Irony in the Orinoco: Colombian Peace and Venezuelan Transition

Perhaps it is too early to be talking about a Venezuelan transition, but then again, it is never too early to be prepared. Presuming the Lima Group does avoid American military action in Venezuela and secures a workable plan for elections, how would a post-Maduro transitional justice scheme look like? Accountability seems to be of great importance to the Lima Group. Las year, six of its members formally requested the International Criminal Court to open an investigation on Venezuela. Moreover, Maduro’s long-time enemies in the Latin American far-right, such as former Colombian President Álvaro Uribe and Jair Bolsonaro’s son, Eduardo, have been very clear that they want to see him behind bars.

Uribe and Bolsonaro’s wishes notwithstanding, to date, the most realistic framework in existence is the “Amnesty and Constitutional Assurances for Civilians and Military Personnel that Collaborate or have Collaborated with the Restitution of Constitutional Order” (the “Amnesty Bill”) promoted by Juan Guaidó and the Venezuelan National Assembly. Under these rules, amnesty would be granted to “those civil and military persons that contribute to the defence of the Constitution” (i.e. defect and join the opposition). According to Guaidó, this could very well cover Maduro himself.

The bill makes no distinction between common and international crimes, and potentially could cover crimes against humanity. Granting an amnesty to Maduro, who is widely and credibly accused of ordering heinous human rights violations and crimes against humanity, would run contrary to human rights law and conflict with the ongoing ICC investigation. In the words of Human Rights Watch’s Americas Director, José Miguel Vivanco, “[a]ny amnesty that guarantees impunity by absolving government and military officials responsible for the most serious human rights violations is incompatible with Venezuela’s international obligations.”

This is especially true in Latin America. The region’s human rights system, composed of the Inter-American Court and Commission of Human Rights, has established a detailed anti-impunity system – perhaps one of the strictest in the world – as a means to fight against the region’s long history with dictatorship and human rights violations. The basic rule of this system was set out in 1992, in the landmark Barrios Altos v. Peru case. The Court stated:

“[A]ll amnesty provisions, provisions on prescription [i.e. status of limitations] and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law” (¶41).

As I mentioned in a 2017 post, this system has been expanded and tweaked throughout the years, sometimes inconsistently, sometimes with little explanation, increasingly challenging the Barrios Altos standard’s internal consistency, particularly considering the region’s new geopolitical context. Latin America is no longer a land of unpunished dictators, but a region dealing with post-conflict transitional processes like those of Colombia and Guatemala, where the focus on punishment must also take into consideration the need for peace and stability.

This was the case in Colombia, where negotiations to end its decades long conflicts required practical solutions. In 2005, Colombia sought to de-mobilize and reintegrate large numbers of para-military militias, responsible for some of the most serious violations of human rights. Law 975 – known as the Justice & Peace Law – was drafted specifically to maintain a balance between carrot and stick. Para-militaries would be offered reduced sentences of between 5 to 8 years and what Colombia called “alternative punishment”, in exchange for their collaboration with justice and de-mobilization. The plan proved controversial, and was initially opposed by human rights groups that considered it a path to impunity, contrary to Barrios Altos.

In 2007, however, the Inter-American Court seemed to accept it. In La Rochela v. Colombia, the Court did not annul the law, but rather set out the preconditions that the law had to comply with to meet Inter-American standards of truth and reconciliation. “Every element which determines the severity of the punishment should correspond to a clearly identifiable objective and be compatible with the Convention”, it said (¶196). It was possible, therefore, to exchange reduced punishment for peace. A few years later, in 2012, in a Concurring Opinion for the El Mozote v. El Salvador case, five judges seemed to tilt the Court even further in this direction: “it is necessary to devise ways to process those accused of committing serious crimes such as the ones mentioned” – they said – “in the understanding that a negotiated peace process attempts to ensure that the combatants choose peace and submit to justice” (¶30). In my 2017 post, I argued that this new approach has created obfuscation and still requires clarification by the Court if it is to retain its internal consistency and last in time, but that is a discussion for another day. The important takeaway from all this, is that it is arguably now possible, within the Inter-American context, to grant reduced punishment in exchange for truth and justice.

This is why this same approach served as a model for Colombia’s Peace Agreement with the FARC. The possibility of FARC members getting reduced punishment through alternative sentences, however, generated outrage among the far right. Uribe called it an “agreement of impunity”, and accused the Santos government of violating human rights. “The Government assures us that egregious crimes will be judged and sentenced, but immediately after admits that those responsible will not go to jail and will enjoy political eligibility” – he said – “the history of impunity is the history of the creation of new violence”.

Ironically, thought, it is exactly this model that may hold the key for a transitional process that allows for some level of accountability, that balances stability and justice in Venezuela. Instead of allowing him to escape, as some have suggested, Maduro would be offered “alternative punishment”, in exchange for his resignation. It will be interesting to see how the region’s far right explains its opposition to the Colombian Agreement at the same time as it supports Guaidó’s Amnesty Bill or any other workable transitional scheme for Venezuela.

Of course, whether this is a workable framework or not (both for Venezuela and for Colombia) is still a matter of open discussion. As I said in 2017, the Court’s approach to amnesties is evolving as we speak, still adapting to the changing reality of Latin America, and there are certainly still too many variables to guarantee that this is how things will transpire. It is nonetheless an interesting hypothetical, one that would have the potential to cement the Inter-American Court’s still evolving interpretation of Barrios Altos and its relationship with negotiated peace processes. Observers of transitional justice and the prohibition on blanket amnesties would do well to keep an eye open for these topics’ potential Venezuelan connections.