Updates from WOLA tagged “Transitional Justice”

Blog entries, commentaries, and statements from WOLA’s Colombia team

Last Week in Colombia’s Peace Process: Week of April 22-28

May 3, 2018

Jesús Santrich Case

Arrested FARC leader Seusis Pausias Hernández alias Jesús Santrich remains in Bogotá’s La Picota prison, where he is continuing a hunger strike that began after his April 9 arrest. He agreed to receive medical attention, but only from “trusted personnel.”

Colombia’s judicial system—both the transitional system set up by the FARC peace accord and the regular criminal system—are awaiting a formal request for Santrich’s extradition from the U.S. Justice Department’s Southern District of New York. That is where Santrich was indicted on April 4 to face charges of conspiring with Mexican traffickers to send 10 tons of cocaine to the United States.

The Colombian investigative website La Silla Vacía reported that three people with whom the site consulted,

(a journalist who has covered narcotrafficking for decades, an investigator who is an expert on the issue, and a lawyer who used to defend narcos), said that upon viewing the evidence, they were convinced that the case is not a fake setup.
… What they do believe is that it looks like “entrapment” by the DEA, which over several months put together an operation with undercover agents in order to catch someone in the act who believed he was negotiating with narcos.

Santrich’s closest ally in the FARC leadership, Iván Márquez, told an interviewer that until the jailed ex-guerrilla leader is freed, Márquez will not take his seat in Colombia’s Senate. (The peace accord gives the FARC five seats in each chamber of Colombia’s Congress for eight years, starting when the new session begins in July.) “How can I go on July 20 and be a senator… when they could go and tell me I’m a narcotrafficker? …What I’m saying is very hard because it means the failure of the peace process in Colombia.”

Márquez, who was the FARC’s lead negotiator in the Havana peace talks and is often referred to as the group’s number-two leader, was elected to Congress and served briefly during a failed 1980s FARC process. He left Bogotá in mid-April, relocating to a former demobilization site in a rural zone of his native department of Caquetá. If Márquez does not serve in the Senate, his seat will go to Israel Alberto Zúniga alias Benkos Biojó, the former commander of the FARC’s 34th front in Chocó and Urabá.

Márquez’s angry statements about the Santrich situation contrast with calls from other top FARC leaders, who have called for calm. “The moment we signed the accord, we accepted the constitution and the laws,” reads a statement from top FARC leader Timoleón Jiménez, “and it is our duty to act according to them. Whoever does not should prepare for the consequences, and it would be difficult for them to ask the [FARC] party’s solidarity.” A source in the FARC told El Tiempo of “alarm” within the organization about apparent divergence between the group’s hardliners, like Márquez, and moderates.

A key hardliner, Hernán Darío Velásquez alias “El Paisa,” abandoned the Caquetá demobilization site where he was living (Miravalle, the same site where Márquez is now), conditioning his return on Santrich’s freedom. During the conflict, Velásquez headed one of the FARC’s most deadly and powerful units, the Teófilo Forero Column active in south-central Colombia and occasionally in cities. According to La Silla Vacía, this unit carried out the 2003 El Nogal bomb attack in Bogotá, which killed 36 people; the 2001 kidnapping of 12 from a building in Neiva, the capital of Huila; the 2003 “house bomb” that killed 6 in Neiva; the 2000 assassination of congressman Diego Turbay; the 2002 airplane hijacking and kidnapping of a senator that triggered the end of the 1998-2002 peace process; and the 2012 bomb in Bogotá targeting former interior minister Fernando Londoño.

Interior Minister Guillermo Rivera pointed out that “El Paisa” is free to leave anytime. “The Territorial Training and Reincorporation Spaces are not a prison. People can come and go freely.” This is true at least until they are called to stand trial for war crimes in the new transitional justice system, the Special Jurisdiction for Peace.

“Alias ‘El Paisa’ was always resistant to the peace process,” Angela Olaya and James Bargent of the Colombian Organized Crime Observatory told La Silla. “It wouldn’t be strange if he finally dropped out of the process.”

“Of course he is in the process,” Iván Márquez told an interviewer.

Don’t you see how he’s working? I’m going to take his place while I’m here [at the demobilization site]. …I would like to keep seeing “Paisa” in this situation, and not in another, not in a confrontation. He isn’t thinking of war, he’s not thinking about being a dissident. He’s thinking of Santrich being freed and in resources coming to finance productive projects.

Local Leaders Swept Up in Wave of Arrests on Charges of ELN Collaboration

On April 20 and over the following weekend, Colombian authorities arrested between 33 and 42 individuals, including social leaders and former municipal officials, in the southwestern department of Nariño and the city of Cali. The Prosecutor-General’s office (Fiscalía) is charging many with being part of the ELN or its support network. Some have been released for lack of evidence.

Perhaps the best known of the arrested was Harold Montúfar, who served between 2004 and 2007 as mayor of Samaniego municipality in Nariño. One of several former Samaniego mayors or officials arrested, Montúfar was known as an active promoter of peace during, and since, his tenure. Samaniego has long been an ELN stronghold, and is notorious throughout the country for the large number of guerrilla-laid landmines scattered throughout its territory. Montufar has led efforts to make humanitarian demining possible, an effort that requires dialogue with local ELN leaders. In addition, he promoted a Local Peace Pact that brought important reductions in violence to the Samaniego region. Montúfar had traveled to Quito, where the government’s peace negotiations with the ELN until recently were taking place, to promote the idea of reviving the Pact.

“Activists who know Montúfar’s social and political trajectory” told Verdad Abierta “that at least since 2000, authorities have tried to link him to the ELN guerrillas.” Samaniego priest Jhon Fredy Bolívar told La Silla Vacía,

“Here anybody who doesn’t have a link to those people [the ELN] can’t live in Samaniego, because they enter houses, demand things, take food and basic goods, it’s part of the dynamic of the conflict we’re living through. Farmers, church, officials, everyone ends up getting tied to the conflict in some way because you help, or if you don’t help you must prepare for the consequences.”

Montúfar was freed later in the week.

Still in custody is Sara Quiñones, a leader of the Alto Mira y Frontera Community Council, an Afro-Colombian community settlement in Tumaco, Nariño, along the Ecuador border. She was arrested in Cali, where she had been taking refuge from death threats, along with her mother, Tulia Marys Valencia, who was also arrested. The Fiscalía accused Quiñones of being an ELN member since 2013, “in charge of financial tasks directed at subversive activities and narco-trafficking.” It accused her mother of being a presumed “guerrilla militia member” since 2013 “who has used her social work to carry out intelligence and recruitment tasks.”

Quiñones’s and Valencia’s arrests come just weeks after the Inter-American Human Rights Commission, on March 11, ordered protective measures for Quiñones and other members of the Alto Mira y Frontera leadership. Verdad Abierta reports that they are now being subject to cruel treatment.

Those present at this judicial hearing expressed their concern about the poor treatment that Sara Quiñones and her mother are receiving: “They’re strong, but they want to break them with the conditions. While some women are placed in a jail in the south that is newer with better conditions, they ended up in a station in the center of Cali, the most disgusting of all.”

The chief of the Fiscalía’s organized crime unit, Claudia Carrasquilla—who has a past record of going after paramilitary organizations—responded to questions with tough talk, as Verdad Abierta reported.

“It’s an investigation that had been ongoing in the Organized Crime Directorate against the ELN’s Southwestern War Front, in which it was evident that some former public officials and leaders were possibly at the ELN’s service, above all in the management of support networks and finances,” Carrasquilla explained.
“We knew that this was a complex process, that was going to generate what it is generating, the disagreement of the majority of human rights collectives, precisely because the majority of the arrest orders went against that type of people. But we wanted to go very strong, with very compelling elements, to be able to try them.”

The Black Communities Process (PCN), a grouping of Afro-Colombian organizations especially active in the Pacific region, condemned the arrests of Quiñones and Valencia as “judicial false positives.” PCN leader Charo Mina told Contagio Radio, “It’s a criminalization process, and it’s what we’re used to seeing from the Fiscalía, showing its opposition to the ELN dialogues.”

Procedural Law for Transitional Justice System Introduced in Congress

The transitional justice system set up by the peace accords to try war crimes, the Special Jurisdiction for Peace (JEP), took another step toward being able to function fully. The last piece of legislation needed to establish it is now before Congress. Justice Minister Enrique Gil Botero presented a 76-article bill, drafted with input from the new system’s judges, that would become the JEP’s Procedural Law.

This is the third piece of needed legislation. Colombia’s Congress approved the first, a constitutional amendment, in May 2017, and it received Constitutional Court approval in November. The second, the statutory law governing the JEP’s functioning, passed the Congress in late November and the Constitutional Court is still reviewing it. Congress will also have to pass the new bill—which is far from guaranteed before the next session begins on July 20—and it will probably have to undergo court review.

