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After 5 Years From The Peace Agreement, How The Peace Is Going - Chapter - Justice Matters - Canal Et All
After 5 Years From The Peace Agreement, How The Peace Is Going - Chapter - Justice Matters - Canal Et All
"Justice matters: if the peace agreement was just, but the conflict
counterbalances it, its implementation is essential".
1. Introduction
The chapter analyses the peace agreement signed between the Colombian
government and the FARC-EP guerrillas in the light of distributive justice (JD) and
procedural justice (JP). The principles are present in the agreement and in the
negotiation, which could favour a stable peace, according to evidence from other
studies (Albin and Druckman 2017; Druckman and Wagner 2017). However, the
positive consequences for peace of the presence of the aforementioned justice
variables are counterbalanced by the complexity of the Colombian conflict.
In this sense, some aspects of the complexity of the Colombian conflict that may
have an impact on the implementation of the peace agreement and its aim to achieve
a stable peace are taken into account. In addition, the implementation of the peace
agreement is analysed taking into account four categories to assess its level of
execution: (i) institutional implementation, (ii) impact on development, (iii) legal
implementation and (iv) reincorporation into civilian life of the actors in the conflict.
This chapter is divided into six parts. The first develops the concepts of distributive
and procedural justice, and their importance in negotiation processes and peace
agreements, as well as some aspects of the complexity of the Colombian conflict.
The second explains the methodology used. The third part provides evidence of DB
and JP in the negotiation process and in the Colombian Peace Agreement. The
fourth part shows the level of execution of the implementation of the agreement
according to the aforementioned categories. The fifth part explains the implications
of the findings for the theory of PB and JP, as well as for the stability of peace in
Colombia. Finally, the chapter's conclusions and suggestions for improving the
implementation of the peace agreement are included.
2. Theoretical framework
The purpose of studying the principles of distributive and procedural justice in the
context of the negotiation of peace agreements lies in the fact that they have a
positive impact on the post-agreement process and become drivers of a stable and
lasting peace. In the literature on justice, which mainly comes from social and
organisational psychology, (Druckman and Wagner 2017, 2) on the one hand, the
importance of analysing the relationships between the members of the delegations
and the ways of managing the negotiations, through procedural justice (JP), is
raised. On the other hand, it suggests the relevance of how to allocate benefits and
responsibilities in the agreements to those involved in the conflict (Deutsch 1985),
through distributive justice (JD).
In this sense, Albin and Druckman (2012) and Druckman and Wagner (2017) used
twelve variables to analyse justice in peace agreements. Procedural justice (JP),
which is important for both the negotiation process and its outcomes, is analysed
through eight variables. The first four variables are used to account for whether or
not this type of justice is present in the negotiation process, as well as whether there
is evidence of infringement of these variables. These variables refer to the ways in
which rules and procedures for negotiating are configured: (i) fair treatment and fair
play, (ii) transparency, (iii) fair representation and (iv) voluntary agreement. The last
four variables of procedural justice refer to the effects of procedural justice on the
post-agreement process: (v) trust building, (vi) collaborative negotiation, (vii)
participation in the post-negotiation process and (viii) reconciliation. Two factors are
particularly relevant to the effectiveness of procedural justice: i) whether the parties
consider the reasons underlying a resource allocation decision to be clear and
adequate (Bies, Shapiro, and Cummings 1988, 681), and ii) whether those
responsible for implementing the decision were treated with dignity and respect
(Brockner, Konovsky, Cooper-Schneider, Folger, Martin, and Bies 1994, 401).
Distributive justice (DF), on the other hand, refers to the allocation of benefits and
responsibilities in the terms of agreements (Deutsch 1985), and is implemented
through the following four variables: (i) compensation, (ii) equality, (iii) needs and (iv)
proportionality to analyse how it is or is not present in the agreement, as well as
whether it was violated. Some authors argue that focusing negotiations on principles
of distributive justice (JD) reduces the negative impact on the sustainability of
agreements in complex conflict environments (Downs and Stedman 2002).
2.2. What are the main elements of the complexity of the conflict that are
working against peace?
The Colombian conflict has been characterised as a protracted and complex conflict
(protracted conflict) and these characteristics have contributed to its difficult and slow
termination and the implementation of the Peace Agreement. Azar (1978) defines
protracted social conflicts as hostile interactions that extend over long periods of time
with sporadic outbreaks of open warfare that fluctuate in frequency and intensity.
