacks as the pendulum inevitably swings back. As we contemplate the next few months, it’s worth looking at the volatile swings of 2015 from both sides’ on-the-record perspectives.

The December-May unilateral ceasefire

FARC: Government:

We want a bilateral ceasefire as soon as possible, so that the talks may proceed without battlefield distractions. To that end, we declared a unilateral ceasefire of our own in December. We warned that we would end our ceasefire if the government continued to attack us. Though the government called a halt to aerial bombings in March, ground attacks continued. During our truce, the heads of the 57th and 66th Fronts, and the number-two commander of the 17th Front, were killed in attacks.

We have been reluctant to enter into a bilateral ceasefire because we fear the FARC will use the respite from battlefield pressure to strengthen itself militarily. When the FARC declared its unilateral ceasefire in December, we took a “wait and see” attitude, with modest steps toward de-escalation. And in fact, though there was an important drop in FARC attacks, the guerrillas did not cease all hostilities or illegal activity. During their truce, they continued to traffic drugs, to extort legal businesses, and to lay landmines. We could not justify pulling back a military that is reluctant to be restrained.

The April 15 attack in Cauca

FARC: Government:

This action wan’t exactly something that we ordered our fighters to carry out, but it fits within the general orders we gave: the column that launched the attack was being pursued by the military unit it attacked, so we regard their response to be self-defense. (Alternatively: our fighters were finding the unilateral ceasefire intolerable because of the government’s continued attacks, and with this incident we provoked a massive response—a mid-May wave of aerial bombings that killed over 40 guerrillas—that served as a pretext for calling an end to our ceasefire.)

Though the military unit that suffered the attack may not have followed security protocols, the attack itself shows why a unilateral ceasefire with no credible verification was a bad idea. Incidents like this are why we won’t accept a bilateral ceasefire without real verification, some concentration of guerrilla forces in specific areas, and a cessation of all hostilities, not just offensive attacks.

The FARC counter-offensive: May 22-early July

FARC: Government:

After lifting our ceasefire, it was time to remind the Colombian government—and the Colombian people—what we are capable of. We chose to hit almost entirely military and economic targets: rather than kill civilians in populated areas, we turned their lights out. As oil is Colombia’s largest source of foreign exchange, we especially hit the oil sector. Our offensive did some damage to the peace process, but while we bent it, we did not break it. When serious cracks started to show, we declared a new ceasefire and won a government commitment to respond with promises of de-escalation and intensified bilateral ceasefire talks.

The FARC offensive was reckless and counter to the guerrillas’ own self-interest. It increased Colombians’ anger not just against the FARC, but against the whole idea of negotiating with them. After a month of FARC attacks dominating the headlines, political pressures on us are so great that one more serious incident, or one more long period with no progress to show, and—as chief government negotiator Humberto de la Calle said—“This could end. One day, it’s likely that they won’t find us at the table in Havana.”

The next four months (after which the parties agree to review whether to continue the peace talks)

FARC: Government:

We want a bilateral ceasefire and accept the involvement of the UN and UNASUR in verifying de-escalation, as agreed on July 12. We want that ceasefire to give us the maximum amount of freedom, mobility, and ability to remain funded and equipped in case the talks fail.

We do not intend to sign a peace accord only to see our leaders go straight to a prison for past human rights crimes: that has never happened in any peace process, only in surrender negotiations. However, if Colombia applies a similar punishment standard to military personnel, and to civilians who sponsored paramilitary groups, we could contemplate some form of confinement for a reduced period of time, along with confessions and reparations.

We would prefer a bilateral ceasefire at the very end of the talks, but if it allows the sensitive negotiations over transitional justice to proceed in a calmer atmosphere, we are open to negotiating that bilateral ceasefire now. This ceasefire must have credible, capable verification: while we would rather those verifiers be Colombian, we will allow some international role. The ceasefire must include some concentration of FARC forces in specific zones. In those zones—which must have little population and little economic importance—perhaps the FARC can remain armed and receive financial support to sustain its members. The ceasefire must include a halt to all illegal activity, including extortion, narcotrafficking, laying landmines, and child recruitment.

We are willing to consider lighter alternative sentences—perhaps not even confinement—for the worst FARC human rights violators, and we would prefer that Colombia’s justice system take charge of the prosecution and sentencing. Colombia’s justice system might issue similarly light penalties, including a requirement of confessions and reparations, to members of the military who ordered or committed serious human rights crimes.

Colombia’s Peace Process: Some Frequently Asked Questions

(1,754 words, approximate reading time 8 minutes, 46 seconds)

For over 25 years, the Washington Office on Latin America has closely tracked Colombia’s armed conflict and efforts to end it. With the U.S. House of Representatives holding a hearing about Colombia’s peace process tomorrow, here is our assessment of the current moment.

How would a peace accord benefit U.S. interests in Colombia?

In the 12 years between the launch of “Plan Colombia” (2000) and the relaunch of talks with the Revolutionary Armed Forces of Colombia (FARC) guerrillas (2012), Colombia tripled its defense budget and increased its armed forces by about 75 percent. A long offensive decreased the FARC’s size by about two-thirds. Today, this means that the FARC still has about 7,000 members and 15,000 support personnel. Though the FARC has no hope of taking power by force, the past 12 years’ rate of reduction promises years of continued conflict.

