MADRID – The relationship between peace and justice has long been the subject of polarizing debates. Some argue that the pursuit of justice impedes conflict-resolution efforts, while others – including International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda – contend that justice is a prerequisite for peace. As President Juan Manuel Santos leads Colombia through the most promising peace talks in five decades of brutal conflict with the Revolutionary Armed Forces of Colombia (FARC), he will have to consider this question carefully.
The Nuremberg trials, which followed Nazi Germany’s unconditional surrender in World War II, provide an ideal model for post-conflict justice. But, in conflicts in which no side has been defeated, the peacemaker’s job becomes more challenging. Given what is at stake, a trade-off between reconciliation and accountability may well be inescapable.
Since 1945, more than 500 cases of amnesty in post-conflict transitions have been recorded; since the 1970’s, at least 14 states – including Spain, Mozambique, and Brazil – have given amnesty to regimes guilty of serious human-rights violations. In South Africa, amnesty was a key feature of the “truth and reconciliation” process that facilitated the peaceful transition from more than four decades of white-minority rule to democracy.
Similarly, in 2003, Nigeria’s president offered asylum to his Liberian counterpart, Charles Taylor, on the condition that Taylor retire from politics, thereby helping to end the rebellion against him. (In this case, justice was later served; in 2012, the Special Court for Sierra Leone convicted Taylor of 11 counts of aiding and abetting war crimes in Sierra Leone, making him the first former head of state to be convicted for such crimes by an international tribunal since Nuremberg.)
Although it may be painful to offer a safe exit to war criminals and human-rights abusers, the prospect of ending the suffering of civilians can take priority over a principled stand for justice. Who today would oppose amnesty for Syrian President Bashar al-Assad if it ended the brutal civil war that has led to more than 100,000 deaths and created nearly two million refugees (including more than a million children) in just two years?
This is precisely the dilemma that Santos now faces. Given the innumerable atrocities that the FARC have committed, the prospect of suspending punishment is difficult to accept. But prolonging a conflict that has already led to more than 200,000 deaths and displaced roughly five million people is in no one’s interest.
With Colombia’s recent accord on agrarian reform having resolved the conflict’s root cause, the question of transitional justice has become the determining factor in whether the peace process will succeed. If impunity for perpetrators of crimes against humanity, however morally repugnant, could protect potential future victims by ending the conflict, accepting such an outcome may well be worth sacrificing a full measure of justice for past victims.
Rather than launching an uncompromising campaign to defeat the insurgents, Santos has pursued the more politically challenging course: a negotiated settlement. This suggests a willingness to do whatever it takes to protect long-suffering rural communities from continued violence.
Santos would certainly not be the first head of state to go silent on accountability. In 2003, the United States and the European Union acquiesced to an accord that formally ended the Democratic Republic of the Congo’s civil war, which had claimed nearly four million lives, though the agreement lacked provisions to hold war criminals accountable. The same is true for Sudan’s 2005 Comprehensive Peace Agreement, which ended a 22-year civil war in which more than two million died.
In these cases – as in Colombia today – a fundamentalist approach to transitional justice was not feasible. Rather, justice had to be applied according to the specific political conditions that brought about the transition. After all, transitional justice is essentially a political solution, a historic contract of national reconciliation – not a strictly judicial matter.
For Santos, reconciling peace and justice in a complicated domestic political context may require alternative formulas, such as reduced sentences, community penalties, conditional verdicts, or asylum in third countries. But none of these options, let alone amnesty, should be allowed unless the demobilized insurgents cooperate fully with the courts, including by disclosing all of their crimes.
Following this logic, FARC leader Pablo Catatumbo has acknowledged the “pain and acts of cruelty” that the guerillas have committed and has requested a collective pardon that would cover human-rights violations committed by both the FARC and state security forces. He has also insisted on the identification and compensation of victims as a prerequisite for peace and national reconciliation.
When conflict-resolution efforts are on the line, a single-minded quest for retribution often is the wrong option. Archbishop Desmond Tutu, a leader of South Africa’s democratic transition, has described an alternative – restorative justice – that focuses on “the healing of breaches, the redressing of imbalances, [and] the restoration of broken relationships.” With this constructive, forward-looking understanding of justice in mind, Santos, too, can succeed, thereby securing the peaceful, secure future that Colombians deserve.