These are conflict situations in which the stakes are very high as the conflicts involve
entire societies and these act as agents for defining national identity and social
solidarity. While these conflicts may exhibit some break points during which there is
a cessation of violence, they persist over time and have no clear starting or ending
point. (Azar 1978, 50).
Most intractable conflicts develop through the violent outbreak of one or more master
splits or fundamental incompatibilities between the parties that originated, deepened
and energised the rupture, which are often associated with identity, ethnicity, class,
ideological, power conceptions and territorial autonomy (Azar 1990; Harbom,
Melander and Wallensteen 2008; Wood 2010).
The vision of the master or fundamental cleavage of internal conflicts has two main
characteristics: on the one hand, it explains the dynamising factor of national
confrontation, and on the other, it explains the relations and feedback between
regional/local dynamics and the national one. This is because, although local actors
are framed within the logic of national confrontation, they also have particular logics
that affect national dynamics and shape local social orders.
Thus, it can be affirmed that the Colombian conflict has been a confrontation
between systems and parasystems, and not only a struggle between institutionality
vs. rebel or illegal groups (Uribe 1999; García 2008, Camacho et al 2009).
In this sense, although the master split in Colombia had been a confrontation
between state and society, between state and guerrillas, and between guerrillas and
paramilitaries, this is not only a factor of violence at the national level, but also
generates models for the construction of other local orders through the use of
violence, which become factors that feed and feed back into the national
confrontation González, Vásquez, Bolívar 2003 and 2008, García and Aramburo
(2011). This means that even if essential problems of the macro logic or of the
dominant confrontation at the national level are solved, which is the aim of the
negotiation, local logics that may often be disconnected from the dominant macro
logic must also be addressed.
2.2.2 The duration in time
These factors often generate or reinforce high levels of violence that are sustained
over time, producing not only measurable and concrete combat but a whole context
of recurrent violence that results in disproportionate impacts (Kriesberg et al 1989)
that cause so much attrition and opprobrium in society.
3. Methodology
This is a qualitative research project that analyses the peace agreement signed
between the Colombian government and the FARC-EP in the light of the principles
of distributive and procedural justice. The research questions are: How are
distributive justice and procedural justice present or absent in the Colombian peace
agreement? How do distributive justice and procedural justice affect the
implementation of the agreement and its sustainability until the implementation is
completed (4.5 years after the signing)? How can the sustainability of the agreement
be affected by the context of the Colombian conflict, which is complex, long-lasting
and difficult to deal with?
3.1 Methodology used in the negotiation process and the Colombian peace
agreement
Similarly, to understand how procedural justice (JP) is present or not present in the
peace agreement, the eight variables used by Albin and Druckman (2017) and
Druckman and Wagner (2017) were taken into account, which are described in Table
2.
# Variables of Definitions
Procedural Justice
1 Fair treatment and Fair Establishment of clear and concrete rules of the game to be
Play followed during the negotiation.
Transparency Accessibility and openness to information on what is being
negotiated at the table.
Fair Representation Representation and participation of those affected or involved in
the decision-making process of the bodies to be created after the
agreement.
Voluntary Agreement Agreements made on a voluntary basis and free of impositions
on the stakeholders and/or beneficiaries.
Variables of the effects Definitions
of Procedural Justice
5 Confidence building Process for achieving credibility and compliance expectations
about the negotiation and agreements.
Collaborative Process of meeting individual and joint needs, which seeks long-
negotiation term relationships.
Participation in the post- Participation of different actors in the implementation of
negotiation process agreements and in political processes.
8 Reconciliation Reconstruction of relations between the parties after a situation
of violence.
In the first instance, the frequency with which the above variables are present in both
the negotiation process and the peace agreement, or whether they have been
violated, was coded.
A series of books and documents issued before or after the signing of the agreement
were selected and a list of words was drawn up to serve as a search engine to
identify the most relevant, central or sensitive issues of the negotiation1.
1
The following sources were used: De la Calle, H. 2019. Revelaciones al final de una guerra. Bogotá:
Penguin Random House Grupo Editorial; Duzán, M. 2018. Santos. Paradoxes of peace and power Bogotá:
Penguin Random House Grupo Editorial. Santos, J.M., 2019. La Batalla por la paz, Ed. Planeta; Bermudez,
A. (ed.), 2018, Los debates de la Habana: Una mirada desde dentro, IFIT. Estrada, J. 2020. Las propuestas
mínimas de las FARC-EP en La Habana. Bogotá: Centro de Pensamiento y Diálogo Político and Selected
official communiqués of the FARC-EP delegation to the negotiations, available at: http://www.cedema.org/ .
