Confusion & Discord Around Colombia’s Peace Tribunal

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“A work of art” — that was how a former prosecutor of the International Criminal Court described the new agreement established by a special commission, made up of three lawyers chosen by the Colombian government and three by the FARC. More impressively, it was negotiated in just 50 hours, according to Alvaro Leyva, one of the lawyers selected by the FARC and a former conservative minister.

The agreement itself broke a Gordian knot that had frozen conversations in Havana for months. According to high-ranking authorities, the subject was almost impossibly difficult. The initial idea of a special commission that would seek truth and make viable judgments came from a conversation between the FARC high commander and Enrique Santos Calderon, brother of President Juan Manuel Santos Calderon. FARC leader Timochenko embraced the initiative from Enrique Santos and within an hour, he himself delivered an affirmative response by the government. The six special commissioners were appointed, and in different meetings arranged mostly in Bogotá, the impasse was finally broken.  

However, the announcement of the deal, while praised, also contributed to a growing sense of perplexity and suspicion. On October 4^th, Semana Magazine summed up the situation as follows: “What confusion! A flood of contradictory news about the Transitional Justice Agreement spoils the celebration that the announcement could have created.” The article concluded by noting that in Colombia today, half the country remains unconvinced by the deal.

There were few precedents for this process. Negotiators had to be creative and stake out maneuvering room as the country confronted the issues involved. This is the dilemma between peace and justice.

The agreement is an emblematic case for a course on communications strategy entitled ‘how to announce and implement a new public policy.’ This announcement revolved around numerous highly sensitive issues involving both domestic law and new international legal norms on justice in moments of transition—from dictatorship to democracy, from armed conflict to resolution, from war to peace.

There were few precedents for this process. Negotiators had to be creative and stake out maneuvering room as the country confronted the issues involved. This is the dilemma between peace and justice. Samuel Huntington, the renowned scholar of democracy and political science, described the dilemma in labyrinthine but telling terms: “Recognize that on the issue of prosecute and punish vs. forgive and forget, each alternative presents grave problems, and that the least unsatisfactory course may well be: do not prosecute, do not punish, do not forgive, and, above all, do not forget.” This was part of his advice to democratization processes before the existence of the Rome Statute and the International Criminal Court.

In the announcement, the Colombian government and the FARC issued a summary of the agreement, 10 points that summarize the broader 75 points of the agreement. The full document is supposedly 19 pages long.

Needless to say, sooner rather than later multiple questions and suspicions started to arise. With more interviews with different actors, more imprecisions, contradictions and silent moments started to occur, all of which began to erode trust. Public opinion, after all, is very firmly opposed to an illegally armed organization that refuses to accept even one day behind bars—a crucial backdrop to this announcement.

The biggest accomplishment of the agreement is that it subjects the FARC and all those involved in the armed conflict to a special tribunal, one that is less “extra-judicial” and more “judicial.” In itself, this is the big leap, the great innovation, which many have described as a point of reference for other similar questions. There will be prison for some cases, and effective restrictions of liberty in others.

But interpretation in the world of the law is boundless. The 10 points have been submitted to strict public scrutiny, with clamoring calls that the document in full, all 75 points, be published. This unanswered demand raised suspicions: ‘why was it not published entirely?’ ‘What is being hidden?’ ‘Why not just tell the whole story?’ Over eight hours of debate, the Senate gathered the responses of the negotiators in Havana—but these were not the same negotiators who forged the specific agreement. By the end of the week, the result was, according to some columnists, a flat-out rigmarole, a tower of babel, or a cacophony. Above all, though, the demand that the full agreement be published is universal.

If the agreement holds, the peace process will have overcome a difficult obstacle and the road ahead can proceed to other difficult issues.

The FARC have in turn been feeding suspicions of their own, proclaiming that the document is definitive and will not be subject to changes or precisions. From the side of the Colombian government, however, there has been talk of a document “still in construction.” Relating the details of this controversy would be tedious and even irrelevant. Fortunately, on October 5^th, the FARC issued a public statement that acknowledges that some topics are still under discussion, like the mechanism for appointing the magistrates of the tribunal. Hopefully, this controversy will soon return to the appropriate level and the agreement can be examined on its real merits—based on the entirety of the document.

Of course, there are still broader criticisms, such as those from Jose Miguel Vivanco, a leading voice on human rights, and from the Centro Democratico, directed by former president Alvaro Uribe.  Still, the fact that the agreement is being thoroughly discussed is a good thing and hopefully the conversation can help reassure its opponents. If the agreement holds, the peace process will have overcome a difficult obstacle and the road ahead can proceed to other difficult issues.

With any luck, the hope resulting from this agreement, if it remains undisturbed, may create a dynamic in which the end of the conflict is finally within reach.