To navigate this thorny landscape, the Colombian government passed a constitutional amendment in 2012 establishing that perpetrators of grave human rights abuses could be prosecuted, but the sentences could then be reduced or completely suspended. This compromise builds on the 2005 Colombian Law for Justice and Peace, which was applied primarily to demobilizing paramilitary combatants and set expectations for reduced sentences, even for those most responsible for grave human rights abuses.
Will the Colombian people find this transitional justice compromise a legitimate systematic way to address past atrocities? If not, it could hinder the prospects for durable peace and post-conflict social cohesion.
Talks So Far
Twenty months of negotiations have yielded provisional agreements on land, drugs and political participation. Negotiators are now addressing delicate victims’ rights issues, including truth-telling and reparations, with victims seated at the negotiating table – an unprecedented practice.
This process follows a bruising presidential election that has polarized society around the peace process. President Juan Manuel Santos’s most vocal critic, former president and newly elected senator, Alvaro Uribe, has been outspokenly critical of the peace talks as currently structured.
Congressional dynamics and public opinion are crucial since the roadmap to peace envisions both a public referendum on an eventual agreement and congressional action to legislate transitional justice mechanisms. Thus vocal opposition in Congress and public skepticism about the FARC’s sincerity further complicate striking a sustainable peace deal.
Two Legitimacy Deficits
To identify legitimacy deficits across potential outcomes, we fielded an online survey on a nationally representative sample (n = 3400, quotas for gender, age, and census zones) from June 6-14, 2014. We embedded experimental vignettes describing two actors who share common goals and motives but differ in leadership and consequences of their actions.
Vignette 1 describes a FARC member not responsible for grave human rights abuses:
Felipe was a member of the FARC. He was not a commander in the FARC and therefore had to take orders from others higher up in the organization. As a result of his actions, a person was kidnapped and held hostage for several days. Felipe says that his actions were motivated by the belief that what he was doing was necessary and justified by the struggle.
Felipe has publicly acknowledged these actions and given up his weapons. He will not go to jail for his actions…
Respondents were randomly assigned to receive one of two endings:
(1) …but he will not be able to compete for elected office in the future.
(2) …and he will be able to compete for elected office in the future.
Afterwards, respondents answered the following:
Using this scale, where 1 is “not at all” and 7 is “a lot,”
(a) To what extent do you believe this is fair?
(b) To what extent do you believe this will contribute to reconciliation?
(c) To what extent do you believe this will contribute to peace?
Responses form a reliable transitional justice legitimacy index. If a legitimacy deficit exists, we should observe treatment effects: on average, legitimacy should differ across these two groups. In the following figure, the higher the legitimacy index, the more the respondent believes the arrangement is fair, with contribute to reconciliation, and will contribute to peace:
What we observe suggests that prohibiting Felipe from competing in elections increases belief in the legitimacy of the peace process. Respondents who learned Felipe would not be allowed to compete in elections scored 12% higher on our legitimacy index than those who learned Felipe would be permitted to compete in elections. This legitimacy deficit increases among three important sub-samples: FARC victims, those who intended to vote for anti-peace talks challenger Oscar Iván Zuluaga in the June 15 presidential runoff, and respondents least supportive of the peace talks.
Vignette 2 describes a FARC member responsible for grave human rights abuses:
Francisco was a commander in the FARC. He gave orders to other people who were underneath him in the organization. As a result of his actions, a large group of people were kidnapped and held hostage for several years. Francisco says that his actions were motivated by the belief that what he was doing was necessary and justified by the struggle.
Francisco has publicly acknowledged these actions and given up his weapons. He will make economic reparations to the families of his victims…
Respondents were randomly assigned to one of three endings grounded in a comparison with paramilitary leaders of the Autodefensas Unidas de Colombia (AUC) sentenced to date:
(1)…but he will not go to jail for his actions (as did some AUC commanders who were sentenced for the same reasons).
(2)…and spend several years in jail for his actions (more or less the same amount of time as AUC commanders who were sentenced for the same reasons).
(3)…and spend many years in jail for his actions (many more years than AUC commanders who were sentenced for the same reasons).
Again, respondents answered the three questions from the transitional justice legitimacy index. Do we observe treatment effects indicating legitimacy deficits in the sentencing of FARC leaders responsible for grave human rights violations?
Indeed, we do. Respondents who learned Francisco would not serve jail time registered the lowest legitimacy ratings – a 29% deficit compared to Francisco spending as much jail time as his AUC counterparts. This legitimacy deficit remains across all victims and voters sub-samples and is highest among Zuluaga voters.
We observe a small (4%) but real legitimacy deficit when Francisco serves more, as compared to equal, jail time as his AUC counterparts, and the deficit doubles among Santos voters and abstainers.
Our approach seeks to induce the kinds of judgments and tradeoffs facing Colombians in a peace-deal referendum. While random assignment ensures the treatments alone produced the legitimacy deficits across these likely outcomes, as talks proceed, actors’ positions and options may change.
Reaching a peace deal that both meets international obligations and earns public legitimacy will be challenging. Since the public is clearly not indifferent, any agreement will require a substantial public education campaign and consultations with victims, political groups, and others to gain the legitimacy a sustainable peace in Colombia requires.