Image Source: Caracol Radio
A Note from the Editor: This article was finalized earlier this month, before talks with the ELN began. As these conversations continue and information is released, there may be some changes relative to what is written below.
Only six years after the historic peace accord with the Revolutionary Armed Forces of Colombia (FARC-EP), the Colombian conflict is experiencing renewed attention. Since Gustavo Petro’s swear-in as the first left-wing Colombian president on August 7, 2022, his “total peace” proposal has generated a national debate. While the left attempts to give precedence to peace over justice, the parliamentary opposition, represented by the conservative party Centro Democrático, warns of the risk of impunity this initiative would bring about. The Colombian discussion on “total peace” exemplifies the difficulty of balancing peace and justice in societies transitioning away from armed conflicts or dictatorships. This is a challenging task that Latin American academics and policymakers have grappled with since the post-authoritarian transitions in Argentina and Chile in the 1980s and 1990s respectively. To establish an effective “total peace,” President Petro should carefully consider the consequences his proposal could have on Colombia’s healing process.
A “Total Peace” for Colombia
At the end of August 2022, the newly elected President of Colombia Gustavo Petro presented his proposal for “total peace” to the country’s Chamber of Representatives, receiving approval from the Senate on October 24, 2022. This initiative aims at negotiating with several armed groups involved in violence, massacres, and illicit economies. According to Petro, engaging with these groups in peace talks is the only way to promote a stable peace in Colombia. The United Nations and the Organization of American States immediately declared their full support for Petro’s initiative.
The first step towards “total peace” would include a national ceasefire, which would reduce violence and open a channel for dismantling networks related to narcotrafficking and illegal mining. Moreover, Petro seeks to develop employment alternatives for the territories particularly affected by illicit economies, which is essential for encouraging peace.
As of October 2022, twenty-two groups have expressed their interest in cohering to the “total peace” initiative. These groups’ diverse make-up could potentially represent an obstacle to implementing peace. Politically motivated armed groups like the Ejército de Liberación Nacional (National Liberation Army, ELN) and the Segunda Marquetalia (founded by dissidents of the FARC-EP who refused to demobilize following the 2016 peace agreement) have an established leadership structure that would facilitate negotiations and allow armed group leaders to instruct their bases into compliance with the peace deal. Despite the horizontal structure of the ELN, Nicolás Rodríguez Bautista, in quality of commander-in-chief, could serve as the face of the negotiations. At the same time, Iván Márquez publicly represents FARC dissidents and could also serve as the group’s representative in negotiations, if rumors regarding his death are false. However, it would be more complicated to deal with the leadership, or lack thereof, of criminal groups such as the Autodefensas Gaitanistas de Colombia (better known as Clan del Golfo), whose structure, following its leader’s arrest in 2021, consists of a dispersed network lacking a common ideology.
Criticism of the “Total Peace”: No Peace Without (Criminal) Justice
Petro’s “total peace” proposal has received its fair share of national controversy and outrage. The major contention point is the proposed suspension of past and present arrest warrants and extradition deals against armed groups and its individuals participating in negotiations. President Petro’s proposed “social forgiveness” has further exacerbated the controversy. In his speeches, Petro defined it as: “[…] an expression of society in search of reconciliation. It has a motor: to end a conflict in Colombia. And therefore, prison is not the fundamental piece, [it] is the heart of the human being. […] If we are able to forgive a series of events that we would say are unforgivable in recent Colombian history, then we will be able to reconcile them.”
Petro’s peace proposal seems to incorporate elements of the restorative justice approach, which considers that pursuing criminal justice could jeopardize the need to promote reconciliation and restore, or even create, national unity. The aim is to reintegrate perpetrators into society instead of punishing them. This approach should increase the likelihood that armed groups come to the negotiating table, given the guarantees that they will not face legal repercussions for their crimes. According to University of California, Riverside, Professor Bronwyn Leebaw, restorative justice creates a “space for expressions of approbation, remorse, and pardon” through mediation between the parties, which ultimately can move societies towards reconciliation.
However, the conservative party Centro Democrático characterized “total peace” as an “apology to criminality and impunity.” Former Colombian President Iván Duque echoed this sentiment by warning that the proposal could promote “total impunity” and insisted on requiring that the armed groups pay for their crimes. Colombian journalist Nicole Levy stressed the urgent task “to [not] leave unpunished crimes against humanity that have left children orphaned, and millions of families affected by these heinous crimes.” This stance advocates for a retributive (or criminal) justice approach by underlying the importance of criminal punishment, given its deterrent effect and its role in demonstrating that no individual or institution is above the law. From this perspective, peace is not possible without criminal trials.
