September 23 marked a historical day for Colombia’s peace process. After an hour-long private meeting in Havana, Cuba, President Juan Manuel Santos and FARC maximum leader Rodrigo Londoño Echeverri, alias Timoleón Jiménez or “Timochenko”, publicly announced that the peace treaty between the Revolutionary Armed Forces of Colombia (FARC) and the Colombian State will be signed in six months: the guerrilla will begin downing their weapons two months later. Fifty years after the beginning of what is now the longest conflict the western hemisphere has ever witnessed, Colombia may finally be looking forward to the end of an armed struggle which has caused over 300,000 victims.
Santos and Timochenko also stated that the government and guerrilla’s delegations have finally reached an agreement over point number five in the peace talks’ agenda, dealing with the justice framework through which those responsible for the conflict’s atrocities will be judged.
The announcement marks a crucial moment in the negotiations’ trajectory as over a year and half had passed since the two delegations had come to an agreement on one of the agenda’s six points. Point number five, relating to transitional justice, was seen as the most problematic.
Sitting in between Cuba’s President Raul Castro, Santos and Timochenko announced the establishment of a special tribunal will be tasked with judging those culpable for the violence related to the armed struggle. This, to an extent, does not come as a surprise: the current judicial system needed some adjustment to account for the challenges of post-conflict Colombia, and there had already been talk of a new special judicial unit. What is most surprising is the way this tribunal will be managed, and who will take part in it.
Trial and punishment
One of the most problematic questions that today’s meeting was meant to address was who would judge those guilty of involvement in the conflict. The FARC had historically opposed the idea of submitting to the Colombian judiciary, rejecting the legitimacy of the Colombian state, which they accused of being equally responsible for the bloody massacres.
Unexpectedly, the FARC agreed for the special tribunal to be composed of, by and large, Colombian judges and a minority of recognized international legal experts. Equally surprising are the forms of punishment which the agreement will entail.
On the eve of Wednesday’s meeting, many had argued that the FARC would have never agreed to a peace treaty which could have paved the way to their imprisonment. The negotiations between Santos’ government and the FARC were conceived as a peace treaty wherein both mutually respected each other’s positions as warring parties and sought to reach an agreement.
Spokesperson for the FARC delegation in Cuba, Iván Márquez, had reiterated at length that the guerrilla would not serve jail sentences, and the chief-representative of Santos’ delegation, Humberto de la Calle, had echoed his thoughts in a subsequent interview.
The new legal framework shall involve two fundamentally distinct routes, one for those who acknowledge their responsibility in the crimes committed, and another one for those who do not do so, or do so belatedly.
FARC members who immediately confess their crimes will face confinement – although not jail – of between five and eight years. Those who confess after a trial has begun will be subject to reduced jail sentences. Members found guilty, without having confessed, may face up to 20 years in prison.
This does not mean there will be no forms of amnesty whatsoever. Santos clarified that the State shall grant the largest degree of pardon possible for political crimes. Timochenko stated that no member of the FARC’s highest cadres will be subject to imprisonment.
Yet all crimes against humanity, genocides and war crimes such as kidnappings, torture, forced displacement, forced disappearances, extra-legal executions and sexual abuses shall never be granted amnesty.
Of course, it remains to be seen whether the judicial measures agreed upon by the FARC and the government will effectively target those responsible for the violence unleashed in over 50 years of armed struggle. But even with its limitations, the agreement reached by both sides is no small achievement.
Allegations that the guerrilla may be able to walk free once the treaty will be signed had severed the relationship between Colombians and their President, plummeting Santos’ approval rating to 29 percent last April.
The forthcoming peace treaty now involves measures to punish those responsible for the conflict, going some way towards meeting victims’ expectations.
It is hard to predict whether the new judicial scheme will yield the sorts of punishments called for by those who have suffered the consequences of Colombia’s armed struggle. Both Santos and Timochenko have recognized the importance that victims play, acting as the backbone of the peace treaty. Lasting peace may only be achieved with the help a judicial system that will enable the truth behind the massacres to be uncovered, a degree of justice and victim reparation, and more importantly, the promise that the violence will never be repeated.
A much more difficult question is as to whether the government and the FARC will fully submit to the agreement. For now, the handshake between Santos and Timochenko will be remembered as a first step in the right direction, not just a historical photo opportunity.
Another version of this article can also be found in the New Internationalist.