Transitional Justice in Ongoing Conflict: Colombia's Integrative Approach to Peace and Justice

Introduction

It is clear that the peace should not be purchased at any price. But the illusion that it can be free is ridiculous.
     – Francisco Gutiérrez Sanín, "¿Alternativas?" May 2012

We need […] peace without impunity. I understand that in the balance between peace and justice, this balance needs some sacrifice on the part of justice, but we cannot accept impunity.
     – Former Colombian President Álvaro Uribe Vélez, interview with the author, November 2012

In September 2013, Colombian President Juan Manuel Santos told the United Nations General Assembly that those affected by the Colombian conflict are "entitled to justice, to the truth, to reparation, to non-repetition." Interestingly, Santos echoed these rights—some of the core ideals of transitional justice—in a speech primarily intended to secure endorsement for his government's ongoing peace talks with the FARC-EP,3 Colombia's main insurgent group. The president acknowledged the difficulty of negotiating an end to a complex intrastate problem while simultaneously fulfilling the country's moral and legal obligations to investigate and prosecute the worst abusers of human rights and humanitarian law. Santos stated that Colombia's transitional justice strategy would prioritize the "maximum possible satisfaction" of victims' rights rather than aim—and fail—to investigate every violation committed during fifty years of armed conflict. The Colombian Executive views his country as pioneering the deployment of transitional justice tools in the midst of conflict and expects that this agenda will "enable" and "support" a transition toward peace.4

Indeed, Colombia's ongoing peace talks with the Marxist guerrillas were facilitated by a package of transitional justice instruments written into the Colombian constitution through the adoption of the Legal Framework for Peace (See Appendix 2) in July 2012. By creating the space for Santos' peacemaking efforts while also preventing impunity for conflict-related crimes and providing guarantees to victims,5 the Framework is an innovative effort to make transitional jurisprudence and conflict resolution complementary rather than competitive ventures.

The effort is not without its critics. This development departs from the original understanding of transitional justice as addressing past abuses rather than still-ongoing abuses.6 While some scholars and practitioners applaud this "era of complementarity"7 between transitional justice and peacemaking, others remain skeptical about the "overly-ambitious aim" of "justice-seeking in the absence of peace."8 In Colombia, former President Álvaro Uribe is among the loudest detractors of the process, arguing that his country needs "peace without impunity."9 While not the most credible objector, his words echo the concern that the simultaneous use of transitional justice and peacemaking heightens the tension between the demands of peace and those of justice.

There are reasons to remain optimistic about the Colombian experiment, however. Despite its imperfections, the framework that undergirds the ongoing Colombian negotiations places transitional justice at the heart of this peacemaking effort. The negotiation program itself novelly considers victims' rights, however briefly and vaguely. In addition, the process incorporates Congress and constituents in the ratification and implementation of the peace agreement, including transitional justice measures emerging from the process. Any deal will also face the scrutiny of national, regional, and international courts. These facts suggest that both the Colombian government and the FARC must look beyond their narrow interests to broker a peace agreement that can minimally satisfy both local and global expectations of justice.

Through an investigation of transitional justice efforts in Colombia, I argue that the use of transitional justice instruments in ongoing conflict is not only possible, but that a wise use of such instruments can even facilitate bringing an end to conflict itself. This paper explores the potential complementarity of peacemaking and transitional justice instruments in the midst of ongoing conflict as well as the challenges that such an enterprise creates. I first discuss the opportunities and challenges presented by the rise in the use of transitional justice during ongoing conflict and the growing aspirational and operational overlaps between the transitional justice and peacemaking fields. I then contextualize the current transitional justice and conflict resolution architecture, tracking Colombia's first steps—and missteps—in its controversial use of transitional justice. I go on to analyze the Legal Framework for Peace: the novel instrument that enabled the ongoing peace process by writing transitional justice instruments into the Constitution. Here, I also consider the development of the negotiations with the FARC in light of the embedment of transitional justice in Colombia's conflict resolution labors. Finally, I analyze the opportunities and challenges faced by Colombia's complementary formula—and its implications for our understanding of the nature and purpose of transitional jurisprudence.

