After a first peace agreement was rejected in a plebiscite, the Colombian government has signed a revised agreement with the FARC, a radical left-wing guerrilla group that has fought against the state for five decades. It is now for the Colombian parliament to decide whether to endorse it.
Many issues were fiercely debated in the run-up to the referendum and then again in the negotiations between the government and the leaders of the no campaign in its aftermath. But one aspect of the agreement has received quite a bit of (sometimes somewhat misguided) attention: the way it would affect so-called “third party actors”.
These include corporations, landowners, and politicians who did not take up arms, but who nonetheless participated in international crimes during the conflict – funding armed groups, for example, or providing them with other support to carry out massacres or forcibly displace people.
The question of how to deal with third party actors has been an issue since 2005, when Colombia began a process of transition with the Justice and Peace Law, a process that mainly benefited paramilitary groups. Under this system, important information has come to light showing that these third party actors were heavily involved in the armed conflict. Under the peace agreement, third party actors, like CEOs (but not corporations) or politicians, can be brought to justice. In Colombia it is not possible to prosecute legal entities as such.
Learning from the past
The measures adopted under the 2005 law were only extended to paramilitaries who demobilised and fully confessed their crimes. Third parties whose involvement they mentioned were not under the jurisdiction of the Justice and Peace System, but that of Colombia’s ordinary criminal courts.
On paper, that means corporate and other actors who have participated in crimes committed by paramilitaries could receive much harsher punishments than those received by paramilitaries under the jurisdiction of the Justice and Peace System. But in reality, impunity has prevailed, given the lack of effective prosecutions under the ordinary criminal justice system.
This could be about to change. Assuming it is implemented, the agreement creates transitional justice mechanisms that apply to everybody who directly or indirectly took part in the conflict, not just armed combatants. The new Special Jurisdiction for Peace will have jurisdiction also over third party actors, though only if their involvement reaches the threshold of “active or determinative participation” in the most serious international crimes.
If these actors fully engage with the process, admitting their involvement and contributing to reparations, they will receive diminished punishment. The agreement proposes five to eight years of “effective deprivation of liberty”, which can take different forms – helping to remove landmines, for example, or building infrastructure. They will not be imprisoned.
But if they disclose the truth late in the process, they could face five to eight years in prison; if they do not contribute to justice and are found guilty, they could be imprisoned for up to 20 years.
Accountability for all
What makes this possible is that under the agreement, third party actors will fall under the remit of the new transitional justice mechanisms, rather than being dealt with by the ordinary criminal justice system. This provides an incentive to engage with the new process, and avoids the problems of the Justice and Peace process, that did not include them within its jurisdiction.
Getting third parties involved in the work of transitional justice mechanisms is hugely important. Victims deserve to know the full truth of what happened during the conflict, including who was involved in international crimes and how. They are also entitled to reparations from all those who were responsible for the harm they suffered. Holding third parties to account increases the likelihood that they will contribute to redressing the harm they have caused.
Some in Colombia, including some of those behind the no campaign, have called this a witch-hunt, but that’s wide of the mark. The whole point is to encourage them to engage and secure accountability. That is a major step in the right direction. At the centre of the agreement is the imperative to hold those responsible for the most serious crimes to account – and that will apply to third party actors, too.
To be sure, there are powerful third parties who would rather not be involved, and a lot will depend on whether the government can sustain the political will to enforce the terms of the agreement against all relevant third party actors. But the negotiators have found a nuanced approach. Once parliament approves the agreement, the victims of some of the war’s most heinous crimes will be able to seek the justice, truth and reparation they have been denied for decades.