These long delays occur while 6,094 former guerrillas, 1,792 current and former armed-forces members, 44 former civilian officials, and 6 private citizens await judgement in the JEP for alleged involvement in serious human rights crimes. Still, even without all laws in place, the JEP has been able to start working, getting established and beginning written reviews of case files. It has stumbled in recent weeks, though, as internal disagreements over structure and procedure turned nasty, resulting in the April exit of tribunal administrator Nestor Raul Correa.

Army Patrols Medellín’s Troubled Comuna 13

Comuna (Ward) 13, a complex of poor neighborhoods on Medellín’s western edge, became nationally known in 2002 when recently elected president Álvaro Uribe ordered an intense military offensive there against guerrilla militia groups. Operations Mariscal and Orion ejected the militias (essentially, guerrilla-tied gangs) with significant loss of life, only to end up replacing them with paramilitary-tied gangs, some of whom participated in the operations alongside the troops.

The Army was back in Comuna 13 this week, amid a crime wave. 300 soldiers are patrolling the neighborhoods in an effort to weaken violent gangs that residents call “combos” and local officials call “ODINs” (Organizaciones Delincuenciales Integradas al Narcotráfico, Narcotrafficking-Linked Criminal Organizations). Fighting between gangs in recent days had killed four people, confined people to their houses, and shuttered schools.

El Espectador explains the complicated situation:

As Medellín Security Secretary Andrés Felipe Tobón explained it, two illegal groups are present in the Comuna: La Agonía and El Coco, which have not only occupied territory for years, but are also aligned with two other larger, more powerful armed structures: the ODIN Caicedo and the ODIN Robledo. Carlos Pesebre formed part of the second group, and until recently it was under the command of Cristian Camilo Mazo Castañeda, alias Sombra, who was captured last Saturday in El Peñol municipality. As a result, the authorities’ conclusion is that the fighting this week responds—in large part—to ODIN Caicedo taking advantage of the momentary lack of leadership in ODIN Robledo to attack its structures.

Transportation companies—which are routinely extorted by gangs—have been especially targeted. A public bus was set on fire in the Calasanz neighborhood. Medellín Mayor Federico Gutiérrez blamed “Juancito,” the 45-year-old leader of the “Betanía” combo, for the threats and attacks on bus companies.

Authorities dismissed as fake several flyers circulating in parts of the city declaring a curfew enforced by the “Gaitanistas,” one of the names used by the Urabeños neo-paramilitary group. Still, residents of the marginal neighborhoods tell reporters that they are restricting their movements.

Medellín Police commander Gen. Óscar Gómez Heredia told El Colombiano that his force has 320 men patrolling the neighborhoods, in addition to the soldiers. But a reporting team from the Medellín daily wrote, “We passed through eight neighborhoods of Comuna 13 yesterday morning. In all of the zone, El Colombiano only found two police patrolling in the La Torre sector, and several soldiers posted alongside a military base.”

EPL “Armed Stoppage” Pauses in Catatumbo, Violence Continues

A humanitarian crisis continues in the Catatumbo region of Norte de Santander department, near the Venezuelan border. Home to the country’s second-largest concentration of coca crops, this neglected territory has strong social organizations and a historic presence of FARC, ELN, and EPL guerrillas.

The latter group (Popular Liberation Army), which is only active in Catatumbo, has been enforcing an “armed stoppage” for about two weeks, preventing road travel, confining people in their communities, and forcing businesses and schools to close. In the face of emphatic protests from communities faced with the possibility of running out of food, the EPL announced a 60-hour pause in its stoppage, from the morning of April 24 to the evening of the 26th.

The April 23 announcement read, “our guerrilla organization is open to dialogue to solve the differences between the two guerrilla organizations.” This refers to fighting that broke out between the EPL and ELN around March 14, and has since killed about 30 people and forced over 4,600 to displace.

The government calls the EPL “Los Pelusos,” and considers them a regional organized crime structure. The organization calls itself an insurgent group, organized as the Libardo Mora Toro Front, that can trace its lineage to a Maoist guerrilla organization that mostly demobilized in 1991. The EPL remnant has been growing, and estimates of its current size range from 130 to 400-500 combatants, which would make it at least as large as the ELN contingent active in Catatumbo. The EPL is also regarded as the wealthiest illegal group in Catatumbo. Its longtime leader alias “Megateo”—killed by the security forces in late 2015—built a vigorous operation trafficking cocaine across the Venezuelan border.

Verdad Abierta explained the EPL’s origins in a lengthy article published this week. It reports that the Libardo Mora Toro Front has been in Catatumbo since early 1982, where it coexisted alongside the FARC’s 33rd Front and two ELN fronts. As soon as it decided not to participate in the EPL’s late 1980s-early 1990s peace process, the Front involved itself in drug trafficking. After the 2015 killing of “Megateo,” alias “David León” took over leadership. He emphasized ideology and growth through recruitment until his September 2016 capture.

Since then, the EPL’s leadership has been in flux. “It’s gotten so that very young people arrive in power, who don’t have enough political education and who are more contaminated by narcotrafficking,” Wilfredo Cañizares of the Cúcuta-based human rights group Fundación Progresar told Verdad Abierta. “At least, that’s what the ELN members say: that they want to get the EPL out of the region because they’re tired of their mafioso way of acting, that they’ve lost their revolutionary vocation.”

Until recently, Verdad Abierta notes, “ELN guerrillas and members of the Libardo Mora Toro Front walked together through the same Catatumbo hamlets as though they were members of the same family, or at least the same organization.” They patrolled together and fought the military or paramilitary groups together. “Here in the region there were accords between guerrillas, and between guerrillas and the community: for example, not to use weapons or wear camouflage in the town centers; respect the work of social organizations; respect international humanitarian law; respect each armed group’s boundaries,” a resident of the central Catatumbo town of El Tarra told Verdad Abierta. “But the ELN and EPL mutually accuse each other of having violated those accords, of not respecting community work, of not respecting boundaries.”

The same source says much disagreement centers on the marketing of coca paste that they purchase from the region’s growers. The FARC had controlled much of this business until its late 2016-early 2017 demobilization. Competition between the ELN and EPL intensified.“The ELN pay COP$3.2 million or COP$3.1 million [just over US$1,100] per kilo of coca paste, two, three, four months at a time. On the other hand, “The Pelusos,” to win people over, started paying COP$3.5 million per kilo [US$1,242], all at once. And the ELN didn’t like that at all.”

Verdad Abierta reports that the situation has grown still more complicated with the presence of another actor in the region: intermediaries from Mexican cartels. “The Sinaloa Cartel is buying the majority of coca that’s coming out of Catatumbo. They are in the territory,” said Cañizares of the Fundación Progresar. Today, “we’re not talking about campesinos with three or four hectares, we’re talking about campesinos with more then 10 hectares of coca leaf.”

Criminal groups also make money by trafficking cheap gasoline from Venezuela, precursor chemicals, and weapons. Some specialize in refining a crude gasoline from oil siphoned from the Caño Limón-Coveñas pipeline, which passes through Catatumbo’s center. This gets used to refine coca paste from the dried leaves.

After a March 14 meeting between the two groups erupted in violence, ELN-EPL fighting has raged unabated. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), at least 90,000 Catatumbo residents have seen their ability to travel in the zone reduced or curtailed, in some places resulting in total confinement. At least 80 schools have closed their doors, leaving 45,000 kids without classes. OCHA also notes that armed-group pressure has 10 social leaders to abandon their organizations.

A leader of CISCA, a Catatumbo campesino network, noted to Verdad Abierta that some of the most violent communities are those that the Colombian government had pinpointed as priorities for implementing the FARC peace accord. “But, what has been done? Nothing. Neither crop substitution nor Territorially Focused Development Plans (PDETs). Nothing. Later, they’ll say they couldn’t do it because of the violence, even though the Accord was signed two years ago and this violence got worse only a month ago.” Cañizares of Fundación Progresar held a similar view:

“The FARC concentrated in Caño Indio [the demobilization site in Tibú municipality] and the Santos government said: now the state will arrive. And nothing. Before [2004], when the paramilitaries demobilized in Campo Dos [Tibú], the Uribe government said: the state is arriving. And nothing. When the EPL concentrated in Campo Giles [Tibú], the Gaviria government committed to building an aqueduct for that township. Today there is no potable water. The state never arrived, but those who did come quickly were the illegal armed actors.”

This week, in response to the crisis in Catatumbo, Mariana Escobar, director of the Territorial Renovation Agency—the new entity that implements the PDETs in compliance with Chapter 1 of the Havana accord—promised to present within 10 days a “road map” for structuring PDETs in the region. And a group of 2,000 soldiers from the Army’s Engineering Brigade arrived with promises to help meet infrastructure needs in the areas of ELN-EPL fighting. Vice-President Óscar Naranjo, visiting the city of Ocaña at Catatumbo’s periphery, said that 12,000 members of the police and military are already deployed in the region.

However, Defense Minister Luis Carlos Villegas and Army Commander Gen. Ricardo Gómez Nieto angered some in Catatumbo by insisting that conditions in the zone were calm. Villegas questioned the Norte de Santander governor’s decision to suspend classes in the region’s schools, and Gen. Nieto said that after a visit he saw little evidence of war.