Transitional Justice and Peacemaking: A Growing Overlap

Causes and Origins

At the negotiating table, harmonizing the positions of parties engaged in intrastate conflict is a monumental undertaking. Even finding the lowest common denominator of the belligerents' interests that is preferable to warfare is no easy task.10 Moreover, in the wake of the rise of the "global accountability regime," such a lowest-common-denominator agreement may be insufficient to earn global legitimacy or even uncontested legality.11 Under current international law and prevalent worldwide-responsibility norms, peace between warring parties can no longer be bartered at the cost of justice for the victims to the conflict.

Yet in the last few decades peacemaking itself has become more holistic, and most discourse surrounding conflict resolution now seeks long-term "sustainable peace." Increasingly, peacemaking aims to generate transformative processes in war-torn nations by attending to the roots of a conflict and by advancing democratic reforms and agendas of sociopolitical, ethnic, and—more rarely—economic inclusion. While punishing perpetrators of conflict-related violence still causes tension during peace processes, accountability has become a part of peacebuilders' policy objectives,12 especially as the field becomes sensitized to the relationship between recurring violence and the perception of unaddressed injustices.13

Transitional justice refers to the judicial and non-judicial mechanisms implemented by different countries in the wake of conflict in order to overcome a violent past and redress the legacy of large-scale human rights violations. Just as the ambitions of conflict resolution have increased in the recent past, transitional justice has also evolved to share some of the goals and operational timelines of peacemaking. This is in part due to the intractability of contemporary conflict, which blurs the boundaries between war and peace. Transitional justice policies are used in situations where transition is uncertain, fragile, or even unapparent.14 The expanded legal architecture around human rights violations is another factor: an ever-more-ambitious international human rights agenda has labored to broaden the notion of threats to collective peace and security to include a concern for "human security." The international human rights enterprise has succeeded, for example, recognizing the emerging principle of the "responsibility to protect," and—most crucially for transitional justice as a field—in creating the International Criminal Court (ICC).15 The widespread ratification of the Rome Statute that established the ICC signals that accountability for genocide, war crimes, and crimes against humanity is no longer purely a matter of local prerogative. Finally, the emergence of a "victim-centered" approach to justice has also contributed to the evolving normative ambitions of transitional jurisprudence.

Transitional justice now aims to frame peacemaking efforts and delineate "the politics of transition within certain legal standards, particularly those regarding victims' rights to truth, justice, and reparations."16 Further, transitional justice has been increasingly recast as a means to bring about—or at least support—a transition in the first place. The ICC somewhat relies on the notion that its involvement during conflict deters future violence,17 even without clear empirical evidence for such a consequentialist argument.18 Nevertheless, those who support transitional jurisprudence going beyond prosecutions and punishment have suggested creative and feasible ways in which transitional justice and peacemaking can work in productive tandem.

Opportunities and Advantages

To many, the potential for complementarity between peacemaking and transitional justice is paradoxical because of the traditional view that peace and justice are values at odds with each other in transitional periods. Under this view, achieving peace often comes at the cost of achieving justice, and vice versa. For example, peacemaking often involves extracting a negotiated settlement in exchange for more lenient sentences for the perpetrators of conflict-related violence. On the other hand, the implementation of retributive—or punishment-focused—justice is viewed as a crucial aspect of realizing the value of justice. As a consequence, decision-making in the transition from conflict to post-conflict is viewed as a compromise between the aims of peace and justice.19

And yet the "stakeholders" of peacebuilding and transitional justice—mediators, human rights advocates, and victims—share common goals in transitions from violent conflict.20 Peacemakers must acknowledge that justice and accountability measures are crucial to a peace process's sustainability, and transitional justice practitioners should recognize that ending the conflict is necessary to avoid ongoing and future violations.21 Each field's success is interdependent. Exposure to "each others' dilemmas, disciplines and opportunities" is essential to the integrity of a transition, and cooperation is feasible if practitioners understand that they operate "within a peace-building and transitional justice continuum" that resists reducing transitional justice to criminal prosecutions and peacemaking to striking deals between warring parties.22

Transitional justice tools beyond prosecution can help prevent patterns of abuse from repeating and hostilities from resurfacing. While criminal trials might deter future violence, individual punitive accountability does not primarily seek to buttress peace processes.23 Therefore, satisfying the ambitions of both peace and justice also requires victims-oriented reparations programs. These approaches, already less of a threat to peace processes, can offer a "peace dividend" in the form of "civic trust," an essential component of legitimate and sustainable peacemaking outcomes.24

