By Almudena Bernabeu
After years without respite, in the next few hours Colombia will sign a peace deal to end more than 50 years of armed conflict that have devastated the country, and in many cases, redefined it politically, culturally, geographically, and even psychologically. Negotiations conclude today with the signing of the peace agreement, which will be followed by a referendum that will validate it, a peace that will be celebrated, and a significant number of agreements that will be implemented. What is perhaps most trying, although not unexpected, is that the closer we come to the final signing of the peace agreement, the more Colombian society becomes polarized. There are those who believe that negotiating with the FARC implies surrender, they advocate a military victory — they always have — and not a negotiated peace.
One of the most delicate points on the negotiation agenda — in any case, the one I know best because of my work and my convictions — has been Point 5, the Victims Agreement, which establishes a legal framework for the mechanisms of transitional justice that must be put into operation once the peace agreement has been signed successfully. Published by the negotiating table in Havana in December 2015, the Victims Agreement has been severely criticized by those both near and far. It’s a complex document and hard to understand, but without a doubt, it is a solid beginning that lays the foundation for a framework of justice in transition that takes into account the victims and the serious violations that have been committed against the Colombian people over all these years.
The presence of the victims from very early on in the negotiation process was the result of efforts by Colombian civil society organizations and institutions that have spent years organizing, fighting, exposing abuses, and ultimately, ensuring that the collective victims of this severe and long-lasting conflict are heard. The result is indisputable: an agreement that affords the much-needed recognition of this collective and contemplates the necessary reparations.
However, if it was difficult to guarantee victims a voice in the negotiation process so that their presence would ensure this fifth point of the agreement, the process of implementation is expected to be even more difficult. Common threats, like bureaucracy, ineffectiveness, possible conflict in the division of powers, political manipulation of the lack of results, etc., are real risks that may aggravate the victims’ distress, yet they are neither new or unusual for those of us who strive to promote these processes of transitional justice.
The Victims Agreement thus acknowledges the importance of truth and justice in the construction of historical memory as an essential step for the reconciliation of Colombian society. With such a long, painful, and complex conflict, it is imperative to recognize in detail, through the construction of historical memory, the victims, the perpetrators, and the necessary reparations. The Colombian agreement provides for the formation of what has been called the “Comprehensive System of Truth, Justice, Reparation and Non-Repetition,” which will include, in addition to the Special Court for Peace, a Commission of Truth, bodies that will promote and set the standards for collecting the information needed to finally understand what happened during the conflict, how it happened, and who have been the most affected.
As I have already said, there has been criticism and even outright rejection of the Victims Agreement. It has even been called an agreement of impunity. I disagree. Those who have expressed these opinions publicly demonstrate a failure to understand the difficulties entailed in negotiations of this sort and seek a spotlight that is inappropriate and endangers the process and its success. If you care about Colombia and a lasting peace, you must support the agreement. It is true that the sanctions could be more severe, that suggestions of individual criminal responsibility are dangerously evaded, that it is difficult to imagine a reality in which existing institutions and new institutions coexist while maintaining the necessary autonomy. It is even possible that Point 5 may need to be reviewed and refined to make it more effective and ensure the results that the victims crave. Yet none of this excuses or justifies the failure to recognize that Colombia and Colombians have made a huge effort to build peace and establish a justice system that confronts and recognizes the human rights violations committed during the conflict.
There is no instruction manual for a peace process, let alone a peace process as complex as Colombia’s. There are lessons learned, wisdom both explicit and intuitive, but above all there is exhaustion. Exhaustion and desire — I truly believe — to imagine and experience another Colombia, a Colombia that unlearns the violence and, hopefully, does not remember what it is to be born, grow up, and live in war.
As an international lawyer, as someone who believes in and implements transitional justice, and especially as someone who respects and admires Colombia, I have no doubt that today all Colombians and the international community as a whole should celebrate and support the conclusion of these peace negotiations and place their bets on the definitive end of the conflict, to throw in for peace, without reservation. Again, I’ll insist that this does not mean making compromises or giving up the right to be critical or to demand more; it does not mean renouncing personal beliefs or suddenly overcoming justified fears; everything in due time. Without a doubt, these are key strengths for guiding the end of the conflict and the implementation of these agreements. Once the agreement is signed and peace is iron clad, the challenge will be to ensure proper implementation. Important steps already have been taken to implement the agreement, and there are many of us who will remain close by to try and lend a hand in everything that we can in this process, so that today’s agreement materializes and thus makes a space for the victims, ensures justice, and transforms Colombia forever.
Almudena Bernabeu is an international lawyer and director of the Transitional Justice Program at the Center for Justice and Accountability in San Francisco. She divides her time among San Francisco, London, and Madrid. Bernabeu has worked for more than a decade in Latin America and around the world in defense of the rights of victims in post-conflict situations and in the wake of state abuse, fighting for justice in all transitional justice processes. Bernabeu advises key civil society organizations and institutions in Colombia on the peace agreement, with special regard for matters relating to victims and special justice for peace, which today is part of the peace agreement being discussed in Havana.
Original Spanish version available here.