A Forgiveness Law: The Path to Solve the Peace Versus Justice Dilemma

Abstract: The peace process between the Colombian government and the Colombian guerrillas provides a case study to examine the operation of a forgiveness law under international law. In 2012, the Colombian Congress passed a legal framework for peace, which essentially provided amnesty for those accused of international crimes. While amnesty trades justice for peace, the forgiveness law proposal for Colombia would secure justice and peace together. Unlike amnesty, the forgiveness law proposal is lawful under international law, for it guarantees prosecution of international crimes, discovery of the truth, a fair trial, adjudication of individual criminal responsibility, redress for victims, guarantees of non-repetition, and mercy for perpetrators. Under the proposal, victims-through a forgiveness and reconciliation commission-actively participate in the legal proceedings that lead to the granting of a pardon because the act of forgiveness is an individual prerogative that only victims enjoy.INTRODUCTIONGovernments of societies in situations of internal armed conflict have often used amnesty as a policy tool to negotiate peace with those accused of committing international crimes,1 thus trading justice for peace. Yet, amnesties granted to those accused of international crimes are unlawful under international law2 and exemplify one feature of the "peace versus justice" dilem© ma-a topic of international law that remains unsettled among scholars.3 Nevertheless, societies emerging from a civil war must debate public policies upon which a solid transition from conflict into peace can be constructed without contravening international law.4 One of the facets of such a transition must be a forgiveness law,5 which can help these societies achieve reconciliation without impunity, and which provides a permanent solution to the dilemma of peace versus justice.The peace process between the Colombian government and the Revolutionary Forces of Colombia-People's Army ("FARC")6 offers an opportunity to examine the lawfulness of a forgiveness law under international law, and to show how such a law could better service the dual goals of peace and justice. To facilitate the commencement of such peace talks, the Colombian Congress passed a legal framework for peace in July 2012, which grants Congress the power to select the individuals to be prosecuted and to determine whether legal proceedings should be suspended for those non-state actors accused of international crimes who consent to demobilize as well as for those members of armed forces accused of international crimes.7 The powers that the legal framework for peace granted to Congress, however, essentially provided for an indirect amnesty, which contravenes international law, impedes criminal prosecution, compromises the truth, deprives victims of the opportunity to seek redress, and endangers the guarantee of non-repetition value.Unlike amnesty laws, the forgiveness law proposal for international crimes discussed throughout this Article complies with international law,8 for it guarantees the prosecution of such crimes,9 the discovery of truth,10 a fair trial,11 redress for victims,12 and guarantees of non-repetition.13 Therefore, Colombia should instead adopt this method of dealing with post-conflict crimes. As governments grant pardons in order to provide a second opportunity to those convicted of ordinary crimes,14 governments, in the aftermath of an internal armed conflict, could similarly issue "pardons as peace" to afford a second opportunity for those involved in the war and convicted of international crimes.15 The advantages of a forgiveness law proposal are many, and in the future, international organizations such as the United Nations should recommend the enactment of a forgiveness law in countries seeking peace and reconciliation at the culmination of an internal armed conflict.Part I of this Article briefly discusses the background of post-conflict societies and the modes of dealing with post-conflict crimes, chiefly international crimes. …