INTRODUCTION 212 I. THE COMPETING INTERESTS 214 A. Arguments for Criminal Accountability 214 1. Retribution 214 2. Deterrence 214 3. Victim-Centered Justice 215 4. Peace and Reconciliation 215 5. The Colombia Context 217 B. Arguments Against Criminal Accountability 217 1. FARC Opposition 217 2. Government Concerns 218 3. Capacity 219 C. Colombia in Comparative Context 219 II. THE PROSPECTS AND LIMITS OF A TRANSITIONAL JUSTICE COMPROMISE 222 A. Transitional Justice Alternatives to Prosecution 222 B. The Limits of Alternatives to Prosecution 223 1. Treaty-Based Limits 223 2. Customary International Law 224 3. Human Rights Law 226 4. The International Criminal Court 226 III. TRANSITIONAL JUSTICE AND THE COLOMBIAN CONTEXT 228 A. The Legal Framework for Peace 228 B. The Constitutional Court Decision 230 C. The Parties' Transitional Justice Agreement 231 D. The ICC's Likely Assessment 232 E. The Inter-American Court's Likely Assessment 237 CONCLUSIONS 238 A. The Constraints of International Law 238 B. The Way Ahead 239 INTRODUCTION
The world is unfortunately all too familiar with the details and devastating human cost of Colombia's fifty-year-old armed conflict, often described as the world's longest-running civil war. Although we do not have definitive figures, credible estimates indicate that over 200,000 people have died during the course of the conflict, and millions have been displaced. Many of those killed in the conflict-indeed, most--have been civilians. Widespread atrocities, including torture and massacres of civilians, have been committed during the course of the conflict.
In view of this grim context, Colombia today faces a major challenge in dealing with the issue of accountability for crimes committed during the civil war. Media accounts suggest that negotiations between representatives for the Colombian Government and the Revolutionary Armed Forces of Colombia (FARC) are inching closer and closer to a final peace agreement. (1) And yet we know that the issue of justice for crimes committed during the course of the conflict presents a potential impediment to efforts to conclude a negotiated resolution of the conflict.
The problem, of course, is that those who committed crimes during the course of the conflict are members of--or, in some cases, senior actors in or leaders of--the very parties that are now negotiating the terms of a potential peace agreement. Although both sides to the negotiation may have a strong interest in seeing those on the other side who committed crimes brought to justice, each side may also have a strong interest in ensuring that no members of its side--neither its fighters nor its leaders--are imprisoned for their conduct during the conflict. Colombia is not the first country to grapple with such a challenge, and it is often in the context of negotiating settlements to internal conflicts that the parties try to find some means of addressing atrocities other than criminal trials.
In some cases, for instance, the parties may choose to adopt a full amnesty as a transitional justice alternative to prosecution. This was the case in Argentina and Chile in the late 1970s and early 1980s after the fall of authoritarian regimes that had committed widespread atrocities against civil opponents, real or imagined. It was also the alternative to criminal accountability adopted in El Salvador, where, at the conclusion of a bitter civil war, the parties agreed on an amnesty, which was ultimately enacted in a 1993 law, that precluded criminal prosecution of anyone for acts connected to the armed conflict.
