16 December 2015
Understanding Colombia’s Historical Agreement on Victims
“We have come here today as active witnesses of the signing of this agreement… We declare ourselves to be attentive observers of the strict implementation of the agreements being signed today”. These are the words of a delegation of victims drawn from both sides of Colombia’s protracted civil war. They came to the negotiations in Havana to stress that “the materialisation of that word which we pronounce so often, but know so little about, peace” will only be possible in Colombia through “dialogue, concertation and reconciliation”. On the morning of 15 December, Colombians and friends of Colombia around the world watched live footage from the negotiating table in Havana as the FARC and the government signed the Agreement on Victims, the fifth point of the peace talks’ agenda. This is the point that has taken longest, since May 2014, the same amount of time as all three previous agreements – on agrarian reform, political participation and drug-trafficking – put together, because it was perhaps the most difficult and polemic of all the items on the agenda. Parallel to these discussions, have been talks on the third item of the agenda, the ending of the armed conflict, by a technical sub-commission including active army generals and FARC commanders. This is currently unfinished, yet important advances have been made over the last year, including an agreement to work jointly, guerrilla and soldiers, on clearing landmines. Unusually, they started a pilot de-mining project while the conflict was still ongoing, which has now finished, making a previously dangerous area safe for civilian farmers. The eighteen months of talks on Victims aimed to find the best way of satisfying the rights of the victims of Colombia’s sixty-year internal armed conflict; rights which are stipulated by international norms to which Colombia is party. These are enshrined in the four pillars of transitional justice: the right of victims to truth, justice, reparations and guarantees of non-repetition.The size of the problem
Despite relatively slight coverage in Western media, the longest running conflict in the Western hemisphere has produced over seven million victims – fifteen percent of the country’s population – and six million forcibly displaced people, which the UN Refugee Agency has qualified as the second biggest humanitarian disaster in the world, after Syria. Violations have been carried out by all sides: the FARC and Colombia’s other guerrilla factions, the Colombian army and police, right-wing paramilitaries, and third parties such as businesses. No one has clean hands, and one of the thorniest but most important elements of the discussion on victims has of course been the establishment of truth. This historic agreement announcing the future creation of a ‘Comprehensive System of Truth, Justice, Reparation and Non-Repetition’ contains five elements, some of which had already been made partially public as the discussions advanced throughout the last year. The multi-pronged system of judicial and non-judicial mechanisms is modelled on transitional justice theory and practice. In their joint communiqué accompanying the announcement of the draft agreement, the parties emphasised the interdependence of the mechanisms; meaning that no one element should be considered in isolation from the others. Making reparations to the victims depends on all the elements being taken together, as mutually reinforcing actions and tasks.What has been agreed?
The first three points on the agreement had already been made public:- The creation of a truth commission, announced in June.
- The creation of a special jurisdiction for peace, announced in September, and accompanied by the photograph that went round the world, of President Santos shaking hands with FARC Commander Rodrigo Londoño, better known as Timoleón Jiménez or ‘Timochenko’, accompanied by Cuban President Raúl Castro as one of the supporting players behind these negotiations.
- The creation of a special unit to search for the bodies of the over 77,000 disappeared, announced in October.
- A comprehensive system to provide reparations to the victims, especially those most vulnerable and most affected by the conflict, such as women, and indigenous and afro-Colombian rural populations.
- Guarantees of non-repetition, which are provided by the fulfilment of all these other measures, plus the future agreements to come out of the still incomplete third point on the peace talks agenda, the ending of the armed conflict and disarmament.
Truth, justice, reparations and guarantees of non-repetition
Major advances in this agreement include the fact that there will be amnesty for those FARC members who are judged for political and connected crimes (in Colombia, usually known as the crime ‘rebellion’). There will not be amnesty for those who have been involved in grave human rights crimes and grave war crimes, including genocide, rape and sexual violence, torture, the taking of hostages, extrajudicial executions, forced disappearances, forced displacement and child recruitment.
Poster showing the victims of the Soacha False Positives massacre in 2008, where civilian victims were killed by the Colombian army and the bodies dressed in guerrilla uniforms.
Where these kinds of crimes have been committed, the treatment of both sides will be equal, which was a crucial principle included in the previously announced agreement on the special jurisdiction for peace. Colombian society has long been polarized by the belief that the treatment of the army and the treatment of FARC should be different – the left believing that the state should be held more responsible because it is the guarantor of citizens’ human rights; the right, that it should be the FARC because they are terrorists.
