Prison, or “Deprivation of Liberty,” for Human Rights Violators

International Criminal Court Prosecutor Fatou Bensouda has warned Colombia against amnesties or suspended sentences for serious guerrilla human rights violators.

In December, FARC peace negotiators met in Havana with representatives of Bojayá, a town in northwestern Colombia. There, during a 2002 confrontation with paramilitary fighters, the FARC had catapulted a homemade bomb into a church where much of the population was hiding, killing 119 of them. Following the Havana meeting, the guerrilla negotiators issued a humbly worded apology, in which they committed to

“seeking ways we can possibly compensate, not just by recognizing the damage caused then, but by developing a series of proposals directed toward dialogue, acts of reparations, and to offer and agree on non-repetition measures.”

The December document was important, not only as the FARC’s most explicit expression of contrition to date, but because in it the guerrillas recognized their responsibility to tell victims the truth about their own human rights abuses and to contribute to reparations.

The statement said nothing, though, about punishment. The FARC continues to insist that it not be, in President Juan Manuel Santos’s words, “the first [guerrillas] in history to hand in their weapons only to go to a prison.”

An Emerging Consensus on “Deprivation of Liberty”

However, the FARC—or at least some of its members—may end up having that distinction. Those in the group most responsible for serious human rights violations could end up spending some time in prison, or in something like prison.

A few possibilities have been tossed about for how to hold demobilized guerrillas accountable for their human rights crimes. Virtually all agree that ex-guerrillas must engage in truth-telling or confession, usually as part of a formal trial or tribunal, along with amends or reparations to victims, and guarantees of non-repetition.

On punishment, though, a variety of views exist. The FARC continues to insist on its leaders avoiding punishment. “We haven’t fought our entire lives for peace with social justice and the dignity of Colombians only to end up locked up in the victimizers’ jails,” chief negotiator Iván Márquez said in 2013.

For his part, Colombia’s prosecutor-general (fiscal general), Eduardo Montealegre, has floated the idea of suspended sentences or “substitution of sentences that deprive liberty for other types of alternative penalties, like clearing landmines.” Communications from the International Criminal Court’s prosecutor have suggested that Montealegre’s proposals would not satisfy Colombia’s international human rights commitments.

Away from the negotiating table, though, a consensus is emerging that crimes against humanity and serious war crimes can neither be amnestied nor pardoned following a trial. The length and severity of punitive detention can be reduced after truth-telling, reparations, and non-repetition guarantees. But there must be some “deprivation of liberty.”

“The particularities of the Colombian case suggest that those maximally responsible for the most serious and representative crimes should have a dose of punishment that implies an effective deprivation of liberty,” reads a 2013 monograph from DeJusticia, a Bogotá-based legal think-tank that has extensively explored this question.

“From the philosophical perspective, specifically with respect to reflections about the purposes of the punishment, it becomes necessary to have a minimum of retribution as a recognition of the suffering of the victims, and as an affirmation of the values that were negated by the serious human rights violations.”

Even if consensus is emerging around the “deprivation of liberty” issue, though, at least four questions remain.

1. How to select cases?

Former President Álvaro Uribe, Internal Affairs Chief (Procurador) Alejandro Ordóñez, and Human Rights Watch, among others, insist that even if punishments are reduced, they should apply to all ex-guerrillas who took part in all human rights violations. “To limit prosecutions to those deemed ‘most responsible’ would purposely create a significant impunity gap, whereby many who bear responsibility for the most serious of crimes would enjoy statutory immunity,” Human Rights Watch wrote in 2012.

Others, like DeJusticia, contend that it is impossible to investigate, try, and punish all abuses committed during Colombia’s long conflict.

“In cases of armed conflicts involving thousands of combatants, if there is no explicit prioritization and selectivity, it will end up happening implicitly, because the possibilities of investigating and judging all conduct and all combatants overwhelms the real capacity of any justice system, even when—as shown in the cases of international tribunals for Rwanda and Yugoslavia—the best possible budget and logistical efforts are made.”

Instead, DeJusticia counsels selecting the very worst cases and the worst violators for investigation, trial, and punishment. In so doing, judicial personnel should “keep in mind both the person’s position within the organization, and his level of involvement in the commission of crimes.” Mere rank in the organization is not enough of an indicator, though: “It is important to complement it with an analysis of his effective command capacity.”

Who, then, should be punished? DeJusticia proposes this matrix:

1. Those who should go to trial and receive sentences with reduced deprivation of liberty:

  • In cases of genocide, crimes against humanity, and the most systematically committed of the most serious war crimes, those who, due to their position in the organization and their real command capacity, have the greatest responsibility.

  • In cases of genocide, crimes against humanity and the most serious war crimes, lower-ranking members who committed the crimes on their own account.

2. Those who should go to trial and receive alternative sentences (without deprivation of liberty) or conditional suspension of sentences:

  • In cases of genocide, crimes against humanity, and the most systematically committed of the most serious war crimes, those who had command when the crime was committed, but who, due to their position in the organization, did not decide in the first place that the crime should be committed (mid-level commanders).

3. Those who should get a “conditioned renunciation of criminal action” against them:

  • In cases of genocide, crimes against humanity, and the most systematically committed of the most serious war crimes, those who carried out the crime but were not in command.

  • In cases of other crimes that don’t fit in the above categories (crimes of medium or low level of seriousness), lower-ranking members who were in command when the crime was committed.

4. Those who should get amnesty:

  • In cases of political crimes (like sedition) and connected crimes (like illicit fundraising), all guerrillas who demobilize.

2. What kind of trials?

Those who meet the selection criteria must go to trial. However, the FARC will oppose trial in Colombia’s current justice system: that is what a defeated army would submit to upon its surrender, and these are not surrender negotiations. Instead, the tribunal that judges former guerrillas’ human rights crimes will either be a new Colombian judicial body created for that purpose, or perhaps a hybrid body with some international participation. The latter possibility may be more palatable to the FARC, but might be more complicated as it may require Colombia to amend its constitution.

3. What kind of “deprivation of liberty?”

Similarly, the FARC is very unlikely to allow its members to serve sentences for human rights abuse in regular Colombian prisons. This, too, would be an emblem of surrender. What “deprivation of liberty” might actually look like is a question bedeviling negotiators in Havana, and specific proposals have been scarce.

DeJusticia’s director, Rodrigo Uprimny, has called for “a flexible deprivation of liberty punishment, not necessarily part of the ordinary prison regime, for those maximum responsible [for human rights violations] among all conflict actors, not just the guerrillas.” In a January interview, Uprimny said “what I think might work is a form of deprivation of liberty that allows them [demobilized FARC members] to keep being political actors.”

In a 2013 report, the International Crisis Group suggested that alternative sentences might “follow the JPL norm [Justice and Peace Law, used for the mid–2000s demobilization of pro-government paramilitaries]: five to eight years rather than the 40 plus years to which many would otherwise be subject.”

“Instead of using existing prisons,” the Crisis Group suggested,

”alternative facilities placing meaningful restrictions on liberty might be built, again taking into account the severity of crimes, or special areas might be designated in which FARC members could live and work under strict curfews and probation-like restrictions.”

Within these guidelines, it is possible to envision some facilities, perhaps with international involvement, at which FARC leaders accused of the worst crimes might have to spend several years. While confined there, these ex-guerrillas would be able to organize their political movement, be in contact with their political operatives, civil society, and the media, have access to the internet, and engage in communications with the outside world. But they would not be able to leave these facilities, whose perimeter would be guarded. (Of course, past guerrilla demobilizations in Colombia have shown that demobilized leaders need heavy protection from would-be assassins, so no matter where they are, they would need to be under guard.)

Monitors—perhaps international monitors—would need to be on hand to certify that these facilities aren’t luxury spas or versions of the pampered “El Catedral” prison that held Pablo Escobar in 1991 and 1992. Tight control and a degree of austerity will be required for the reasons—recognition of victims’ suffering, guarantees of non-repetition, upholding of moral norms—that DeJusticia laid out above.

4. What about government human rights violators?

President Santos has repeatedly promised Colombia’s armed forces that their members accused of human rights violations would receive the same judicial benefits as guerrillas. These might be requirements to tell truth, to provide reparations, and to undergo trials with reduced sentences.

DeJusticia warns Colombia’s government to take great care to avoid granting a “self-amnesty.” This would mean recognizing that the armed forces’ human rights problems have been systemic.

“If state agents are to receive penal benefits equivalent to those that demobilized guerrillas might receive, they will have to be submitted to equivalent demands, especially in relation to the imposition of deprivation of liberty penalties for those most responsible, and the need for those who benefit from these mechanisms make very clear contributions to truth, reparations, and guarantees of non-repetition. …

“It will not be admissible to apply justice mechanisms to state agents if the government insists on the thesis that state agents’ involvement has only been the sporadic work of a few bad apples. Transitional justice dos not exist for those isolated cases, but only for massive human rights violations.”

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