Promising breakthrough on justice in Colombia peace talks with the FARC

On 24 September a historic breakthrough was announced in the negotiations to end the long-running civil conflict with the leftist FARC insurgency in Colombia.

Having previously addressed other key issues including rural development, the participation of ex-rebels in politics, and drug trafficking, the negotiators in Havana have now agreed on the outlines of procedures for seeking accountability for the worst crimes committed in connection with the fighting.

ILAC presence in Colombia
ILAC has several member organisations that have engaged with rule of law and transitional justice issues in Colombia. In mid-September ILAC Senior Legal Expert Rhodri Williams was invited to deliver a lecture on the role of courts in transitional justice processes during the 12th Ibero-American Congress of Constitutional Law at the Externado University of Bogota.

While in Bogota, Mr. Williams also discussed transitional justice and the rule of law with the Swedish Embassy, the UNDP and OHCHR in Colombia, as well as key national actors such as the Ministry of Justice, the Center for Historical Memory, the National Unit for Attention and Reparation for Victims, and the NGO De Justicia.

In the course of these discussions, the intertwined nature of rule of law reform efforts, development and transitional justice were clearly affirmed. One of the greatest challenges for Colombia, both historically and going forward, is the provision of state services to vulnerable individuals and populations in marginal parts of the country. The traditional absence of the state in these areas has hindered development and demonstrably reduced access to justice. Going forward, it is likely to pose a profound challenge in the effort to recognise the victims of the conflict and achieve reconciliation.

“Special courts for peace”
The solution arrived at the 24 September negotiations has been described by the Office of the Colombian High Commissioner for Peace (see here in Spanish) as “Special Courts for Peace” that may incorporate international as well as Colombian judges, and which will have jurisdiction over grave crimes committed by all sides in the conflict, including the FARC, agents of the state, and third parties.

In cases in which the responsible parties immediately acknowledge their responsibility for crimes, these courts are mandated to apply reduced sentences of confinement outside the prison system. Others who confess once trials have actually been brought against them may be eligible for reduced sentences to be served in prison.

Recognition, reparations and guarantees of non-repetition
The new agreement also allows for the possibility of amnesty and pardons for political crimes such as rebellion attributed to members of the FARC. However, the overall goal of this agreement, taken together with an earlier June 2015 accord on creating a non-judicial Truth Commission, is to provide recognition, reparations and guarantees of non-repetition to victims of the conflict, in line with Colombia’s broader transitional justice undertakings. Although a number of other issues remain to be negotiated, the question of justice was seen as the last point of disagreement serious enough to have potentially derailed the negotiations.