The narrow “no” vote in Colombia’s peace deal plebiscite was an enormous disappointment for Colombians who hoped the agreement negotiated in Havana would bring an end to the bloody conflict that has caused so much suffering for more than half a century.
But the quest for peace is not over. To his credit, President Juan Manuel Santos swiftly announced he would redouble his efforts to end the war. This dogged determination earned him the 2016 Nobel Peace Prize on October 7.
Human Rights Watch has received many queries regarding our view of the peace process. From the outset, while we applaud the government’s efforts to negotiate a peace deal with the FARC, our focus has been to improve provisions in the justice component of the agreement that we believe would have allowed confessed war criminals on both sides to escape meaningful punishment.
When these provisions were unveiled in December, we urged the government to fix them. Once the deal was finalized unchanged, we called on President Santos to address these flaws during its implementation, and worked with one of his senior advisors to identify the means.
We have maintained this close working relationship with the Santos administration since the beginning of the peace process, even as we voiced very strong differences. I discussed our concerns directly with President Santos on multiple occasions, and he invited me to attend the signing ceremony in Cartagena. (Unfortunately I couldn’t attend for personal reasons.)
We’ve also kept in regular communication with our partners in the Colombian human rights movement, many of them longstanding friends and allies—and most of whom came out in support of the “yes” vote in the plebiscite.
We share the same aim: a Colombia where the human rights of all are respected and victims are treated justly and with compassion. In our view, the justice component of deal struck in Havana would have undermined that goal by severely undercutting access to justice for countless victims of war crimes – a fundamental right that every government has a duty to uphold.
While the deal includes measures that would assist the victims, including a truth commission and a unit to search for the disappeared, it would also allow war criminals to escape any meaningful punishment for their crimes. Under the deal, those who confessed to their crimes would serve no prison time but instead be “sentenced” to two to eight years of community service, while subject to modest and vaguely-defined “restraints on rights and liberties.” International law holds that sentences for war crimes should reflect the gravity of the offense. We know of no precedent from other courts or tribunals adjudicating war crimes where those most responsible for the worst crimes did not face custodial sentences.
And a clause in the deal would have made it possible for military commanders to escape responsibility for the atrocities committed by their troops by claiming they didn’t know about them. But under the international law principle of “command responsibility” prosecutors do not need to prove that commanders actually knew about the crime – which is often impossible – but only that they had reason to know and should have known.
Throughout the 52-year conflict, the rebel Revolutionary Armed Forces of Colombia (FARC) committed serious war crimes and crimes against humanity, including massacres, forced disappearances, recruitment of child soldiers, and sexual violence.
The agreement would promote impunity not only for the guerrillas, but also for members of the armed forces, including those responsible for more than 3,000 “false positive” 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.
Of course obtaining a peace deal requires making tradeoffs. But when it comes to justice for human rights abuses, there are limits to the concessions that are acceptable under international law, and the justice provisions of this deal exceeded them in our view. It is one thing to allow for reduced prison sentences, it is another thing to allow confessed war criminals to avoid any meaningful punishment for their crimes.
Decades of experience working in Latin America and around the world has taught us several things about post-conflict situations: that peace which ignores justice rarely works out; victims should not pay twice for atrocities, first as their victims and then denied access to justice, and that failing to enforce international legal obligations on accountability encourages more abuses in the long run, at home and elsewhere.
Many Colombians have noted the irony that our view on the need to hold FARC war criminals to account was shared by ex-President Alvaro Uribe, the most prominent leader of the “no” vote, even as we campaigned against his recent efforts to prevent justice for atrocities by the military. Human Rights Watch has long been an outspoken critic of Uribe and his administration’s terrible human rights record. Like many of our colleagues in Colombia, we fear that the positions that Uribe and some of his cohorts in the “no” campaign—on issues such as impunity for the military, land restitution, and LGBT rights—could trigger setbacks in rights Colombians have achieved in recent years.
The new round of peace negotiations could deliver a deal that better protects the rights of victims on both sides in the conflict by focusing on three key points:
First, confessed war criminals, guerrillas or government forces, should serve sentences in prisons or other places of confinement with clearly defined and enforced boundaries.
Second, commanding officers on both sides should be subject to criminal liability for human rights crimes committed by their troops under the principle of “command responsibility” as defined in international law.
Third, war criminals should be prohibited from holding public office while serving their sentences. Members of the FARC should have their political rights respected, including to run for and hold office, but only after they have fulfilled any sentences for war crimes or crimes against humanity.
We believe Colombians deserve a durable and just peace, and we enthusiastically endorse President Santos’s commitment to seeking a better future for his country.