When accepting his hard-earned peace prize at the Nobel ceremony in Oslo last Saturday, President Juan Manuel Santos predicted that “one of the great legacies” of Colombia’s peace process would be “a model of transitional justice that allows us to obtain maximum justice without sacrificing peace”. If only that were true.
After the prize was announced in October, the president’s negotiators had indeed worked with the Revolutionary Armed Forces of Colombia (Farc) to improve the justice provisions of the original deal, which had been narrowly defeated in a national plebiscite on October 2 due in part to concerns that Farc war criminals wouldn’t face meaningful punishment for their crimes. The new agreement that emerged in November included language that could salvage the justice provisions, with the passage of appropriate implementing legislation, and secure at least a minimal degree of justice for their victims.
Yet, remarkably, just hours before the new peace agreement was signed and sent to Congress for approval, Mr Santos decided—unilaterally—to undo one of the most important improvements. By striking out a new paragraph already approved by the Farc, he restored an effective guarantee of impunity for army officers so brazen that even the guerrilla commanders were no longer willing to accept it for themselves.
The original peace agreement contained a flawed definition of the principle of “command responsibility” that could shield commanders who are criminally responsible for atrocities committed by their troops from prosecution. Under the standard definition enshrined in international law, commanders with effective control over troops who commit crimes may be held criminally responsible, even if they were not involved in the criminal conduct itself.
The paragraph that was added to the new agreement, and then removed, established that the international definition would hold sway. In its absence, the foot soldiers who pulled the trigger can still be prosecuted but their commanding officers who allowed the atrocities to occur could escape justice.
The stakes are far from trivial. Colombian prosecutors are pursuing thousands of so-called false positive cases in which members of the military lured civilians to remote areas, then killed them and presented them as guerrillas, to inflate body counts. At least 14 army generals are under investigation for such crimes; ensuring that the scope of command responsibility is consistent with international law is critically important to prosecuting these cases.
On November 20—a week after the re-negotiated deal was published and just days before it was to be signed—the Colombian Association of Retired Officers of the Armed Forces (Acore) sent a public letter to Mr Santos complaining that the definition of “command responsibility” in the new agreement was “unacceptable”. The next day, Mr Santos’s negotiators met with the country’s top military brass, including General Juan Pablo Rodríguez Barragán, who is head of the armed forces and one of the 14 under criminal investigation for false positives.
What followed was a frenzy of backpedaling worthy of the Keystone Cops. A top government negotiator announced that the revised definition might be a mistake and could be fixed. Defense Minister Luis Carlos Villegas confirmed that it was a mistake and claimed it wasn’t clear how the new language had ended up in the text.
But if it was a mistake, why had Mr Santos himself highlighted it as a key improvement just days earlier? Command responsibility was an issue of “great concern” to the International Criminal Court (ICC), he said in a televised speech on November 15, and the new language brought the definition closer in line with international law.
And why was the new language retained in a separate article of the agreement that defines “command responsibility” for guerrilla commanders? The Farc offered an answer in a public communiqué two days after the signing. They had “not permitted” the government to remove the language in the article referring to their own commanders, they declared, because they believed that the narrowed definition of “command responsibility” would be “of concern” for the victims of abuse and for the Office of the Prosecutor of the ICC.
Given that the ICC prosecutor is closely monitoring the war crimes investigations in Colombia, they have reason to be concerned. If flaws in the system set up by the peace agreement deny victims genuine justice, the ICC could open its own investigations. Indeed, before the new deal was unveiled, the Office of the Prosecutor had said it would review potential legal gaps in the agreement, “including in relation to command responsibility”. If those most responsible for egregious crimes such as “false positives” are protected from prosecution, then the ICC’s jurisdiction will be needed.
Many principled people have justified Santos’s willingness to sacrifice victims’ access to justice as a necessary price to pay to secure a peace deal with the Farc. But the final and arguably most egregious sacrifice was neither sought, nor approved, by Farc negotiators. It was, rather, a stunning capitulation to military commanders seeking impunity for atrocities committed by their troops—and taking advantage of the peace process to obtain it.
