The Amnesty Tightrope

Just over three weeks before leaders from the Colombian government and the country’s Marxist insurgency convened in Havana to begin the latest round of talks on the longest-running conflict in the Western Hemisphere, President Juan Manuel Santos offered a surprising bit of good news. “I have given instructions to the negotiators that they start, as soon as possible, the discussion on the point of the bilateral and definitive cease-fire and cessation of hostilities,” Santos announced during a Jan. 14 address to the nation, on the heels of an announcement of a unilateral ceasefire in December by the Revolutionary Armed Forces of Colombia (known by their Spanish acronym, FARC). The five-decade-long war that has claimed 220,000 lives and displaced more than five million people might finally come to an end in 2015.

But as Colombia inches toward what once seemed to be an impossible peace with the country’s guerrillas, disagreements over the pivotal issue of amnesty for combatants are threatening to sabotage the process.

Domestically, former president Alvaro Uribe, a one-time Santos ally who spent billions of dollars in U.S. aid to crack down on the insurgents during his own tenure — and presided over brutal human rights abuses — has spent months mustering public opinion against reconciliation. Specifically, Uribe has leveled his ire against amnesty, which remains the most controversial topic still to be hashed out at the negotiating table. FARC leaders, who initially insisted on no jail time, have evolved in their willingness to accept responsibility for harms to non-combatants, and they have negotiated the right to run for office once they are demobilized. But if Uribe prevails, there will be no peaceful, negotiated end to the conflict — FARC will have to demobilize first, or be defeated militarily.

An even bigger possible wrench in the process, however, comes from abroad: The question of whether, and on what terms, rebels should be granted amnesty from prosecution in exchange for laying down their arms is also an issue of international law. Santos has said there will not be impunity for past crimes, though he has kept amnesty in exchange for disarmament on the table. But how accountability will be satisfied — and the leniency of punishment — remain sharply contested. Santos is restrained by Colombia’s 2002 ratification of the Rome Statute, which gives the International Criminal Court (ICC) jurisdiction over genocide, war crimes, and crimes against humanity if domestic courts fail to act. Granting blanket amnesty to the FARC would be sure to invite international involvement.

The ICC’s potential intervention has been controversial since well before the current peace process, when it opened a preliminary examination of transitional justice mechanisms in Colombia in 2004. ICC Chief Prosecutor Fatou Bensouda sent Colombia a letter in 2013 indicating that for grave crimes, prosecutions alone, if followed by suspended sentences, would not be enough to satisfy the edicts of international law. Santos has chafed at the ICC’s possible intervention, defending Colombia’s right to chart its own path for justice. That sentiment was echoed by the FARC, who said the ICC didn’t understand the conflict. Meanwhile, the country’s inspector general has said that the ICC should intervene if the government gave the FARC a free pass.

When trying to suss out how the amnesty question might be resolved, the parties’ handling of the rights of victims has provided the most promising indication so far. Forums with victims groups have been convened across the country and, beginning this past August, victims have spoken directly at the negotiating table in Havana. On Oct. 30, the FARC issued a statement acknowledging that its actions had harmed Colombia’s civilian population and evinced an evolving willingness to accept consequences for those actions. And in December, FARC commander Pablo Catatumbo expressed the group’s remorse over a 2002 massacre that killed at least 79 civilians and asked for forgiveness, adding that the FARC is considering how to make reparations for the suffering it caused. The willingness to admit wrongdoing and recognize the innocent victims harmed by the group bodes well for wooing public approval, tempering the longstanding anger with the FARC that have been stoked by Uribe’s incendiary protests; citizens have expressed an aversion to pardoning FARC members.

Between the specter of international oversight, pressure from Uribe on the right, the concessions he’ll have to make to appease the FARC, and the demands of public opinion, Santos is left with a narrow set of options.

If the FARC leadership insists that none of its members should face any criminal accountability, the peace process will all but certainly fail. More likely, if still divisive, is the establishment of clear parameters of who will be prosecuted and how they will be punished. Several alternatives to imprisonment have been floated, such as separate jails for rebels and economic reparations that suffice as punishment. Holding those most responsible on all sides of the conflict to account while providing amnesty to low-level combatants serves both ends, an obligation equally applicable to rebels and military and paramilitary forces.

Still, even that middle ground is fraught with baggage: Colombia’s past efforts to balance peace and justice have failed to attain either.

Colombia enshrined its approach to the peace process in the 2012 Framework for Peace and Justice. It set the stage for the government and the FARC to outline a plan to address five items in their negotiations: agrarian development, drug trafficking, political participation, the rights of victims, and the demobilization process. After more than two years, the negotiations have produced provisional agreements in the first three areas, though the parties are not bound by anything until they reach a final accord. To combat misinformation and mistrust, the parties disclosed 65 pages of their tentative accords in September.

That was preceded, however, by the 2005 Justice and Peace Law (JPL), the first attempt to create a formal legal mechanism to demobilize paramilitary forces that often operated with tacit approval of politicians and military officials. The JPL doesn’t address crimes perpetrated by the government and state armed forces, including their complicity in human rights violations. The law requires former combatants to confess to their crimes and return illegally confiscated land in exchange for lenient sentencing, but doesn’t offer full amnesty to all.