Petro’s halting of arrest warrants and extradition requests can help bring armed groups to the negotiating table. However, this decision resurrected the phantom of past negotiations that promoted impunity, akin to the 2003-2006 paramilitary demobilization. Petro must address the widespread fear of impunity if he wants to move the whole country toward peace. Designing a peace deal that gives priority to the long-term effects on victims might be the key for bringing the skeptical sectors of society on board.
How to Balance Peace and Justice?
While suspending arrest warrants and extraditions can promote the construction of peace by making negotiations appealing to armed groups, it can also jeopardize the establishment of justice, especially if the victims’ rights are denied by dropping charges against war criminals. To help balance peace and justice, the Petro administration should reflect on two considerations: avoid falling victim to the peacemaker dilemma and assess the limitations of attenuating measures to criminal punishment.
First, President Petro should avoid being trapped in the peacemaker dilemma. This dilemma manifests when the peacemaker faces pressures to achieve short-term goals and peace is understood as the mere cessation of armed violence. Longer-term goals should not be sacrificed in the Colombian case. Peace should expand beyond ceasefires, which ultimately requires addressing justice. Petro should carefully evaluate the positive effect that suspending arrest and extradition requests can have in the short-term, but also weigh them against the long-term impact on a durable peace for the communities most affected by the conflict.
Second, while refining the “total peace” project, the Petro administration should consider the limitations of measures that mitigate criminal punishment: amnesties and prosecution of selected cases. Amnesties offer the benefit of reassuring armed groups and encouraging their cooperation. Similarly to what was stated in the Ley 1957 de 2019, which excluded the possibility of amnestying atrocious crimes committed by the FARC-EP, amnesties in the “total peace” context should not cover war crimes, crimes against humanity, or genocide. While international law already forbids the inclusion of these crimes in amnesties, the Salvadoran precedent signals that international norms could potentially be bypassed. For example, the Salvadoran 1993 Ley de Amnistía General para la Consolidación de la Paz (General Amnesty Law) excused, until 2016, all crimes committed by every actor in the conflict. Colombia should avoid the path taken by El Salvador and abide by international law.
Another attenuating measure to criminal punishment is the selection of a limited number of cases to prosecute. This mechanism allows the state to budget enough resources to conduct trials, make armed groups more inclined to negotiate, and legally set a precedent. Among the several criteria for selection, former UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Colombian Pablo de Greiff, suggests choosing cases that address the “systemic or structural dimensions of massive violations” to dismantle the network that allowed these crimes to happen in the first place. Even if it is true that amnesties and selected cases could reassure a party to the conflict and avoid its frustrations, they could nevertheless represent a problem for the victims, to the point of exacerbating divisions. For instance, victims whose cases are either amnestied or not selected might feel that justice was not served to them. For this reason, attenuating measures to criminal punishment need to be carefully tailored to the specific context in which they will operate and the unique nature of each armed group.
Petro will face limited success in bringing about justice and peace unless he assesses how the costs and benefits of short-term strategies play out in the long run. Petro should carefully design a restorative justice program that goes beyond mere rhetoric aimed at gaining consensus from the promoters of peace. Initiatives that encourage offenders to conduct community service or the establishment of meetings between victims and perpetuators could rehabilitate offenders and promote a healing process based on dialogue, when tailored to each specific context. Moreover, a four-year presidential mandate is a short window of time to negotiate, sign, and implement a peace deal that properly addresses the demands of thousands of victims throughout the country. For a restorative justice program to be effective, it
must continue throughout the succeeding administrations. Additionally, it must be designed cooperatively between the Petro administration, the opposition, and civil society organizations if it is to endure.
Finally, while trying to incorporate tenets of the restorative justice approach, some crimes should nevertheless be redirected to a retributive justice system. It is difficult to imagine how a group like the ELN, responsible for one of the most notorious civilian massacres in Colombian history, could be even partially excused for its atrocious crimes. A similar case can be made for the Clan del Golfo, whose struggle for power and territorial expansion has brought about an increase in slayings. If Petro mitigated criminal punishment for these groups, the opposition would likely further criticize the “total peace” project. In fact, given the impunity that would result from excusing heinous crimes, the Centro Democrático could find even more ground for its current objections. Moreover, victims’ hopes for justice would further fade.
For Petro’s “total peace” to work, it is crucial parties negotiate tailored deals depending not only on the armed group, but also on the type of crimes involved. A solution could be to make restorative measures follow retributive justice, understanding that both approaches offer some strengths and disadvantages. Supporters of the restorative justice approach, like President Petro, should recognize that for certain atrocious crimes, justice should always result, at a minimum, from punishment.