A delegation of conflict victims attended the December 15 singing of the Victims accord in Havana.
Colombia’s government and the FARC guerrilla group have settled the most difficult question facing their three-year-old peace negotiations: how can Colombia hold human rights abusers accountable for their crimes, without imposing penalties so severe that they encourage guerrilla leaders to keep fighting?
The December 15 accord on Victims establishes a Special Peace Jurisdiction to hear confessions, to try and punish war crimes and crimes against humanity, and to determine reparations to victims. A December 19 government communiqué explains how the security forces will fit into that special jurisdiction.
“Settled” is too strong a word, though. Both declarations leave fundamental questions unanswered, and raise others. Detractors have seized upon these ambiguities, and their critiques are influencing the Victims accord’s reception before Colombian public opinion. The head of Colombia’s rightist opposition, Senator and former President Álvaro Uribe, wrote that the December 15 accord “substitutes Colombian justice in order to absolve the FARC.” The Americas director for Human Rights Watch, José Miguel Vivanco, told reporters, “This is a piñata of impunity. …It is a pact between the government and the FARC that ends up sacrificing the right to justice of thousands of the Colombian conflict’s victims.”
WOLA shares some of these concerns, but does not share this broad view. Colombia did not just approve a “piñata of impunity,” and this sweeping choice of wording is unfortunate. The December 15 accord does not amnesty serious human rights crimes, includes significant concessions from an armed group that is not actually surrendering, and is the product of much consultation with victims of the conflict.
Nonetheless, as HRW’s more careful written critique and other analyses have made clear, a great deal remains undefined, and some dangerous potential loopholes remain to be closed up.
- How austere is “restriction of liberty” going to be?
Variations of this question are coming up repeatedly in the debate over the new accord. Depending on the depth of their involvement in serious human rights crimes, demobilized guerrillas who fully confess will receive sentences of between two and eight years of “effective restriction of liberty” while they perform acts of reparation to victims.
What does “restriction of liberty” mean? The accord is still vague, but we now it doesn’t mean “jail.”
“Effective restriction means that there may be appropriate mechanisms of monitoring and supervision to guarantee good-faith compliance with the restrictions ordered by the tribunal. …The Special Peace Jurisdiction will determine the conditions of effective restriction of liberty that may be necessary to ensure compliance with the sanction, conditions that in no case will be understood as jail or prison, or adoption of equivalent security measures.”
This confinement’s austerity and geographic scope remain to be defined. The place of confinement, chief government negotiator Humberto de la Calle told Colombia’s El Tiempo newspaper, “will be a function of the place where reparations occur.”
“For example, there will be guerrillas contributing to de-mining at the site where it takes place. In these sanctions we’re not talking about jail. There won’t be a lot of people all going to one place, but simultaneous reparations programs in several sites. And that is where there will be the presence of those who have been punished with restriction of liberty, movement, and residence. …If someone must go and de-mine in El Orejón (Antioquia), he goes, and it could be that tomorrow he has to go and de-mine in Lejanías (Meta). But look, he won’t have the entire department [province/state] as his base, as some opponents of the peace process said at the beginning.”
How large this “base” may be, though, hasn’t been determined. “If the restriction of movement consists only of not being able to leave the country or a department, or if the labor restriction consists of going to Congress or the town council, it will be very hard for people to trust in transitional justice,” wrote journalist Juanita León of La Silla Vacía. “If it is more strict, it could give the system more legitimacy.”
Support for the process will also depend on the level of austerity of both sides’ convicted human rights abusers’ confinement. Many Colombians recall with shame the sumptuous conditions that drug lord Pablo Escobar enjoyed during his brief stay in his custom-built prison outside Medellín in the early 1990s. While the December 15 accord is unlikely to repeat that experience, it holds open the possibility of a “restriction of liberty” that is insufficiently punitive to meet international standards. “Ay, President Santos,” wrote center-right El Tiempo columnist María Isabel Rueda. “I’d like to help you out, but this sounds like a picnic.”
Concerns about leniency run both ways. A 2011 scandal surrounded the “resort” conditions in which military personnel found guilty of serious rights crimes were being held at the Tolemaida army base. As the December 19 announcement places the armed forces in charge of confining their personnel accused of serious war crimes, that experience risks being repeated.
- Are “false positives” going to be judged as violations of International Humanitarian Law?
There is still no clarity about whether the system would apply to the most serious military human rights crime of the past ten years: the “false positives” scandal, which continues to move slowly through Colombia’s courts. In order to satisfy top leaders’ policy of rewarding high “body counts,” military personnel killed at least 3,000 civilian non-combatants, mostly between 2004 and 2008. Civilian courts have sentenced a few hundred to long prison terms—but there is a possibility that these convictions could be reduced, or even overturned, within the new “Special Peace Jurisdiction.”
Colombia’s prosecutor-general, Eduardo Montealegre, says that won’t happen. He has argued that “false positives” cases can’t be transferred to the special jurisdiction because they had nothing to do with the conflict. “Instead of an issue of excessive use of force within the dynamic of the conflict, they were committed in order to attain rewards and economic benefits,” Montealegre explained in late 2014.
Other top officials, though, don’t share Montealegre’s view. Defense Minister Luis Carlos Villegas said on December 16 that soldiers accused of “false positives” and similar extrajudicial executions will be able to have their sentences reconsidered by the new tribunal. Clarity on the pivotal “false positives” question is urgently needed. If those who committed these non-combat homicides end up benefiting, it will be a blow to the post-conflict transitional justice system’s credibility.
- How badly is command responsibility being watered down?
The Colombian newsmagazine Semana calls the December 19 declaration on transitional justice for the military “a lifesaver for the generals. The accord knocks down the thesis of chain-of-command responsibility that Colombian tribunals have been imposing.”
Is the commander of a division, brigade, battalion, company, or platoon responsible for atrocities committed by his men, especially if that commander does little or nothing to clarify what happened or hold the perpetrators responsible after the fact? Maybe not, say the December 15 accord and the December 19 declaration. Both hold the possibility that “command responsibility” might not apply. Here’s how the December 19 communiqué explains it:
“The determination of command responsibility cannot be exclusively founded on rank, hierarchy, or scope of jurisdiction. The responsibility of members of the security forces for their subordinates’ actions must be founded on their effective control of this conduct, on their knowledge based on the information at their disposal before, during, and after the conduct occurred, as well as the means within his reach to prevent it, when reigning conditions allowed.”
Taken to its logical extreme, this provision could result in detailed confessions and confinement for many sergeants, lieutenants, captains, and guerrilla front commanders. But generals, colonels, and top guerrilla leaders could claim ignorance of what happened or a lack of “effective control.” While it is embarrassing for a commander to admit that he did not control his subordinates, this provision could allow many to avoid responsibility and accountability—unless this provision is further clarified and reworked.
- Might the first year of post-conflict see a mass exit of guerrillas and soldiers from Colombian prisons?
The December 15 accord will amnesty guerrilla fighters accused of “political” crimes, like having rebelled against the state, who are not accused of more serious war crimes and rights violations. This may include thousands of captured guerrillas in Colombian prisons, many of whom could go free during the early post-accord period. Meanwhile, there may be a large-scale freeing of some of the 4,300 military personnel currently tried or imprisoned for human rights crimes. Many will be found to have served more than the new, reduced sentence period, and some will get their cases reviewed and be found not to have deliberately violated international humanitarian law, or not to have had effective command responsibility.
“In many cases they will automatically be freed for compliance with the sentence because the new sentence will be much smaller than what what was imposed before,” President Juan Manuel Santos said last week.
If this happens in the first months after an accord, the image of prison gates swinging open will harm public perceptions of the peace process. “As this will be the first thing that will happen,” Juanita León writes, “it is easy for people’s first perception to be that what transitional justice did was open the door to greater impunity.”
- Will narcotrafficking and hostage-taking be “political crimes” subject to amnesty?
The December 15 accord will amnesty FARC members’ crime of participating in “rebellion” or sedition. To some extent, it will also end up amnestying the illegal activities the guerrillas engaged in to pay for their rebellion. The accord text mentions guerrilla financing as a “connected” offense related to the amnistiable political crimes.
Forgiving guerrillas’ illegal fundraising will require Colombia to change its current laws. It will also unleash intense debate over two of the guerrillas’ most controversial illegal fundraising activities: involvement in the drug trade, and kidnapping for ransom.
“Narcotrafficking is a common crime, and common crimes cannot be amnestied,” said government negotiator Humberto de la Calle. “In no part of the accord does it say that narcotrafficking will be amnestied. In practice, Congress will have to make a law that defines the characteristics of ‘connectedness.’ It must be evaluated whether the FARC will accept that a law defines this.”
This is a big issue to leave unresolved. In the case of narcotrafficking, a general consensus among Colombian analysts is that—whether by accord or law—it will end up being amnestied, although this issue still bedevils leaders of the right-wing paramilitary groups who demobilized nearly a decade ago. In the case of kidnapping for ransom, the prospects for amnesty are much smaller. Participation in kidnappings and hostage-taking is more likely to go to the Special Peace Jurisdiction, with “restriction of liberty” in exchange for full confessions.
- Does the FARC have the means to provide financial reparations?
The December 15 accord commits the guerrillas to providing integral reparations to their victims. FARC leaders seem to interpret this as helping to find the remains of victims, de-mining, substituting illicit crops, building infrastructure, and other community assistance. The government also views reparations as requiring the FARC to provide large sums of money from its coffers and assets. “The government’s interpretation is that there is a reparations commitment that includes assets. We have no doubt,” said de la Calle.
The FARC, however, claim to be broke. “The FARC have no money,” top FARC negotiator Iván Márquez told the BBC’s Will Grant last week.
“It’s said that we have bank accounts, that we have much money in tax havens. What have we said to the Colombian government or its negotiators at the table? ‘All of the FARC’s bank accounts in tax havens, you can take them and put them in the reparations fund, all of them.’ But the thing is that we don’t have them. Simply, because of a media campaign it’s thought that the FARC have much, much money, that we have money deposits, but that’s not true.”
Due to its involvement in narcotrafficking, illegal mining, and other lucrative activities, the FARC no doubt have a large income. What is unclear is how much wealth the group has: how much of the resources it takes in each year are left over after paying for the arming and sustenance of thousands of fighters and militia members. Getting at the FARC’s true wealth is a task that will fall mainly to Colombian and international money-laundering investigators. But it is a difficult task. After the 2003–2006 demobilization of 32,000 members of Colombia’s AUC paramilitary group, Semana noted, “only 6 percent of the AUC’s victims’ reparations came from the assets of this group’s leaders.”
- What does it mean to practice politics during time serving sentence?
While guerrilla leaders are paying their “restricted liberty” penalties for human rights crimes, the December 15 accord does not prohibit their participation in politics. What this means “has to be specified,” Humberto de la Calle told El Tiempo.
If it means that ex-guerrillas can campaign for (or even hold) office while serving penalties for war crimes, it would be a clear violation of Colombia’s international human rights obligations. If it simply means that they can support other candidates, organize their political movements, talk to the press, and communicate on the internet, then it falls within the parameters of an accord designed to encourage the FARC to practice politics within existing institutions, and without violence. More clarity is needed here.
- How are tribunal judges going to be chosen?
Critics of the process, including members of ex-President Uribe’s party, have held up the possibility that the FARC will choose at least some of the judges on the tribunal considering the human rights charges against them. In fact, the accord says little about how these judges will be chosen.
“There is a sentence that says expressly that the parties commit to not naming the magistrates,” said de la Calle. “But we still need to determine a mechanism that involves and names third-parties, with a high reputation. No magistrates will be hand-picked.” President Santos added on December 18, “We’re looking for some third party who has the legitimacy, who has enough credibility to be able to choose, to nominate these magistrates. We have to come to agreement on those third-parties… like the Pope or the United Nations, something like that who has full credibility and legitimacy.”
For now, though, the choice of judges gets added to the list of unresolved issues.
- How many civilian sponsors of paramilitarism will be sanctioned?
Justice Minister Yesid Reyes told Colombia’s El Espectador that non-combatants who helped combatants commit serious war crimes will also face the new justice system, but that the rules aren’t ready yet. “They will face a model like the one that just came out for government forces. It’s practically finished, I don’t now when the President expects to make it public.”
According to Semana, the confessions of AUC paramilitary leaders left a list of 15,669 names of people who financed the illegal group, or who played a “determining or habitual” role in serious paramilitary crimes. Theoretically, the new Special Peace Jurisdiction, with its system of confessions in exchange for lighter penalties, can also be applied to these individuals. It’s far from clear, however, whether Colombia’s justice system will truly compel these civilian accomplices to participate.
Next step: clarity
The December 15 Victims accord is, ultimately, a 63-page declaration of principles, and the December 19 declaration on justice for military rights violators barely fills two pages. Both need more definition, and there will be ample opportunity to add it.
The Victims accord is a draft that can be revisited before the final accord gets signed. Colombia’s Congress must pass laws to implement what was agreed. Colombia’s Constitutional Court may alter those laws to align them with the country’s international obligations. Evaluations from the International Criminal Court and the Inter-American human rights system will influence the end product.
“What I think Colombians must do,” de la Calle said, “is evaluate this from a higher vantage point. What is best for Colombia, this scheme or to keep fighting the same war? What is best for a victim, that they repair the damage done, or that they go to a regular jail for a while?”
This is correct. Still, the many points that are either imprecise or “to be determined” make it harder to sell the accord before the Colombian public and before the international community.
Blanket rejection of a painstakingly developed accord is unconstructive. But we share some of the skeptics’ expressed concerns. Many of the areas that lack clarity are those that have the greatest potential for abuse. We encourage the parties to add precision and close loopholes.
December 23, 2015