According to La Silla Vacía, “part of the complexity of combating both the ELN and the EPL is that their men, in their majority, are born and bred in the region.”

They were recruited there and are relatives or friends of the zone’s inhabitants. So networks of paid informants don’t work as well here as in other regions. In addition, since both groups’ guerrillas spend much of their time dressed in civilian clothing, it is very hard to identify them. And as they’re in a border zone, when they’re chased, they go to the Venezuelan side.

Somos Defensores Reports on January-March Attacks on Social Leaders

The non-governmental organization Somos Defensores, which monitors attacks on human rights defenders and social leaders, published its latest quarterly report. It documents a dramatically worsening situation.

Forty-six rights defenders or local leaders were murdered during January through March: one every two days. That is up from 20 in the same period of 2017. Somos Defensores categorized their work as follows:

  • Community Action Board leader: 13 victims
  • Community leader: 11 victims
  • Campesino or Agrarian leader: 8 victims
  • Indigenous leader or rights defender: 7 victims
  • Economic, Social, Cultural rights defender: 3 victims
  • Afro-Colombian leader: 3 victims
  • Victims leader: 1 victim

Leaders of Community Action Boards (Juntas de Acción Comunal), hamlet or neighborhood-level advisory bodies first established in the 1960s, are heavily represented because many of their members are independent local leaders. Nine of the dead were members of a cross-cutting category: participants in coca substitution programs established by Chapter 4 of the Havana peace accord.

In 11 of the homicide cases, the report identifies the group presumed responsible. The security forces appear four times, paramilitary/organized crime groups three times, FARC dissidents twice, and the ELN twice. Thirty of the forty-six murders took place in just five departments: Cauca (8), Antioquia (7), Norte de Santander (7), Arauca (4), and Córdoba (4).

As Colombia’s slow-moving government apparatus struggles to respond to the problem, the Interior Ministry promulgated a decree that would make possible more collective protection measures for entire communities. According to Contagio Radio, the decree “seeks to create and implement an Integral Security and Protection Program for Communities and Organizations in the Territories, and define necessary measures that protect communities in an comprehensive manner.”

President Santos Visits U.S. Southern Command in Miami

While briefly in Miami, President Santos paid a visit to the headquarters of U.S. Southern Command, the Defense Department body responsible for U.S. military activities in all of Latin America except Mexico, the Bahamas, and Puerto Rico. In remarks, he effusively thanked those in attendance for 18 years of military assistance since Plan Colombia was launched in 2000. He also talked up the peace process using defense-friendly language.

Any asymmetric war today ends in a negotiation, regardless of what ends up being negotiated. And that’s what we did: a negotiation that from our point of view was a cheap negotiation. With regard to what we sacrificed, compared to what they were demanding at the beginning of the process, it was practically free of cost.
…That’s something the world is applauding, admiring, and studying, and this is something that was possible thanks to the very special relationship we’ve had with the Southern Command.

Meanwhile, while testifying in Colombia’s Congress about a military corruption scandal, Defense Minister Luis Carlos Villegas and Armed Forces Chief Gen. Alberto Mejía mentioned that during the previous week, they signed a 5-year cooperation agreement with the U.S. government to combat narcotrafficking.

In-Depth Reading

Tags: Human Rights, Human Rights Defenders, Transitional Justice, U.S. Policy, Weekly update

Last week in Colombia’s peace process

January 22, 2018

ELN and government negotiating new ceasefire?

The frequency of ELN attacks appeared to slow in this, the second full week after a 100-day ceasefire ended between the guerrilla group and the Colombian government. The days since January 9 have seen at least 24 events, most of them small-scale guerrilla attacks on energy infrastructure or ambushes of military or police personnel. ELN fighters kidnapped an oil worker in Saravena, Arauca, damaged the TransAndino oil pipeline in Nariño, and killed a soldier in the Catatumbo region of Norte de Santander.

The UN verification mission in Colombia, taking note of this reduced tempo of ELN attacks, called on the guerrillas and government to resume negotiations that went dormant after the bilateral ceasefire’s end. The Colombian government’s head negotiator, former vice-president Gustavo Bell, is returning to Quito, Ecuador, the site of the talks. Instead of the agreed negotiating agenda, these talks are likely to focus on conditions for a renewed ceasefire.

Transitional justice system launches

President Juan Manuel Santos swore in 30 magistrates who will adjudicate cases in the Special Jurisdiction for Peace (JEP), the new justice system set up by the peace accords. The JEP will consider cases of war crimes and crimes against humanity.

Another eight magistrates remain to be sworn in. A few are still in the process of leaving current judicial posts. Several others are currently disqualified, as Colombia’s Congress added language to the law establishing the JEP that bars judges who did any human rights work in the past five years. Most participants and observers expect that Colombia’s Constitutional Court will strike down this prohibition when it reviews the JEP law. The Court’s decision is likely before May.

Another part of the JEP, the Unit for the Search for Disappeared Persons, still awaits launch. The Unit is part of the Justice Ministry, within the executive branch. Its director, human rights lawyer Luz Marina Monzón, says frustratedly that she is awaiting a decree allowing the Unit to operate, but there is no clear timetable.

Last year, the embryonic JEP had a budget of US$4.7 million, covered mainly by foreign donors, especially the UN Development Program. In 2018, the system will require 230 billion Colombian pesos (about US$82 million).

To date, 3,534 ex-FARC members have agreed to face this justice system, which will hand out lighter penalties, with no prison time, to those who fully confess crimes and provide reparations to victims. Another 1,729 members of the security forces, including 3 generals, have also signed up. Twenty-one civilians currently imprisoned for human rights crimes, including a former mayor of the city of Cúcuta who worked with paramilitary groups, have also registered.

Threats and attacks against former FARC fighters

Two former FARC fighters were shot to death in the town of Peque, Antioquia while campaigning for FARC congressional candidate Wilmar de Jesús Cartagena. (Congressional elections are in March, with the FARC running candidates as a political party.) “This is the great worry that we have,” Cartagena—who missed the campaign event for medical reasons—told El Espectador. “We don’t see any security guarantee that the government has the commitment to offer us. We don’t know what actions the government might take to facilitate our party’s participation in politics.” A statement from the UN verification mission expressed “serious concern” over the killings, “which constitutes the first mortal attack within the framework of the 2018 electoral process.”

The FARC party headquarters in Cali received a threatening pamphlet signed by the “Gaitanista Self-Defense Groups of Colombia,” a thousands-strong organized crime group commonly called the “Urabeños” or “Clan Úsuga.” The document declared the group’s intention to “blow up” the FARC office in Cali, as well as those of other leftist movements: the National Movement of Victims of State Crimes, the Marcha Patriótica, and the Congreso de los Pueblos.

“While there hasn’t been any serious incident within the training and reintegration zones [where the FARC underwent demobilization] thanks to the security forces’ protection measures, the number of killings outside those zones is an issue of growing concern in the last few months,” said Jean Arnault, chief of the UN verification mission in Colombia.

The Marcha Patriótica political movement counts 54 ex-FARC members or relatives killed between November 13, 2016 and January 18, 2018. These murders took place in Nariño (15), Antioquia (11), Cauca (6), Caquetá (5), Putumayo (4), Chocó (3), Bolívar (2), Meta (2), Norte de Santander (2), Boyacá (1), Tolima (1), Arauca (1), and Valle del Cauca (1).

FARC dissidents attack police in Meta

FARC dissidents attacked police in two different parts of Meta department, in south-central Colombia. Six members of a column of rural police were injured when fighters detonated an explosive as they passed by, then fired upon them, in Mesetas, western Meta. The attack, blamed on remnants of the FARC’s 3rd Front, happened days after two police were injured by a thrown grenade in Puerto Concordia, south-central Meta.

In-Depth Reading

Tags: Attacks on social leaders, ELN Talks, Transitional Justice, Weekly update

Rescuing Colombia’s Post-Conflict Transitional Justice System

November 30, 2017

It will be up to Colombia’s Top Court—and Perhaps the International Criminal Court—to Undo Damage Wrought by the Congress

“What to do with the worst human rights abusers” was the most controversial part of the peace accord that Colombia’s government reached with the FARC guerrillas a year ago, in November 2017. It was unrealistic to expect the FARC’s members, who weren’t defeated on the battlefield, to turn in their weapons only to report to long prison terms for their thousands of war crimes. It was also unrealistic to expect the peace accord to dishonor the conflict’s millions of victims with a blanket amnesty. It took the accord’s negotiators 19 months to come up with a formula that balanced these two extremes.

Still, the compromises within the peace accord’s language satisfied nobody. It was vague on issues like the conditions of confinement for individuals found guilty of serious human rights violations; how guerrilla and military commanders might be held accountable for their subordinates’ actions; how ex-guerrillas might serve penalties while also being able to participate in politics; and how to hold accountable civilians who, for instance, funded paramilitary groups that went on to kill tens of thousands.