The key to the special jurisdiction for peace, according to the latest communiqué, is that it is aimed at dismantling Colombia’s culture of impunity. Army, paramilitaries, FARC and third parties who have been involved in human rights violations, such as businesses, will be invited to participate in admitting responsibility and contributing to truth. Those who come forward within a short time frame will be given five to eight years of “effective restriction of liberty”, but this does not mean jail time. The logic behind this is that this new, autonomous and temporary justice system should be restorative in nature. Those who contribute to truth (which will be verified by legal investigative mechanisms) will then participate in restoring what they have damaged. They will have to face their past. Ex-combatants will have to help re-build infrastructure, do community work, participate in de-mining, contribute to environmental projects such as reforestation where damage has occurred, assist in crop substitution in places where illegal coca is grown, and make symbolic gestures such as publically recognising responsibility and asking for forgiveness.
Those who do not come forward within a certain space of time, but accept responsibility late, will be given a prison sentence of five to eight years; and those who deny responsibility but are found by the special court to be guilty, will be given fifteen to twenty years jail time. Crucially, one of the new revelations made during the ceremony was that ex-presidents will not be judged directly by the special jurisdiction for peace, but by Congress, to which magistrates can remit information which indicates an ex-president’s involvement. This means that ex-President Álvaro Uribe is not exempt from legal responsibility.
The truth commission and the special jurisdiction for peace will connect and communicate with each other in different ways, but they will be separate: the historical truth produced by the truth commission will not have the same status as the legal truth produced by the special peace tribunal, allowing multiple experiences of the conflict to be legitimated, and no statement given to the truth commission will be able to be used to initiate legal proceedings in the tribunal. Some of these issues are still to be worked out.
It is unclear how reparations will be made to such an extensive number of victims, how this will all be financed, and how the government’s existing Victims’ Unit will interact with the new mechanisms; but it is clear that the alternative sentences meted out by the special jurisdiction for peace will constitute forms of reparation, in addition to other means such as psychosocial support to victims of trauma and return plans for those forcibly displaced. Other forms of reparation have also been contemplated by the first agreement to come out of Havana, on agrarian reform, stipulating the need for a transformative as well as a restorative approach. The logic of what has been called the ‘territorial approach’ is that transforming the socioeconomic structures of inequality and underdevelopment will contribute to stopping the cycles of violence. It is made clear that all forms of reparation will need to start with the recognition of responsibility, and be carried out in concertation with the victims.Paramilitarism explicitly addressed
Another surprise has been the announcement that in addition to the special jurisdiction for peace, other special judicial mechanisms will be created, including a unit for investigating and dismantling “criminal organisations, including the criminal organisations that have been denominated the successors of paramilitarism and their networks”. This has been a weak point in the legitimacy of the peace process in the eyes of many victims of the state, and the FARC have been calling for the issue of the dismantling of paramilitary structures to be discussed in Havana. This is the first time the Colombian government has admitted publicly that addressing these structures should form part of achieving peace in the country.The Victims’ Statement
A delegation of ten victims of the armed conflict attended the ceremony, carrying white candles to symbolise peace and reconciliation. During the first phase of the discussions on the issue of victims, the negotiating parties received five delegations of twelve victims, who travelled to Havana to give their testimony and make their proposals about how to deal with victims’ rights as part of the peace process. This has been celebrated as ground-breaking in terms of conflict resolution methodology, and during the event commemorating the release of the agreement, government chief negotiator Humberto de la Calle described the experience of hearing the victims’ testimonies as life-changing. One outcome has been that the these delegations of victims, drawn from both sides of the conflict, have continued to meet and discuss ways to support the peace process and ensure that their demands are addressed. The ten victims present in the ceremony had all participated in previous delegations.
Among them were female indigenous leader Lisinia Collazos, victim of the El Naya massacre; Luz Marina Bernal, one of the mothers of the Soacha ‘false positives’ scandal whose son was killed by the army and his body dressed as a guerrilla fighter killed in combat; and retired policeman General Luis Herlindo Mendieta who was taken as a prisoner of war by the FARC in a 1998 attack in Mitú, Vaupés. They made a statement which was read by Jineth Bedoya, journalist and sub-editor of one of Colombia’s biggest newspapers El Tiempo, who was kidnapped, tortured and raped by paramilitaries in 2000 and has become an international activist for women’s rights.
The statement was enough to give goosebumps to anyone with a sense of the gravity of the situation. They asked that the government and FARC multiply their efforts to practise peace education, and recognised their own agency, saying that those who had been part of the five delegations could play a key role in disseminating information about the peace process and pressing for implementation. “We are social protagonists of a new country”, they announced, “not just a group of people marked by violence”. They emphasised that their presence as witnesses to the signing was an act of “generosity”, and showed “a will for reconciliation”, and underlined the fact that they were risking a lot in doing so, because many had already received death threats after their participation in the five delegations, and as yet there had been no investigation into these. They recognised that the parties had expressed their commitment to a transversal gender perspective in the peace process (there is a gender sub-commission in Havana which aims to integrate a gender perspective throughout the discussions), but expressed concern that there were no women at the negotiating table itself. Finally, they said, “We believe in you, and we hope the country believes in the peace process; but if you fail, you will not fail with us, you will fail with the history of Colombia”.