Colombian Peace Accords — Chapter 5 (Victims, Reparation, Truth, and No Repetition)

Having breezed through Chapter 4 last week on drug policy, I now focus on Chapter 5, which covers Victims, Reparation, and Truth. As an educated layman, I find evaluating this Chapter particularly difficult. Based on my reading, I’d argue that the approach towards Victims, Reparations, and Truth has an outstanding level of thoroughness and thoughtfulness. However, I don’t have a formal or scholarly frame of reference that I can use to compare it to. I will also go ahead and state upfront that the chapter here has a couple of massive concessions, which, depending on your political leanings may or may not be a deal breaker.

The accord has a clear and strong commitment to the truth and the victims (it also has extensive discussions on reparations, but I found those to be much less compelling, for reasons which I outline below). The principles underlying Chapter 5 clearly enshrine the truth, the recognition and dignity of the victims, and the need for some form of justice to be key for the success and long-lasting impact of the accords. This accord does not make the truth optional; you will either tell it, or you will not participate in its benefits.

To accomplish these objectives, the accord establishes a truth commission, a special unit to track those disappeared by the conflict, and a special peace jurisdiction. Let’s take those in turn.

Truth and reconciliation commission (Comision para el Esclarecimiento de La Verdad, la Convivencia, y la No Repeticion) (Section 5.1.1.1)

The truth and reconciliation commission represents one of the cornerstones of Chapter Five. It has three main objectives, (i) finding the truth of what happened, (ii) recognizing the victims, and (iii) promoting coexistence. (i) is an obvious objective of any commission, but I find two very powerful. The lack of recognition and dignity of the conflict’s victims has always been an issue in Colombia. By the same token, when the parties recognize the victims, magical things can happen.

The commission also has a strong and broad mandate, covering all major acts in the course of the conflict, the conflict’s impact as broadly defined as possible, and the conflict’s historical context. A key input into the commission’s workings and findings will come from the work carried under the special peace jurisdiction I outlined above, and we’ll get to it in a moment. It will also work the other way around, as the commission’s findings can then lead to additional investigations and prosecutions under the special peace jurisdiction. The commission will also work to identify and issue recommendations regarding convivencia (which the dictionary translates as coexistence, but it has a much stronger meaning in Spanish. Probably closer to community living. I know, the road to socialism starts with community living).

Logistically, the commission will have 11 members, up to three of whom will be foreigners. They will be chosen in accordance to the procedures laid out for choosing magistrates and attorneys/advocates for the special peace jurisdiction. As far as I can tell from the agreement, this procedure entails a broad discussion between the FARC, the government, and meaningful participation from a team of international advisors, but I can’t quite figure out the details. Importantly, the commission does not have an open-ended mandate; rather it has three years to issue its report and findings.

Special unit to track those who have disappeared (Section 5.1.1.2)

I don’t have much to say here. This unit will (or should) have the right funding and support to ensure it gets the job done and finds those people who have literally “disappeared” during the conflict. It may work, it may not. I hope it does, and I hope both the support from the truth and reconciliation commission, as well the special peace jurisdiction will play a role in improving its effectiveness. As with so many aspects of the peace accords, this is one point where execution will make all the difference. At least on paper, this unit looks OK.

Special Peace Jurisdiction (5.1.2)

This section is huge — both in terms of its actual length and its importance for the accord. The details here matter, so please bear with me as I lay out how I see the jurisdiction working. We will cover the underlying principles, some core definitions, the inner workings of the system, and the reparations and sentences.

The special peace jurisdiction is, effectively, a parallel justice system that will have exclusive purview over all crimes committed as they relate to the conflict. This jurisdiction will be fully-independent and not subject to review by any other judicial instance (up to and including the Supreme and Constitutional Courts). It will have independent funding and staff.

The jurisdiction has a meaningfully broad mandate, including not just what we would usually think as conflict-related violence, but other associated “crimes,” (Numeral 32) including providing funding and financing to rebel and paramilitary organizations. This is tremendously controversial in Colombia, as it can and likely will cover businessmen, corporations and anyone that ever paid extortion or ransom (which remains illegal in Colombia.

My brother correctly points out that doing this was necessary to ensure that while guerrillas got amnesty and pardons, those who just had to pay at some point didn’t end up in legal limbo as a result of their actions. While legally true, in practice these “crimes” are rarely if ever prosecuted. After the accord, the onus will be on those who provided financing (willingly or not) to come forward and tell the truth or risk prosecution. Understandably, some people are wary about having our “best and brightest” paraded in front of a tribunal to account for their actions in the past twenty years. I also haven’t seen any definitive analysis indicating that the tribunal would grant amnesty 100% of the time, which also makes people nervous. Where the criticism really starts to ring hollow is when, in the same breath, people will say the tribunals are a sham and won’t be effective at punishing the FARC, but boy how dare they go after the country’s business folks. Okay…

A couple of additional points worth highlighting around principles and mandate:

• The special peace jurisdiction does not cover presidents and former presidents (that’s what I’d call a reverse bill of attainder, and a necessary one).
• The jurisdiction operates under a principle of “broad amnesty” — that is, it will issue amnesty and pardons as much as possible.
• Even those who are condemned under the jurisdiction’s tribunals will be able to participate in politics while fulfilling their sentences. Ugh. An entirely understandable compromise, but ugh nonetheless.
• Amnesty and pardons do not preclude victim’s rights to demand truth and reparations.

At the core of the jurisdiction are a couple of key definitions and distinctions. First, between political and non-political crimes. Or, more precisely, between crimes eligible for amnesty and those that are not. And, secondly, between telling the truth and not.

