Colombian President Juan Manuel Santos likes to say that when forced to choose between justice and peace, the family of a past victim will choose justice, but a family fearing future violence will choose peace.
When he visits the White House today, Santos is likely to tell President Obama that he has solved Colombia’s peace-versus-justice dilemma with the agreement he expects to sign next month with the Revolutionary Armed Forces of Colombia — the main guerilla insurgency that Colombia has been fighting for 50 years.
The agreement, Santos’ commissioner for peace said, “will achieve as much justice as possible, while transitioning from conflict to peace.” In fact, this deal surrenders justice, and with it the likelihood of achieving a lasting peace.
It is, granted, a conditional surrender. Provided they confess to their human rights crimes, guerrillas will avoid any meaningful punishment. Instead of prison time, they will be “sentenced” to two to eight years of working on “restorative and reparative” projects—which they can propose themselves—aimed at assisting victims of the conflict. It’s like being sentenced to community service after confessing to murder.
Since its formation in the mid-1960s, the FARC has been responsible for systematic atrocities. The guerrillas have killed, abducted and disappeared civilians, used child soldiers, forcibly displaced families, and subjected captured combatants to cruel and inhuman treatment.
The surrender on justice will apply not only to guerrillas, but also to members of the armed forces, who are promised similarly light sanctions for the atrocities they committed. These include more than 3,000 “false positives” cases in which civilians—many of them young men lured to remote locations by bogus job offers—were shot dead and then reported as combat deaths to satisfy senior officers’ eagerness for high body counts.
The agreement also includes a definition of “command responsibility”—a key principle of international humanitarian law—that could be misused to allow both army and FARC commanders to escape responsibility for atrocities committed by troops under their control.
Over the past 15 years, the United States has invested billions of dollars in strengthening the rule of law in Colombia while establishing respect for human rights as a condition of continued military assistance. The degree of Washington’s influence in Bogotá is such that had the United States held Colombia to those conditions – especially when the first false positives were being reported in 2003 – it’s likely that many lives could have been saved.
The U.S. investment hasn’t been entirely in vain. Colombia’s strengthened justice system has been able to obtain convictions in hundreds of “false positives” cases. Under the new agreement, however, those accused of these and other atrocities will be tried not by the justice system that the U.S. and Colombia have worked so hard to improve, but by a new, untested “special jurisdiction” whose independence from political interference is not guaranteed.
Perhaps the best evidence of the justice system’s improved capacity is that Santos apparently believes he needs to shield human rights violators from its reach to secure a peace deal.
An agreement that sacrifices justice to this extent is unlikely to achieve a durable peace. Our long experience in Colombia teaches us that the cycle of violence and abuse on all sides is perpetuated by the certainty of those responsible that they will never be punished for their crimes.
The real question for Colombians today isn’t whether they want peace or justice. It’s whether they want both or neither. Colombia and the United States have put too much money and effort into strengthening the rule of law to allow this weak agreement to undermine it. If Obama wants to support the quest for peace in Colombia, he should press Santos to strengthen the justice component of the agreement and prevent those responsible for atrocities on both sides of the conflict from escaping genuine punishment for their crimes.
Vivanco is Americas director at Human Rights Watch. Wilkinson is Americas managing director at Human Rights Watch.
