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.
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.