The political / non-political crime distinction is critical given that Colombia signed and ratified the Treaty of Rome. Parties under the Treaty cannot pardon those who have committed crimes against humanity under any circumstance. Hence, for the peace accords to stick, the jurisdiction needed to have a way of punishing those who committed crimes against humanity. The second distinction is also critical, as it makes telling the truth a prerequisite to obtain the benefits of the special peace jurisdiction.

At the risk of oversimplifying, the jurisdiction’s mechanism works as follows. It starts with the Sala to recognize the truth and responsibility (Sala roughly — only roughly — translates as committee, but in this case it’d be closer to a combination of both forum and court, so I’ll stick with Sala). It’s here where all the conflict parties will come and share the truth of the acts they committed in the course of the conflict. This is a public forum, and the Sala can request additional information or that parties come forward about specific acts. The Attorney General, the GAO, and all accredited human rights groups can refer cases to this Sala, as well as the truth and reconciliation commission. The Sala, as far as I can tell, operates purely as a fact-finding entity (not too dissimilar to a jury trial in the U.S.). However, it does not issue sentences and penalties.

That’s partly done by the second Sala, the Sala for the adjudication of people’s judicial status. This Sala filters parties between those eligible for amnesty and those who need to be referred to the Special Peace Tribunal. Basically, if you tell the truth and you only committed political crimes, then you are free to go. If you told the truth and committed non-political crimes or crimes against humanity, then you get referred to the special peace tribunal for sentencing. Lastly, if you didn’t tell the truth (according to the Sala), you go to the peace tribunal for an adversarial trial and potential sentencing.

The Special Peace Tribunal has three main instances. The first instance will conduct trials of those individuals who are suspected of not telling the whole truth. This instance will also impose sentences and penalties on those who have confessed as part of the truth and reconciliation process and those who are found guilty. A second instance will review all existing sentences under the current judicial system and assess which ones qualify for participation under the special peace jurisdiction. The last instance serves as an appeals court for the first instance.

The tribunal will have 20 Colombian magistrates and four foreign ones. Anyone going to trial can request to have three Colombian and two foreign magistrates on their court. The magistrates act as both judge and jury in these instances.

The sentencing and penalties stipulations are perhaps the most controversial part of the accord. The way it will work is:

• The majority of FARC members (and, for that matter, agents of state and civilians) will be covered by a combination of amnesty and reparations. Reparations is a generous term here. It encompasses community service and volunteering-like requirements. At no point does the agreement mandate explicit reparations — e.g., monetary compensation.
• If you tell the truth fully and committed a crime against humanity, then you will receive a sentence between five and eight years to be served in a specially-designated area (think a village) where you’ll have “effective restrictions on your freedom.” That’s it. Massacres, sexual crimes, recruiting children, you name it. This is it. Note also that you can still participate in politics, and, if elected, the government will make the necessary accommodations to ensure you can travel to Bogota and enjoy the congressional boondoggle.
• If you just participated in a crime against humanity in an accessory capacity and you tell the truth, then you will receive a sentence between two and five years. This sentence carries identical conditions to the one above.
• If you do not tell the truth, however, and the tribunal finds you guilty, then you will receive a sentence between 15 and 20 years, and you will go to jail. Period. I think this is really important, as it should serve as a clear incentive for people to come forward and tell the truth.

In addition to the individual community service and reparations I mentioned above, the accord also calls for acts of civic and collective reparations, including meeting with the victims, public apologies where necessary, and monuments to commemorate the victims.

Thoughts

I’ll skip the obvious-but-not-helpful objection to the length and type of sentences. As I’ve said before, that is the cost of doing business. If you believe we should bring the full weight of the law on FARC leadership and members, then by all means please let me and others know how to do it. I’m also not sure how we could improve this in a second round of negotiations. Maybe sentences of 6–10 years instead? Or house arrest instead of “village arrest”? I don’t know. Also, if situations like the one I referenced on Monday are any indication, the real prize here is contrition, acknowledgement, and forgiveness. Not marginal tinkering with penalties. Combined with the political concessions, I will say this is one of the biggest giveaways to the FARC in the accord.

The biggest giveaway here is absolving the FARC from any monetary responsibility at all. The government has given up on collecting any money from the FARC. Full stop. I think the reparations chapter was a wasted opportunity for the FARC — not the government — to create a reparations fund dedicated entirely to help the victims who need it the most (e.g., displaced persons who need to go home after years of begging and living in brutal conditions in the big cities). One reason I’m relatively optimistic about the FARC’s willingness to go through with this accord is that I see it as their leadership’s retirement plan. And obviously you need money to retire. I get it. Still, a wasted opportunity, and a real gap in the accord.

The second clear gap is the lack of an effective discussion on monitoring and enforcement. I don’t want to dwell too much on it until I cover Chapter 6 (the last chapter), which deals precisely with monitoring and verification, but I did want to raise this point here. Unlike other Chapters, which I found to be rock solid and relatively hard to argue with, I can see how, in a different moment and circumstances, I could’ve come out against this deal. It has big holes, a meek punishment system, and no monetary reparations.

That said, the special jurisdiction is a massive deal. However meek and ineffective, it does have a mechanism to punish those who committed crimes against humanity while making it palatable to the FARC’s leadership. It has a full commitment to the truth as the essential source of reparation, and to the victim’s dignity and right to be recognized and heard. And, as far as I can tell, it has an effective mechanism to find that truth and administer quick and effective justice.