The law has been bedeviled by problems, in both structure and implementation. Judges and politicians have interfered, thwarting its aims; only a small number of prosecutions have been secured; victims have often been unable to participate in the process; and the land restitution promised has been fraught with pitfalls. The first of the paramilitaries sentenced under the law are now being released amid worries that the government’s implementation of the law’s provisions has been overly focused on rehabilitating perpetrators, with less attention and resources directed towards reparations for victims. And though the law’s ostensible goal is to guarantee non-repetition of crimes, some paramilitary forces have reconstituted themselves into “criminal bands” despite their previous legally facilitated disarmament; they remain active in the narcotics trade and politically motivated violence. Moreover, human rights advocates have decried the extradition of paramilitary commanders to the United State to face drug-trafficking charges, depriving Colombia of local accountability for the crimes against its own people.

In the current peace process, critics are concerned that Colombia will again mete out uneven justice, this time to former combatants that oppose the government. The intent of a law that appears fair on its face can be defeated when one side to a conflict retains political power and controls the judicial system, as is the case in Colombia. In 2008, soldiers, under pressure to demonstrate quantifiable progress against the armed insurgents, lured thousands of civilians to their deaths and reported the victims as guerrillas to raise body counts — but prosecutions for the “false positives” killings, as they are known, have been focused on low-level soldiers; senior leaders have remained largely unscathed. Despite his earlier commitment to handling these cases in the civil justice system, Santos is advancing legislation that would transfer prosecution of implicated military personal from civilian to military courts. Many observers fear such a move is calculated to enshrine impunity for military leaders.

The challenge for states like Colombia is developing a domestic process that is driven by its own people — particularly its victims — that fits the unfolding international law on victims’ rights. Prosecutions are part of this, but the process also must address reparations, truth and historical memory, and assurances that perpetrators will not repeat their crimes. The 2012 Framework authorizes legislation to select and prioritize cases for prosecution in domestic courts of those most responsible for war crimes and crimes against humanity; it also paves the way for some to escape prosecution, and for leniency and suspended sentencing for others. Allowing the government some latitude to entice the rebels to disarm is critical, and transparent standards lend legitimacy to the process.

There are other factors to consider too. Though support for the peace process extends beyond Colombia’s borders, the international community should be careful to respect the nation’s right to navigate an end to the bloodshed, says Daniel Kovalik, a labor lawyer and international human rights professor who has advocated internationally on behalf of Colombians in the country’s human rights issues for years. Colombia’s ownership of the process and its outcome will bolster its legitimacy and durability. Outside pressure for any given outcome, on the other hand, could inflame tensions, derail the process, and inadvertently sabotage the best possible peace. There is, however, an outcome that would satisfy international standards and meet the needs of that parties in Colombia: “I would think that it would make sense to have an amnesty for low-level combatants on both sides of the conflict while holding those at the highest levels of the military conflict to account,” says Kovalik.

The conflict reaches beyond Colombia’s borders not just because of the international interest in peace, but because the issues of impunity also involve powerful non-Colombians who have been intimately involved in serious human rights abuses in the country. “Holding high-level officials responsible for abuses would require the punishment of those U.S. leaders — corporate, political, and military — who have been responsible for grave human rights abuses in that country,” Kovalik told me. “The banana producer Chiquita, for example, was fined $25 million by the U.S. government for a payment scheme to the paramilitaries in 2007, and Washington has supported military and paramilitary units in Colombia that have carried out grave human rights abuses,” he says. But more far-reaching accountability is beyond the scope of the peace negotiations.

Amnesty, of course, is only a piece of the larger solution that the negotiators have to craft. A sustainable peace must begin to reckon with the root causes of the conflict that will continue to fester after the rebels lay down their arms: namely, entrenched social and economic inequality. Surmounting those conditions is a tall order — as of 2012, Colombia was the seventh-most unequal country in the world, according to the World Bank. Poverty decreased 15 percent between 2003 and 2012, but the rate of income inequality has remained relatively constant, continuing to fuel conflict. In order to achieve the social transformation it espouses politically, rather than militarily, the FARC will have to establish its legitimacy and trustworthiness to Colombians for whom the insurgent group remains unpopular. And if the FARC evinces a willingness to accept responsibility for its crimes and facilitate reparations for victims instead of insisting on amnesty, full integration into the political process may be possible, as it was for former guerillas in Brazil, El Salvador, Nicaragua and Uruguay, countries that have elected erstwhile rebels to the presidency.

But, for the moment, peace hangs largely on finding the razor thin margin of consensus on amnesty. The Colombian government and the FARC have planted the seeds of peace, but there are still real hurdles to be surmounted. The FARC must reach its own internal agreement about accountability that will affect its members differently before hammering out an accord with the government. Even then, Santos will have to win the approval of the Colombian people — who disfavor amnesty — through a national referendum. Peace won’t come without some amnesty, and it will fail if there’s too much: If Santos can’t balance public opinion and international obligations with what he has to do to sell the FARC on a deal, Colombia might have to keep waiting for the peace it’s fought so long to achieve.

RAUL ARBOLEDA/AFP/Getty Images