Conservative critics argued that the transitional justice system’s formula is too lenient on ex-guerrilla war criminals, as it specifies five to eight years’ “restriction of liberty” in non-prison conditions. Human rights defenders fear that even this standard might not be rigorously applied to military personnel and third-party accomplices to human rights crimes.

This vague language was improved little by a constitutional amendment that Colombia’s Congress approved in March to green-light the accords’ transitional justice system. As WOLA pointed out at the time, this amendment violated the accords’ spirit in several ways: a weak interpretation of “command responsibility,” the insertion of language that makes it much harder to prosecute third-party civilians, and continued vagueness on other questions.

During the week of November 13, Colombia’s Constitutional Court and Senate took further steps that may pacify conservative critics, but that are alarming human rights advocates and victims’ groups. On November 14, the Court handed down a unanimous ruling upholding most of the constitutional amendment that passed in March. On November 16, Colombia’s Senate—following months of procedural delays—passed its version of a law to implement the new transitional justice system, known in the accord as the Special Peace Jurisdiction (JEP, by its Spanish initials). On November 27, Colombia’s House of Representatives passed its version of the law that would implement the JEP, which in most respects is similar to the Senate’s, and a day later the two chambers reconciled their versions into a single piece of legislation.

WOLA, along with most of our partners in Colombia’s human rights and victims’ rights communities, welcomes the long-delayed approval of the JEP, which is the backbone of the peace accord. Expectations are high: as of November 17, 3,491 ex-guerrillas and 1,714 current and former security-force personnel had signaled their intention to be tried within this new system.

However, we are deeply troubled by the Constitutional Court’s and the legislature’s actions. They deform some of the key tenets of the peace accord. They risk allowing too many top human rights violators to avoid accountability, and denying too many conflict victims their right to truth and dignity. And they may set Colombia on a collision course with the International Criminal Court.

The process is not over yet. The Constitutional Court must review this law’s constitutionality. The International Criminal Court may act if it appears that the JEP will allow war criminals to avoid punishment. So might the Inter-American human rights system.

WOLA urges these bodies to act to address the following concerns about the transitional justice system.

  1. The choices of judges and magistrates for the JEP were excellent. But the bill would undo these by disqualifying anybody who has done human rights work or accompanied victims during the past five years.

As mandated by the peace accord, an independent five-member panel of Colombian and international jurists selected the judges who will preside over JEP tribunals. They fulfilled this task efficiently and transparently. As Notre Dame University’s Kroc Institute noted in a November monitoring report, the panel “established an important balance between interests in academia, the international community and social sectors.” Of the 38 magistrates and 13 alternates chosen, more than half (28) are women and 8 are Afro-Colombian or indigenous. Both proportions resemble those of Colombia’s overall population, the first time that has been true of any Colombian body with real decision-making power.

The implementing law, however, would summarily disqualify at least 15 of the chosen judges. Language would ban any magistrates who, in the past five years, have brought cases against the government, participated in peace negotiations, or taken part in any case related to the armed conflict.

This new requirement—not at all foreseen in the peace accord—was promoted by legislators from Cambio Radical, a party in President Santos’s ruling coalition tied to many regional political bosses and large landholders. Led by former vice-president and leading presidential candidate Germán Vargas Lleras, Cambio Radical has broken with Santos and mostly withdrawn its support for the FARC accord.

The proposed disqualification of judges is “serious and concerning because it is a discrimination against the legitimate practice of law, and against people who claim reparations in relation to human rights violations,” said Gustavo Gallón, the president of the Colombian Commission of Jurists and member of the accords’ Security Guarantees Commission.

It will be up to Colombia’s Constitutional Court to delete this language when it reviews the law, as it is required to do, in coming months.  “We believe that the Constitutional Court would throw it out,” Interior Minister Guillermo Rivera said. Rodrigo Uprimny of the legal think-tank DeJusticia is certain that’s what will happen:

“The Constitutional Court has already established that it violates due process to create new requirements or prohibitions to block a person who has already been chosen for a position. …This disqualification from the Senate will, therefore, have no effect. It was just a clumsy maneuver by some senators. But the issue should be taken seriously, as it exhibits a dangerous and unacceptable stigmatization against human rights defenders.”

All who care about “putting victims at the center” of the peace accord must hope that Rivera and Uprimny are correct.

  1. Neither the text of the law for implementing the JEP, nor the Constitutional Court decision, defines how austere the conditions of “restricted liberty” will be for those sentenced for war crimes and crimes against humanity.

As long as they tell the JEP tribunals the full truth about their participation in war crimes, and make reparations to victims, defendants can be sentenced to up to eight years of “effective restriction of liberty.” This is not prison: confinement is to occur in a space no larger than one of the village-sized cantonment zones where the FARC disarmed, but the accord doesn’t specify the conditions within that space. The peace accord leaves that up to the judges in each case. Individuals will also be able to leave these spaces to carry out activities defined as reparations to victims.

How austere or luxurious, then, will conditions be within the “restricted liberty” zones? This thorny question is a “hot potato,” write Juanita León and Juan Esteban Lewin of Colombia’s La Silla Vacía investigative website: no institution wants to be forced to specify the answer. The Constitutional Court’s November 14 decision passes the “potato” to the Congress, requiring its JEP implementing law to “typify” the sanctions that war criminals would receive. However, the implementing law does not do this: it leaves the conditions of confinement up to the tribunal judges.

  1. The Court decision and the law for implementing the JEP includes  a watered-down standard of “command responsibility,” which could  allow dozens of top military commanders to avoid accountability. It may also make Colombia a top priority for the International Criminal Court.

As WOLA noted with alarm in March, the constitutional reform establishing the JEP watered down the definition of “command responsibility”—the extent to which leaders are liable for crimes committed by those below them in the chain of command—“in a way that almost certainly runs afoul of Colombia’s international human rights commitments.”

The Constitutional Court’s November 14 decision upheld that definition. As things stand now, Colombian military commanders can avoid accountability before the JEP by contending that they didn’t know about their subordinates’ illegal actions. As it is almost impossible to prove what a commander did or did not know at a given time, commanders at the level of battalion and higher are likely to avoid accountability. The constitutional amendment does not apply this softer standard to ex-guerrilla leaders, though: they will be liable if they “should have known” about the crimes committed by those they commanded.

“Should have known” is the standard set forth in Article 28 of the Rome Statute, the founding document of the International Criminal Court in The Hague, which merely requires that the commander have had enough control of subordinates to prevent the abuse.

As Colombia is a signatory to the Rome Statute, failing to apply the “should have known” standard for its security forces may run afoul of the Court, which may decide to act against individual Colombian commanders if it determines that Colombia isn’t doing enough on its own to hold them accountable. By applying a weaker standard, Colombia’s Constitutional Court “may open the door for international tribunals to formally investigate high-ranking military commanders, government officials, or guerrillas,” according to the Colombian daily El Espectador.

The International Criminal Court’s prosecutor, Fatou Bensouda, has been unambiguous about this. The JEP constitutional amendment’s definition, she wrote in October, “frustrates the object of command responsibility in international law” and means that “people with the material ability to prevent or to punish subordinates’ crimes, and who may have knowingly omitted doing so, could go unpunished.” It is true that the ICC prosecutor is not the same thing as the Court itself. But since the language, in its current form, makes it harder for those who suffered at the hands of the armed forces to receive justice than for those who suffered at the hands of the FARC, a future clash with the ICC is a strong possibility.

The weak definition of “command responsibility” is a direct result of pressure from Colombia’s powerful military. Hours before the peace accord was signed on November 24, 2016, the Colombian government quietly introduced, and demanded that the guerrillas accept, a key change to page 164 of its text: it eliminated a reference to the Rome Statute’s Article 28 as the standard for “command responsibility.” It did so to at the vehement insistence of the armed forces, whose commanders insist that Colombia acceded to the Rome Statute with a specific reservation against Article 28. The Senate’s final debate on the JEP-implementing law took place with Colombia’s defense minister and armed forces’ chief watching every moment in person. As the Colombian daily El Tiempo reported, “For these two and their advisors, it is vital that everything related to military commanders’ responsibility for subordinates’ crimes, among other norms, remain intact without even a single comma being introduced.”

  1. The Court’s decision, and the law for implementing the JEP, both stripped key language from the peace accord which would have compelled civilian third parties to appear and confess. There is now little hope of holding accountable landowners, narcotraffickers, local officials and other politically influential individuals who sponsored armed groups or even planned killings.

During the most intense years of Colombia’s armed conflict—the mid-1990s to the mid-2000s—guerrillas carried out the majority of kidnappings, child recruitment, indiscriminate bombings, and use of child combatants. However, they did not commit the largest number of homicides and massacres of civilians during this period. That grim distinction belonged to pro-government paramilitary groups, which were frequently armed and backed by civilians: landowners, right-wing politicians, organized crime figures, and some members of the security forces.

After the United Self-Defense Forces of Colombia (AUC) paramilitary umbrella organization demobilized in 2006, its members underwent their own transitional justice process, known as “Justice and Peace,” involving full confessions. These confessions revealed the identities of about 13,000 Colombian non-combatants who allegedly aided and abetted the paramilitaries’ murderous offensives.