With this use of proxy words, an approximation was made of the issues that were of
particular importance in the agreement.
Four categories were used to evaluate the implementation of the peace agreement:
institutional implementation (II), development impact (ID), legal implementation (IL)
and reincorporation (RE). The level of implementation of the variables in each
category was analysed on a scale of 1 to 5, where 1 corresponds to no
implementation and 5 to the highest level. Table 3 below includes the four categories
mentioned and the different variables that comprise them.
Category Variables
1 Institutional implementation Implementation, participation, budget, building structures and
political will
The impact on development Security, economic growth and reconciliation
Legal implementation Creation of laws, legal adaptation and ratification of laws by
the Senate
Reinstatement Reincorporation into civilian life
4. Results
The following is a description of the frequency with which the different variables of
distributive justice and procedural justice were found in the peace agreement signed
between the Colombian government and the FARC-EP. Examples of the four
distributive justice variables were found, and each time one of these variables is
mentioned it will be put in brackets (JD) to identify it. There is also evidence of the
eight procedural justice variables and each time one of them is mentioned, it will be
put in brackets (JP). It is also important to note that there is no evidence of violations
of these variables in the Colombian peace agreement.
The findings are classified into 3 levels. In the first are those variables with the
highest percentage of frequency, which fluctuates between 10 and 21%. In the
second level, the variables with a medium frequency percentage, between 5 and
8%, and in the third level, the variables with the least significant percentages, i.e.
between 1 and 3%.
Words to detect an important topic in these texts included, among others: bases, cede, central, key, key, (no)
concessions, critical, crucial, essential, success, fundamental, important, immovable, unpostponable, interests,
lessons learned, line or red flag, goal, mission, objective, turning point, relevant, results, vital.
•
Level 1. The variables with the highest frequency of coding in the
different segments of the agreement were: compensation, (JD) 21%;
voluntary agreement, (JP) 18%; post-agreement participation, (JP)
16%; and need, (JD) 10%.
• Level 2. The variables with a medium frequency percentage found
were: fair representation, (JP) 8%; fair dealing and fair play, (JP) 7%;
collaborative negotiation, (JP) 5% and reconciliation, (JP) 5%.
• Level 3, Finally, the variables with the lowest percentages of frequency
of agreement are: trust building, (JP) 3%; proportionality, (JD) 3%;
transparency, (JP) 2% and equality, (JD) 1%.
The above results can be seen in the graph below:
20%
15%
10%
5%
0%
Compensación Acuerdo Participación en Necesidades Representación Trato justo y Negociación Reconci liación Construcción de Proporcionalidad Transparencia Igualdad
Voluntario el proceso post Justa juego li mpio colaborativa confianza
These results on distributive justice and procedural justice, where the compensation
variable has the highest percentage (21%), show a high focus on reparation or
restitution for victims affected by the conflict.
The presence of all the variables of procedural justice and distributive justice in the
peace agreement between the Colombian government and the FARC-EP, as well
as the fact that no evidence was found of infringements of procedural justice or
distributive justice, leads to the conclusion that the agreement was fair.
The following is a description of the frequency with which the variables of distributive
justice and procedural justice were found in the negotiation process between the
Colombian government and the FARC-EP.
Examples were found for ten of the variables, and no evidence was found of
infringement of these variables in the Colombian peace agreement. The results are
classified into three levels. In the first are those variables with the highest percentage
of frequency, which fluctuates between 10 and 21%. In the second level are the
variables with a medium percentage of frequency, between 5 and 8%, and in the
third level are the variables with the least significant percentages, between 1 and
3%.
• Level 1. The variables with the highest frequency of coding were: trust
building, (JP) 30%; voluntary agreement, (JP) 22%; fair treatment and
fair play, (JP) 13%.
• Level 2. The variables with a mean percentage of frequency found
were: transparency, (JP) 9%; compensation, (JD) 7% and
collaborative negotiation, (JP) 7%.
• Level 3. The variables with the lowest frequency percentages found
are: needs, (JD) 4%; fair representation, (JP) 4%; post-agreement
participation, (JP) 2% and proportionality, (JD) 2%.
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These results on distributive justice and procedural justice in the negotiation process,
where the confidence-building variable (JP) has the highest percentage of frequency
(30%), show a high level of interest on the part of the parties in generating a
framework conducive to peace. As is well known, from the exploratory phase, the
emphasis was placed on investigating the actors' willingness to make peace and to
have guarantees in this regard. Furthermore, the negotiation was characterised by
the building of trust. Examples of this are the respectful language used to lend
legitimacy to the FARC, which avoided calling them belligerents or a terrorist threat.
(Canal and Aponte 2021, 154).
The presence of most of the procedural justice variables, with the exception of fair
representation and reconciliation, and all of the distributive justice variables in the
negotiation process between the Colombian government and the FARC-EP, as well
as the fact that no evidence of violations of procedural justice or distributive justice
was found, leads to the conclusion that the negotiation process was fair.
4.2.1 The importance of procedural justice and distributive justice in the peace
agreement
Through the literature review, which explored explicit statements on what were the
most important issues for each delegation in the negotiation, twelve thematic axes
or fundamental concerns were found, which are listed below:
1. Access to land
2. Citizen participation
3. Cycle of violence
4. Expansion and extension of democracy
5. Guarantees of compliance with the Agreement
6. Laying down of arms
7. Paramilitary groups
8. Productive projects
9. Sanctioning of crimes
10. Fulfilling the rights of victims
11. Security for political participation
12. Reparation for victims
Once the most relevant issues for the peace agreement had been identified taking
into account the above classification, a cross-check was made between the issues
rated as important and the coding of the frequency of the twelve (12) variables of
distributive justice and procedural justice described above. Below, we refer to the
thematic axes 10 and 12, which turned out to be the most relevant in the Colombian
peace agreement.
Thanks to the aforementioned frequency and importance, it can be affirmed that the
Colombian peace agreement is rich in elements of compensation, addressing needs,
distribution, promoting participation and seeking reconciliation. It is, first and
foremost, an agreement that seeks to compensate the victims of the conflict, and
also reveals a high percentage of adherence to the same international and national
regulations and provisions, in what was known during the negotiation as equivalent
treatment for the parties that had been part of the conflict (members of the state and
FARC members) involved in serious human rights violations and breaches of
international humanitarian law.
The thematic axes with the highest level of coded segments are fulfilling victims'
rights and punishment of crimes (87 and 73 segments), and a little further away,
victims' reparation (with 53 segments).
Figure 4.1 unifies these three thematic axes and shows their composition among the
variables JD and JP. Compensation (36%) and reconciliation (20%) are the most
frequent variables when adding the three thematic axes together, followed by the
variables voluntary agreement (16%), participation in the process (11%) and fair
treatment and fair play (7%). These three variables can be understood in the need
during the negotiation to give centrality to the victims, agreeing on a system of justice
and accountability for serious crimes that were similar in type and scope of
treatment. "We are not going to exchange impunity", was one of the slogans
repeated during the negotiation on this point, and hence the emphasis on fair
treatment and fair play, and participation in the process, in the sense that both parties
aimed to be part of the design of the scenarios and mechanisms that would be
generated for the satisfaction of victims' rights.
Thus, the thematic axis of victims reaffirms two fundamental elements of the
agreement, guaranteeing the guerrilla's transition to democracy (which implied their
transition to politics) and, at the same time, responding to the rights of victims,
especially with some form of justice: "both are essential for the objectives of the
agreement to be achieved [and this is what the integral system must do] to find the
balance between these two ideals between justice and political participation in a logic
of transformation" (Jaramillo 2021).
The adjustment to certain principles, laws and previous international and national
designs, which are also known as standards of truth, justice and reparation, are
reflected in the segments coded with the variable voluntary agreement, and
participation in the justice process in the different scenarios can be understood under
the understanding that both parties would jointly design the system of truth, justice
and reparation that would commit them once the Final Agreement is signed, as can
be understood in the following intervention, for example:
"This system is, as far as I know, the first system that is agreed like this with
all these components [...] from an original design. This has not happened
anywhere else. Something was done at the time in East Timor, but nowhere
else had this been thought of as a system and on the contrary there are known
examples such as the case of Sierra Leone where they ended up practically
in a confrontation: a court that is created after a truth commission. Here we
have the possibility of finding synergies, of having positive energies [...]"
(Jaramillo 2021).
4.3.1 Which aspects of the implementation of the Peace Agreement have made
the most and least progress?
