One of the most important—if not the most important—elements animating the current peace process between the FARC and government representatives in Colombia is justice. It is important not only in how agreements affect the actors in Havana and Colombia, but determines how truth and reconciliation can cement a social covenant, or lead to its disintegration.
The debate over “justice” between the FARC and government negotiators has illustrated the difficulties of establishing peace treaties within a complex international setting. Speaking about peace and justice, and agreeing to uphold both, requires considerations of international jurisdiction, international jurisprudence, the implications of possible agreements on the Colombian state, as well as the methods employed to operationalize these agreements in spirit and practice. We refer to and speak of justice as an objective idea, but in reality our idea of justice is informed by subjective beliefs.
The FARC is responsible, along with the state, for killings, massacres, forced displacement and civic trauma in Colombia over the past four decades, not to mention to the collateral damage wrought by combat between guerillas, state security forces and other armed factions. In spite of this, their leaders are reluctant to accept responsibility, chiefly because they do not want to be seen as the sole authors of the carnage. It goes without saying, though, that real accountability demands more than simply blaming the failures of the state in defense of their actions.
On the other side of the table in Havana, the government also bears responsible for similar crimes, whether through negligence, incompetence or direct participation. State representatives have been found responsible for aiding or cooperating with paramilitaries, drug traffickers, and other violent elements for several decades. The case of the “false positives,” a sophism used by Colombian media for describing the assassination of civilians who were later presented as guerrilla members, is illustrative of this reality.
On both sides (though let us not forget that there are more actors in this conflict) there are murderers, rapists, and violators of human rights. It is disingenuous to believe that this is not the case in a war in which more than 200,000 lives have been claimed over the last fifty years. Attributing noble causes to violence, such as revolutionary ideology or the defense of the state, are just myths used to justify the use of violence and which romanticize violence and war.
As Marco Palacios, a Colombian historian, has stated, the extent of the violence in Colombia has been so indiscriminate and widespread that violence can be described as “public.” Palacios interrogates a central puzzle of Colombian politics, namely that on its face, the country appears institutionally solid and in possession of a legitimate monopoly over the use force and violence. However, reality could not be starker. Seeing as a social contract embracing the whole territory has not been reached yet, citizens are at the mercy of different armed groups—drug lords, paramilitaries, gangs and organized crime, to name a few—in different parts of the country. Thus, people living in the fringes of the Colombian state exist not as “real” citizens—a privilege afforded only a few Colombians in urban areas. In this light, arguments around who is less or more guilty are tautological and do not move the agenda for peace forward.
Peace requires acknowledging the wrongdoings of actors on all sides. Failure to do so is the biggest roadblock to the consolidation of the peace process. The question, then, is this: How can negotiations proceed in a way that remains attractive for members of the FARC, is legitimate in the eyes of the international community, and consolidates a social covenant within the Colombian State? Former president César Gaviria is right to claim that everyone is responsible, and thus should be covered by a transitional justice framework. The agreements on justice are vital for correcting the wrongdoings of this tragedy and for the future of the country.
The notion of justice presented by the government is informed by John Rawls’ idea of justice, in which justice is defined as fairness for citizens. This sounds quite convincing. Addressing some of the grievances that have been presented as part of the reasons for the existence of armed groups in Colombia might bring democracy to its fullest expression in Colombia. To realize this quest for justice, the idea of transitional justice is being embraced in Havana.
Transitional justice is a relatively recent idea that refers to a series of different processes, including truth commissions, such as in Thailand, and special courts with criminal-sentencing powers, such as in Cambodia or the famous commissions of South Africa or Rwanda. As such, transitional justice is a broad label that refers to a series of different interim arrangements applied in post-agreement scenarios, and having different outcomes.
Making transitional justice a reality remains a challenge in practice, which can explain why negotiations on this issue have taken more time in comparison with the previous three points of the agenda. Implementing transitional justice in Colombia is complicated by a number of factors: Colombia is one of the most unequal countries in the world; other armed actors (the ELN, paramilitaries and drug traffickers) are not involved in the negotiation process; and, the possibility of dispute in the interpretation and implementation of the agreements in Havana. All three of these problems create uncertainty regarding how these processes will affect members of the FARC and the government.
The importance of the agreements regarding justice rests in their capacity to create a space for trust, hope and reconciliation. The idea that a country can overcome violence and achieve reconciliation is as important as what is agreed on. Perception is key to gaining public trust. Hence, the gestures and symbols that might build trust in the process are of highest importance. This is perhaps one of the biggest challenges negotiators in Havana face. Thus far, negotiations and the agreements are seen as alien to some sectors of the Colombian population.
It is important to acknowledge, as well, that negotiations and what will be agreed in Havana will necessarily be good, nor necessarily bad, per se. They constitute an opportunity, a framework for attempting to consolidate state legitimacy and new social covenants within the country. What matters now is how this idea of justice will be operationalized to support the reconstitution of trust in the State. One of the reasons for the existence of violence itself is the weakness of the Colombian state, manifested in broken promises of service delivery, security and peace. The challenge thus lies in implementing justice, not just defining it.