Some of these 13,000 may have been extorted into supporting the paramilitaries; others may have done so willingly, for reasons ranging from counterinsurgency to greed. But we still don’t know what happened, because Colombia’s regular criminal justice system failed to act.  The transitional justice system passed these names to Colombia’s criminal prosecutors, who did not follow up.

The FARC peace accord sought to rectify this with an innovative provision requiring that civilians credibly alleged to have “authored” war crimes appear before the JEP, where they might benefit from lighter sentences in exchange for full confessions and reparations to these crimes’ victims. This provision held the promise of identifying, and thus finally dismantling, paramilitary support networks around the country. But it also alarmed politically powerful individuals throughout Colombia’s provinces.

In March, Colombia’s Congress responded to this alarm: its constitutional amendment establishing the JEP gutted the requirement that civilian accomplices participate. Non-combatants now need only appear before the post-conflict justice system “voluntarily.” The assumption—so far proven wrong—is that the regular justice system might uncover enough evidence to make real the threat that these individuals suffer real penalties—decades in prison—for their crimes. They would then see the JEP as the best option for themselves, and do right by their victims..

However, powerful civilian third parties generally haven’t felt threatened by Colombia’s regular justice system. As a magistrate in the paramilitaries’ “Justice and Peace” transitional justice process, Rubén Darío Pinilla sent information about many civilian collaborators to the regular criminal justice system. He told Colombia’s Verdad Abierta:

“The Court’s decision [to uphold civilians’ ‘voluntary’ participation] is serious, because it implies that there is going to be some risk that civilians who participated in a determining manner in the commission of war crimes and crimes against humanity may remain in impunity. And that risk exists because the names sent over from the Justice and Peace courts, which exceeded 13,000, haven’t generated the investigations that should be expected, even though there is evidence not just of participation, but also of responsibility, of people in sectors of business, mining, industry, agro-industry, and cattle mining, as well as of public officials, in cooperation with paramilitary groups.”

As the law stands right now, the JEP will have little opportunity to hold these individuals accountable or to ensure that their victims receive the truth, justice, and reparations that are their due. “The businessmen who financed the paramilitaries can breathe easy,” write León and Lewin in La Silla Vacía. “The ‘gray men’ that investigator Luis Jorge Garay talks about when describing those people who live in ‘legality’ but who are bridges to illegal groups, and those who make it possible, when a capo is taken down, for a new one to take his place the next day.”

If this provision stands, writes columnist María Jimena Duzán in the Colombian newsweekly Semana, the burden will fall on chief prosecutor Nestor Humberto Martínez, whose office tries cases in the regular criminal justice system. If he doesn’t act, the ICC might. Duzán writes:

“Martínez will have to investigate what until now he has not wanted to investigate. If he doesn’t do it, he is going to have the International Criminal Court on his back, which can enter with the argument that civilian third-parties who participated in the conflict are protected with impunity and that victims are being denied justice.”

  1. The Court’s and the legislature’s actions still leave unclear whether “false positive” killings will be tried within the JEP, even though most were unrelated to the armed conflict.

The JEP is meant to offer lighter penalties for war crimes committed in the context of Colombia’s armed conflict. It remains unclear whether this should apply to cases in which soldiers, often conspiring with common criminals, murdered civilian non-combatants, then presented them as combat kills in order to benefit from rewards given for high “body counts.” This happened between 3,000 and 5,000 times during the armed conflict, especially between 2002 and 2008, in a phenomenon known in Colombia as the “false positives scandal.”

WOLA agrees with Jorge Eliécer Molano, a lawyer who represents several “false positive” victims, that most “false positive” killings should not be considered conflict-related, and thus should remain in the regular, criminal justice system with long penalties for the soldiers and officers involved. Molano explained to El Espectador:

“First, the ‘false positives’ owed more to personal purposes (like getting leave time, medals, commendations, promotions, or in many cases, financial rewards). Second, they have no relation to the armed conflict: the armed conflict was used as a pretext for killing civilians who had nothing to do with it. Additionally, many of the cases deal with people presented as common criminals, which undoes much of these crimes’ purported ties to the armed conflict.”

The peace accord and subsequent legislation so far leave it up to tribunal judges, on a case-by-case basis, to decide whether a “false positive” murder is conflict-related or not. But they do not offer detailed criteria to guide judges’ decisions. This remains up in the air, even as criminal-court judges have suspended some trials for  years-old false positive cases out of an unsubstantiated belief that they will end up going to the JEP.

  1. War criminals may still be able to hold office. Or maybe not.

As a condition for turning in weapons, the FARC’s leadership insisted not only on avoiding long prison terms, but on retaining the ability to hold, and run for, political office. There is an obvious tension, though, between holding office and undergoing a JEP-mandated “restricted liberty” for war crimes. The Congress and Court have begun moving to resolve this tension, but the formula so far remains awkward.

The way it stands right now is that ex-guerrillas may run for office and hold political positions before the JEP has decided their guilt or innocence for war crimes. They merely need to sign a commitment stating their intention to “submit to the JEP.” FARC candidates for Colombia’s March 2018 legislative and May 2018 presidential elections, then, have a “green light,” as the JEP won’t even begin to act until well after these elections. So do the five FARC senators and five FARC House members who will get automatic seats in Colombia’s Congress for eight years regardless of the vote outcome.

Once the JEP sentences them to “restricted liberty,” however, the next steps are less clear. The court ruling states, “the JEP will determine the compatibility of political participation with the sanctions it imposes on the ex-combatants.” This may give the JEP the ability to decide whether a FARC political candidate can be blocked from participating in politics, if his or her sentence is incompatible with doing so. (For instance, if a JEP judge sentences maximum FARC leader “Timochenko” to perform demining in Putumayo, he can’t serve in Congress hundreds of miles away in Bogotá.)

On the other hand, this sentence could also be interpreted as giving the JEP the ability to issue penalties that would allow guilty ex-FARC leaders to participate in politics. This raises the bizarre possibility of an ex-guerrilla leader leaving his place of confinement in the morning, spending the day in Congress making laws, then returning to his place of confinement the evening.

  1. The timeline for setting up the JEP is excruciatingly slow. In the meantime, thousands of guerrillas and soldiers are in a legal limbo.

Even if the JEP’s implementing law goes into effect by the end of the year, we cannot expect the first trials to begin for some time. As was the case for the JEP constitutional amendment, the implementing law must undergo a thorough review by Colombia’s Constitutional Court. This will not be a speedy process. “It won’t be sanctioned before April or May of next year,” predicts Prosecutor-General Néstor Humberto Martínez.

After that, it will take months to hire staff and build or re-purpose space for the JEP tribunals and other chambers to carry out their proceedings. We can optimistically expect to see the first trials begin during the latter part of 2018. Pessimistically, in 2019.

In the meantime, over 5,000 defendants remain in a legal limbo, unsure how the next eight-plus years of their lives will play out. This uncertainty could prove too much for many ex-guerrillas, especially former mid-level commanders, who may be tempted to give up on the process. It would be tragic to see more of them return to the jungle, joining the growing ranks of armed “dissident” groups that are taking control of territory and drug-trafficking in several former territories of FARC influence.

Conclusion

The process of crafting the JEP is not over. Opportunities remain to address these concerns, avoid unwanted outcomes, and iron out confusing provisions. Next year, when it rules on the implementing law, we hope that Colombia’s Constitutional Court will address the concerns laid out here and align the JEP more fully with the spirit of the peace accords. If not, the International Criminal Court may have a lot to say in coming years about command responsibility and persistent impunity for civilian accomplices.

These institutions must do their jobs. A lasting peace, with real guarantees for the conflict’s victims, demands it. WOLA and other human rights advocates worldwide will be watching closely.

Tags: Human Rights, Transitional Justice, Victims

Key Changes to the New Peace Accord

November 15, 2016

In a display of political discipline and maturity unlike anything we’ve seen in Washington lately, Colombia’s government and the FARC guerrilla group have produced a new peace accord [PDF]. It took them only 41 days to get from the original version’s narrow (50.2 to 49.7 percent) rejection in an October 2 plebiscite, to this new document announced on November 12 and published on November 14.

These 41 days included extensive consultations between government negotiators and representatives of sectors that supported the “No” vote in the October 2 plebiscite, among them former president Álvaro Uribe. The government and “No” supporters came up with a document outlining more than 500 proposed changes to the original 297-page peace accord. Government negotiators then took this package of proposals to FARC leaders in Havana, where they spent about two weeks negotiating around the clock.

The changes to the accord are numerous: see this side-by-side comparison of the old and new accords that somebody helpfully posted to draftable.com. They reveal that the FARC leadership gave ground on several key points. The main ones are the following.

Penalties for those found guilty of committing war crimes are specified more clearly. The original accord stated that guerrillas and others convicted of war crimes, who fully confess their deeds and make reparations to victims, may serve five to eight years in conditions of “effective restriction of liberty.” While the accord stated that this term “will not be understood as jail or prison,” it left the definition up to the judge in each case.

The new accord tightens this. (Page 164-5) The zones of “restriction of liberty” now cannot be larger than the size of a rural hamlet, or vereda. (More specifically, the size of the 20 veredas chosen to serve as sites for the FARC membership’s 6-month disarmament process.)

Some “No” campaigners wanted ex-guerrillas to serve their sentences in actual prisons, a demand that was never likely to be met by an armed group that had not surrendered on the battlefield, and was not close to doing so. In their counter-proposal [PDF], the political party of ex-president Uribe held out the possibility of “alternative conditions of reclusion, like agricultural colonies.” (Colombia’s La Silla Vacía journalism website recently profiled a facility in Acacías, Meta, that appears to be what the Uribistas had in mind.) The village-sized “restricted liberty” standard is not quite as austere as that, but it is much more restrictive than what the original accord might have allowed.

The Special Peace Jurisdiction, the justice system set up to try war crimes and crimes against humanity committed during the conflict, will see its scope reduced somewhat. It will now have 10 years to operate, with the possibility of adding 5 more (page 145). It will have no foreign judges among its 38 magistrates and 13 auxiliaries, as the original accord contemplated, though 10 foreign legal experts will be able to serve as observers (pages 167-9). Proponents of the “no” vote had urged that this “special jurisdiction” be fully subordinate to Colombia’s existing legal system, and not separate from it. They did not quite get that, but the tribunal judges’ rulings can now be appealed to Colombia’s Constitutional Court (pages 160-1).

The new accord tightens up the concept of command responsibility for war crimes (pages 151-2). The earlier text had controversially stated that “in no case can command responsibility base itself exclusively on rank, position in hierarchy, or area of jurisdiction.” This meant that a commander might invoke this language to avoid prosecution for atrocities committed by subordinates. The new language holds responsible for war crimes all commanders who “should have known,” given his or her position, what those under his or her command were doing. (Edit as of November 17: Colleagues at Human Rights Watch have conveyed concern that this interpretation may not be accurate; we’re looking into it.)

The new accord specifically excludes from transitional justice any who committed war crimes for “personal enrichment” (page 149) This should mean that military personnel involved in “false positive” killings will not be entitled to shorter “restricted liberty” sentences. Any who killed innocent people in order to boost body counts, thus benefiting from bonuses and other material rewards, should have to stay in Colombia’s regular justice system, where penalties run as high as 40 years in prison. (That is the hoped-for outcome, at least.)

The entire accord will not become a de facto part of Colombia’s constitution (pages 277-8). The original accord contemplated its gaining constitutional status via an international-law maneuver: making it a “Special Accord of common article 3 of the Geneva Conventions, deposited before the Swiss Federal Council in Berne.” (This was originally proposed by Álvaro Leyva, a politician from the moderate wing of Colombia’s Conservative Party who has long had FARC leaders’ ear.) Proponents of the “No” vote objected strenuously to what they viewed as a 297-page back-door constitutional amendment. The revised accord only gives constitutional status to the parts of the accord that have to do with human rights and international humanitarian law.

The FARC had wanted the accord to be viewed as equal to Colombia’s constitution, as a guarantee that the government would comply with its commitments (to fail to deliver would be ruled unconstitutional). They did not get that: they must rely on the government’s good faith, and on new language in the accord committing to a temporary constitutional amendment stating, “State institutions and authorities have the obligation to comply in good faith with all that is established in the Final Accord.”

The FARC and its members must provide an inventory of all their assets at the beginning of the process (page 186). These will be used to pay for reparations to conflict victims. We may soon find out whether the FARC is truly broke, as its leaders claim.

Drug-trafficking charges against ex-FARC members will be decided case by case to determine whether the proceeds truly went to the guerrilla war effort (page 190). If it paid entirely for guns, food, and similar needs, participation in the drug trade may be amnestied (as “connected” to the amnesty-able political crime of sedition). If there is evidence of personal enrichment, however, that individual’s drug-related charges will be subject to criminal prosecution. The original accord had not specified the “case by case” manner in which participation in drug trafficking would be reviewed.

All demobilizing guerrillas must now provide “exhaustive and detailed” information about the group’s relationship to the drug trade (page 101). Such confessions could be dangerous to provide if they incriminate non-guerrillas involved in the drug trade, some of whom may be dangerous criminals who deal harshly with “snitches.”

The new accord reduces campaign finance assistance to the ex-FARC political party (page 69). This party was to receive 10 percent of public campaign funding between 2018 and 2026. It will now receive the average amount given to parties and political movements.

The new accord extends from 10 to 15 years, the timetable for investments in rural development programs, due to Colombia’s tight current financial situation (page 23). It now specifies that “nothing in the accord should affect the constitutional right to private property.” It specifies that the cadaster—a nationwide mapping of landholdings foreseen in the accords—will have no effect on property valuations used to collect taxes, which was a major concern of the country’s landholders.

Without changing its fundamental meaning, the new accord tightens up language on gender equity in order to avoid further misinterpretation by social conservatives. The new text (page 192) reads,

“No content in the Final Accord will be understood or interpreted as the negation, restriction, or diminution of people’s rights, independent of their sex, age, religious beliefs, opinions, ethnic identity, belonging to the LGBTI population, or any other reason; nor of the right to free development of one’s personality and of the right to freedom of conscience.”

One area that did not change: the post-FARC political party gets to keep its 10 automatic congressional seats (5 in the 166-person House of Representatives, 5 in the 102-person Senate) between 2018 and 2026 (pages 70-1). Those found guilty of war crimes will still be able to occupy these seats. The accord also creates 16 special congressional districts for zones hit hardest by the conflict, which will exist between 2018 and 2026 (page 54). In one change to the accord, the ex-FARC may not run candidates for those seats: they are meant to be occupied by representatives of victims and social movements.

The accords’ Ethnic Chapter was not edited in any significant way (pages 205-8).

The new text incorporates many of the concerns raised by ex-president Uribe and other members of the “No” coalition. However, it neither incorporates them all nor gives them everything they wanted on what was added. This makes sense: the “No” side won 50.2 percent of the vote, not 100.

We don’t know yet whether Uribe and other politicians will redouble their opposition to the new accord: so far, Uribe has complained about not having an opportunity to weigh in on the new version. If they do oppose the new text, their side risks being viewed as unreasonably stubborn or as exploiting remaining disagreements in order to push the accord’s approval period close to the 2018 presidential and congressional campaigns. The Santos government can also argue that time is of essence: it is necessary to get the un-demobilized FARC out of their current legal limbo as soon as possible, while its members are still on board with the process.

Another area that remains unclear is how the new accord is to be approved. A second plebiscite vote hasn’t been ruled out, but it is unlikely because its preparation would take too much time. (And also because of the uncertainty resulting from 2016’s surprising worldwide election outcomes.) A more likely path is President Juan Manuel Santos submitting the accords to Colombia’s Congress for approval as a package of laws.

President Santos’s coalition has a strong majority in the Congress, so approval is likely. Still, the question remains whether it can go via a “fast track” mechanism—minimal debate, few amendments, and accords made law within weeks—or through the legislature’s standard procedures, which would probably yield significantly amended laws by mid-2017. The longer timeframe may not be workable, as many guerrillas might decline to wait in their encampments until June or July of next year to find out how the Congress resolves their situation. Too many might desert or otherwise “wander off,” and be lost to the demobilization process. We will soon find out how Colombia resolves this “fast track” issue.

Tags: Accords, Drug Policy, Transitional Justice

Indigenous Leader’s Message: Help Colombia Solidify Peace

October 21, 2016

Marcia Mejía Chirimia, of the Sia indigenous community in the southwestern Pacific region of Colombia, is visiting the U.S. on a mission to garner support for Colombia’s peace agreement with the Revolutionary Armed Forces of Colombia (FARC). She forms part of CONPAZ (Communities Building Peace in their Territories), a coalition of 150 war affected communities throughout Colombia that advocate non-violence and peaceful resolution to conflict. Marcia and her CONPAZ colleagues argue that for the victims of the conflict peace is essential. She asks that the international community to increase its efforts to guarantee that the accord is implemented without changes and without any further delays.

According to Ms. Chirimia, victims’ voices were integrated into the accords. The final accord reflects what CONPAZ and many other victims recommended to the negotiating parties. The accord prioritizes truth and reconciliation over extended jail time. For victims, like herself, jail time would just lead to further suffering of not knowing the full truth of the dynamics that generated horrific massacres in the communities. She believes that victims can only begin to heal when they know the full truth and the perpetrators ask for forgiveness.

Ms. Chirimia debunks the notion perpetrated by former President Alvaro Uribe that the accord would foster impunity because prison time is not expressed. She thinks that jail time for perpetrators of abuses would only breed more resentment and vengeance towards the victims by the prisoners. Also that by placing them in jail it would guarantee that they would continue their criminal activities. CONPAZ argues that persons who committed crimes should be rehabilitated so they can become productive members of society. She adds that the FARC are not the sole causes of distress in ethnic communities. Paramilitaries, ELN, businessmen with economic megaprojects, and even some politicians, were also involved in abuses in these territories, and they should be held accountable. The accord would guarantee that all perpetrators are held to account.

She notes that many of the “No” voters did not suffer the worst consequences of the war and that many made a decision based on misinformation. As such, she thinks that all efforts to end this situation must include victims’ representatives especially indigenous and afro descendants who are hardest hit by violence. As victims, what comes next will affect their lives more than the lives of those voicing their distant opinions from cities like Bogotá. Areas with the largest numbers of victims voted a booming “Yes” for peace in the October 2 plebiscite.

Ms. Chirimia is also proud of the inclusion of an Ethnic Chapter in the final accord. She explains that this chapter was written by the Ethnic Commission that represents a good number of ethnic communities. It reflects their proposals constructed by the communities themselves– not the opinions of the government or the FARC. By denying advancement of the peace accord, the No proponents are ignoring the pressing needs of rural women, indigenous and Afro-Colombians peoples.

In sum, Ms. Chirimia is advocating for continued international support for Colombia’s peace process. The U.S. should redirect its military aid to Colombia towards social programs that help to construct peace on the ground. In her view, money should go towards effective crop substitution programs, the construction of viable roads to markets, demining project and land restitution. Any further negotiations between the government and the FARC and ELN guerrillas must guarantee victims’ rights to the truth, reparations, and peace. Beyond international authorities, she thinks that NGOs play a critical role in guaranteeing inclusion of ethnic communities’ minorities’ rights by pressuring the U.S. and Colombian authorities to monitor the process.

Ms. Chirimia, who has suffered death threats due to her activism in favor of her community, emphasizes that “the voices of those on the ground are strong, but often not loud enough to reach the right people. It is difficult, and often dangerous, to be a leader in this context – which is why they need international support.”

Despite new obstacles in the way, the triumph of the “No” has certainly not defeated her. She promised to continue fighting for the peace they dream of.

—Cristina Camacho, WOLA Colombia Program intern

Tags: Indigenous Communities, Plebiscite, Transitional Justice

English Summary of the September 23 Government-FARC Communiqué on the Transitional Justice Accord

September 23, 2015

The communiqué’s Spanish text is here.

  • Special Jurisdiction for Peace: The accord creates a separate, presumably temporary body in Colombia’s justice system. It will have two sections, and each will have a minority number of foreign magistrates. “The essential function” of these two chambers, the Chambers of Justice and the Tribunal for Peace, “is to do away with impunity, obtain truth, contribute to victims’ reparations, and to judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, particularly the most serious and representative ones.”

  • Political crimes will be amnestied: There will be the “broadest possible amnesty” for the crime of rebelling against the state. This amnesty will also extend to “connected crimes.” This is tricky, as narcotrafficking and extortion (and perhaps even some ransom kidnappings) may be defined as “connected” to political crimes—and thus amnestied—because they may have been committed in order to raise funds for the FARC’s “political” cause. “An amnesty law will specify the extent of this ‘connectedness.’”

  • What won’t be amnestied: The amnesty will not extend to crimes against humanity, genocide, serious war crimes, hostage-taking or other serious privation of liberty, torture, forced displacement, forced disappearance, extrajudicial executions, or sexual violence. “These crimes will be subject to investigation and trial by the Special Jurisdiction for Peace.”

  • Who must face justice: The Special Jurisdiction for Peace will cover everyone who, “whether directly or indirectly, may have participated in the internal armed conflict, including the FARC-EP and state agents, for crimes committed in the context and for the purpose of the conflict, with particular respect to the most serious and representative cases.”

    This may mean that crimes committed by armed actors outside the conflict—like the “false positive” extrajudicial executions—may have to remain in Colombia’s regular criminal justice system. It probably also means that civilians who participated in war crimes, such as landowners who generously sponsored paramilitary groups that committed mass atrocities, could be investigated and tried by this new judicial structure.

  • Penalties for “those who recognize truth and their responsibility”: These individuals’ confessions will be contrasted with Colombian authorities’ investigations and earlier verdicts, and with information from victims’ and human rights groups. If they are not found to be holding anything back, their punishment “will have a component of restriction of liberties and rights.” This will guarantee that they participate in “work, tasks, and activities” aimed at “the satisfaction of victims’ rights” by “compliance with reparative and restorative functions.” This punishment will last for five to eight years “of effective restriction of liberty, in special conditions.” (The 2005 “Justice and Peace” law, which governed demobilization of the AUC paramilitary group, foresaw similar five-to-eight-year terms for the most serious human rights abusers, which ex-paramilitaries spent in ordinary prisons.)

  • Penalties for those who deny “the truth and their responsibility,” or who recognize it later in the process: These individuals will be put on trial before the Tribunal for Peace. Those who recognize their guilt later will go to regular prisons for five to eight years, during which they will “contribute to their re-socialization through work, training, or study.” Those who persist in denying responsibility for serious crimes will be tried and, if found guilty, sentenced to up to 20 years in regular prisons.

  • Special Jurisdiction for Peace requirements: To receive reduced sentences and “special treatment,” the accused must “contribute full truth, provide reparations to victims, and guarantee non-repetition” of their acts.

  • Disarmament requirement: FARC members must cease to use weapons. (The text uses the phrase “dejación de armas,” which means “leaving behind” or “laying aside” weapons. This is different from an immediate handover or destruction of guerrilla weapons.) This disarmament or “laying aside” process must begin no later than 60 days after the signing of a final accord.

  • FARC future as a political movement: “The FARC-EP’s transformation into a legal political movement is a shared objective, which will receive all support from the government, in the terms that are agreed to.”

  • Deadline: While it is not in the text of the accord, President Juan Manuel Santos said that the sides have agreed to sign a final accord within the next six months.

Tags: Accords, Transitional Justice

Colombia and FARC to Make Crucial Announcement on Peace Process

September 23, 2015

Statement

September 23, 2015

Colombia and FARC to Make Crucial Announcement on Peace Process

Washington, D.C.—At about 5:00pm today in Havana, President Juan Manuel Santos and FARC guerrilla group leader Timoleón Jiménez are expected to announce an agreement on transitional justice, the most difficult item on their negotiating agenda.

The leaders may also announce a date for the signing of a final peace accord. The end of a 51-year-old armed conflict is now in sight.

The items that remain to be negotiated are not easy. The negotiators still must define what “disarmament” means, how fighters are to be demobilized, how to turn accords into law, and how to guarantee a ceasefire while all of that happens. But these issues will likely turn out to be less contentious than what is agreed today: a judicial framework to clear up the worst human rights crimes committed during the conflict, and probably to punish those responsible.

While we don’t know yet what is in this Transitional Justice accord, WOLA hopes that it includes real accountability for individuals on both sides who committed war crimes. Some basic human norms were violated, and even if the punishment is less severe than the crime, it is important that perpetrators face consequences. Nobody, meanwhile, should enjoy pardons or lighter sentences without first confessing fully to his or her crimes and making amends to his or her victims.

A final accord may come soon. The U.S. government and the international community will have to move quickly to help Colombia during the fragile post-accord phase. For Washington, that will mean an increase in assistance to Colombia, which has been slowly cut back nearly every year since 2007. As officials planning the U.S. foreign aid budget prepare their 2017 request, which gets sent to Congress in February, it is essential that they plan for a big increase for Colombia. It is essential that the post-conflict package guarantees restitution and support for the rights of Colombia’s diverse victims-Afro-Colombian, Indigenous, rural farmers, women and the displaced.

CERAC, a Colombian think-tank that monitors conflict events, reported this week that the past two months have been the most peaceful that Colombia has lived since 1975. A peace accord will bring uncertainty and new challenges as Colombia struggles to implement it. But for now, let’s enjoy today’s breakthrough and share in the hope that these gains might be permanent.

Tags: Transitional Justice, WOLA Statements

The “Transitional Justice” Debate Heats Up

March 2, 2015
César Gaviria’s “transitional justice for all” proposal has generated a lot of discussion.

The Colombian government-FARC peace talks have begun to tackle what could be their most difficult subject. Transitional justice, especially the question of what to do with the armed conflict’s worst human rights violators, dominated coverage of the talks in Colombia’s media during the break between their 32nd and 33rd rounds (February 13–24).

This period was punctuated by two statements, both publicized on February 22.

  • The FARC’s lead negotiator, Iván Márquez, told an interviewer, “For the guerrillas, zero jail. No peace process in the world has ended with the insurgency’s leaders behind bars.” Márquez has said almost the same thing before, but his words hit harder now because the talks have now begun tackling this issue. The Colombian government’s high commissioner for peace, Sergio Jaramillo, responded, “The guerrillas think that if we don’t guarantee them impunity, they won’t put down their weapons. If that is their thinking, there won’t be an agreement, there won’t be peace.”
  • Cesar Gaviria, Colombia’s president from 1990 to 1994 and later secretary-general of the Organization of American States, issued a proposal to impose “transitional justice for all.” Gaviria suggests requiring not just guerrillas and soldiers, but also politicians, businesspople, landowners, and civilian officials, to confess their involvement in the most serious human rights abuses committed during the conflict. In exchange for such confessions and efforts to make amends to victims, Gaviria’s proposal would exempt non-combatants from serving prison sentences (it is vaguer about combatants). Among the Colombian military, the proposal would exempt lower-ranking officers, as well as those who committed crimes by “omission” (deliberate failure to prevent a human rights abuse committed by others).