25,0%
20,0%
15,0%
10,0%
5,0%
0,0%
Participación
Seguridad
Creación de Estructuras
Creación de Leyes
Ratificación de Leyes
Voluntad Politíca
Adaptación Legal
Crecimi ento Económico
Reincorporación
Ejecución
Governanza
Presupuesto
Another advance can be seen in the creation of laws, which is at a medium level of
execution with a frequency of 7.5% in the coded reports. This in turn has contributed
to the progress of the variable of Reincorporation of former FARC-EP combatants,
which has a coding frequency of 3.4% and is at a medium level of execution, an
example of which is the creation2 of a route to establish the guidelines for the long-
term reincorporation process. Previous regulations only contemplated measures for
the short and medium term (Kroc Institute 2020, 58).
Additionally, one of the points of least progress in the implementation of the Peace
Agreement, and one that generates concern, is the issue of security, which has an
implementation level of 1, with a coding frequency of 18.5%. This indicates that
respect for human dignity, the promotion and respect for human rights and the
protection of the lives of former FARC members has been nil. Violence has been
mostly concentrated towards human rights defenders, leaders of social and
environmental causes, people in the process of reincorporation, women, LGBTI
population and indigenous and Afro-Colombian communities.
2
By Resolution 4309 of 2019
(Eighth Verification Report on the Implementation of the Peace Agreement 2021,
18).
5. Implications of the results for studies on the JD and JP and for the
implementation of the Peace Accord
In the following, we explain the implications of the results of the study for the theory
of distributive and procedural justice and for the implementation of the Colombian
peace agreement.
Studies by Albin and Druckman (2017) and Druckman and Wagner (2017) focus on
the correlation between the presence of distributive and procedural justice in peace
agreements and the possibility of achieving lasting peace. Lasting peace is a
medium- and long-term dimension (10-20 years). This analysis evaluates progress
and shortcomings in the implementation of the Colombian peace agreement, which
is an important short-term (0-2 years) and medium-term (2-10 years) activity, which
in turn has an impact on the goal of achieving a stable and lasting peace.
On the other hand, if implementation in its initial phase is not properly addressed, it
may take longer. In turn, a slow and lengthy implementation process increases the
perception of hopelessness and jeopardises the expectation of lasting peace.
On the other hand, a significant number of people and sectors that have appropriated
the Agreement and tried to implement or defend it have been violated, killed or
silenced (Comisión Nacional de Derechos Humanos Marcha Patriótica 2017). This
means that being part of "C" and defending or promoting the implementation of the
agreement has become a high-risk factor.
All of this means that the implementation of the Accord has not achieved what is
known as a "critical mass" to become advocates of its values, objectives and
mechanisms.
The master rift, in addition to defining the type of conflict and the characteristics of
the conflict and its negotiation, also influences the type of implementation of the
peace agreement. While the implementation phase aims to begin to resolve the
master rift, or at least part of it, it must have sufficient mechanisms in place to ensure
that the administration of this essential incompatibility between the parties is handled
peacefully and democratically.
Although the Peace Accord promotes addressing key aspects of the national logic
(such as the agrarian problem and the problem of political participation, mentioned
in points 1 and 2), it must also address local needs that are recurrently disconnected
from the dominant macro-logic.
Given the above, an extended implementation phase with a strong emphasis on the
local level is required, especially in regions with little territorial control. It is crucial
that, in such areas, the institutions close the spaces that other illegal armed groups
have taken advantage of after the departure of the former FARC.
6. Conclusions
a. The JP and the JD are present in the Colombian peace agreement and peace
process and there is no evidence of infringement of these principles in either.
b. The evaluation of the implementation of the agreement shows progress, such
as the codified themes with medium-high levels of execution (i.e. the
execution of policies, programmes or projects). It is possible that the presence
of the JP and the JD in the process and in the peace agreement has had a
positive impact on this.
c. The assessment of the implementation of the agreement shows
shortcomings, such as codified issues with low or no implementation levels
(i.e. security), so it is possible that some aspects of the complex conflict are
counteracting the fact of having a just peace agreement and this in turn affects
the possibility of achieving a stable and lasting peace.
d. It is suggested that future JP and JD studies consider the importance of the
early stages of implementation in the goal of achieving lasting peace.
e. With a view to improving the implementation of the Peace Agreement, it is
key to strengthen the participation of its central advocates, work on resolving
the master split and prioritise the issues that were assessed at zero or low
levels of implementation.
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