When Peace and Justice Don't Line Up: Restorative Lessons from Colombia

The Colombian government and the Revolutionary Armed Forces of Colombia (FARC) had hopes of ending a brutal 52-year war in their proposed peace deal. But in October, Colombians voted the deal down in a national referendum, with 50.22 percent of the population voting against and 49.78 percent voting for.

The peace accord--which would have allowed members of FARC to relinquish their weapons and reenter society as citizens with no reparations after one of the longest-running wars the planet has witnessed--was widely anticipated to be passed through . In fact, President Juan Manuel Santos had said there was no "Plan B" if the plan failed.

Kirk Semple and Nicholas Casey of the New York Times set out to piece together the answer on both readers' and Colombian government officials' minds alike: What happened? After citing low voter turnout due to a lack of outreach efforts on the part of the government as well as the flooding caused by Hurricane Matthew that kept many Colombians away from polls, they wrote,

"But for many others, the reason the deal failed was an emotional one. The agreement had always been a tug of war between peace and justice , and in the end, the demand for justice won."

Indeed, after over 220,000 lives lost , 5 million displaced , tens of thousands of children forced to be soldiers , and countless victims of rape, forced sterilization , abduction, and extortion , Colombians cannot simply forgive and forget. And under the tenets of transitional justice, nor should they.

As Casey reported , "Jos Miguel Vivanco, the director of the Americas division at Human Rights Watch, said that while he supported an end to the war, the deal had 'seriously undermined this opportunity for a sustainable and just peace,' referring to past pledges the two sides had made that serious crimes would be punished." For many Colombians, voting no meant voting for a better peace accord that would bring such war crimes to justice.

What are the takeaways of this failed deal for peace elsewhere, such as in Syria, following failed ceasefires despite negotiations with rebel factions , over which the United States has just suspended their own peace negotiations with Russia once more and the United Nations-moderated Geneva III talks remain dormant?

The Balancing Act of Justice and Reconciliation

Human rights scholar Tristan Anne Borer points to the tricky balance between justice and reconciliation, which are often connotated with retribution and amnesty, respectively. In Colombia, the lack of retribution, or punishment in the name of justice was foregone in favor of reconciliation, by granting rank-and-file FARC members amnesty in their reintegration of society. However, as Borer also states, "True reconciliation will not occur unless the perpetrators are forced to give something to the victims in exchange for receiving an amnesty." She further points to the nature of the political transition at hand--prosecutions as a part of transitional justice efforts, for one, are far more likely to occur when a former regime has completely collapsed (and the new leaders do not have to work with the old). This factor will be critical for the futures of cases such as Syria.

There are numerous means through which this balance between justice and reconciliation can be worked toward. As international relations professor Debra L. DaLaet explains of the punitive model of transitional justice, the primary focus is on individual perpetrators (rather than victims) and the primary objective is to identify and punish them. By contrast, as laid out by law professor Jennifer J. Llewellyn , restorative justice is grounded in the belief that the "restoration of relationships is at the heart of justice." Truth commissions, public apologies, and memorials are common examples of such restorative measures. To be clear, though quite different, restorative measures can be executed in tandem with punitive measures successfully, as we have seen in cases such as South Africa.

Meaningful Representation, Active Participation of Affected Populations in Peace Negotiations and Truth Commissions

But in order to obtain justice and reconciliation, as researcher Desiree Nilson has written , the populations most affected by a peace treaty must feel represented by it in a meaningful and accurate way. This has held true for Syria in its peace negotiations thus far, and was displayed prominently by Colombia's referendum. If the treaty put forth is widely viewed to perpetuate gross injustices suffered during war, it will not and cannot succeed.

Such meaningful representation points to the inclusion of all civil society groups in peace negotiation processes so as to best gauge reparations needed for victims of war and society to recover.

But this representation is not just about their formal inclusion, their visibility. It's about their active participation. As DeLaet argues , the exclusion of women, children, and victims of sexual violence epitomize how some of the most vulnerable wartime victims have been silenced even when included in peacebuilding efforts, largely due simply to the ignorance of gendered behaviors and identities in constructing such processes to begin with.

In their demands for adequate peace accords inclusive of transitional justice measures, Colombians and people worldwide should highlight and be weary of these nuances. Collective memory--a key tenet of restorative justice efforts, and one Colombia has struggled with --cannot be accurately shaped without the accounts of all those affected by war. Dalaet asserts of the United Nation's gender mainstreaming approach:

"In essence, the Security Council makes the mistake of assuming that the international community can simply 'add women and stir' in an effort to bring gender equity to post-conflict justice mechanisms."

Gender constructs are so deeply embedded in society and culture that stigma and shame of sexual victimization prevent both female and male victims from speaking in public truth commissions. But further, as Dalaet recalls from the South African truth commission, many women "who saw themselves as survivors and agents for their own recovery, were reluctant to publicly share their experiences with violence for a multitude of reasons, including the fact that their personal pain was too intimate to be shared with strangers and their resistance to having their stories exploited for political purposes." This issue is only further complicated when it comes to child soldiers (for whom the line between perpetrator and victim is often quite blurred), child victims of sexual violence, and children born from said wartime sexual violence. The tribunals that restorative justice advocates call for are age-inappropriate and run the risk of increased psychological damage for young children.

The International Criminal Court has already called for special provisions taking into account the wellbeing of children in such scenarios, arranging for private testimony, among other things, but there is much more room for improvement with regards to sensitivity to the victims, as is the case with women involved.

The Road Forward

But such complications should not dissuade those seeking peace and reconciliation from justice through restorative means. Rather, they should illuminate the deep-seated psychological change that needs to occur in order for us to approach transitional justice efforts and peace processes differently, ranging from specific improvements such as gender-bias trainings for negotiators to grand-scale changes such as a shift in focus toward the victim in achieving true social repair.

It's not an easy task, particularly given the difficulty in even reaching the point in peace negotiations at which such measures of restorative justice are being discussed. But should such changes be achieved, the international community has every reason to believe we will live in a more peaceful society overall.

As for Colombia, President Santos has declared that the ceasefire--the extension of which was verified by the UN Security Council on October 31 --will be upheld, and government negotiators returned to the drawing board in Cuba last month. He said, "I won't give up. I'll continue [to] search for peace until the last moment of my mandate." Shortly thereafter, he was awarded the Nobel Peace Prize , which has only fueled his determination to reach an agreement by Christmas .

Hopefully, this commitment foreshadows the necessary restorative steps that must be taken in Colombia to give its victims justice and its people peace. Such a feat following the longest war the world has ever seen would surely serve as an apt model for other struggling peace processes around the world.