In other cases, as a transitional justice alternative to prosecution, the parties opt to establish a Truth Commission. Among the most notable of these was the South African Truth and Reconciliation Commission (TRC), which gathered statements and testimony of both victims and perpetrators of crimes and produced a five-volume report based on its extensive data collection efforts. (2) One of the most distinctive features of the South African TRC was its conditional amnesty mechanism, under which individuals who had committed crimes connected to the South African conflict were granted amnesty by the TRC if they appeared before the Commission and gave a full confession and accounting of their crimes. (3) Through this arrangement, the South African TRC prioritized uncovering the truth over ensuring criminal accountability for conflict-related crimes. Persons who committed crimes but were not granted amnesty--either because their crimes were not related to the conflict or because they did not make what the TRC considered to be a full confession--were subject to prosecution, but almost no individuals have been prosecuted in South Africa for apartheid-era crimes. (4)
The situation in Colombia presents a risk, and perhaps a serious risk, of a difficult conflict between the goals of peace and justice. Commentators have written extensively about this topic as a general or abstract matter, and it is a subject that is prone to exaggerated claims on both sides. Some observers--often those who style themselves as hard-headed realists--offer chilling and categorical assertions that demands for justice will prevent those who have fought wars in which crimes have been committed from agreeing to negotiated settlements. (5) Others--especially observers from the civil society and transitional justice realms--categorically deny that there is ever a tension between justice and peace. (6) This position sometimes seems to be based solely on the assertion, almost a slogan, that one cannot in fact have peace without justice. My own views are less categorical. Although I do not believe that there is always, or necessarily, a tension between justice and peace in the context of efforts to end wars, it seems quite clear that there can be cases in which the goals of peace and justice are at variance with one another. The effort to end the civil war in Colombia while simultaneously addressing issues of accountability for wartime crimes presents a real-world collision between the interests of peace and justice, one that will impose substantial challenges for those seeking to resolve the conflict.
THE COMPETING INTERESTS
Arguments for Criminal Accountability
If there is a tension, or possible trade-off, between justice and peace, what are the competing interests at stake? In evaluating the possible risk to peace that the demand for criminal accountability might entail, it is helpful to consider some of the purported rationales advanced by those who favor criminal punishment for those who have committed atrocities. 1 will address this briefly, and will mention only what I consider to be the most important of a wide range of justifications invoked in support of calls for criminal accountability in the context of mass atrocities. As we consider these justifications, it is important to bear in mind that for many of the claims made in favor of criminal justice, there is not much empirical evidence that criminal prosecutions achieve these objectives.
One key rationale for punishment is the theory of retribution, or "just desserts." Simply put, the idea is that individual victims desire retribution and punishment of those who have injured them, and that society at large desires retribution and punishment of those who have violated society's norms. This is not a utilitarian justification, but a moral one. Failure to prosecute perpetrators can leave this moral imperative unfulfilled.
A second rationale is deterrence, namely, the view that criminally prosecuting defendants will serve the utilitarian goal of preventing the commission of crimes, either by the perpetrators who are punished (specific deterrence) or by others (general deterrence). There are serious questions about whether the deterrence rationale works very effectively in the case of mass atrocities, where the risk of prosecution for any individual perpetrator is low (because it is uncertain if there will be a criminal accountability mechanism), where there is little room for rational choice (at least for subordinates), and where prosecutions--even if they take place--are likely to be highly selective and to involve only a small fraction of those who committed crimes. (7)
A third central argument in favor of criminal accountability is the desire to address the needs of the victims. This is a largely psychological justification, which suggests that criminal trials can be therapeutic for victims because they compel an official acknowledgment of the injuries victims have suffered and produce an official judgment that the acts perpetrated against them were wrong. I believe that some caution is in order about the claim that criminal accountability can address the needs of the victims. First, there is considerable evidence that participants in litigation--particularly the victims in both civil and criminal cases--often find the process to be frustrating and alienating (8) Because of the rigid formalism of trials, including the capacity of the opposing side to question and undermine the witnesses' accounts, victims seldom walk away from the process with a psychological sense of vindication, even if they prevail as a legal matter. And so Voltaire is often quoted as having said, "1 was never ruined but twice, once when I lost a lawsuit and once when I won one." The psychological effect of criminal prosecution on the victims of crimes is not well-studied in the context of mass atrocities. There are some psychological studies that show that victims of atrocities who give public testimony about their experiences suffer lower rates of posttraumatic stress disorder (PTSD) and depression than those who do not. (9) On the other hand, David Backer's study of the Truth and Reconciliation Commission process in South Africa suggests that most participants did not believe that they received justice through their...