Let’s look at these two statements.

Iván Márquez may technically be right when he says FARC members won’t spend a day in “jail.” The worst human rights violators among its members might not end up in regular prisons administered by Colombia’s National Prisons Institute. Nonetheless, guerrillas most responsible for the most serious abuses may end up in some sort of facility that deprives them of liberty. This facility might not be administered solely by the Colombian government: in order to avoid the appearance of “surrender,” some international involvement could be involved. While FARC leaders held there would be confined to the facility, the length and austerity of their detention would probably be significantly shorter than a normal criminal prison sentence for such serious crimes.

Last week, former UN Secretary General Kofi Annan visited Colombia and spoke to the FARC negotiators in Cuba. Rodrigo Pardo of Semana magazine asked him whether he thought the International Criminal Court would require prison for guerrilla leaders responsible for the worst human rights crimes. Annan more or less said yes:

“I think the determination here—obviously, judges will have to make it—but the determination will be to bring to account all those who are most responsible for the most serious crimes. So it will not be for the organization you belong to, but have you committed a crime or not? Obviously one is not going to be able to bring everyone to trial, but those most responsible will have to be held to account.”

Former President Gaviria’s proposal, meanwhile, made big waves in Colombia: it’s highly unusual for a heavyweight of the country’s political class to recognize that civilian elites bear some judicial responsibility for crimes committed during the conflict. (“My surprise was enormous,” wrote León Valencia, a demobilized ELN guerrilla leader who is now one of Colombia’s most-cited conflict analysts.) FARC leaders “hailed” the proposal as a good starting point.

Gaviria deserves praise for seeking to extend accountability to Colombia’s ruling elite. Civilian non-combatants played a large role—often larger than that of combatants—in ordering, planning, funding, and preparing some of the worst abuses committed during Colombia’s conflict, and they shouldn’t avoid accountability. Their participation in confessions, amends, reparations, and truth-telling could help Colombia make a historic break with generations of political violence.

Gaviria’s “transitional justice for all” proposal raises three questions, though:

Tags: Transitional Justice

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

February 15, 2015
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?

Tags: Human Rights, Transitional Justice, Victims

Drug Trafficking as a “Connected Political Crime”

December 6, 2014
Paramilitary leader “Julián Bolívar” won a vastly reduced sentence for his past drug trafficking, though he awaits a decision on extradition to the United States.

President Juan Manuel Santos caused a stir this week when he told an interviewer from Colombia’s RCN Radio network that the country would have to alter its laws to benefit FARC members who have trafficked drugs.

“For us to be able to apply justice in a more effective way will require broadening that concept of ‘political crimes,’ above all ‘connected crimes.’ Today it is too restrictive, and if we at least want to commute or pardon sentences, or in some way to legalize, thousands of FARC combatants, we’re going to have to be a little more flexible in the application of that concept.”

Colombia’s prosecutor-general [fiscal general], Eduardo Montealegre, agreed.

“It’s absolutely possible that narcotrafficking might be considered a crime connected with political crime, since ‘connectedness’ means something has a relation to something else, and it’s beyond discussion that in the Colombian armed conflict, narcotrafficking has been used in the guerrillas’ armed struggle.”

Their point is that negotiations with the FARC guerrillas will not succeed if, upon demobilizing, FARC leaders will face jail or even extradition to the United States because of their past involvement in the drug trade. Guerrillas simply won’t demobilize. It would seem apparent, then, that Colombia will have to offer ex-guerrillas reduced or waived penalties for past drug trafficking.

But many in Colombia are not prepared to accept that. Internal-Affairs Chief [Procurador] Alejandro Ordóñez alleged that calling narcotrafficking a “connected political crime” would “disguise criminals as politicians” and “shield FARC leaders from their status as capos” in the drug trade. Former President Álvaro Uribe, the talks’ most prominent critic, tweeted, “How could it be that they are going to classify as a political crime with altruistic motives an activity like narcotrafficking, which for many years in Colombia has only systematically financed horrors and atrocities?”

(Uribe is guilty of some hypocrisy here. In 2005, his administration introduced a legislative provision that would have classified paramilitary groups’ activities, including narcotrafficking, as “sedition”—a political crime.)

This week’s debate raised a question that remains unsettled in Colombia, where for decades illegal armed groups with political goals have supported themselves by participating in the drug trade. When it comes time for these groups’ members to demobilize, how should the legal system deal with their drug trafficking crimes? Can they be considered “connected” to the political crime of rebellion, or must they be considered separately as criminal offenses?

Colombia has already wrestled with these questions since the middle of the last decade, when thousands of paramilitary leaders demobilized via the so-called “Justice and Peace” process. The case of paramilitary leader “Julián Bolívar” is illustrative, if not emblematic, of the need for greater clarity.

Rodrigo Pérez Alzate, alias “Julian Bolívar,” was the terror of Colombia’s Magdalena Medio region at the beginning of the 2000s. He oversaw the paramilitaries’ bloody takeover of the oil-refining city of Barrancabermeja.

Pérez demobilized in 2005 as part of the “Justice and Peace” arrangement, which would give him a reduced prison sentence in exchange for a full confession of his crimes and reparations to victims. In 2006, Pérez was transferred to prison and his case slowly went to trial. In September 2013, the Justice and Peace Tribunal sentenced him to eight years imprisonment—most of which Pérez had already served—for a long list of human rights crimes.

Tags: Drug Policy, Extradition, Transitional Justice

Competing Views and “Trial Balloons”

November 16, 2014

Colombia’s most-circulated newspaper, El Tiempo, ran a series of articles Friday about a forum it co-hosted about the country’s peace talks with the FARC guerrillas. The event was noteworthy because its participants included several of the government’s negotiators, plus officials and legislators who would play a large role in a possible post-conflict period.

The speakers revealed much current government thinking about the peace process, and raised eyebrows with some “trial balloons”—statements perhaps intended to prepare public opinion for some tough decisions if the government and guerrillas reach an accord. Here are some standout examples.

Disarmament: whether the FARC will “stop using” or “turn in” its weapons

Disarmament is one of the main questions left to be negotiated in Havana. The FARC is reluctant to hand over its weapons immediately after an accord is signed. Doing so gives the appearance of defeat or surrender, and guerrillas also fear being killed if disarmed, as happened to thousands of members of a political party the FARC tried to form during a failed 1980s peace process. Instead, guerrillas wish to promise not to use weapons in the short term, and perhaps to give them up in the long term, once they are certain that the government is complying with its peace accord commitments.

Jaramillo

Debate at the forum centered on the difference between “abandonment” (dejación) of weapons and “surrender” (entrega) of weapons. Even a verifiable abandonment of weapons (like Northern Ireland, where the IRA kept weapons “beyond use” for nearly seven years after the 1998 Good Friday Accord) does not satisfy many in Colombian politics and public opinion, as it leaves open the option that the FARC might take them up again.

“Of course there has to be abandonment (dejación) of weapons,” said government negotiator Sergio Jaramillo, the Colombian Presidency’s high commissioner for peace. Jaramillo added that the distinction between abandoning and surrendering weapons is “a false dilemma,” noting, "The government said clearly in the secret stage, and will continue to insist, that there must be a verifiable abandonment of those weapons so they are out of use.”

Negotiator Jorge Mora, a retired general and former chief of Colombia’s armed forces, agreed. “Call it what you want: abandonment, surrender, destruction, whatever. What matters is what they will have to do. They will not practice politics with weapons. If it’s not like that, we simply won’t sign the accords. As soon as the guerrillas sign, they will have to do away with their strategy of combining all forms of struggle [violent and non-violent]. Demobilization is an implicit activity to end the conflict.”

Mora

Ángela Ospina, the vice-president of Colombia’s Conservative Party, disagreed: “abandonment and surrender of arms are different.” She wondered to whom the FARC would hand over its weapons, and whether the government has any idea how many weapons the guerrillas possess. “We are convinced that there must be a surrender of weapons and their destruction, to demonstrate that there is a genuine desire for peace,” she said.

Alfredo Rangel, a security analyst who is now a senator in ex-President Álvaro Uribe’s right-of-center political party, warned that if it merely “abandons” weapons, the FARC will end up conducting “armed oversight of the peace agreements.”

Whether human rights violators will go to prison or something else

Another pending issue for the negotiations is transitional justice. There is broad consensus—upheld by Colombia’s membership in the International Criminal Court—that there can be no amnesty for those who committed war crimes or crimes against humanity. What, then, must happen to the worst human rights violators in the FARC and in Colombia’s armed forces?

Tags: Disarmament, Ratification, Transitional Justice