This is the first of two pieces that investigate the merits of restorative justice projects in the aftermath of conflict.
Since November 2012, the Colombian government and the leftist guerrilla Revolutionary Armed Forces of Colombia (FARC) have convened in Havana, Cuba to negotiate a treaty to put an end to Colombia’s 50-year-long internal armed conflict. The negotiations are attempting to rebuild a nation struck by violent unrest through a peace process that needs to take into account land reform, political participation of rebels, the illegal drug trade, and the rights of the victims. As one of the longest-running conflicts in the world, it has bred mistrust between rebel groups, civilians, and the state—ultimately leading to a cyclical recurrence of violence. 7.6 million people, 80% of whom are civilians, have suffered from internal displacement, murder, torture, kidnapping, threats, or injury. These peace negotiations have shown the importance of redressing war crimes and putting victims and their rights at the center through a process of restorative justice; the best alternative to build a just and inclusive democratic order.
The International Criminal Court’s (ICC) Rome Statute, which Colombia has ratified, offers a new setting in which the rights of the victims should be prioritized. As a result, the creation of mechanisms of transitional justice that take into account the rights and needs of the victims has been necessary, with measures such as preventing perpetrators of crimes in this conflict from being amnestied. According to the Statute, Colombia’s transitional justice must refrain from granting pardons or amnesty to perpetrators of crimes against humanity; instead, these individuals should be punished retributively.
This September, the negotiating parties released a transitional justice proposal that does not meet the expectations and requirements of the Rome Statute. While the proposal still takes the suffering and needs of the victims into account, at its core, the proposal aims to initiate through reform, not retribution. This will be done by allowing the negotiating parties to secure peace through the implementation of lighter prison sentences for war crimes in exchange for information and a compromise on the reparations victims get. This approach encourages the active participation of perpetrators in repairing the harm done and guarantees the non-repetition of war crimes; an emphasis on restoration and rebuilding rather than on punishment.
As a result of the tension between expectations under the Statute and the partial amnesty offered by the restorative approach, there have been polarised reactions to the proposal. Some argue that it appears to offer impunity for war crimes and therefore hinders the construction of a post-conflict democratic state that addresses the needs and rights of the victims. Human Rights Watch asserted that the agreement was “dealing away justice” by not insisting on jail time for gross human rights violators and “denying their victims the right to justice in any meaningful sense of the word.” There are concerns that this is similar to El Salvador’s amnesty law, which generated broad and absolute impunity, prevented true reconciliation from taking place, and undermined the state’s commitment to justice. Given these considerations, the restorative approach to transitional justice seems to have the potential to hinder Colombia’s ability to rebuild an inclusive and just democratic state.
Others argue that the settlement does not offer conditions for impunity, but instead provides justice to the victims through alternative means. For instance, the US Institute of Peace has stated that the agreement does not give impunity for war crimes, but instead offers conditions of punishment through processes like the acknowledgement of the war crimes committed against victims in truth commissions. Similarly, some victims, whose voices are the most important in this process, have supported this restorative approach. They have prioritized truth, reparations and the guarantee that the crimes committed will not be repeated above retribution, which they think will only punish people, not resolve the problems of the conflict.
As a result, in Colombia, the restorative approach to transitional justice seems to be the best alternative to reach a peace settlement and begin the building of a just and inclusive democracy. Disregarding the expectations under the Rome Statute and the desire to punish those responsible for the crimes and violations that were committed during the conflict seems to be necessary, as a retributive approach to transitional justice might not be the best way to rebuild democratic mechanisms in Colombia. With the threat of renewed armed conflict hanging over these negotiations, the government cannot simply overrule the insurgent groups and their demands. This has put limitations on the extent to which perpetrators of crimes against humanity can be retributively punished. As president Juan Manuel Santos has said, the Colombian government has to give more ground on the issue of justice to guarantee that the leftist guerrilla FARC lay down their weapons and end the conflict. Here, peace and the reconstruction of a divided nation are the priorities, so both parties must compromise. A restorative approach allows them to reach that compromise and negotiate the extent to which perpetrators will be punished through alternative sentences that value reparative measures, and still prioritise the rights of the victims.
The peace talks also function as an unprecedented opportunity for the full acknowledgement of the responsibilities, crimes and involvement of the government, the FARC, as well as all the groups and individuals during the conflict. A restorative approach to transitional justice gives Colombia the best opportunity to reach a peace settlement and reconstruct a just democratic order that takes into account the experiences, rights and interests of the victims. As the first peace process of its kind, the Colombian peace talks mirror the global introduction of the concept of transitional justice and set a precedent for the stable establishment of post-conflict states that are trying to rebuild themselves by addressing the impacts and consequences of massive human rights abuses. Nevertheless, Colombia is still a country with deeply rooted socio-economic problems, where the conditions of poor and marginalised communities, including the victims of conflict, have worsened. This restorative approach to justice can therefore represent nothing more than an opportunity to take the first step toward the establishment of a just, democratic order in a country haunted by poverty, conflict, and violence.