Santos’ deal with the FARC includes a transitional justice clause that allows war criminals of the FARC and the military who fully cooperate with justice to not spend one single day in prison.
Restriction of liberties?
Instead, convicted war criminals can be sentenced to a “restriction of liberties,” a term that has yet to be specified and has spurred speculation FARC war criminals will basically be doing community service, no matter how many people they murdered, kidnapped or raped.
However, it is important to take into account that convicted war criminals who refuse to cooperate or only partially cooperate will most definitely be sent to prison and could serve as many as 20 years behind bars.
Nevertheless, it will be possible that a war criminal convicted of dozens of cases of homicides, kidnappings and rape will stay out a prison, a bitter pill to swallow for the vast majority of Colombians.
More importantly, Colombia’s transitional justice system has no precedent and, while the International Criminal Court is clear there may not be impunity for war crimes, it is ambivalent at best about what it considers adequate punishment for war crimes.
In other words, the court could decide that the hardly defined “restriction of liberty” for war crimes is just enough.
Peace with impunity, Colombia’s only legal precedent
The ICC has long monitored war crimes in Colombia, but has so far failed to interfere in spite of complaints of rampant impunity for war crimes committed by the AUC, the paramilitary group that demobilized under Uribe between 2003 and 2006.
According to critics of the former president, the fact that only 66 of approximately 30,000 demobilizing paramilitaries effectively ended up in prison is evidence that Uribe sacrificed justice for peace and generously granted impunity for war crimes.
Cynically, this is exactly what Uribe is accusing his successor of.
Ironically, the problem is that it was Uribe who set the precedent of sacrificing justice for peace.
When he signed the Rome Statute in 2002, the former president made sure the ICC was not given jurisdiction over war crimes committed in Colombia before November 2009.
The delayed coming into force of the Rome Statute allowed the former president to grant mass amnesty to paramilitaries, war criminals included, that would be in violation of international humanitarian law.
In fact, Uribe’s amnesty deal with the AUC was even against Colombian law and forced Santos to amend the deal to avoid all paramilitary fighters who had been granted amnesty had to appear in court.
The pot calling the kettle black
Uribe’s evasion of international justice has the direct consequence the ICC also has no jurisdiction of war crimes committed by the FARC before November 2009.
And it is exactly in the period before that date that war crimes were carried out on a massive scale, not just by the FARC, but also by the military and the AUC.
This means that tens of thousands of kidnappings, homicides and rapes can only be tried before Colombia’s transitional justice tribunal and could never be transferred to the ICC.
So, while Santos’ peace deal and the punishments given for war crimes committed after November 2009 will have to receive the blessing of the ICC, Uribe’s deal with the paramilitaries do not.
In the end, it is likely that Colombians will have to accept ending their state’s armed conflict with the FARC without an adequate form of punitive justice, thanks to the presidents they elected themselves.