What is “transitional justice”?
The use of the phrase in Colombian political discourse is a curiosity. Scholars coined the phrase in the early 1990s to describe how governments deal with the legacy of violence by previous regimes. Early on, the idea was used to describe a system that included tribunals, truth commissions, reparations programs and efforts to purge previous government leaders. The efforts were launched in new democracies that emerged from authoritarian reign, such as South Africa, Argentina, Chile, Germany after World War II, and the Eastern Bloc countries after the fall of communism.
In Colombia, transitional justice is generally understood as including three parts: truth, justice and reparation. Truth refers to establishing an accurate historical record, usually through open testimony through which the perpetrators make a plea for forgiveness instead of prison. Justice refers to judicial processes in which individuals are investigated, judged and sanctioned by a competent tribunal. Reparation means financial compensation for victims.
Who’s talking about transitional justice in Colombia, and why?
But there was no recent regime overthrow when Colombian policymakers began using the phrase to explain and legitimate the terms of the peace accords that had been negotiated by President Juan Manuel Santos. The deal’s most notable opponent was Santos’s predecessor as president, Álvaro Uribe.
Uribe’s father was killed by FARC guerrillas in 1983. As mayor of Medellin in the 1990s, Uribe was well known for supporting paramilitary groups. The military often worked in tandem with the paramilitaries, which wealthy landowners originally financed to fight guerrilla groups throughout the country. Colombia’s lucrative drug trade exacerbated the violence, as these different armed actors began to vie for control over the drug routes.
In 2002, Uribe came to power promising to negotiate peace not with the FARC but with the United Self Defense Forces of Colombia (AUC), an umbrella group for the country’s paramilitaries. The paramilitaries, like other armed actors, would not demobilize without guarantees that they would not be punished for their illegal activities.
Uribe tried to offer amnesties to the paramilitaries in 2003 — but the legislature rejected his proposal. In response, Uribe created a bill called the Justice and Peace Law. The law mandated prison sentences of five to eight years for paramilitaries’ crimes and provided reparations to victims of the guerrillas and paramilitaries. Uribe explained the need for alternative sanctions with the phrase transitional justice, and the term stuck.
Uribe’s critics argued that the Justice and Peace Law — and, by association, transitional justice — was a euphemism for impunity for the paramilitaries. They were also concerned that the law did not include reparations to victims of state violence, many of whom were FARC rebels who had demobilized in the 1980s. Unlike Santos, however, Uribe did not offer Colombians a chance to vote on this transitional justice policy; he simply pushed it through the legislature.
In 2011, Santos signed what the government called the “Victims Law,” referred to as a “transitional justice” policy. The law offered the possibility for land restitution and government-funded financial reparations to a circumscribed set of victims — those who were victimized by paramilitaries, guerrilla or, which is important, the state since 1985. That’s notable in part because the FARC took up arms in 1964, making many victims ineligible.
The Victims Law’s proponents were liberal senators who wanted the government to recognize Colombia as being in an armed conflict with millions of victims. These senators swayed its opponents (conservative senators who, like Uribe, were worried about equalizing violence by the state and by illegal armed actors) by claiming that the bill was part of the country’s transitional justice plan — meaning that the payments were temporary and exceptional.
The Santos administration drew on transitional justice again when arguing in favor of its bill establishing “the Legal Framework for Peace,” the constitutional amendment that allowed the Santos administration to negotiate with the FARC and to offer limited amnesties and alternative punishments. The Santos administration proposed “transitional justice instruments” that would balance the government’s legal (and political) need to punish perpetrators of violence with its obligation to ensure peace in the country.
As the Santos administration was negotiating the peace accord with the FARC, the two sides — Uribe’s and Santos’s supporters — battled over the meaning of transitional justice. In particular, they argued over whether it required members of the FARC to face jail time. Uribe insisted that the FARC be treated no better than the paramilitaries who, under the Justice and Peace Law, had received jail sentences of between five and eight years. But the FARC’s leaders made clear that they would not put down their arms if they had to face jail time.
Wanting to secure a peace deal, the Santos government’s negotiators acquiesced and agreed to an accord that would allow amnesties for all but the most heinous crimes — those criminalized under international criminal law and under the jurisdiction of the International Criminal Court.
Provided that the guerrillas clarify the “truth” and take “responsibility” for their crimes, the accord on victims’ rights left open the possibility of “an effective restriction of liberty” — “in no case” prison or jail — for five to eight years. It also mandated the creation of a truth commission and a reparations payment plan. Uribe continued to insist that the FARC did not deserve transitional justice, calling the accord a “framework of impunity.”
Colombians have again rejected “transitional justice” that carries no consequences
Much like Uribe a decade earlier, Santos has failed to sell his understanding of transitional justice and why it is necessary to guarantee peace in Colombia. This vote suggests that many Colombians believe that they have the right to an accord that makes a priority of punishing violence through the regular criminal justice system, even at the expense of ending the 52 years of armed conflict.
In addition to putting the cease-fire with the FARC into question, the vote also casts doubt on the government’s plans to negotiate with the ELN, another long-standing guerrilla group that has been flirting with demobilization for years.
For now, at least, transitional justice is far too politicized to be a useful phrase for Colombia’s future peace accords. Even though Santos just won the Nobel Peace Prize for his efforts, his administration, and future administrations, may need a new way to explain and legitimate its goals and strategies in negotiating peace.
Jamie Rowen is an assistant professor of legal studies and political science at the University of Massachusetts at Amherst and author of the forthcoming book “Searching for Truth in the Transitional Justice Movement” (Cambridge University Press).