On December 15, negotiators in Havana announced they had reached an agreement on how actors on all sides of the conflict would be prosecuted and punished for their crimes. This was their second try. Just two months prior to the announcement, both sides had publicly disputed their counterpart’s interpretation of an agreement on the same topic.
Much of the criticism leveled against the December 15 agreement has focused on whether the FARC’s leadership will serve out their sentences in jail. However, it is the agreement’s promise to amnesty and pardon thousands of the FARC’s foot soldiers that will have the deepest and longest-lasting repercussions for Colombian society.
An amnesty is a legal measure that ends all investigations and prosecutions against its beneficiaries. In contrast, a pardon revokes or suspends a conviction after a sentence has been handed down by a court of law.
The negotiated peace agreement states that the government will grant the “widest” amnesty and pardons “possible” under international law for “political and connected crimes.”
The consequences of the provision are two-fold: First, it means that thousands of FARC members that are not suspected of serious human rights violations could retain their freedom without trial or punishment. And second, it means that several other thousands of FARC members that are currently in jail could regain their freedom once the final peace accord is made law.
Critics of the peace process have used this provision to sway public opinion into opposing the entire peace process. They evoke images of prison doors flying open and herds of uniformed guerrillas flooding back into Colombia’s mountains to rejoin their comrades. Even though the text of the agreement places unprecedented restrictions on these legal releases, the government’s timid attempts at refuting these accusations have done little to quell the public’s fears that it is “handing over the country to the FARC.”
Political and connected crimes
Political crimes are crimes directed against the government, such as acts of rebellion, treason and sedition. They are treated differently under the law because they are motivated by altruistic objectives that, supposedly, seek the betterment of society.
Connected crimes are common crimes (e.g., illegal possession of firearms, murder, kidnapping) that are so intertwined with an action directed against the government that they cannot be separated from a political crime. For example, it would be impossible to overthrow most modern governments without a threat of force, the necessary precursor of which would likely be obtaining and illegally possessing firearms.
In the Colombian case, these distinctions raise the question: how far is the government willing to stretch the connection between common crimes and political crimes?
Political and connected crimes pose a special challenge for the Colombian peace process. At its inception, the FARC was a communist inspired guerrilla group founded by peasants to overthrow an oligarchic government that had violently thwarted its attempts to reach power by democratic means. Taken to the extreme, it could be argued that, because the FARC’s crimes were motivated by a political objective, its terror tactics should be considered connected to a political crime like rebellion, and thus subject to amnesty and pardons.
However, the December 15 agreement explicitly excludes certain crimes, persons and circumstances from eligibility for amnesty or pardons. For example, in order to pass muster when it is reviewed by the International Criminal Court, the agreement excludes crimes against humanity, genocide and serious war crimes from being eligible for amnesty or pardon. Torture, kidnapping, extrajudicial executions, forced disappearances, rape, forced displacement and the recruitment of minors are also specifically excluded.
For a common crime to be considered connected to a political crime, it must be related to the FARC’s rebellion against the government. The crime must have been committed against the government, motivated by the rebellion, or committed to facilitate, support, conceal, or finance the conflict.
The government has said that it will withhold granting amnesties and pardons until it is satisfied that the conflict is over, and the FARC is permanently disarmed. To retain these benefits, members of the FARC must abide by the terms of the final peace accord. Pardons and amnesties will also be conditioned on the beneficiary’s cooperation in providing testimony about the conflict in the Special Jurisdiction for Peace and before the Truth Commission.
The restrictions are the result of painstaking research into past peace negotiations in other countries and an unprecedented attempt to comply with current international law. The deal being negotiated in Havana is an historic accomplishment that could set a valuable precedent for other countries seeking to transition from internal armed conflict to peace.
Despite these efforts, critics of the peace process remain vociferously unconvinced. Last week, former president Andres Pastrana described the December 15 agreement as the “rise of the Leviathan.” He went on to denounce the agreement as unconstitutional, undemocratic, and, “without fear of exaggerating,” one that is bound to transform Colombia into a totalitarian state.
In his critique, Mr. Pastrana conveniently forgets that before the final accord is made law it must be affirmed by the Constitutional Court, approved by Congress, and endorsed by citizens in a national plebiscite. These are hardly the pathways to a totalitarian state.
In past peace negotiations with similar guerrilla groups, the Colombian government granted pardons and unrestricted amnesties to all demobilized former combatants in exchange for laying down their weapons and peacefully reintegrating into society. And, of course, Mr. Pastrana also appears to forget that even though he offered a demilitarized zone the size of Switzerland to the FARC, his negotiations never got past a preliminary stage.
The transitional justice scheme proposed by the government is not an affront to existing institutions. Instead, it is an extraordinary and targeted solution to a problem that existing institutions do not have the capacity to resolve on their own.
The final peace accord will not be perfect, but it is a significant improvement on past peace accords at home and abroad. The resounding international support that the Colombian peace process enjoys is a testament to the government’s honest efforts at balancing the need for a swift end to the conflict, the rights of victims, justice and peace.
But with less than a month before the deadline for the signing of the final peace accord, the government must do a better job of promoting the agreement’s virtues to its own citizens and refuting its critics’ dishonest attacks. If the government wants its citizens to approve the final accord, it must turn its attention from Cuba back to Colombia to sell the benefits of this peace.
For their part, Colombians on both sides of the issue must keep in mind that compromise is necessary to usher in a new era of peace. In a democracy, even the most outlandish criticisms have a place in the national discourse. Still, Colombians should not allow unrealistic expectations to get in the way of a once-in-a-generation opportunity for peace.