By: Adriana Sánchez Correa
Recently, I attended a workshop at New England Law Schooland a Slomoff Lectureship at UMass Bostonwhose common theme was the discussion about building peace. That made me reevaluate what peace means. Moreover, how can we build peace? Is the definition subject to cultural differences or to a specific situation?
The uncertainty of the meaning of peace affects me very personally since I am a Colombian and, as some might know, my country has been affected by a war that has lasted more than fifty years. Nevertheless, on November 24, 2016 the Colombian National Government and The Revolutionary Armed Forces of Colombia (FARC-EP) were able to negotiate a final peace agreement in Havana, Cuba. This posed the following queries: Is the Colombian Peace Accord a consequence of years of building peace? Is it the starting point to build it? Is the agreement in itself P E A C E?
The Oxford dictionary defines Peacein two ways: 1- Freedom from disturbance; tranquility. 2- A state or period in which there is no war or a war has ended.Clearly, these definitions are not applicable to the Colombian scenario. The country is still experiencing disturbances (corruption, civil delinquency and dissidents from FARC) and there are armed confrontations with other subversive groups (ELN, paramilitares and drug cartels). Nevertheless, I consider the Peace Accord to be the consequence of years of hard work and the materialization of compromise and best efforts -from both parties- to end the armed conflict. Could that be considered as building peace?
The Colombian Peace Accord(FINAL AGREEMENT TO END THE ARMED CONFLICT AND BUILD A STABLE AND LASTING PEACE) in general terms- contemplates a Transitional Justice process denominated “Comprehensive System for Truth, Justice, Reparations and Non-Recurrence”. The process has, on the one hand, a Special Jurisdiction for Peace similar to that of a criminal court,and, on the other hand, a non-judicial organ (Truth Commission) as a commitment on Human Rights.
One of the main goals of the Colombian Transitional Justice system is the redress for victims, which has to comply with the principles contemplated in the “Declaration of Principles” of 7 June 2014. Here are some of the principles established by the declaration: the recognition of the victims and the realization of their rights, the acknowledgement of responsibility, the participation of victims in all processes, the historical clarification of the truth, the reparation for the victims and the guarantees of protection, security and non-recurrence.
The Truth Commission has an initial mandate of three years in which eleven experts will try to restore justice by promoting reconciliation and coexistence.The concern, in my opinion, is which dispute resolution process or combination provides the most efficient and convenient methodology for the commission. If Mediation were the appropriate model, the Truth Commission would have to deal with different challenges. Here are some examples:
1. Who are the actors that will come to the table? How will the Commission identify true victims? How will it incentivize the Government, members from FARC and companies (private sector) -as perpetrators or even victims- for them to come to the table?
2. How will it deal with the vast asymmetric difference of interests on the table?
3. Is ensuring confidentiality the best approach in this particular situation? Is the clarification of the truth a public matter or is it simply for the actors present at the table?
4. Is it better to have only one session or different local mediations? What about a pre-mediation session (a trial run) to ensure the possibility of going off record and having a draft settlement agreement?
5. Could conditional settlement agreements be useful? Would it help to have a neutral third party that monitors the development of those conditional agreements? If required, should there be a reassessment of the terms of those agreements?
6. Who would be the mediators? Should it be a multidisciplinary team?
For the time being, the Truth Commission has a long way to go. Determining the appropriate methodology will take time and probably its mandate period will have to be extended. In the end, the way in which Colombia handles its post-conflict stage will be an illustration for the international audience. It will establish models that might be applicable to similar situations and will set an example of what to do and not to do.
The Colombian Peace Agreement looks great on paper. However, the reality is quite different as assuring territorial peace will be a long-lasting process, probably as long as the war was –or even longer. Maybe the process could be used by some to gain control and power –if it is not already happening now. A more excruciating reality is the possibility that the agreement will be breached by either side. However, even if it is a lengthy process, it is one that aims at building peace, which is, in a way, peace itself. A Holy Grail difficult to find and even harder to preserve.
Building Bridges: Processes for business-community Truth & Reconciliation (What´s business got to do with it? -Peace Building in Colombia) March 26, 2018.
Building a World of Peace and Development: The Transformative Power of Families and Children- Rima Salah PhD- Former Deputy Director of Unicef. April 10, 2018.
Since February 2017, The National Government has tried to hold peace dialogues with ELN (Ejército de Liberación Nacional) with the intention to reach a peace agreement.
http://www.altocomisionadoparalapaz.gov.co/Prensa/Documentos%20compartidos/Colombian-Peace-Agreement-English-Translation.pdf (April 8, 2018)
The Truth Commission was created by an executive decree (Decree 588 of April 2017) issued by the Colombian President in order to ensure the implementation of the Transitional Justice System contemplated by the Peace Accord.
Mediation Perspectives: Innovative Approaches in the Colombian Peace Process (Virginia M Bouvier) <https://isnblog.ethz.ch/security/mediation-perspectives-innovative-approaches-in-the-colombian-peace-process. April 8, 2018> “First, a visionary Declaration of Principles agreed by the parties on June 7, 2014 laid out the parties’ philosophical approach for addressing what is the most difficult and emotionally charged of the agenda items— victims. Recognition of the victims and of those responsible are key elements of the declaration.”
Point 5 of the Colombian Peace Agreement.
Travesí, Fernando. What role for a truth commission in Colombia? <https://www.ictj.org/news/colombia-role-truth-commission (April 12, 2018).> “What a truth commission can do is make a fundamental contribution to stable and lasting peace by recognizing the victims’ experiences and sorrow.”
Arrow Kenneth, Mnookin Robert, Ross Lee, Tversky Amos and Wilson Robert. Barriers to Conflict Resolution. The Stanford Center on Conflict & Negotiation. W.W. Norton & Company. (1995)
Adriana Sánchez Correa is a Colombian Lawyer from Pontificia Universidad Javeriana with a degree on Commercial Law (Universidad de Los Andes), and another in Liability and Recoverable Damages (Universidad Externado de Colombia) and a Master of Laws (LLM) from Boston College- Law School. She worked in an Ombudsman Office, in Maritime/Litigation Law Firm and as an in-house lawyer associate before coming to TMG.