Moreover, pursuing ‘transformative' rather than merely ‘restitutive' transitional justice may be particularly appropriate under the auspices of peacemaking and in the context of a transition in the making. In other words, it might be worth pursuing transitional justice strategies that seek to improve upon the status quo prior to the conflict rather than to merely restore the country to such a state. This might be especially true in a transition from a "conflicted democracy": A political system that meets the minimum formal requirements of procedural democracy, but faces such entrenched polarization and divisions that it is either subjected to, or perpetually threatened by, violent conflict.25 Rosario Figari applies this concept to the Colombian state and Rodrigo Uprimny suggests a similar understanding when describing the country as a "dangerous democracy in danger."26 A conflicted democracy such as Colombia's has the need to distance itself from a political legacy of long-standing exclusion—to the particular injury of the rural poor—and active violations of human rights and international humanitarian law. A break with such illegitimate order is at the heart of a conflicted democracy's transition to a state of peace and substantive liberal democracy.27 Colombia's new transitional justice framework must prove itself more efficacious and politically transparent than the Uribe administration's agenda to demobilize the pro-systemic paramilitaries.

Transformative justice envisions a holistic approach to justice, comprising retributive, restorative, and socioeconomic elements.28 Under this approach, transitional justice must coordinate with interventions that are often under the umbrella of peacebuilding or statebuilding such as psychosocial, development, and infrastructure rebuilding programs as well as reforms that widen political participation. Transformative justice aims to address the factors that spurred violence in the first place, rather than merely returning victims to the status quo prior to the armed confrontation.29 Such an approach is arguably essential to achieving comprehensive justice and durable peace when state-perpetuated inequities and marginalization lie at the root of a conflict, as in the case of Colombia.30

There are broader advantages to deploying transitional justice mechanisms in the framework of a peace process. Legal benchmarks on transitional justice can act as "virtuous restrictions" on a mediated process.31 Consensus on certain minimum, non-negotiable normative imperatives regarding the rights of victims— standards that are not merely rhetorically appealing, but also credibly and legally enforceable—diminishes the universe of possible outcomes and may channel discussions toward a space where agreement between opposing parties is more, not less, likely.32

Finally, transitional justice discourse empowers victims as relevant political agents and elevates their rights in the list of priorities of a society emerging from conflict. Even though the victims' rights agenda appears to be especially vulnerable to manipulation during ongoing conflict, the Colombian experience surrounding Uribe's Justice and Peace Law shows how human rights advocates and victims' groups can at least partially re-appropriate the discourse of transitional justice to make non-trivial gains.33 Indeed, victims' rights are now firmly at the center of the peace process between the Colombian government and the FARC, which hints at a positive transformation of the power dynamics between victims and perpetrators.

Risks and Challenges

Deploying transitional justice during ongoing conflict in general, and complementing transitional justice with peacemaking in particular, raises many challenges. Critics such as Ruti Teitel stress the risks of politicizing justice in the first place.34 Other scholars argue that using transitional justice policies––which is "always a political decision" and a "political tool"––is particularly vulnerable to political manipulation during conflict.35 Doing so presents security risks to victims and complicates state fragility and potentially compromised institutions. Therefore, transitional justice in this context can be easily misused to legitimize rather than combat impunity and to benefit local elite interests.36 For these reasons, justice is a "field of contention" when implemented in the midst of conflict, and the various actors with distinct goals and views of the conflict must be recognized.37

Combining conflict resolution and transitional justice approaches also brings about the increased complexity of any hybrid endeavor. Such an endeavor's success is predicated on its perceived legitimacy. Legitimacy, in turn, depends on the effective implementation of both the transitional justice and the peacemaking agendas. The failure of either endangers the viability of the other. For example, the Colombian attempt to use the same legal instrument to pursue accountability and the disarmament, demobilization, and reintegration (DDR) of paramilitary forces was impaired by the imperfect demobilization of the latter and the reorganization of many former combatants under new structures.38 There, the miscarriage of the peacemaking arm of the initiative became a political and logistical obstacle to the achievement of transitional justice.Continued on Next Page »