Introduction, pages 712-214 [footnotes omitted]:

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. 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. 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. 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.

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.