Societies that have suffered massive violence require transitional institutions to manage injustices related to grave violations of human rights, document the truth of infringements and hold perpetrators accountable. The 2016 peace agreement in Colombia instituted the Truth Commission and the Special Jurisdiction of Peace (SJP) to provide truth and justice.
The SJP is designed to provide a minimum of punitive justice against those responsible for the armed conflict; it is also designed to end impunity for such crimes. In Colombia, the search for truth and justice cannot be based on holding a trial for each criminal act; given the scale of atrocities committed and limited institutional capacity, it would take a century to finish that work. Recognizing that problem, the Peace Accords mandated a three-year timeframe for the Truth Commission and 15 years for the SJP. The appropriate approach was to select emblematic cases, and through them, maximize the possibilities of truth and justice over the coming years.
Considering that Colombia is a country of regions, both the Truth Commission and the SJP investigate emblematic cases in each region most affected by the armed conflict. They also investigate generalized and persistent violations against the civilian population across the land to build each emblematic case. Being based on that dual approach, the two most advanced emblematic cases today are the following: first, hostage-taking and other severe deprivations of liberty committed by the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP); second, deaths illegitimately presented as combat casualties by state agents, for example, extrajudicial executions of innocent civilians or “false positives.”
Although there are still no sentences in these emblematic cases, progress has been made because the Truth Commission has already listened to many testimonies and organized meetings between victims and perpetrators of war crimes. Those activities by the Commission have already led to the recognition of kidnapping responsibilities by the FARC-EP. Yet only when the Special Jurisdiction of Peace adopts the sentences will we be able to say that justice has also been served. In addition, reparations and guarantees of non-repetition depend on implementing the other elements of the peace agreement, as explained in the blog by panellist Paola Jiménez.
Beyond the specifics of the Truth Commission and the SJP, the challenge is to build institutional capacity to provide public services to all inhabitants across the entire territory of Colombia, thereby ensuring social justice and lasting peace. To evaluate the success or failure of a peace process, we need to distinguish between the process on paper (de jure) and its implementation (de facto). Most experts agree that the integral transitional justice model decided in 2016 in Colombia and the other elements included in the peace agreement constitute the best possible agreement on paper.
State authority becomes legitimate when its institutions respond to the needs of all its inhabitants promptly. The Colombian state performs this function acceptably concerning one-third of its population since it controls approximately one-third of its economy. However, one-third of the economy operates informally, and the other third operates illegally. Therefore, Colombian institutions deal with the legal economy and combat the illegal economy and illegal actors. For example, institutional capacities are inadequate to address the material needs of informal workers for essential social protection.
Five years after signing the peace agreement, the Colombian state has not improved its overall institutional capacity. This is the reason why several of the territories formerly dominated by the FARC-EP has been invaded by a myriad of illegal groups and illicit economic activities. When President Ivan Duque visited the Catatumbo region on June 25, 2021, he suffered a sniper attack on his helicopter in Cúcuta City. In these territories, if the president is not safe, who is safe?
Evidence of its initial success comes from the disarmament of the world’s oldest and largest guerrilla group in 2017, thanks to the intervention and monitoring of the UN Security Council delegation. However, this initial success ran into problems when the time came to implement other parts of the comprehensive peace agreement. Full implementation places the greatest responsibility on the institutions of the Colombian state since the agreement assumes that the FARC-EP will abandon the exercise of authority and be integrated into constitutionally based institutions. The submission of the former guerrillas to the Colombian constitutional regime is theoretically the correct solution, enabling a subversive group to relinquish its arms, transform itself into a legal, political party and participate in electoral democracy. However, the main challenge lies in its implementation since the institutional capability of the Colombian state remains weak and almost non-existent in the territories most affected by the armed conflict.
In conclusion, beyond the immediate challenges facing the Truth Commission and the SJP, the Colombian state will need to replace the former FARC-EP as the legitimate authority in the territories impacted by the armed conflict by providing security and other public goods and services in the whole country. That seems like a far-off dream given renewed social conflict and state repression against the opposition, including proposed new legislation that would criminalize protests.