The “Transitional Justice” Debate Heats Up

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:

  • Why should all non-combatants avoid punishment (“deprivation of liberty”)? Some civilian leaders, landowners, and others meet the stringent criteria, laid out in a matrix we posted two weeks ago, of those “most responsible” for abuses, those with “command capacity.” Examples of civilians currently imprisoned for such high-level crimes include Former Senator Álvaro García, who helped plan the 2000 paramilitary massacre in Macayepo, Bolívar, or former presidential intelligence (DAS) Director Jorge Noguera, who gave paramilitary groups lists of labor leaders and activists to murder. A transitional-justice arrangement that allows people of such caliber to go free would be too high a price for Colombia to pay. In the words of an El Espectador editorial, this arrangement “must not become an accord between victimizers who decide to clean up each others’ sins.”
  • Why exclude from punishment military officers who committed serious crimes “by omission?” Many of the pro-government paramilitary groups’ most horrific crimes against humanity were preventable: they were only made possible by deliberate military inaction. Ignoring “omission” would leave untouched officers like Marine Gen. Rodrigo Quiñones, whose highly suspicious inaction is described here in 2001 Washington Post coverage of paramilitary massacres in Chengue and El Salado:

”They would have been able to see [the paramilitaries] clearly at that hour,” said one survivor, who has fled to Ovejas. “Why didn’t they catch anyone?”

Human rights officials say the described events resemble those surrounding the massacre last year in El Salado. Gen. Rodrigo Quinones was the officer in charge of the security zone for Chengue and El Salado at that time, and remained in that post in the months leading up to the Chengue massacre. …

El Salado survivors said a military plane and helicopter flew over the village the day of the massacre,and that at least one wounded militiaman was transported from the site by military helicopter. Soldiers under Quinones’s command sealed the village for days, barring even Red Cross workers from entering.

“We are very worried and very suspicious about the coincidences,” said Anders Kompass, the U.N. High Commissioner for Human Rights representative in Colombia. “This involves the same officer in charge, the same kind of military activity before and after the massacre,and the same lack of military presence while it was going on.”

  • Why leave out lower-ranking military officers who committed some of the worst abuses on their own account? Members of the armed forces who acted most sociopathically should not be excused from responsibility simply because they never rose to the level of colonel. We return to the criteria suggested by the Colombian legal NGO DeJusticia: lower-ranking members who committed serious war crimes on their own account should be tried and receive reduced sentences. However, according to these criteria, mid-level commanders who were acting on someone else’s orders could, after a judicial trial, receive a suspended sentence. Lower-ranking cowards (those who failed to challenge illegal orders) might avoid prison. But lower-ranking sociopaths should not.

Finally, while César Gaviria’s proposal is a helpful contribution, it needs to be consulted with the conflict’s most important stakeholders: its victims. “Gaviria doesn’t mention consulting with victims in any part of his proposal,” notes Juanita León of the investigative journalism website La Silla Vacía.

“However, there are several women’s organizations, just to cite one case, that have worked for months documenting cases of sexual violence committed in the conflict, including the FARC’s policy of obligating female guerrillas to abort their pregnancies. … Many of these women are not willing to accept just a pardon and a reparation. They want justice, and they’re going to seek it even if it takes years to get it.”

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