In a historic encounter on September 23, President Juan Manuel Santos and the chief commander of the Revolutionary Armed Forces of Colombia (FARC), alias “Timochenko,” announced a deal on transitional justice from Havana, the site of ongoing negotiations with the leftist rebels. In addition, the National Government and FARC agreed to sign a final peace treaty by March 2016, after which the guerrillas have committed to lay down their arms within sixty days.
Under the new formula, guerrillas, state actors, and non-combatants can confess before special tribunals to human rights abuses in exchange for reduced sentences that can be served through sanctions, such as community service, and confinement in specially designated areas, but not prison. Those convicted, without having confessed, could receive up to twenty years in jail. Political crimes, such as belonging to FARC, would be eligible for amnesty.
Thus far, foreign governments and organizations such as the United States, the European Union, and the International Criminal Court have applauded Colombia for accomplishing a balance among justice, reparations for victims, truth, and guarantees of non-repetition. Nevertheless, Human Rights Watch and former President Álvaro Uribe, a fierce opponent of the peace process, have led the charge in criticizing the deal as equivalent to a slap on the wrist for war crimes.
As Colombian political leaders and media pundits debate the acceptable amount of impunity in exchange for peace, an important topic has been overlooked: the political implications of transitional justice for FARC. In a nation perpetually focused on the latest attack against soldiers or oil pipelines, the public has forgotten that a key aim of the peace talks is to bring an illegal armed actor into the realm of democracy, to fight over national budgets instead of territorial control.
For most Colombians, the notion of a former FARC commander in Congress is abhorrent. National polls have consistently revealed that the majority of the population supports a negotiated solution to the armed conflict, but do not want to see demobilized rebels on an electoral ballot. Only recently has the Government refrained from referring to guerrillas as “narco-terrorists,” and the everyday pedestrian has almost entirely disassociated FARC from legitimate rebellion.
Yet the recent deal on restorative rather than punitive justice might allow FARC to cleanse their reputation as drug-traffickers and kidnappers. The guerrillas have the opportunity to rebuild their political capital if they show honest remorse for their crimes and use the sanctions imposed on them, such as de-mining programs, to mend strained links with rural communities. This sort of progress is, however, less likely in the country’s urban centers, far removed from armed conflict for over a decade.
For example, should the peace deal on agrarian reform be successfully implemented, FARC will take credit for the creation of development programs among coca-growing populations. State-led initiatives to dissuade the cultivation of illicit crops have failed in the past due to a lack of profitable alternative markets and an over-dependence on controversial aerial herbicide fumigations. It is no secret that rural aid from the peace deal will go to regions where FARC have a significant social base.
An image boost aside, it can be difficult to imagine a successful political party stemming from guerrillas with single-digit approval ratings. For this reason, the negotiating point signed in November 2013 would lower the bar for political movements to be recognized as legal parties, and create temporary special voting districts in the areas most affected by the armed conflict. By no stroke of luck, they include zones where FARC maintain considerable influence over local civilians.
Still, many Colombians remain skeptical that FARC will not use their expertise in gunrunning and the cocaine trade to form new powerful gangs. A small percentage of guerrillas will likely continue criminal activity, for example on the Pacific Coast, where FARC are highly involved in narco-trafficking. In areas like Putumayo, Caquetá, and Catatumbo, however, where FARC remain present in social movements, members are expected to reintegrate into legal society.
Indeed, the recent handshake between “Timochenko” and President Santos was just as symbolic for FARC’s ground troops as it was substantive in a framework for transitional justice. Based off the accounts of thousands of demobilized FARC rebels, the rank-and-file are likely to follow the orders of their top and mid-level commanders to accept peace. Over the last several years, representatives from every guerrilla bloc have traveled to Havana to show that they are on board with the dialogues.
Much remains to be done in order for demobilized rebels to participate in elections. FARC-based party statues will have to be democratic rather than rely upon hierarchical guerrilla structures. It is possible that the Government will reserve special seats in Congress for former insurgents, as it did in the early 1990s. The Constitutional Court prohibits persons convicted of crimes against humanity from running for public office, but Colombia’s Attorney General has requested that an exception be made for future FARC candidates.
The FARC have every self-interested incentive to take their sanctions from transitional justice seriously, precisely because their political survival depends on true reconciliation rather than false commitments. What is clear is that in order for the guerrillas to hold any future office, the national context will have to change. For the first time in Colombian history, there is a chance that no political actor in the country will be able to rely on the argument of legitimate violence.