The Colombian government has finally reached a peace deal with the country’s main guerrilla group, but a number of questions remain when it comes to the provisions of the agreement on the treatment of crimes committed by actors in the armed conflict.
One of the main points in the final peace deal agreed between the government and the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia – FARC) on August 24 is the issue of transitional justice, which aims to address crimes committed during more than fifty years of armed conflict.
“To the rebels belonging to organizations that have signed a final peace agreement … as well as those who have been accused or sentenced for political crimes … the broadest amnesty possible will be given,” reads the text of the accord (pdf).
Under the agreement, “political” crimes will include those related to financing the conflict that were not committed for personal benefit. The financial element is a new addition to a previously released justice agreement, and has been interpreted as a way of including drug trafficking as a pardonable crime. In addition, no FARC guerrilla can be extradited for any crime committed during the armed conflict.
However, the most serious crimes — such as genocide, kidnappings, torture, extrajudicial killings, forced disappearance, displacement, and the recruitment of minors — will not qualify for amnesty. Nor will guerrillas receive judicial benefits for committing “common crimes” if these are not linked to their activities in the insurgency.
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Those who confess to the most serious crimes will be sanctioned for periods of between five and eight years, while guerrillas who refuse to admit their responsibility for these crimes can receive up to 20 years in prison.
Those who are sanctioned will “under no circumstances” be sent to prison or any similar institution if they abide by the terms of the peace deal. Sanctions will instead mean the “effective restriction of liberties and rights, such as the freedom of residence and movement,” and can include participation in post-conflict projects such as coca crop substitution, removing landmines and building infrastructure.
The justice process applies not only to FARC members but also to “all those who participated directly or indirectly in the armed conflict” even if they do not belong to armed insurgent organizations. Specially created judicial bodies will assume “exclusive responsibility” for prosecuting conflict-related crimes, but only if these were committed before the body becomes operational.
These entities will also be responsible for prosecuting third party actors that “financed or collaborated with paramilitary groups,” as long as these actors were not forced to cooperate with the illegal armed groups. Some Colombian media published a list of 57 national and international companies whose cases may be passed on to the peace courts. But President Juan Manuel Santos said the list was just one more piece of “misinformation” being circulated about the peace process, adding that the bar for prosecuting companies who may have financed criminal groups will be set very high.
“Listen well, only those third parties, be they businesses or not, that have been responsible for crimes against humanity in a determined and habitual manner, only those cases can be judged by the [peace] court,” Santos said during a business forum on August 30.
InSight Crime Analysis
Although the text of the agreement has been finalized, there are a number of questions about how it will be implemented. For one, the issue of drugs and criminal finances will likely continue to be murky moving forward. Not all FARC elements have used drug trafficking solely to support their insurgency; in many cases, trafficking proceeds have gone towards personal enrichment. Differentiating between the two will likely prove challenging.
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What will happen to FARC funds that were obtained illegally is another issue. Authorities have already taken steps to track down money suspected to have been laundered by the rebels in Colombia and abroad. But it has proven difficult to identify these funds, and it remains unclear what the government intends to do with any such assets it may seize.
Moreover, various human rights groups have already voiced their concerns regarding the apparent “impunity” of the sanctions laid out by the two parties. The deal may open the door for prosecuted human rights violators to subscribe to transitional justice and get their sentences reduced. This includes military leaders sentenced for their participation in the “false positives” scandal, during which certain army members killed thousands of civilians and passed them off as guerrillas in exchange for benefits.
Human Rights Watch (HRW) states that these measures will make it “impossible” for Colombia to comply with international laws on punishment for grave crimes.
The text of the agreement also appears to allow for other insurgent or criminal organizations to jump on board the FARC’s amnesty deal. Nevertheless, the National Liberation Army (Ejército de Liberación Nacional – ELN) guerrillas’ own peace negotiations have stalled indefinitely, and its leadership has already voiced its disapproval of the FARC’s final agreement.
Drug trafficking groups that emerged from the ashes of the paramilitary demobilization — the so-called “BACRIM” — have made frequent calls for their own peace negotiations with the government. But while some Colombians have recently echoed these demands, it still looks unlikely that the state will grant them an easy exit from their criminal liabilities, especially now that it can shift much of the army’s focus from counter-insurgency to the fight against organized crime.