After 51 years of fighting, negotiation offers a quicker way to end the FARC’s status as a cause of violence and drug production. A peace accord would dissolve a group on the U.S. list of foreign terrorist organizations, as thousands of its members move into legality. This would ease efforts to reduce production and transshipment of U.S.-bound illegal drugs. And it would offer an opportunity for improved governance over historically lawless territories that provide safe haven to terror groups and traffickers.

Is a peace accord likely?

Yes, but getting there will be slow. Formal negotiations began two and a half years ago, and could easily take another year. Nonetheless, negotiators at the table are working in a disciplined way with international accompaniment, respecting the ground rules and generating hundreds of pages of proposals and dozens of pages of draft accords.

Negotiators have signed preliminary accords on rural development, political participation for the opposition, reforms to drug policy, and a truth commission. They have taken some steps toward de-escalating the conflict: the FARC is cooperating with the government on initial de-mining projects, and has agreed to turn over any minors in its ranks under the age of 15.

Negotiators announce agreement on a Truth Commission in June.

Still, some of the most difficult questions remain unresolved. Negotiators must find a way to hold human rights abusers accountable while also persuading them to disarm. They still must come to agreement on reparations to victims, the nature of combatants’ disarmament, demobilization, and reintegration, and the method of ratifying a final agreement.

The negotiations are going on without a ceasefire, amid frequently intense combat. This is a deliberate choice of the Colombian government, which is concerned that the FARC might use a ceasefire to regroup and reinforce itself. President Juan Manuel Santos insists that a bilateral cease-fire must wait until the end of the process. In the meantime, acts of violence undermine public support for the dialogues, and affect the climate at the negotiating table.

Are the talks in a rough patch?

Yes. The FARC had declared a unilateral cease-fire effective December 20, 2014, which brought an approximately 85 percent reduction in guerrilla offensive actions (though guerrilla “fundraising” activities, like extortion and narcotrafficking, continued). The ceasefire was not reciprocal: though the government halted aerial bombings of FARC targets in March, the guerrillas complained of frequent military ground attacks.

On April 15, FARC fighters attacked a military column encamped in a rural town in southwestern Colombia, killing 11 soldiers. The guerrillas refused to acknowledge any wrongdoing, and the government responded by resuming aerial bombings, including three raids in May that killed over 40 FARC members. The FARC revoked its cease-fire on May 22, and has since carried out a steady campaign of attacks on civilian economic infrastructure. Attacks on oil pipelines and power lines are causing environmental damage and blackouts.

The aftermath of the April 15 FARC attack.

What does public opinion say?

The guerrilla offensive has dangerously drained support for the talks. In late February, during the guerrillas’ unilateral cease-fire, Colombia’s bimonthly Gallup poll found 72 percent of respondents supporting the government’s decision to negotiate with the FARC. For only the second time since the talks started, Gallup found a majority—53 percent—optimistic that an accord might be reached. Two months later, those numbers fell to 57 percent and 40 percent, respectively.

Would a ceasefire help?

Some analysts contend that the guerrillas are deliberately seeking to anger Colombians, in the belief that President Santos might agree to a bilateral cease-fire to save the peace process. This is a miscalculation: public fatigue with the peace process makes it more likely that the government might walk away from the talks completely.

What the “Truth Commission” Can, and Can’t, Do

(708 words, approximate reading time 3 minutes, 32 seconds)

Colombian government and FARC negotiators made a big announcement on June 4, at the end of their 37th round of talks in Havana. They had come to agreement on the nature and mandate of a Truth Commission, or “Commission for the Clarification of Truth, Coexistence, and Non-Repetition,” that would be charged with “clarifying and making known the truth about what happened in the conflict.”

This is the first point of agreement reached within the “Victims” agenda point, which the negotiators have been discussing for about a year. The announcement gives the peace process a badly needed shot of momentum at a time when, following the end of the FARC’s unilateral cease-fire, the pace of fighting has quickened.

According to the lengthy summary document both sides released on June 4, the “Clarification” Commission will have 11 members, 3 of whom can be foreigners. Upon the signing of a final peace accord, the Commission will have six months to establish itself, and the commissioners will have three years to perform their work. This is an appropriately long amount of time for a complex and politically charged task: the commissioners will not be rushed.

The Commission’s final report will not name the worst individual perpetrators. It will be limited to identifying “collective responsibilities.” The text explains that the commissioners will be directed to report on:

“The collective responsibilities of the State, including of the Government, and the other public powers, of the FARC-EP, of the paramilitaries, as well as of any other group, organization or institution, national or international, that has had any participation in the conflict, for the practices and acts referred to above.”

There will be no “naming names.” That will be the work of whatever transitional justice body that the negotiators agree to establish, which will operate independently of the Truth Commission.

The Commission’s report, though, can explore the responsibilities of a wide range of institutions and “collectivities,” including private corporations and foreign governments. Presumably, it could name the military units or FARC fronts that exhibited a pattern of committing the most serious violations.

An existing body, the Center for Historical Memory originally set up by the 2005 “Justice and Peace Law,” has already done this, to some extent, in its numerous published reports. One imagines that the “Clarification Commission” would have to be more explicit, detailed, and systematic than its predecessor in its naming of responsible institutions and groups.

The Commission will not recommend punishments, nor can it share evidence with the judicial system. The text reads: