Cover photo: Cuban President Raul Castro facilitates a hand shake between Colombian President Juan Manuel 

Santos and Timoleón Jiménez, leader of the Revolutionary Armed Forces of Colombia, People’s Army in Havana, Cuba on September 23, 2015. The event marked a significant breakthrough in the three-year long peace 

talks. Photo credit: The Bogota Post.

The opinions, conclusions, and recommendations expressed or implied in this book do not necessarily reflect 

those of the William J. Perry Center for Hemispheric Defense Studies, the National Defense University, or the 

U.S. Department of Defense.

Layout Design: Viviana Edwards
Transitional Justice in Colombia: 

Amnesty, Accountability, 

and the Truth Commission

by Pat Paterson

William J. Perry Center

for Hemispheric Defense Studies

Perry Center Occasional Paper

January 2016

3

Perry Center Occasional Paper, January 2016

Transitional Justice in Colombia:

Amnesty, Accountability, 

and the Truth Commission

by Pat Paterson

Introduction

On September 23, 2015, the Colombian government announced a breakthrough in the 

peace talks between government representatives and the largest insurgent group in 

the country. Over the previous three years, the government and representatives of the 

Revolutionary Armed Forces of Colombia, People’s Army (commonly referred to as 

the FARC-EP by its abbreviation in Spanish) had met in Cuba dozens of times to try to 

resolve issues like land reform, the political participation of the FARC, and the cessation of drug trafficking. The two groups revealed that they had reached an agreement 

on these and other complex issues. March 23, 2016 was set for a target date to sign the 

final accord. The announcement raised hopes that the country could bring to a close a 

long, bloody conflict – the longest ongoing insurgency in the world – that had claimed 

the lives of tens of thousands of civilians and left the country in tatters economically 

and socially. 

The government and FARC representatives agreed to conduct a lengthy investigation of the 50-year conflict. A truth commission would be established to investigate 

the numerous atrocities, massacres, forced disappearances, and other crimes. Human 

rights trials would be held for the gravest crimes. An amnesty program would pardon 

minor crimes committed during the conflict and alleviate pressure on the justice system, permitting it to focus on what promises to be a monumental investigative task.

In this article, I examine how the Colombia truth commission – formally called 

the Commission for Clarifying Truth, Harmony, and Non-Repetition1 – should be 

conducted by providing a comparative analysis of other Latin American Truth Commissions, focusing on their charters, what they accomplished, and what they failed to 

achieve. Three transitional justice elements are critical to understanding Colombia’s 

challenge: truth, justice, and reconciliation. I also analyze common truth commission 

objectives like accountability and justice. Last, I make recommendations for a Colombian truth commission to include its objectives, its constraints, and what to do about the 

1

 In Spanish, the “Comisión para el Esclarecimiento de la Verdad, la Convivencia, y la No Repetición.”
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Perry Center Occasional Paper, January 2016

delicate topics of amnesty, human rights trials, perpetrator justice, and victim compensation. 

There are a number of research questions associated with amnesty and truth commissions. Is it necessary to forgive and forget? Or is it important for Colombia to address war crimes and other egregious human rights violations that occurred during the 

war? Will offers of amnesty provide a “cathartic” affect in Colombia, a form of restorative justice that will satisfy victims and their families? Do amnesty and human rights 

trials deter future human rights violations? Is it worth it to open up delicate wounds of 

the past? What are the best practices and pitfalls associated with Truth Commissions? 

I hypothesize that a truth-seeking program—including investigative efforts and 

trials—is a necessary part of a conflict-resolution effort in any country that has experienced a long, violent internal conflict. The right combination of truth commissions, 

trials, and amnesty permits a country to publicly acknowledge what occurred during a 

conflict. This in itself may provide solace to victims and their families. It is essential 

that the investigative process be conducted transparently, thoroughly, and in accordance with the law. There should not be amnesty for the most egregious crimes such as 

rape, assassination of political figures, and genocide. These crimes are so heinous that 

they require the perpetrators to face justice as a form of dissuasion and to ensure such 

crimes are not repeated. Public human rights trials for the alleged perpetrators are necessary to dissuade those who may commit crimes in the future. Justice is also necessary 

to provide victims with closure, and to grant both legitimacy and stability on the new 

governing body.

History of the Colombian Conflict

Colombia suffers from the longest active insurgency in the world, a half-century long 

conflict that claimed the lives of hundreds of thousands of citizens. A shifting mosaic 

of armed groups—left-wing guerrillas, right-wing paramilitaries, drug traffickers, and 

criminal gangs—have haunted generations of Colombians, often in brutal, retaliatory 

attacks designed to terrorize and intimidate peasants from supporting the opposition. 

An estimated 81.5 percent of the 220,000 victims in the ongoing conflict were civilians 

caught in the crossfire between warring factions.2

Excluded from political and economic opportunity, leftist guerilla groups sprang 

up in the Colombian countryside in the 1960s and 1970s, intent on overthrowing what 

they perceived as a corrupt central government run by the nation’s oligarchy. The 

FARC, founded in 1964, was dedicated to rural insurgency. One year later, pro-Castro 

2 Centro Nacional de Memoria Histórica, “Basta Ya!: Memorias de Guerra y Dignidad,” 

 Link: http://www.centrodememoriahistorica gov.co/micrositios/informeGeneral/descargas.html. 
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Perry Center Occasional Paper, January 2016

university students founded the Army of National Liberation (ELN). The Popular Liberation Army (EPL) appeared in July 1967 and the 19th of April Movement (M-19) in 

1970. These groups formed the base of the insurgent organizations that would wreak 

havoc throughout Colombia for decades. Originally contained in remote regions where 

the central government had little or no state presence, guerilla activity quickly spread 

and expanded. 

Initially, the Colombian armed forces were ill-prepared to fight the insurgents. 

According to a U.S. assessment in the 1990s, the Colombian military lacked a longterm strategy and effective leadership, suffered from poor morale, had inadequate 

equipment, logistics, and training, and was operationally hindered by a lack of airlift or 

fast reaction forces. A U.S. Department of Defense report assessed that the Colombian 

military was “inept, ill-trained and poorly equipped.3 The U.S. Ambassador to Colombia described the Colombian Army as “basically a barracks military, not one that is 

organized to go after guerrillas. They have some brave and capable people, but they are 

strictly a reaction force, and not a very mobile one at that.”4 U.S. concerns with corruption in the government and human rights abuses by the Colombian security forces led 

to a complete cut off of aid in 1996 and 1997. 

3

 Doug Farah, “Colombian Rebels Seen Winning War,” Washington Post, 10 April 1998, A17. 4

 Phone interview with Myles Frechette, the former U.S. ambassador to Colombia from 1994 to 1997, as reported in Larry Rohter, 

 “Armed Forces in Colombia Hoping to get Fighting Fit,” New York Times, 05 Dec 1999. For a detailed assessment of Colombia by 

 another former U.S. Ambassador, see David Passage, “The United States and Colombia: Untying the Gordian Knot,” Strategic 

 Studies Institute, U.S. Army War College, March 2000. 

The lead negotiators in the peace talks have been Iván Márquez from the FARC (second from left) and Humberto De La Calle, former 

Colombian Vice-President (fourth from left). Photo credit: El Tiempo, Colombia.
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Perry Center Occasional Paper, January 2016

Without the army or police to defend them, wealthy landowners, cattle ranchers, and agro-industrialists in the Colombian countryside were vulnerable to the guerrillas. To fund their illicit operations, the insurgents frequently kidnapped members of 

the landed elites, extorting hefty ransoms to return relatives. As a result, citizens began 

defending themselves from guerrilla groups by hiring private militias to guard their 

estates. Landowners, cattle ranchers, and regional politicians insisted that, if the state 

was incapable of protecting their lives and property, they had a right to defend themselves against guerrillas and criminals. This was how Colombian “self-defense forces,” 

or paramilitaries, got their start. 

This dangerous chemistry of combatants – insurgents, drug lords, death squads, 

and abusive security forces – dragged the country through decades of conflict, taking 

the lives of an estimated 220,000 civilians. To concerned policymakers in Washington 

DC, the country appeared to be on the brink of collapse. In May 1997, the U.S. Defense 

Intelligence Agency (DIA) warned that the central government would fall within five 

years unless drastic action was taken.5

In 1999, President Andrés Pastrana (1998-2002) attempted to end the conflict 

through a peace accord with the FARC. In January of that year, the two sides began intermittent negotiations on a political settlement to the conflict. As a gesture of goodwill, 

Pastrana offered the FARC a demilitarized zone in the departments of Meta and Caquetá. Critics assert that the FARC used the negotiations as a delaying tactic while the 

guerrillas rearmed and cultivated coca. The peace effort made little progress. On January 9, 2002, a frustrated President Pastrana gave the FARC 48 hours to retire from the 

area. On February 21 of that year, after a series of attempts to salvage the peace talks, 

the Colombia Air Force began bombing FARC positions in the area. 

Álvaro Uribe succeeded Pastrana as Colombian President in 2002. Following 

Pastrana’s failed peace effort, Uribe had campaigned on a vow to confront the FARC. 

In relatively short order, Uribe expanded the public security forces, improved the military’s troop mobility, established government presence throughout the country, dismantled the paramilitary death squads, reduced cocaine production, and put the FARC on 

the defensive. Backed by a sizable military assistance package from the United States, 

the Colombian offensive decimated the ranks of the FARC. Guerilla ranks went from 

approximately 20,000 at their peak in 1999 to about 8,000 in 2012. 

5

 In March 1988, U.S. Ambassador Charles Gillespie cabled Washington that the Colombian Armed Forces were unable to stem the 

 downward spiral of violence gripping the country. Source: National Security Archive, “War in Colombia; Guerrillas, Drugs, and 

 Human Rights in US-Colombia Policy, 1988-2002.” George Washington University, 03 May 2002. A U.S. Defense Intelligence 

 Agency (DIA) report speculated that the central government could collapse within five years if the guerrilla’s rate of operations 

 continued without effective opposition. Source: DOD News Briefing, Tuesday, April 14, 1998, Office of the Assistant Secretary of 

 Defense for Public Affairs, Mr. Kenneth H. Bacon, ASD (PA). 
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Perry Center Occasional Paper, January 2016

History of the peace accords

In 2012, after years of peace talks and demobilization efforts (some successful, others not), the Colombia government announced that they had begun formal negotiations 

with the FARC. Colombian President Santos’s announcement on August 27, 2012 

gave hope that a peaceful settlement would end nearly 50 years of bloody conflict in 

the South American nation. A subsequent series of gestures – including the insurgents’ 

declaration of a unilateral ceasefire and a promise to forgo kidnapping – raised expectations even higher.

Despite the collegial and cooperative tone adopted by both sides, the Colombian 

government and representatives of the FARC need to address deeply entrenched and 

divisive topics that previous peace accord attempts had been unable to resolve. The 

complex issues on the table include land reform, the political rights of insurgents, ending the seemingly intractable drug production and trafficking, reparations for victims, 

and transitional justice measures that could see perpetrators of war crimes put in jail or 

extradited out of the country. 

A number of incidents threated to derail the accords, however. In July 2013, a 

FARC patrol ambushed Colombian Army soldiers guarding an oil pipeline in Arauca 

in eastern Colombia. Fifteen soldiers were killed, the worst loss of life since the peace 

talks began. In November 2014, the FARC seized an Army general who was caught in 

an exposed area near Quibdó on the Pacific coast. In April 2015, the FARC attacked 

Representatives of the FARC-EP and the Colombian government meet in Havana, Cuba in one of the more than 70 negotiation sessions that occurred during the 2012-2015 peace talks. The session depicted in the photograph also included several senior Colombian 

military officials invited to Havana to discuss a bilateral ceasefire between the two sides. Photo credit: El Tiempo, March 6, 2015.
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Perry Center Occasional Paper, January 2016

an Army patrol, killing 11 soldiers and unleashing a wave of criticism by the Colombian public. But the FARC’s declaration of a ceasefire three months later quieted some 

skeptics, many of whom likely realized that, even if the peace accord was ultimately 

a failure, the talks between the two groups were contributing to the important analysis 

of socio-economic problems that had been at the root of the problem for decades. Conflict-related violence in the country dropped to the lowest levels since 1975. In the eyes 

of many Colombians, any dialogue that even temporarily slowed the bloodshed was 

worth giving a chance. 

After three years and dozens of negotiation sessions, the government and the 

FARC representatives announced on September 23, 2015 that they had reached agreement on four of the six main topics: land reform, political participation, cessation of 

drug trafficking, and accountability for crimes. The last item – accountability for crimes 

–was perhaps the one that threatened to derail the peace talks more than any other. The 

peace talk participants had wrangled over the issue for most of 2014 and 2015, longer 

than any other item on the agenda. The groups declared from Havana that they had set 

March 23, 2016 as the date that they would sign a formal, final accord. As of this writing, the full report with 75 issues agreed to by the two groups has not been released 

publicly. Only a two-page brief synopsis of the agreement was revealed. Many vital 

details of the tentative agreement between the two parties remain undisclosed to the 

public.

Why establish Truth Commissions? Reasons and Objectives

The Colombian truth commission is the latest in a series of investigative efforts of its 

kind in Latin America. In fact, nearly every country in South and Central America that 

has experienced an internal conflict has launched a truth commission to determine what 

occurred during the tensions.6 Most truth commissions occur soon after hostilities end. 

Other don’t happen until years or decades later. On December 10, 2014, for example, 

Brazil released its Truth and Reconciliation Commission report that investigated incidents during the 21-year military dictatorship from 1964-1985.7

 Despite the frequency 

of such events, truth commissions have had mixed results. Some have been so limited 

in their charter, authorities, and budgets that they only served as a political showpiece, 

designed to appease calls for investigation into atrocities. Others have achieved re6

 Conflict resolution efforts like truth commissions, mediation, and negotiations are encouraged by international conventions. 

 See United Nations Charter, chapter 6, “Pacific Settlement of Disputes.”

7

 See Comissão Nacional da Verdade, http://www.cnv.gov.br; See Adam Taylor, “Brazil’s Torture Report Brings a President to 

 Tears,” Washington Post, 12 Dec 2014; Anthony Boadle and Brian Winter, “Brazil Dictatorship Probe Urges Prosecuting Military, 

 Companies,” Reuters, December 11, 2014.
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Perry Center Occasional Paper, January 2016

markable results to identify what happened during the internal conflict, who committed 

human rights violations, and what reparations were due to victims and their families. 

In general, truth commissions should be non-judicial, independent panels of 

inquiry set up to establish the facts and context of serious violations of human rights 

or of international humanitarian law in a country’s past. The commission is normally 

empowered to conduct research, support victims, and propose policy recommendations 

to prevent recurrence of crimes. Most commissions focus on victims’ needs as a path 

toward reconciliation and reducing residual tensions, becoming a form of transitional 

justice that, in theory, deters future atrocities.8 As one scholar framed it, truth commissions may “prevent violence and future human rights abuses, forge the basis for a democratic political order that respects and protects human rights, and recommend ways to 

deter future violations and atrocities.”9

Citizens in war-torn nations have a right to know what occurred to victims during internal conflicts. According to international law, governments have the obligation 

“to clarify, punish, and make reparation for violations of human rights and international 

humanitarian law.”10 Under this concept, governments are required to disclose to victims and society the facts and circumstances surrounding crimes committed during the 

conflict.11 The Inter-American Commission on Human Rights defines this as “a collective right that ensures society’s access to information that is essential for the workings of democratic systems, and it is also a private right for relatives of the victims, 

which affords a form of compensation, in particular, in cases where amnesty laws are 

adopted.”12

8

 Bronyn Leebaw, “The Irreconcilable Goals of Transitional Justice,” Human Rights Quarterly 30:1, 2008; 104. 9

 Tricia Olsen, Leigh A. Payne, Andrew G. Reiter, and Eric Wiebelhaus-Brahm, “When Truth Commissions Improve Human 

 Rights,” The International Journal of Transitional Justice, vol 4, 2010, 459. 10 The 1948 Geneva Conventions and Additional Protocol I require states to prosecute those persons who have committed serious 

 violations of the laws and customs of war. The International Covenant on Civil and Political Rights (ICCPR, article 2) and the 

 American Convention on Human Rights (article 25) require a judicial investigation when an individual’s rights have been violated. 

 See also Juan E. Mendez, “National Reconciliation, Transitional Justice, and the International Criminal Court,” Ethics and 

 International Affairs, 15:1 (2001), 30; Juan E. Méndez, “Accountability for Past Abuses,” Human Rights Quarterly 19 (May 1997), 

 271; Margaret Popkin and Nehal Bhuta, “Latin American Amnesties in Comparative Perspective: Can the Past Be Buried?” in 

 Ethics & International Affairs 13 (1999), 99–122. 11 Mendez, 2001, 34.

12 Cited in Jo-Marie Burt, “Challenging Impunity in Domestic Courts: Human Rights Prosecutions in Latin America,” In The 

 Transitional Justice Handbook for Latin America (2011), International Center for Transitional Justice & The Brazilian Ministry of 

 Justice), pp. 285-311.

Table 1. Examples of Objectives from Truth Commissions in Latin America

- heighten human rights norms 

- recommend ways to deter future violations and atrocities 

- achieve accountability for criminal acts and human rights violations

- counter denial

- expand dialogue and open political space to previously marginalized or silenced people

- alleviate volatile emotions associated with trauma and the desire for revenge
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Perry Center Occasional Paper, January 2016

In many cases, insurgents or militants may not have had the opportunity or incentive to cooperate with an official fact-finding group. Victims may be buried in unmarked graves or obscure locations. During the course of the commission’s investigations, testimony from militants, rebels, and military officers may reveal the locations of 

the remains of these victims, permitting the families to recover the bodies and provide 

a formal funeral ceremony. Once the Commission becomes sanctioned by the central 

government and all parties agree to the terms of the cessation of hostilities, it normally 

prompts cooperation from insurgents and government branches like the police and 

military. Government records that have been sealed or classified during the hostilities 

may be opened. The unearthing of all of these secrets is critical to the truth commission 

process. In the words of one scholar, such commissions are often referred to as serving 

a “cathartic” affect in society, as fulfilling the important step of formally acknowledging a long-silenced past.13

Truth Commissions in Latin America

Recently, truth commissions have become a common feature in countries transitioning 

to post-conflict societies. Worldwide, nearly 40 truth commissions have been conducted 

since the 1980s to address mass crimes, consolidate the rule of law, and promote reconciliation. With its long history of military rule, internal conflicts, and tendencies of political exclusion, Latin America has been especially receptive to truth commissions. Ten 

Latin American nations have conducted truth and reconciliation commissions, more 

than any other region of the world. Perhaps as a result of its reconciliation efforts, Latin 

America has made the most complete democratic transition of any other region.14

At the theoretical center of truth commissions in Latin America are three important components: truth, justice, and reconciliation. Seeking the truth about the past 

includes a learning process that is intended to prevent such violations from occurring 

again. The most important aspects of the investigation are to reveal the fate of individuals or victims of the conflict, to disclose the truth about disappearances, and subsequently provide closure for victim’s families who suffered “unrelenting anguish and 

unburied dead.” This type of “individualized truth” is an especially urgent matter.15 As 

United Nations representative Juan Mendez stated, “The clamor for truth, acknowledgment, and justice concerning such grievous crimes cannot be overstated.”16

13 Priscilla Hayner, “Fifteen Truth Commissions: a Comparative Study, 1974-1999.” Human Rights Quarterly, 1994, 600. 14 In the 1970s and 1980s, about three-quarters of the Latin American countries were under military governments or autocracies. By 

 2000, only Cuba was considered “not free” on the Freedom House “Freedom in the World” index. Link: https://freedomhouse.org/

 reports. See also Kathryn Sikkink and Carrie Booth Walling, “The Impact of Human Rights Trials in Latin America,” Journal of 

 Peace Research, vol 44, no 4, 2007, 432. 15 Mendez, 2001, p. 29.

16 Jose Zalaquett, “Truth, Justice, and Reconciliation: Lessons for the International Community,” 353. In the edited book 

 “Comparative Peace Processes in Latin America, editor Cynthia Arnson. Washington DC: Woodrow Wilson Press, 1999. 
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Perry Center Occasional Paper, January 2016

Table 2. Latin American Truth Commissions (in chronological order)

Country Name of Truth Commission Date of Work Period Covered Remarks

Bolivia National Commission of 

Inquiry into Disappearances

1982-1984 1967-1982 Report never completed.

Argentina National Commission on the 

Disappearances of Persons

1983-1984 1976-1983 Nunca Mas (Never Again), 1985.

Uruguay Investigative Commission 

on the Situation of Disappeared People and Its Causes

1985 1973-1982 Final Report of the Investigative 

Commission of the Situation of the 

Disappeared People and its Causes. 

Report never released to the public.

Chile National Commission on 

Truth and Reconciliation 

(The Rettig Commission). 

In addition, in November 

2003, the National Commission on Political Imprisonment and Torture (the Valech 

Commission) gathered information on human rights violations between 1973 and 1990.

1990-1991 1973-1990 Report of the National Commission 

on Truth and Reconciliation, 1991.

Valech Commission report released on November 29, 2004.

El Salvador Commission on the 

Truth for El Salvador

1992-1993 1980-1991 UN-moderated peace accord and 

Truth Commission report, From 

Madness to Hope, March 1993.

Honduras The Preliminary Report 

on Disappearances of the 

National Commissioner 

for the Protection of Human Rights in Honduras

1993-1994 1980-1993 “The Facts Speak for Themselves,” released on December 29, 1993. Also referred to 

as the Valladares Report. 

Guatemala Commission to Clarify Past 

Human Rights Violations 

and Acts of Violence that 

Have Caused the Guatemalan People to Suffer

1997-1999 1962-1996 UN moderated peace accord, Guatemala Memory of Silence, 1999.

Peru Truth and Reconciliation Committee2001-2003 1980-2000 Report of the Truth and 

Reconciliation Commission. Released Aug 2003.

Ecuador Truth Commission to 

Impede Impunity

2007-2009 1984-2008 Report released in June 2010. Initial 

truth commission (1996) disbanded 

before completing its mandate.

Brazil National Truth Commission 2011-2013 1946-1988 Report of the Truth and Reconciliation Commission. Established in Nov 2011, report 

released on Dec 10, 2014.

Note: Material drawn from multiple sources including Priscilla B. Hayner, Unspeakable Truths: Facing the Challenge of Truth 

Commissions (New York: Routledge, 2001). Extensive databases and English translations of portions of Latin American truth 

commissions are available on the webpages of the International Center for Transitional Justice (ICTJ, www.ictj.org) and the U.S. 

Institute for Peace (USIP, www.usip.org).
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Perry Center Occasional Paper, January 2016

The very existence of the fact-finding effort represents a national effort to acknowledge the truth by all institutions, individuals, and by society as a whole. Through 

the investigation, members of the warring factions can admit wrongdoing. In other 

words, truth commissions provide an opportunity for guilt-ridden perpetrators to “come 

clean.” The commission’s conclusions also may dispute denials previously made by insurgent groups or government forces. This, in turn, can provide some solace to victims, 

an end to impunity, and may reinforce the rule of law. The investigation, as one member of the South African Truth Commission stated, “is the facing of unwelcome truths 

in order to harmonize incommensurable world views so that inevitable and continuing 

conflicts and differences stand at least within a single universe of comprehensibility.”17

The second principle to truth commissions is justice. Often times, victims have 

been falsely accused of baseless charges. Justice represents an opportunity for vindication of the victims. As a result, the investigation may clear their name and reputation, 

an important opportunity to prove their innocence and restore personal dignity. Victims 

or their surviving relatives can finally have their moment of justice when their story 

emerges and their suffering is revealed. This is often accompanied by a form of compensation for the victims or their families or prosecution and punishment of perpetrators. This, in turn, might restore the dignity of the victim.

If conducted successfully, the third element, reconciliation, is a product of the 

first two. Reconciliation is the most important objective of truth commissions but, to 

achieve this lofty goal, a country must first pursue truth and justice. These are necessary first steps in the transitional justice sequence. As the head commissioner for the 

Honduran Truth Commission said, “Only after truth is known and justice is rendered 

are pardon and reconciliation possible.”18 Factions that have been warring against each 

other for years have to find a way to coexist peacefully. Tendencies for revenge run 

deep. Animosities persist and the cessation of hostilities may not be realistic in remote 

parts of the country where the structural sources of the conflict may persist. Without an 

effort toward national reconciliation, unresolved historical issues generate a feeling of 

bitterness, betrayal, or alienation from the government that may linger among survivors 

or family members of the victims. Reconciliation represents the chance to put these animosities behind and focus on constructing a future rather than dwelling on the past.

17 Priscilla Hayner, “Fifteen Truth Commissions: a Comparative Study, 1974-1999.” Human Rights Quarterly, 1994, 372.

18 Comisionado Nacional de Protección de los Derechos Humanos (CONADEH), “Los Hechos Hablan por si Mismo” (The Facts 

 Speak for Themselves), 232. 
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Perry Center Occasional Paper, January 2016

Inherent Challenges and Obstacles for Truth Commission

When truth commissions first emerged in the 1980s, democracy scholars considered 

trials for past human-rights violations as politically untenable and likely to undermine 

new democracies. Political scientist Samuel Huntington, for example, warned that human-rights trials could be disruptive to nations transitioning to democracy and recommended that states not carry out human rights trials.19 However, in a globalized world 

where democracy and individual rights are widely accepted as international norms, 

truth commissions and accountability for crimes are now considered state obligations. 

The Geneva Conventions, signed and ratified by nearly all countries in the world, require countries to investigate atrocities committed during conflicts. Colombia itself has 

ratified the Geneva Conventions of 1949, both Additional Protocols of 1977, and all the 

major international human rights treaties. Hence, the Colombian government is compelled to abide by the requirements in these treaties.20

There are inherent obstacles associated with truth commissions. The chaos associated with war and combat may hide the true accounts of what happened to victims. 

Groups of combatants – insurgents and government forces alike – often have a culture 

of silence and fraternity that discourage them from confessing their wrongdoing. Neither the guerrillas nor members of the security forces want to spend time in jail for 

actions that many of them may contend were legitimate during a conflict. Likewise, any 

admission of crimes may damage the public reputation of the groups. Subsequently, 

there is a certain level of uncooperativeness and resistance expected of all involved parties. 

In Colombia, the deep-seated suspicions and animosities among the warring 

factions present a serious dilemma to conflict-resolution efforts in the country. According to the FARC guerrillas, they were fighting a legitimate military action against a 

corrupt government run by landed oligarchy. They were battling, they insist, for land 

reform, political rights, and economic opportunity. As an organized rebel army, the 

FARC believe that they deserve combatant privileges in accordance with the Geneva 

Conventions and international law.21 To their reasoning, civilians killed or harmed by 

their actions were the natural result of the chaos of war, and they believe government 

forces that “compelled” them to fight should share responsibility for these casualties. 

19 Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century. Norman and London: Cambridge 

 University Press, 1991, p. 228. 

20 A list of major human rights treaties and the countries that have ratified them can be found at http://indicators.ohchr.org. Countries 

 that have ratified the Geneva Conventions can be found at https://www.icrc.org/applic/ihl/ihl.nsf/vwTreatiesByCountry.xsp 21 See, for example, Guillermo Otálora Lozano and Sebastián Machado, “The Objective Qualification of Non-International Armed 

 Conflicts: A Colombian Case Study,” Amsterdam Law Forum, Vol 4:1, Winter 2012, 58-77.
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Perry Center Occasional Paper, January 2016

They point to the fact that the paramilitary militias controlled by wealthy landowners 

and industrialists were responsible for more murders and massacres than the guerrillas. 

FARC representatives insist that these private armies were, in fact, an extension of the 

Colombian military and therefore the Colombian government should be held accountable for state terror. 

On the other hand, many members of the Colombian government (in particular, 

the armed forces and police) believe the FARC are nothing more than drug traffickers and terrorists and therefore are not eligible for protection under international law.22

Instead, like common criminals, they should be subject to the national criminal code in 

Colombia. Additionally, these governmental groups oppose the peace process because 

they believe it offers the FARC a form of political legitimacy that they do not deserve. 

These opponents of the peace process point to the thousands of Colombian military and 

police who have been murdered by the FARC guerrillas. “We don’t want terrorists exercising positions of power while military officers having legally defended this nation 

under the constitution are convicted, humiliated, and imprisoned around the country,” 

said a representative for the Colombian Association of Retired Military Officers soon 

after peace talks began.23

Some Colombian officials also are suspicious of Cuba’s role in the negotiations, 

in light of that nation’s long history of sponsoring communist rebellions throughout 

Latin America. Under the stated communist doctrine of the FARC, guerrillas will use 

all means to achieve their goals, including warfare and political leverage. Hence, many 

members of Colombian society believe the recent peace accords are nothing more than 

an attempt by the guerrillas to accomplish politically what they could not achieve militarily. 

Another frequently cited problem of truth commissions is that they operate with 

double standards. According to critics, truth commissions in Latin America have been 

focused on governmental abuses while not adequately addressing the crimes of insurgents in each country. In the opinion of many government officials, the proceedings 

unfairly target accusations against government forces while ignoring the number of 

atrocities or attacks made by insurgent forces. In the cases of Argentina, Chile, El Salvador, and Guatemala, indiscriminate attacks by leftist insurgent forces took the lives 

of hundreds of security forces, government officials, and civilians, maiming thousands 

of others. Critics contend that little attention has been paid to these crimes by previous 

truth commissions in Latin America.

22 The FARC were declared a Foreign Terrorist Organization (FTO) by the U.S. Department of State in 1997. 

 Link: http://www.state.gov/j/ct/rls/other/des/123085.htm 23 The group, known by its Spanish title of Asociación de Oficiales Retirados de las Fuerzas Militares or ACORE, is a politically 

 influential group of retired military officials who serve as the voice for many active duty officials. This quote cited from Alex 

 Sierra R., “Armed Peace Does Not Equate with Civil Peace,” 12 Dec 2012. Link: http://www.cipamericas.org/archives/8633. 
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Perry Center Occasional Paper, January 2016

While there might be some truth to this claim, the perceived disproportionate 

focus of truth commissions on state agents is likely a result of the inherent legitimacy 

of such security forces. Security forces of a state operate under the authority of a legitimate central government. As Max Weber famously summarized, these military and 

police officials have the monopoly on the legitimate use of force.24 Hence, whereas 

non-governmental actors—including terrorists, rebels, or criminals—operate outside of 

the law, any abuses conducted by state security forces are a double violation of the trust 

of the country’s citizens. Crimes committed by government security forces are breaches 

of the confidence of the country’s citizens as well as breaches of national law or international treaty the state has ratified. The state’s legitimacy rides on the shoulders of 

the security forces and it rightly should be held to a higher standard. As President Juan 

Manuel Santos acknowledged, “Our role, as agents of the state, is to guarantee and protect the rights of all citizens. For that reason, our responsibility is that much greater.”25

Research has shown that investigative fact-finding bodies like truth commissions 

are, by themselves, inadequate to generate the stability and reconciliation necessary in 

24 Max Weber, Politics as a Vocation, New York: Isha Books, 2013. 25 Fox News, “Colombia admits rights violations in battle with leftists,” July 23, 2013. 

 Link: http://www.foxnews.com/world/2013/07/25/colombia-admits-rights-violations-in-battle-with-leftists.html reatiesany active 

 duty officialacknowledged, f the confidence iches international human rights treatiesany active duty official

Public opinion of the FARC among Colombians is the lowest in the group’s history, undoubtedly a result of the FARC’s indiscriminate attacks against civilian populations, its extensive campaign of kidnapping, and its use of child soldiers. Photo credit: Latin 

Correspondent.
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Perry Center Occasional Paper, January 2016

a post-conflict society. Rather, recent studies have shown that truth commissions are 

more powerful when accompanied by human rights trials and amnesty programs, becoming a potent combination, creating justice, and avoiding the trap of becoming so 

ambitious that they become unrealistic and unachievable. This combination of truth 

commission, human rights trials, and amnesty is what some scholars refer to as a “justice balance.” 26 Truth commissions provide a broad investigation into events to identify 

collective responsibilities. Human rights trials determine individual accountability. 

Amnesty alleviates the work load on the justice system and permits officials to focus on 

the most egregious crimes. With that in mind, Colombia has positioned itself in a good 

place to succeed: it has put into place all three conflict-resolution elements – truth commissions, human rights trials, and amnesty – as part of its reconciliation effort. In the 

next section of this essay, I will examine in detail each of these three elements. 

Amnesty 

The brief announcement from Havana in September 2015 by members of the Colombian government and the FARC indicated that there would be an offer of amnesty for 

crimes committed during the 50 years of the conflict. The announcement indicated that 

the two parties agreed to “grant the broadest possible amnesty for political crimes and 

their other related crimes.” However, persons who committed more serious crimes – 

crimes against humanity, genocide, war crimes, the taking of hostages, torture, forced 

displacement, forced disappearance, extrajudicial executions, and sexual violence – 

will not be eligible for amnesty. Individuals accused of these more serious crimes will 

go before a Special Judicial Process for Peace. If they admit their responsibility for the 

crimes and subsequently are found guilty, they will receive a sentence of five to eight 

years of confinement. If they do not admit guilt or do not cooperate with the investigation and are found guilty, they may be sentenced for as many as 20 years of confinement.27

The offer of amnesty as an incentive to lay down arms is one of the most emotionally charged elements of transitional justice. Proponents of amnesty argue that it 

is required as a gesture toward national reconciliation, one that a conflict-torn society 

requires to build a new democracy based on tolerance and accommodation among warring groups that may have recently tried to destroy one other. According to Sikkink and 

Walling, clemency for the insurgents is viewed as a powerful incentive for rebels to 

26 Tricia Olsen, Leigh A. Payne, Andrew G. Reiter, and Eric Wiebelhaus-Brahm, “When Truth Commissions Improve Human 

 Rights,” The International Journal of Transitional Justice, vol 4, 2010, 465. 27 See Joint Communiqué 60 on the Accord for the Creation for a Special Judicial Process for Peace, September 23, 2015, Havana, 

 Cuba. Link: https://vbouvier.files.wordpress.com/2015/09/2015_0923-comunicado-conjunto-60-23-septiembre-2015.pdf
17

Perry Center Occasional Paper, January 2016

renounce violence, lay down their arms, and join the peace effort.28 Human rights violations frequently occur in the conflict by militants and government security forces alike. 

In this sense, advocates of amnesty believe it is prudent to heal social wounds within 

the country by forgiving and forgetting criminal acts. 

Others believe that amnesty is an egregious affront to the victims who suffered at 

the hands of extrajudicial actions such as kidnapping, torture, rape, and murder. Perpetrators of violent criminal acts who receive amnesty avoid accountability for their 

actions because they are not subject to criminal or civil inquiries. To the victims and 

their families, the state’s perceived exoneration of the perpetrators can sometimes be 

an even more painful punishment than the loss they have suffered. From their point 

of view, if “impunity is allowed to persist, the political system that is being built may 

be democratic in formal terms, but it will lack the essential governance ingredients of 

legitimacy and accountability.”29

Hence, offers of amnesty in Colombia require a delicate balance. Too much 

amnesty means perpetrators of horrific crimes go free and there is little dissuasion for 

future crimes. Too little amnesty means judicial authorities will be faced with a nearly 

insurmountable task to investigate thousands of atrocities that will require years of investigative effort and litigation. 

The decision in Colombia to offer limited amnesty is in keeping with international law. Amnesty is considered an acceptable form of reconciliation following an armed 

conflict. Additional Protocol 2 of the Geneva Conventions states that:

At the end of hostilities, the authorities in power shall endeavor to 

grant the broadest possible amnesty to persons who have participated in 

the armed conflict, or those deprived of their liberty for reasons related 

to the armed conflict, whether they are interned or detained.30

In contrast, amnesty laws for gross violations of human rights are considered illegal according to international human rights law. In a heavily democratized world with 

high standards of transparency and accountability, it is a requirement that states address 

serious violations of human rights. As a result, blanket amnesties have been declared to 

be violations of international human rights and cannot be a part of a policy of national 

28 Kathryn Sikkink, and Carrie Booth Walling, “The Impact of Human Rights Trials in Latin America.” Journal of Peace Research, 

 2007, Vol 44(4), 440.

29 Mendez, 2001, p. 32.

30 See article 6(5) of the Additional Protocol III to the Geneva Conventions of 12 August 1949, and relating to the Protection of 

 Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 
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reconciliation. Regional human-rights courts agree.31 On March 14, 2001, the InterAmerican Court declared that amnesty laws for gross violations of human rights were 

incompatible with the American Convention on Human Rights and therefore lacked 

legal effect. According to the Court, amnesty laws contribute to the defenselessness 

of victims and perpetuate impunity.32 The United Nations Human Rights Committee 

echoed the same sentiment when it stated, “Amnesties are generally incompatible with 

the duty of States to investigate such acts; to guarantee freedom from such acts within 

their jurisdiction; and to ensure that they do not occur in the future.”33

While blanket amnesty is considered contrary to international law, partial amnesty programs can alleviate pressure on an overloaded justice system. The Colombian 

justice system is considered by most scholars to be independent and effective—one 

of the most developed in Latin America.34 Still, the investigation of tens of thousands 

of crimes that took place over the course of nearly 50 years is almost an impossible 

task, one that would take years to complete. As United Nations representative Juan 

Mendez stated, “The truth commissions are not a replacement for the justice system 

but rather a complement to a weak judicial system by helping with thousands of crime 

investigations.”35 By focusing on the gravest crimes, the Colombian government hopes 

to demonstrate that perpetrators will be accountable and that Colombia abides by the 

rule of law.

Impunity

Regardless of the legal precedents for amnesty, the current Colombian agreement 

may not satisfy the tens of thousands of civilian victims that have suffered at the hands 

of the combatants. Prosecuting only those who committed the most serious crimes 

leaves thousands of others who participated in crimes unpunished. To the victims and 

their families, this represents an impunity that may encourage future illicit activities. 

Furthermore there is a lack of clarity of what type of confinement would be required of 

those convicted of serious crimes. The agreement between the FARC and government 

31 In 2001, the Inter-American Court of Human Rights (IACtHR) declared the Peruvian amnesty law to be contrary to the American 

 Convention of Human Rights and international human rights law. In its decision, the IACHR stated, “the amnesty laws entailed a 

 violation of the right of all victims to obtain not only justice but also truth” (para 35) and that the amnesty laws are, “incompatible 

 with the American Convention on Human Rights.” (para 42). See IACtHR “Case of Barrios Altos v. Peru, Judgment of March 14, 

 2001.” Consequently, in 2005, the Argentine Supreme Court declared its amnesty laws unconstitutional. 

32 Sikkink and Walling, 2007, p. 435.

33 United Nations. Link: http://www.ohchr.org/EN/CCPR/Pages/CCPRIndex.aspx 34 Brett J. Kyle and Andrew G. Reiter, “Militarized Justice in New Democracies: Explaining the Process of Military Court Reform in 

 Latin America,” Law & Society Review, vol 47/2, 2013, 396-397. 35 Mendez, 2001, 46
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representatives in Havana calls for “restriction of freedom” for those convicted of gross 

violations of human rights. The term has been subject to intense scrutiny since it was 

announced in September 23. “While the special jurisdiction would encourage confessions, it would also allow those most responsible for mass atrocities to completely 

avoid prison, denying their victims the right to justice in any meaningful sense of the 

word,” said Jose Miguel Vivanco, director of Human Rights Watch for the Americas.36

Amnesty has often been used as a tool for impunity. Because it normally is initiated by the government, it has been frequently employed by military governments who 

want to shield their institutions and members from embarrassing charges for crimes or 

atrocities. Often, amnesty is the only way that an authoritarian regime will step down 

from power, allowing a democratic government to emerge. In Chile, for example, the 

military government passed an amnesty law in 1978, forgiving all political crimes committed since the 1973 coup including the “disappearances” (a common tactic during the 

Latin American conflicts) conducted by the Chilean secret police (DINA). An estimated 

three thousand Chileans were killed at the hands of security forces during the 17-year 

military government. Thousands more were tortured or exiled. President Aylwin, the 

Chilean President from 1990-1994, was criticized for not having tried to remove the 

amnesty law, but he faced a Congress dominated by supporters of the old regime, and 

amnesty had been a major bargaining tool in getting the dictator to relinquish power.37

In fact, when challenged by civilian leaders on the accountability of his military forces, 

General Augusto Pinochet of Chile famously warned President Aylwin, the country’s 

newly elected president, “No one is going to touch my people. The day they do, the 

state of law will come to an end.”38

In Guatemala in December 1996, the United Nations (UN) successfully brokered a historic peace agreement to end the country’s 36-year war. The amnesty law 

was the last item to be resolved before the final signing ceremony. In a UN truth commission that followed the war, the military was accused of causing the vast majority of 

the 200,000 deaths during the war, charges that included genocide against indigenous 

groups. However, the military in Guatemala was shielded by several amnesties passed 

by military and civilian regimes prior to 1996. There have been few government inves36 See Anastasia Moloney. “Colombia War Victims Demand Justice, Truth as Peace Talks Advance.” Reuters, 02 October 2015. 

37 José Zalaquett, “Truth, Justice, and Reconciliation: Lessons for the International Community.” In Arnson, C. editor Comparative 

 Peace Processes in Latin America, editor. Washington DC: Woodrow Wilson Press, 1999, 358. 38 Elizabeth Salmon, “Reflections on international humanitarian law and transitional justice: lessons to be learnt from the Latin 

 American experience.” International Review of the Red Cross, 2006, vol 88, 77; Loveman, B. (2001). “When You Wish upon 

 the Stars: Why the Generals (and Admirals) Say ‘Yes’ to Latin American ‘Transitions’ to Civilian Government.” In Drake, P. 

 & McCubbins, M. editors. The Origins of Liberty. Princeton: Princeton University Press, 2001, 40; Gregory Weeks, “Waiting for 

 Cincinnatus: The Role of Pinochet in Post-Authoritarian Chile.” Third World Quarterly, 21(5). 729. 
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tigations into atrocities committed during the civil war which started in 1960.39

Various forms of amnesty were used in nearly all Latin America countries that 

experienced internal conflicts in the 1970s and 1980s:

 Table 3. Examples of Amnesty Laws in Latin American (in alphabetical order by country)

Country Year amnesty established Amnesty still active?

Argentina 1987, The Full Stop Law (Dec 24, 1986) 

halted new prosecutions. The Due Obedience Law (April 1987) gave immunity to all 

but top officials. President Carlos Menem 

pardoned those officials in 1989 and 1990.

No, revoked after Argentinean Supreme Court ruled amnesty unconstitutional on June 14, 2005, citing the IACHR 

decision on the 2001 Barrios Altos case in Peru. In 2007, 

the Court also annulled pardons granted by President 

Menem in 1989 and 1990 to senior military officials.

Brazil 1979, passed by military government, covered period of military 

government from 1964-1985.

Yes, still active. In April 2010, the Brazilian Supreme Federal Court ruled crimes during military 

government were political acts, not crimes. 

Chile 1978, the military dictatorship passed 

an amnesty law forgiving all political 

crimes committed since the 1973 coup 

including the “disappearances” conducted by the Chilean secret police.

Yes, still active but limited. In July 1999, the Supreme Court ruled that disappearances in Chile 

during the military dictatorship were ongoing crimes since bodies had not been found.

Colombia 2005, Justice and Peace Law provided 

partial amnesty for paramilitaries who 

demobilize, turn over assets belonging 

to victims and submit to prosecution.

Yes, though an estimated 2000 paramilitary members served jail time for major crimes. A number of senior paramilitary leaders were extradited to the United States in 2008.

El Salvador March 20, 1993, the Salvadoran Congress passed a blanket amnesty for all 

crimes committed by security forces 

and guerrillas during the conflict.

Yes, still active. In 2003, the Supreme Court case held that 

cases that violated victims’ fundamental rights were not 

subject to amnesty. Few cases have reached trial though.

Guatemala 1996, covered crimes committed from 

March 1982 to January 1986. 

Yes, still active. The Law of National Reconciliation of 

1996 allows for amnesty in the case of crimes connected 

to the internal armed conflict, but specifically exempts 

genocide, torture, forced disappearance and other international crimes. Few cases have gone to court.

Nicaragua 1993, amnesty law passed during disarmament and peace negotiations with United Nations.Yes, still in place.

Peru Amnesty law approved by Peru Congress on June 14, 1995, that excused 

any human rights violations by the 

military or police since May 1980.

No, annulled on May 14, 2001 after IACHR found amnesty blocked right to justice for victims of Barrios Altos incident.

Uruguay 1986, covered crimes from 1973-1985. No, annulled by Uruguayan Supreme Court in October 

2011. Public referendums in 1989 and 2009 resulted 

in public support for maintaining the amnesty laws.

39 Mendez, 2001, p. 43.
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Many of the amnesty programs passed by military governments in Latin America 

did not hold up under continued legal scrutiny. In Chile, for example, the 1978 amnesty 

law was eventually amended because forced “disappearances” were considered to be 

ongoing crimes because the bodies of the victims were never recovered. In that sense, 

disappearances were treated more like kidnappings and were therefore ineligible for the 

country’s amnesty program that forgave crimes during the internal conflict. Cases were 

reopened against hundreds of Chilean military officials and, from 2000 to 2015, many 

were tried and jailed for their crimes. The governments of Peru and Argentina also 

revoked amnesty programs that had been later ruled to be unconstitutional or counter to 

the Inter-American Convention on Human Rights. 

Colombia has its own controversial amnesty program from the conflict Colombia’s 2005 Justice and Peace Law (JPL) granted conditional amnesties to thousands of 

guerrillas and paramilitary fighters, an enticement the government hoped would convince them to demobilize and disarm. The law required the combatants to confess their 

crimes as part of a plea-bargain deal that would give them lighter prison sentences. If 

a paramilitary failed to admit to a crime, the plea bargain could be revoked and a full 

sentence for the crime could be imposed. The government hoped the quasi-amnesty 

program would help solve more than 38,000 crimes involving 50,000 victims that remain under investigation.40

The legality of the JPL has been fiercely debated. Backers of the law believe it is 

an effective way to induce paramilitaries to demobilize and point to nearly 31,000 paramilitaries and an estimated 10,000–20,000 FARC and ELN insurgents who accepted 

the terms of the program. Critics contend that the program is the equivalent to a blanket 

amnesty program that has been outlawed by international legal institutions, resulting 

in impunity for human-rights violators. In a July 2005 editorial, the New York Times 

said the JPL should be called the “Impunity for Mass Murderers, Terrorists and Major 

Cocaine Traffickers Law.” Despite that, in July 2006, Colombia’s Constitutional Court 

upheld the constitutionality of the law. In the ruling, however, the Constitutional Court 

limited the leniency of the sentence the paramilitaries could receive through the pleabargain deal. According to the court, paramilitaries who commit crimes or fail to fully 

comply with the law will have to serve full sentences.

40 While the majority were pardoned, more than 2,000 paramilitaries were implicated in major crimes. Critics of the program contend 

 that only about 30 ever spent time in prison. In May 2008, 14 leaders were extradited to the United States to face charges of drug 

 trafficking and murder. The amnesty program had other benefits; cooperation from paramilitaries led to the exhumation of 2,800 

 remains in 2,300 common graves. In addition, the information provided by the paramilitaries assisted the Colombian Supreme 

 Court and the prosecutor general’s investigations of links between politicians and paramilitary groups. By 2010, 87 members of 

 Congress, 15 governors, and 35 mayors were implicated for ties to illegal paramilitary groups. Source: U.S. Department of State, 

 2010; U.S. Government Accountability Office, 2008, p. 54. 
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Crime Total # of victims Insurgents Paramilitaries Security Forces Unknown assailants

Kidnapping 27,023 90.6% 9.5% N/A N/A

Massacres 11,751 17.3% 58.6% 8.0% 14.9%

Homicides 23,161 6.9% 38.4% 10.1% 27.7%

Accountability 

The Colombian government’s effort to investigate the countless events that occurred 

during the 50-year conflict will be a massive task. More than 220,000 Colombians died 

during the conflict, the vast majority of them civilians. The Center for Historical Memory estimates that 45,000 Colombians are still missing or unaccounted for as a result 

of the conflict.41 Millions more have been displaced from their homes. More than 7.6 

Colombians have registered as victims of the conflict. 

The press release from Havana in September 2015 indicated that the two groups 

have agreed to establish a Special Judicial Process for Peace consisting of Justice 

Courts and a Peace Tribunal. The purpose of the courts and tribunal is to “obtain truth, 

contribute to the reparation of victims, and judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, guaranteeing their 

non-repetition.”42

 Table 4. Responsibility for Crimes (by percentage of total number of victims)43

Acknowledgement and, in some cases, punishment for crimes serve as deterrents for future violence. Punishment, even if it comes years after the incident, serves 

to dissuade those who may be contemplating a return to a criminal lifestyle. In theory, 

trials and convictions of those responsible for crimes should weigh in the minds of 

those tempted to commit new violations in the future. According to the U.S. Institute of 

Peace (USIP), even if perpetrators are not convicted, the government effort to find and 

prosecute perpetrators who committed the most egregious acts of violence reinforces a 

culture of lawfulness.44 This is critical in a society like Colombia that aspires to adhere 

to a rule of law. 

41 Centro de Memoria Histórica. Link: http://www.centrodememoriahistorica.gov.co/areas-trabajo 42 See Joint Communiqué 60 on the Accord for the Creation for a Special Judicial Process for Peace, September 23, 2015, Havana, 

 Cuba. http://www.altocomisionadoparalapaz.gov.co/procesos-y-conversaciones/ An English translation is available here: 

 https://vbouvier.files.wordpress.com/2015/09/2015_0923-comunicado-conjunto-60-23-septiembre-2015.pdf 43 Centro de Memoria Histórica. “Basta Ya!: Colombia: Memorias de Guerra y Dignidad,” 2013. 

 Link: http://www centrodememoriahistorica.gov.co/micrositios/informeGeneral/estadisticas.html

44 Jonathan Morgenstein, “Consolidating Disarmament: Lessons from Colombia’s Reintegration Program for Demobilized 

 Paramilitaries.” U.S. Institute of Peace, November 2008, p. 4. Retrieved from http://www.usip.org/publications/consolidating-

 disarmament-lessons-colombia-s-reintegration-program-demobilized. 
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The issue of accountability for crimes was a divisive one in the early stages of 

the Colombian peace talks. In a press conference in Bogotá in November 2012, the 

Colombian Defense Minister, Juan Carlos Pinzón, said that Colombia’s military has 

the “constitutional duty to pursue all criminals who have violated the Constitution” and 

that FARC insurgents should be held accountable “for all the crimes they have committed over so many years.”45 Until recently in the process, the FARC vowed that they 

would never spend one day in jail. FARC negotiator Luis Alberto Alban said, “We 

know there have been civilian victims, but our goal was never to cause damage to that 

person. We do not understand that person as our victim. He is a victim of the war.”46

The FARC are accused of a number of war crimes and crimes against humanity 

including terrorism, kidnapping of civilians, murder of hostages, indiscriminate bombing of civilian targets, forced displacement, and child soldiering. The FARC policy of 

kidnapping generated thousands of hostages and millions of dollars of ransom money 

each year. Some hostages were kept chained to trees for years in FARC jungle hideouts. 

Many victims were killed by their FARC captors or died from disease while being held. 

The FARC also committed a number of indiscriminate attacks and executions of 

civilians. Perhaps the deadliest of these incidents was the gas cylinder attack against a 

church in Bojayá on May 2, 2002. Hundreds of residents, mostly women and children, 

45 Associated Press (19 November 2012). “Colombian Defense Minister Rejects Cease-fire.”

 Link: http://www.democraticunderground.com/?com=view_post&forum=1014&pid=311171 46 Isaac Risco, “FARC Ready to Overcome ‘Major Hurdles” in Colombian Talks. Deutsche Presse-Agentur (DPA), 15 Sept 2012.

The FARC are accused of kidnapping thousands of Colombians, many of them civilians, and holding them in jungle hideouts under 

austere conditions for years. In this photo, Colombian Police Superintendent Jhon Frank Pinchao Blanco was held captive almost 

nine years before he escaped from the FARC. Photo credit: UOL Brasil.
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took refuge in a church near the center of town to escape fighting between guerillas and 

paramilitaries. The paramilitaries took up defensive positions around the church. At approximately 10:45 in the morning, the guerillas launched gas cylinder mortars (propane 

tanks filled with explosives) toward the church. The bomb pierced the roof and exploded on the altar killing 119 people and injuring 98 others. Many of the victims were 

children.47

The Colombian armed forces will also have to answer allegations of human 

rights violations. Up until the 1990’s, the Colombian Army was widely perceived to 

use indiscriminate and excessive force in operations against insurgents. One U.S. report 

referred to the Colombian Army as an “army of terror.”48 Declassified U.S. embassy 

cables and U.S. State Department Human Rights reports reported frequent tacit collusion with paramilitary forces in joint operations against the FARC and other guerrilla 

groups.49 Non-government organizations like Human Rights Watch and Amnesty International published detailed reports alleging that elements within the Colombian military and police collaborated with illegal paramilitary groups.

Around the year 2000, the Colombian military began a wide campaign to professionalize its forces, adhere to international standards of the use of force, and to avoid 

operations that would cause civilian casualties. The Colombian military implemented 

a force-wide training and education program on human rights that linked protection of 

civilians to legitimacy of the government. Human-rights violations were investigated 

and tried in the military justice system. Perpetrators were forced out of the armed forces. Civilian casualties decreased significantly and public support and confidence of the 

Colombian armed forces increased to historical levels. The Colombian military today 

is widely perceived to have some of the most professional and human rights abiding 

forces in the entire hemisphere.50

Scrutiny of the armed forces’ records will be difficult to accept for many proud 

Colombian officers and soldiers who have dedicated their lives to fighting against the 

guerrillas. Thousands of Colombian soldiers and police officers died in the conflict. 

47 United Nations High Commissioner for Human Rights, “Informe de la Oficina en Colombia del Alto Comisionado de las Naciones 

 Unidas para los Derechos Humanos sobre su Misión de Observación en el Medio Atrato.” May 20, 2002. 

 Link: http://www.hchr.org.co/documentoseinformes/informes/tematicos/bojaya.pdf

48 Peter Santina, “Army of Terror,” Harvard International Review, Winter 98/99, Vol 21(1). For more on U.S. concerns for Colombian 

 human rights records, see Robert D. Ramsey III, “From El Billar to Operations Fenix and Jaque: The Colombian Security Force 

 Experience, 1998-2008.” Combat Studies Institute Press, Fort Leavenworth, Kansas, 2009. 

 reatiesany active duty officialacknowledged, f the confidence iches international human rights treatiesany active duty official

49 See, among numerous declassified U.S. Embassy Colombia cables, “Military Assistance to Colombian Army’s 7th and 12th 

 Brigades, and 2nd ‘Brim,’” August 26, 1998. Declassified in accordance with Freedom of Information Act (FOIA) by National 

 Security Archives. Link: http://nsarchive.gwu.edu/NSAEBB/NSAEBB69/part3.html. 

50 The impetus for reform in the human rights program came from a number of sources including progressive-minded senior 

 Colombian officers, a robust assistance program from the U.S. Southern Command human rights office, pressure from domestic 

 and international human rights NGOs, and U.S. legislation like the Leahy Law that tied security assistance to human rights 

 improvements.
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Today, the armed forces enjoy some of the highest public approval ratings of any military institution in the world. But even President Juan Manuel Santos admitted that the 

military has made mistakes. On July 23, 2013 at the Constitutional Court, Santos said 

the government “has been responsible . . . for serious human rights violations and 

breeches of international humanitarian law.”51 The Center for Historical Memory, in its 

2013 report on the conflict, reported that the military is responsible for approximately 

10% of the homicides and massacres in the conflict.52

Despite the extensive reform effort, human rights improvements in the military didn’t occur overnight and some problems persisted for years after the reforms 

started. The Colombian military frequently considered civilians who were suspected 

supporters of the guerillas as legitimate military targets. In other cases, they were encouraged to produce combat kills to show positive results of the military strategy. In 

an incident that garnered international attention and became known as the “false positives” case, Colombian security forces allegedly executed 17 young men from Soacha, 

a poor neighborhood near the Bogotá capital, in 2008. The young victims were lured 

to a rural area with promises of paid employment and were subsequently killed. The 

victims were dressed in the garb of guerillas and weapons placed next to their bodies. 

The killings were falsely presented by the military as “guerrillas killed in combat” and 

were reported as carried out by paramilitary groups or criminal gangs. In many of these 

cases, soldiers received money, extra days of holiday, or a congratulatory letter from 

their superiors as a reward for having killed a “guerrilla member.” The national and 

international outrage over the scandal led to the firing of 27 army officers in October 

2008, including three generals. In November of that year, the head of the army, General 

Mario Montoya, was forced to resign. In 2009, dozens of other members of the security 

forces were arrested in connection with these types of killings.53 At the time this report 

was published, 22 Colombian generals were reportedly under investigation for extrajudicial executions.54

In 2011, President Juan Manuel Santos took office, and, under his direction, the 

Colombian Office of the Attorney General is investigating more than 3,700 extrajudicial executions allegedly carried out by security forces from 2002-2008. Overall, such 

51 Fox News, “Colombia admits rights violations in battle with leftists,” July 23, 2013. 

 Link: http://www.foxnews.com/world/2013/07/25/colombia-admits-rights-violations-in-battle-with-leftists.html

52 Centro de Memoria Histórica. “Basta Ya!: Colombia: Memorias de Guerra y Dignidad,” 2013. 

 Link: http://www.centrodememoriahistorica.gov.co/micrositios/informeGeneral/estadisticas.html

53 By June 2012, some 1,800 members of the security forces had been investigated in connection with 2,984 murders. By the middle 

 of 2015, 800 soldiers had been convicted in the killings. However, no officer who commanded a brigade or higher at the time of the 

 killings has been convicted. Many of the suspicions on military collaboration with paramilitaries come from not only human rights 

 organizations and the free press but from reports by the U.S. embassy and the United Nations office in Colombia. 

 Human Rights Watch, 2001, p. 31. 

54 Agence France-Presse (AFP), “Colombia issues arrest warrants against 22 Army officers,” 03 Sept 2015.
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killings have diminished since 2007, following the introduction of a comprehensive 

Ministry of Defense policy under which security forces are guided by a detailed operational manual and legal advisers. Military inspectors are said to support both the planning of operations and rules enforcement. 

The Colombian Truth Commission

According to the reported agreement in Havana, the Commission for Clarifying Truth, 

Harmony, and Non-Repetition will be established within six months of the peace accord signing.55 Once established, it will have three years to conduct its investigation and 

publish its final report. The principal directors of the truth commission (the “Commissioners”) will be chosen by a committee of nine representatives of the FARC and government. There will be a total of 11 Commissioners of which three may be foreigners. 

The Commission president must be Colombian. Two-thirds of the selection committee 

must agree on the commissioner for him or her to be selected.56

A truth commission in Colombia would be a logical continuation to the conflictresolution efforts conducted during the last ten years. The effort at reconciliation began 

under President Alvaro Uribe who oversaw the passage of the Justice and Peace Law in 

2005. As part of that effort, Colombia established a National Commission on Reparation and Reconciliation (CNRR) and a Historical Memory Group. Later, the National 

Center for Historical Memory (CNMH) was created. In 2013, it produced its “Basta 

Ya!: Memories of War and Dignity” report, a massive compendium of the Colombian 

conflict from 1958-2013. Establishment of a full-fledged truth and reconciliation commission would be a natural addition to these initial efforts. However, such an effort is 

fraught with pitfalls of politically and socially explosive topics, ones that have bedeviled previous truth commissions in Latin America. 

The Colombian Truth Commission should be independent and impartial. It must 

provide security guarantees for victims and witnesses who are interviewed or who testify to the members of the commission. It must take care to preserve the evidence and 

55 Approving the peace accord once it has been finalized has been a controversial issue. Originally, the Colombian government 

 indicated approval for the peace accord would be put to a vote by a plebiscite by the Colombian people. The government also 

 considered forming a special Constituent Assembly that would implement the necessary changes to the Constitution. However, 

 after dragging on for more than three years, public skepticism grew that the accord would either never be signed or would be 

 impossible to implement. In May 2015, nearly 70% of Colombians doubted the negotiations would succeed. Consequently, President 

 Juan Manuel Santos sent a proposed constitutional amendment to the Congress that would create a special legislative assembly to 

 implement the peace deal. As of the publication of this report and in light of the preliminary nature of the accords, no official 

 policy has been announced or approved as to how or if the peace accords will be approved.

56 The establishment of the Colombian Truth Commission was actually announced in June 2015 via a joint communique from the 

 peace talks in Havana. The announcement was one of about 70 public releases during the peace talks to inform the Colombian 

 people of the peace talk developments. An English version of the June 4, 2015 public release about the truth commission can be 

 found here: https://www.mesadeconversaciones.com.co/comunicados/informe-conjunto-de-la-mesa-de-conversaciones-entre-el- 

 gobierno-nacional-y-las-fuerzas?ver=in.
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eyewitness testimony it collects. As the Colombian government has done throughout 

the peace talks, the commission should periodically inform the public of developments 

and its findings. Most importantly, the Colombian Truth Commission should focus its 

efforts on illuminating the truth, encouraging co-existence, tolerance, and reconciliation, and ensuring crimes committed during the conflict are never repeated. 

Since it will work in tandem but separately from the human rights trials, the 

commission should make it clear that it is an extra-judicial organization. Evidence it 

collects may not be admissible in criminal trials, part of an effort to encourage witnesses and victims to share their stories without fear of retribution by the perpetrators of 

the crimes. In that light, it will not name suspects, recommend punishments, nor share 

evidence with the judicial system. While it is not entitled to reveal individual truths or 

to specifically identify perpetrators, it can assess the collective responsibilities of the 

conflict’s participants to include the guerrillas, the paramilitaries, the public security 

forces, and the government as a whole. 

Most truth commissions do not name individual perpetrators of alleged crimes. 

To do so without a thorough legal investigation would potentially incriminate a person 

who would not have the opportunity to dispute the charges through due process legal 

proceedings. As one truth commissioner in Chile wrote, “to name culprits who had not 

defended themselves and were not obliged to do so would been the moral equivalent 

to convicting someone without due process. That would have been in contradiction 

with the spirit, if not the letter, of the rule of law and human rights principles.”57 In 

Argentina, for example, the commission was prohibited from naming the suspects of 

human rights violations. However, victims and their families feared that rebels from the 

Montoneros, an urban guerrilla group, and the national security forces that had contributed to an estimated 10,000 to 30,000 deaths during the internal conflict in the country, 

would escape justice. On the eve of the publication of the Argentine truth commission 

report in 1985, the names of alleged perpetrators of crimes were leaked to and then 

published by the press, causing a significant public clamor about the truth commission 

report and how its findings might be used.

Since then, a number of other truth commissions in Latin America – Chile and 

El Salvador, for example – have named those accused of crimes. As in Colombia, the 

Chilean Truth Commission was prohibited from naming individuals accused of human 

rights violations. However, the commission passed the names of suspects it had discovered during its investigation to the Chilean courts for further investigation and possible 

use in subsequent criminal trials. 

57 Report of the Chilean Commission on Truth and Reconciliation, page xxxii.
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In El Salvador, a United Nations Truth Commission was established to investigate the most serious human rights violations. The Commission recommended the removal or transfer of 103 officers including the Minister and Vice-Minister of Defense, 

most of the generals, and many of the colonels. Salvadoran President Alfredo Cristiani 

retired all the officers recommended by the Commission including most of military’s 

high command.58 According to scholars of the Salvadoran conflict, this was “the most 

thorough purge of any Latin American army not defeated in war.”59

Not all Latin American truth commissions end as they originally intended. Truth 

commissions in Bolivia, Uruguay, Ecuador, Guatemala, and Brazil failed to live up to 

their expectations. In other cases – Chile, Argentina, and Peru, in particular – the truth 

commissions made a significant contribution to reconciliation in the country, made 

important recommendations to ensure non-repetition, and helped identify victims and 

perpetrators of crimes. Truth commissions that failed to accomplish their objectives 

were usually constrained by a lack of cooperation from state forces or insurgents, an 

inadequate budget or manpower, insufficient time to complete their investigations or 

written summaries, or a lack of political support from senior officials. 

Conclusion

President Santos has declared that Colombia has “been a country in conflict for 

so many years, so many decades, centuries even, that it’s time for us to heal our 

wounds.”60 His efforts to investigate the long conflict in his country have already included compensation for victims, investigations into illegal government activities, and 

restoration of land to displaced persons. Colombian authorities have begun the grisly 

task of identifying the remains of thousands of people buried in unmarked graves 

across the country so that they can be returned to their families for proper burial. 

58 The autonomy and obstinacy of the military would have likely resulted in the armed forces ignoring the recommendations 

 but the Clinton Administration threatened to withhold $11 million in aid if the military did not comply with the Commission’s 

 recommendations. Even after the report was published, the Salvadoran military vehemently contested the veracity of the report. On 

 23 March 1993, Minister of Defense General Ponce accused the Truth Commission’s report of trying to “defile the honor and 

 dignity of the armed forces and convince the public that the military had systematically violated human rights.” Two years later, 

 the new Salvadoran Defense Minister, General Humberto Corado, continued to deny that the armed forces had done anything 

 wrong. “The armed forces have nothing to apologize for, since their conduct was consistent with the principles of a war in which 

 a clandestine enemy attacks regular military patrols,” said Corado. Reported in Mike Kaye, “The Role of Truth Commissions in the 

 Search for Justice, Reconciliation and Democratisation: The Salvadorean and Honduran Cases,” Journal of Latin American 

 Studies, Vol. 29, No. 3 (Oct., 1997), 705-706. See also David H. Ucko (2013) Counterinsurgency in El Salvador: the lessons and 

 limits of the indirect approach, Small Wars & Insurgencies, 24:4, 682; Call, 835-836. 59 According to the UN Truth Commission in El Salvador, 85 percent of the human rights violations during the war that it investigated 

 (a total of 22,000 cases) were committed by the military, paramilitary groups, or right-wing death squads. The FMLN guerrillas 

 were responsible for five percent of the cases. Source: United Nations Truth Commission in El Salvador, “De La Locura a la 

 Esperanza,” (San Salvador, 1993); See also Charles Call, “Democratization, War, and State-Building: Constructing the Rule of Law 

 in El Salvador,” Journal of Latin American Studies, 2003, vol 35, 835. 60 Darcy Crowe, “Colombia Tries to Heal Wounds of Long War,” Wall Street Journal, 07 July 2011.
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Clearly, Santos’ efforts are in keeping with the best intentions of previous transitional justice programs in Latin America. While there is not one best model, other examples in the region provide important lessons for Colombia. Colombia should ensure 

that impunity no longer protects those responsible, by action or tolerance, for human 

rights and international humanitarian law violations. Rather, the accused should be tried 

in a court of law, demonstrating the government’s resolve and impartiality. 

Colombia stands to gain much from its amnesty program and truth commission. 

Certainly, dredging up old, bad memories is not a pleasant experience, but some degree of accountability is necessary for the victims—and for the legitimacy of the current government. As one former Chilean defense official suggested about controversial 

human rights trials in his country, “You deal with it or it will never go away. You have 

to confront it.”61 As President Santos has demonstrated, he is capable of launching 

reconciliation programs that require what one observer called a “gigantic administrative and judicial task.”62 In his opinion, Colombia can emerge as a truly representative 

democracy, embracing human rights, leaving its checkered past behind, and “healing 

the wounds that the country has accumulated for decades.”63

If the peace accords are signed in March 2016, Colombia faces difficult years 

ahead as the country tries to reconcile 50 years of violence. Many questions remain 

about how Colombia will implement the post-conflict demobilization of the armed 

groups. Few details have been revealed from the talks in Havana including how “restriction of freedom” is defined. The ceremony for the signing of the accord will be, 

without a doubt, one of the most important historical events in the country’s history. 

What comes next will be very difficult. The two sides have to implement the very challenging agreements they have made on the political participation of the FARC, the land 

reform and distribution initiatives, the illicit drug trafficking, accountability and punishment for crimes, and reparations for victims. Vengeance and retaliation tendencies will 

have to be voluntarily suppressed. Both groups will have to accept the legitimacy of 

the others to share political and social space in Colombian society. As one transitional 

justice scholar observed, a “collective amnesia” would be convenient.64 With luck, the 

country will move from negative peace to a long-sought positive peace.65 It will likely 

take decades to do so. 

61 Lutz and Sikkink, 2001, p. 16.

62 Richard McColl, “Colombia’s Military Faces Challenges over Peace Talks.” BBC, 24 Oct 2012; BBC, “Land Theft Put at 7M 

 Hectares,” 29 May 2011.

63 McColl, 2012.

64 Andrew Rigby, Justice and Reconciliation: After the Violence. Boulder, CO: Lynne Reinner, 2001. Priscilla Hayner, “Fifteen Truth 

 Commissions: a Comparative Study, 1974-1999.” Human Rights Quarterly, 1994, 372. 65 John Galtung, considered the father of peace studies, introduced the concept of positive and negative peace in his 1969 article, 

 “Violence, Peace, and Peace Research.” Negative peace is the absence of hostilities, either by prevention, intervention, or by 

 cessation of hostilities. Positive peace refers to the restoration of relationships, the constructive resolution of conflict, and the 

 creation of peace mechanisms that benefit the entire population and society.