As policymakers and analysts consider how the breakthrough on justice issues might be consolidated, Colombian researchers presented a report central to that question before an American audience for the first time at USIP. The report, entitled “Basta Ya! Colombia: Memories of War and Dignity,” was produced by an independent, government-supported organization that became the country’s National Center for Historical Memory. The coordinator and the lead investigator on the report joined scholars and practitioners on Sept. 30 to examine how their work on historical memory can feed into the anticipated truth commission and the special courts promised by terms agreed upon in the latest of a series of deals reached in Havana between the government and the FARC-EP rebels.

"Basta Ya! used historical memory as a point of departure for public debate. Historical memory is a mechanism to stop the war, not to close the chapter."

The effort to address collective memory, along with demands for justice and reparations, has been unique in Colombia because the discussion has taken place while the conflict continues, rather than waiting until the aftermath. The accord also broke ground with the role victims played in designing the justice framework to end the conflict, said Virginia Bouvier, a Latin America expert at USIP who convened the Sept. 30 event as part of the ongoing Colombia Peace Forum series. The Basta Ya! Report—the title means Enough Already!—is based on thousands of victim testimonies and analysis of the war’s origins. It contributed significantly to this process and to shaping the approaches taken to justice issues by the negotiators in Havana, said Bouvier, an international advisor on the study.

 “When Basta Ya! was issued, it broke the taboo in Colombia on talking about victims and placed the victims squarely in the center of peace discussions.  This in turn opened the way for victims’ direct participation, and this shaped the recent agreements on justice,” Bouvier said. “Memory is a contested field. How to place it in the context of truth-telling is clearly a challenge.”

The 24 books the report is based on, produced over six years, began by tracing the roots of the conflict from 1958. The war is difficult to explain, according to the report, not only because of its length and the array of motives behind it, but also because of the ever-changing participation of multiple legal and illegal groups. Marxist guerrillas, government forces and paramilitaries fielded by landowners are among those the victims implicated as participating in unjustified violence. At least 220,000 Colombians died in the conflict from 1958 to 2012, according to Basta Ya!, and an estimated 180,000 of them were civilians.  The ratio begs any explanation other than direct targeting, said Andres Suarez, the chief investigator on the report.

Breaking Through Victimization

In the effort to build a collective memory, the national center has done rigorous research with wide credibility and written the results in such an even-handed way that guerrillas, ex-paramilitary figures, the armed forces and politicians have all been angered, observed Adam Isaacson of the Washington Office on Latin America. A key aim, Suarez said, is to break through the self-justifying sense of victimization that animates all sides in the conflict and, for starters, to present enough evidence to discourage euphemisms and rule out blatant denial.

“Basta Ya! used historical memory as a point of departure for public debate,” Suarez said. “Historical memory is a mechanism to stop the war, not to close the chapter.”

The visits of five delegations of victims to meet with the Havana negotiators, and the delivery of some 24,000 victim proposals to the peace talks—the country has 7.6 million registered victims of the conflict—as well as Basta Ya!’s findings and evidence, were key to moving the government and FARC negotiators in Havana to consider how to satisfy their rights to truth, justice, reparations and assurances that violations won’t be repeated, Bouvier said. That the report was completed before the talks was helpful, said Anthony Wanis-St. John, head of the international peace and conflict-resolution program at American University: Its findings can’t be subject to negotiation.

This segment of the evolving accord was resolved after earlier agreements on agrarian development, political participation, illicit crops and drug trafficking, and does an unusually good job of melding victims’ demands for justice with the country’s need for peace, said David Crocker, a University of Maryland professor specializing in transitional justice. It makes the realistic goal of co-existence attainable, he said, ruling out for now the notion of reconciliation.

The push for peace in the Colombian conflict has been unique in many respects, said Cynthia Arnson, who heads the Latin American program at the Woodrow Wilson International Center for Scholars. Participants and victims of the violence began work on truth-telling and reconciliation well before the conflict ended or serious peace talks began. In the three years of peace talks, a process was formalized with the support of the auspices of the United Nations, National University, and the Colombian Bishops Conference, that created forums for victims of various elements in the conflict to say what would make them feel the process had provided justice.

Novel Terms For Justice

Arnson said the agreement’s terms—negotiations are slated to be wrapped up with a final accord in six months—also contain a number of novel aspects and promising mechanisms:

• The special court that would be established would get input from the attorney general and other relevant bodies, including victims and human rights groups;
• Alternative penalties are available to the state; and
• The transitional justice plan applies to all actors in the conflict without exceptions.

Sentences would be reduced for full cooperation with prosecutors. The cases of some people already convicted and imprisoned in connection with crimes committed during the war would have to be reopened for the sake of parity, Arnson, said, a prospect that has angered human rights groups.

“Truth commissions can tell a broader story than trials, while trials are critical for establishing facts,” said David Tolbert, president of the International Center for Transitional Justice. “Historical memory and transitional justice are linked twins,” said Tolbert, who has experience with special tribunals in Lebanon and post-Khmer Rouge Cambodia.

Despite the progress toward ending Colombia’s half-century war, the road ahead won’t be smooth, the scholars predicted.

“The past is the best predictor of how the mechanics of transitional justice may work out, and it’s not encouraging,” said Michael Reed-Hurtado, a Yale University professor and Colombian-American writer specializing in law and collective violence. The previous deal to demobilize the paramilitaries was poorly designed and overly politicized, he said. Rather than serving as a quick turnaround for the society, its justice arrangements had instead undermined existing criminal law. The agreement also doesn’t deal with economic and civic reintegration of FARC fighters. The lack of an effective reintegration plan after the earlier demobilization of paramilitary forces prompted some of them to establish  new criminal gangs, he said. The same could happen with the FARC fighters.

Implementation will remain a challenge in Colombia, Arnson warned. The demobilization of the United Self-Defense Forces of Colombia, whose approximately 20,000 members were involved in thousands of killings, resulted in only 33 sentences, she said. Colombian public opinion is divided on the peace deal, with former President Alvaro Uribe—whose father died in a FARC kidnapping attempt and who defeated the guerrillas in the country’s most populated areas —leading the opposition. President Juan Manuel Santos has promised a referendum on any peace deal and its passage is far from assured, Arnson said. Challenges to the scheme are sure to be brought to the Constitutional Court as well, she said.

As these hurdles arise, the work of the historic memory group will help illuminate the way forward, said Juan Mendez, a professor of human rights law at American University. The objective of the justice plan isn’t “justice lite” but what can be achieved realistically in a moment of transition. Because the victims’ stories are told in more sophisticated ways in the Basta Ya! report than in simple testimony taken by a truth commission, that document  will make it difficult for prosecutors and the public  to ignore the facts, he said. 

The report “sets a high bar and no one will be able to water it down,” he said.