Colombia’s peace talks are stuck on the subject of justice as both the FARC and the government fear the legal consequences of the tens of thousands of war crimes committed by both parties.

The FARC has consistently rejected the possibility of serving any prison time, in spite of being accused of thousands of war crimes including kidnapping, homicides, sex crimes, child recruitment and the laying of landmines.

However, the state — including many top ranking officials — faces possibly even more charges because of thousands of cases of civilian killings, torture and the long-time collaboration between paramilitary groups and (elected) state officials.

The big thorny question is: If FARC negotiator “Ivan Marquez” goes to prison for civilian killings committed under his command, will President Juan Manuel Santos be punished for the at least 1,500 civilian killings allegedly carried out by the military when he was Defense Minister? And how?

ICC could investigate Uribe over mass execution of civilians during his terms

The art of procrastination

Because of the delicacy of the matter and the judicial implications for guerrillas, politicians, businessmen and military alike, the word “justice” was carefully omitted from the initial peace talks agreement, except when mentioning “social justice.”

Deal between Colombia’s government and rebel group FARC to end armed conflict

The absence of references to justice in the preliminary agreement and the subsequent partial agreements allowed the negotiators to procrastinate over the thorny subject until reaching the final agenda points of the negotiations: “Victims” and “End to conflict.”

This has led critics of the talks to claim Santos and the FARC are trying to “exchange impunity.”

The concern is reasonable considering that a peace deal bartered by former President Alvaro Uribe with the paramilitary AUC between 2003 and 2006 resulted in the incarceration of more politicians than paramilitaries.

This phenomenon could only amplify once a Truth Commission and judicial authorities begin making the extent of state and guerrilla war crimes public.

Uribe, one of the most outspoken critics of the talks, has reason to worry because when he was commander in chief, the Colombian military executed more than 3,500 civilians and a number of his closest allies proved paramilitary collaborators.

International law vs. impunity

Impunity for any party is virtually impossible because of Colombia’s commitments to the International Criminal Court, which has the authority to prosecute alleged war criminals if a member state is not able or willing to do so.

Uribe delayed the enactment of the International Criminal Court’s Rome Statutes until after the implementation of the AUC peace deal, but Santos is bound to respect international law or The Hague could prosecute war crimes.

The ICC has explicitly warned that those “ultimately responsible” for war crimes must be adequately punished or the international court will intervene and prosecute suspected war criminals.

According to a 2012 ICC report on Colombia “there exist reasonable grounds to consider that the FARC, the ELN, the National Army and the paramilitaries have committed war crimes and crimes against humanity in Colombia after the beginning the court’s temporary competence” on November 1, 2002.

In other words, the state and the guerrillas alike are facing war crime allegations, whether they agree with it or not.

While a large number of alleged FARC crimes would precede 2002, those of the state occurred mainly after that, forcing Santos to come up with a transitional justice scheme that adequately prosecutes and punishes actors not belonging to illegal armed groups.

If not, these political, business and military actors could miss out on judicial benefits generally granted in transitional justice deals and face fiercer penalties than the FARC.

For this reason, former President Cesar Gaviria proposed to include civilians, politicians and members of the military linked to war crimes in a possible transitional justice deal.

Transitional justice in Colombia also for military, politicians and businessmen?

Nevertheless, Santos faces strong opposition to the talks from Uribe’s Democratic Center party, particularly for “equalizing members of the military with terrorists.”

A sad argument in favor of equalizing the military with the FARC is that the military under Uribe arguably committed more war crimes than the FARC, leaving the question whether Uribe and Santos’ political responsibility over the death of thousands of innocent civilians shouldn’t be subject to criminal investigation.

Current ‘transitional justice’ law under criticism

While negotiating with the FARC, Congress approved legislation that would provide transitional justice in the case of the demobilization of an illegal armed group called the “Legal Framework for Peace.”

However, according to the FARC, this piece of legislation is not acceptable because it has been unilaterally decided and should have been negotiated with the guerrillas.

The framework applies transitional justice only on demobilizing members of illegal armed groups, leaving state war crimes untouched.

According to the Rome Statute, the legislation would only partially grant justice to victims because it excludes other actors in the armed conflict.

Consequently, victim organizations have challenged the framework before the ICC, demanding justice for state crimes and sufficient rights to justice for victims of both the country’s guerrillas and state.

While the Framework for Peace could be partisan and ignore the approximately 11,000 military, political and civilian actors allegedly colluding with paramilitary groups for personal benefit, the FARC has shown an equal lack of interest in accepting penalties for the more than 10,000 landmine victims, the thousands of child soldiers and the thousands of kidnap victims.

Possibly conscious of the legal consequences of its own war crimes, The FARC has refused to accept the ICC’s legal authority and has failed to respond to questions whether it is willing to accept international law on war crimes. So far, the guerrillas want to be tried under Colombian law, but not the existing Colombian law.

This is impossible unless Colombia retracts the ratification of the Rome Statutes, an almost impossible scenario considering the diplomatic cost.

International law might provide Colombia’s victims a dim light at the end of the tunnel when it comes to the punishment of those responsible for the thousands of crimes and human rights violations they have suffered.

However, unless those high commanders in the FARC and in politics are able to make painful concessions about their personal and possibly culpable responsibility in war crimes, there will be little justice and possibly no peace in Colombia.