The narrowly defeated referendum on the proposed peace deal between the Colombian government and FARC rebels provides one of the clearest examples in recent history of a question that all peace processes must deal with: Can you achieve both peace and justice, and in what measure for each?
The implications of this question are far-reaching for any society locked in a bitter struggle (and also for countries like Canada, which says it wishes to be more active as a mediator). Unless one side can completely defeat or exhaust the other on the battlefield, logic dictates that some form of negotiated agreement is the only way to end the fighting. It is axiomatic that such a process will include, on one side or both, calls for amnesty or other forms of leniency for past actions — people who have the option to keep fighting usually don’t agree to lay down their arms if they think they will be going to jail or worse.
This problem is well known in the conflict mediation and resolution field. It has led to significant tensions between those who specialize in conflict resolution and the advocates of international justice.
In the Colombian case, the leadership of the FARC rebels agreed to end the insurgency in return for leniency in addressing the terrible acts they had committed over the years, and a future role in Colombia’s political process. For a slim majority of the Colombians who voted (which was itself a low number), this was simply too much. The FARC had committed such heinous acts over five decades that its leadership had to pay a higher price.
Leaving aside the urgent question for Colombians as to what comes next, the case points to a broader issue for societies in conflict; how do they find a path between the divergent imperatives of peace and justice?
On the face of it, the choice is a stark one; either those who have committed war crimes go to trial or they don’t. Either we choose to let them off the hook in order to craft an agreement aimed at ending the fighting — which inevitably means prioritizing our hope of saving future victims of the conflict by trading away the ability to seek justice for those who have already suffered — or we risk prolonging the fighting, thereby creating more victims in future, in the hope of justice for the past victims.
The fact that this difficult choice must often be made against the backdrop of a peace process whose ultimate success can never fully be assured further complicates the moral ambiguity inherent in these situations.
It would be easy if we could say that a peace agreement is 100-percent bound to succeed if only we would turn our backs on the question of justice for the victims of the conflict, but we can never know that. All too often, people are forced to make a choice between a hope for peace in future and the certainty of having to provide leniency for previous war crimes, or the certainty of continued fighting in the hope of future justice.
The approach taken by those who shaped the Colombian deal, as by many others who work on such deals around the world, was to try to overcome the stark, either/or choice posed by this peace-versus-justice question through a focus on the third element active in such situations: reconciliation.
This involves crafting into the package a set of requirements that place an emphasis on the need for healing, often in the form of a truthful accounting of past actions, and on restorative actions intended to try to make some form of amends for those actions — public service, rebuilding of destroyed infrastructure, return of stolen property and money, restitution of land to those who had it stripped away, or to their descendants, and so on.
None of these steps can ever fully replace justice for previous victims of the conflict, but they can assure that the perpetrators will have to confess their actions and atone for them in some significant way. They may also help a society to heal the scars of the conflict, though this is rarely fully realized in the lifetimes of those who lived through it.
As Colombia grapples with what comes next, it is at least positive in the short term that both the government and the leadership of the FARC have agreed to continue to respect the ceasefire and to return to the negotiating table to search for a better formula.
Perhaps an agreement with strengthened elements of reconciliation may gain the support of a majority of the Colombian people. Perhaps another referendum at some point in the future, on such a revised package, will give that society more time to ponder the agonizing questions it faces.
This article originally appeared in The Globe and Mail on 4 October 2016.