Victims’ rights can’t be ignored at Colombia peace talks

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Peace talks in Havana between the government of Colombia and leftist guerrillas are reported to be making good progress – holding out the promise of an end to a civil war that has dragged on for nearly 50 years.

The armed conflict had reached an ugly stalemate and both sides seem to recognize that the best hope for progress in Colombia is through development that cannot go much further without peace.

But it isn't just the government and the guerrillas at the negotiating table in Havana: Colombia is a signatory to the Rome Statute, creating the International Criminal Court, and has ratified other treaties on international justice. And even if Colombia had not signed on to those principles, the precedent of recent years is that international law nevertheless applies here.

That means no impunity: Those who carried out violations of human rights must be punished. That means, in effect, that the Revolutionary Armed Forces of Colombia (known by its Spanish acronym, FARC), which has long portrayed itself as an organization of the oppressed waging a struggle for justice, will have to take responsibility for human-rights violations and, most likely, see many of its members, including the top leadership, go to jail.

And that makes the prospect of a peace deal exponentially more complicated. But if a workable compromise can be found here, experts say, there could be hope for other intractable conflicts around the globe.

One of the most important aspects of this process is that it gives such central, prominent attention to victims' interests," said Mark Freeman, a Canadian who heads the Institute of Integrated Transitions, in Barcelona.

"The ambition, the dare, really, of this process, is that it aims at a form of legitimacy that works in all respects – a modern, democratic form of peace agreement," he said. "In Colombia, there's going to this third leg to the agreement – not just reform measures plus a disarmament process, as is typical of any peace agreement, but also an extra component that gives unusual attention to victims and accountability."

Initially, the Colombian government envisioned a settlement in which only crimes against humanity – crimes of war, human-rights violations committed in a systematic way – would be tried, explained Gustavo Gallon, the director of the Colombian Commission of Jurists. Other crimes would be reported to a truth commission, but not the justice system.

In the draft Colombian version, 100 massacres would be considered, and those responsible, tried. The government was aiming for the bare minimum of justice, Mr. Gallon explained, arguing that it would be take more than 100 years for Colombia's frail justice system to try everybody accused of every crime.

His organization took the government to the constitutional court to challenge that plan. "We explained that we are not against the peace process but this decision conflicted with international law and the rights of victims, and the peace process was endangered by it," he said. Victims could challenge the deal in domestic or international courts; they could potentially scupper it, he added.

The court obliged the government to draft a new framework for negotiations that included judicial procedures.

FARC leaders meanwhile have pushed for a "South Africa model" in which key actors are given amnesty in exchange for telling the truth about incidents in the war. It has fallen to experts such as Mr. Freeman to explain this is impossible.

"You couldn't do South Africa today, you couldn't do Northern Ireland," he said – those deals, resting on amnesties, would not be acceptable internationally today.

The goal of not allowing amnesties is to end impunity – to end the perception on the part of potential perpetrators that they may cut some sort of deal that allows them to evade punishment.

Mr. Gallon and his group are pushing for what he called "collective trials for collective actors" using the existing justice system, bolstered with new resources; he says for most crimes it is possible to investigate a military unit of some kind.

But that idea isn't popular with the guerrillas, the army or the members of the former paramilitary forces that fought a "dirty war" on behalf of the state and the rural elite – few of them believe they should face criminal prosecution for their actions. The latter two forces together were responsible for 70 per cent of civilian deaths in the war.

But Mr. Gallon said there are ways forward. The key, he said, is to remember there are five components to justice, as it is now understood in the international context: truth; reconciliation; guarantee of non-repetition; declaration of responsibility and punishment.

"If you preserve the first four you can reduce the importance of the last one, punishment," he said.

Seven million Colombians – or 14 per cent of the population – have so far registered cases with the National Victims Unit, which is attempting to ensure victims receive reparations. Paula Gaviria, the director, oversees an innovative initiative to take victims to Havana to address directly those negotiating, including several who bravely looked FARC leaders in the face and told of the brutal murder of their children or spouses.

"The FARC has evolved in how they talk about victims," Ms. Gaviria said, moving on from their original position that they were the primary victims.

"At first their position was 'We have nothing to do with this, we have nothing to hide.' Now it's 'We are sorry. But those things occurred because we were defending the people. It was not a systematic practice, it was never intended and it was not policy. It happened because we had a war to save the people.'"

Their evolution in willingness to acknowledge human-rights abuses does not extend to a willingness to be punished for them, said Rodrigo Uprimny, who heads DeJusticia, The Centre for the Study of Law, Justice and Society in Bogota.

"A FARC leader told me recently, 'You know, we are anti-imperialist but there is one way in which we agree with the United States: We don't like the ICC either,'" he said.

Yet much of the general public will insist on seeing the FARC leadership, at a minimum, jailed, if they are to support a deal.

"The human-rights community says all must go for prosecution," he said, "but that's impossible in material terms, no one has done it, and also we can't say to the FARC, 'Demobilize so we can jail you.' But you can say to the FARC leaders, 'You are like Jesus Christ, you are going to pay the price to lead your community to peace and justice and a socialist future, by being legitimate political actors.'"

His sense of the talks in Havana is that FARC leaders will accept some kind of short-term deprivation of liberty, during which time they would have the flexibility to maintain themselves as political actors and not "disappear" from the national stage.

Mr. Uprimny sees it as doable.

"If they accept four-to-five year terms, we will have dealt with impunity and it would be accepted internationally," he said.

Any peace deal reached will face a vote in Colombia's national assembly and a country-wide referendum – but it must also meet international approval, he noted. "The international human-rights community wants the peace process to succeed, but they don't want a deal in Colombia to undermine the progress of recent years."