Posted March 3, 2020.
March 3, 2020
Posted March 3, 2020.
March 3, 2020
Indigenous community leaders and FARC leaders participate in a meeting in Dabeiba, Antioquia, aimed at moving toward reconciliation and reparations.
February 29, 2020
February 24, 2020
Discussions with victims in the Antioquia town where investigators from the JEP are unearthing scores of bodies believed to be the victims of “false positive” killings committed by Colombia’s army.
February 24, 2020
February 24, 2020
The Special Jurisdiction for Peace has been helping find bodies in Dabeiba, Antioquia, believed to be victims of “false positive” killings by the Colombian Army.
February 21, 2020
February 12, 2020
February 12, 2020
As former army chief Gen. Mario Montoya appears before the Special Jurisdiction for Peace in a hearing about “false positive” killings, victims hold a vigil outside.
February 12, 2020
President Duque lays the ceremonial first brick in what will be a “Museum of Memory” honoring conflict victims. Some victims’ groups protest outside against Duque’s appointed director of the governmental Center for Historical Memory, Dario Acevedo (left), who in the past held the common right-wing view of denying the existence of an armed conflict.
February 5, 2020
February 3, 2020
January 27, 2020
Marino Córdoba called on the Colombian government to refocus the implementation of its 2016 peace deal on the victims of the country’s 50-year civil war. Córdoba presented his call to action during a Jan. 16 event marking the one-year anniversary of the Special Jurisdiction for Peace (JEP).
The JEP was established in 2016 as part of a peace deal between the Colombian government and the guerrilla insurgency Armed Revolutionary Forces of Colombia (FARC). Representing a compromise between the government and FARC leaders, the JEP implements a transitional justice model.
The agreement tasked the JEP with sanctioning the most grievous crimes committed during the 50-year conflict, while facilitating a sustainable peace by initiating a reconciliation process between victims and perpetrators.
“I was invited to present as a victim in order to represent [the victim’s] perspective of the JEP’s work,” said Córdoba, the founding director of the National Association of Displaced Afro-Colombians (AFRODES). The organization has been an important WOLA partner since and represents a coalition of 96 organizations in a network of 90,000 Afro-Colombians.
Córdoba is a survivor of Operation Genesis, a 1997 forced displacement of Afro-Colombian communities in the Cacarica river basin in Chocó. During the operation, Colombian soldiers collaborated with paramilitary groups to target social leaders and farmer’s unions.
“Before I die, I want to know what happened in Riosucio, and who was responsible for it all,” Córdoba said at the event, documented by W Radio Colombia.
Colombian General Rito Alejo del Río Rojas, who was sentenced to 25 years in prison for ordering Operation Genesis, recently agreed to appear before the JEP in exchange for a reduced sentence.
“As victims, we want to know the truth and we want other Colombians to know the truth as well,” Córdoba said, in reference to del Río’s appearance. “The JEP has a great responsibility to document what happened, and we will do our utmost to support the institution.”
Córdoba pushed back against allegations by former president Álvaro Uribe that the JEP is a political tool of the left. “This country is very polarized,” he said. “Right now, we need one voice to ensure that the victims of the conflict are at the center of the peace process.”
The JEP’s first year in review
The JEP has begun 5 major investigations focusing on the actions of FARC ex-combatants and the Colombian military. The cases focus on kidnappings by the FARC; violence in the departments of Tumaco, Ricaurte and Barbacoas, and Nariño; extrajudicial killings by the Colombian military (infamously known as “false positives”); crimes committed in the department of Antioquia’s sub-region of Urabá; and violence in the northern region of the Cauca department.
Over 800,000 victims have registered with the JEP in the past year, while 11,675 have agreed to appear before the tribunal. The vast majority of those agreeing to testify, 9,687, are ex-combatants of the FARC. The remaining number is composed of 1,938 members of Colombia’s Armed Forces, 38 state operatives unaffiliated with the Armed Forces, and 12 who have self-identified as social protesters. Two Colombian generals and one senator are the most notable public figures involved in the process.
The JEP has navigated a highly politicized and controversial implementation of the peace agreement. About 15% of the JEP’s 51 magistrates come from Afro-Colombian and indigenous communities, and over half of them are women. However, the Central Democratic Party (UD) founded by ex-president Álvaro Uribe has accused the JEP of carrying out a political agenda. While independently unsubstantiated, UD’s allegations have cast doubt on the JEP’s legitimacy.
The JEP has also faced criticism from the FARC, with high-profile cases involving two of the group’s former leaders. The first, known by his alias Jesús Santrich, has sought a JEP guarantee that he will not be extradited to the United States on drug trafficking charges. The second FARC ex-commander, Hernán Darío Velásquez, or “Paisa,” has not appeared before the JEP. The tribunal has yet to decide whether his failure to participate exempts him from the benefits of the transitional justice system.
The JEP’s most critical tool lies in its popular legitimacy. María Camila Moreno, director of the Colombia program for the International Center for Transitional Justice (ICTJ), emphasized the importance of transparency and legitimacy. Presenting on the JEP’s first year of operation, Moreno called for greater resources for implementing the peace agreement in post-conflict zones and a greater focus on the conflict’s victims. The JEP, she warned, must serve as an example that Colombia’s conflicts can be solved by institutions instead of violence.
Written by Julia Friedmann, Colombia Intern
January 23, 2019
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.
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.
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.
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.”
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.”
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.
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.
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.
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.
November 30, 2017
Here is a Spanish PDF of an article in Defensor, the monthly magazine of the Mexico City human rights ombusdman, by WOLA Senior Associate Gimena Sánchez Garzoli. It looks at characteristics and considerations for Colombia’s longstanding crisis of forced internal displacement, as the country nears a post-conflict scenario.
August 16, 2016
A delegation of conflict victims attended the December 15 singing of the Victims accord in Havana.
Colombia’s government and the FARC guerrilla group have settled the most difficult question facing their three-year-old peace negotiations: how can Colombia hold human rights abusers accountable for their crimes, without imposing penalties so severe that they encourage guerrilla leaders to keep fighting?
The December 15 accord on Victims establishes a Special Peace Jurisdiction to hear confessions, to try and punish war crimes and crimes against humanity, and to determine reparations to victims. A December 19 government communiqué explains how the security forces will fit into that special jurisdiction.
“Settled” is too strong a word, though. Both declarations leave fundamental questions unanswered, and raise others. Detractors have seized upon these ambiguities, and their critiques are influencing the Victims accord’s reception before Colombian public opinion. The head of Colombia’s rightist opposition, Senator and former President Álvaro Uribe, wrote that the December 15 accord “substitutes Colombian justice in order to absolve the FARC.” The Americas director for Human Rights Watch, José Miguel Vivanco, told reporters, “This is a piñata of impunity. …It is a pact between the government and the FARC that ends up sacrificing the right to justice of thousands of the Colombian conflict’s victims.”
WOLA shares some of these concerns, but does not share this broad view. Colombia did not just approve a “piñata of impunity,” and this sweeping choice of wording is unfortunate. The December 15 accord does not amnesty serious human rights crimes, includes significant concessions from an armed group that is not actually surrendering, and is the product of much consultation with victims of the conflict.
Nonetheless, as HRW’s more careful written critique and other analyses have made clear, a great deal remains undefined, and some dangerous potential loopholes remain to be closed up.
Variations of this question are coming up repeatedly in the debate over the new accord. Depending on the depth of their involvement in serious human rights crimes, demobilized guerrillas who fully confess will receive sentences of between two and eight years of “effective restriction of liberty” while they perform acts of reparation to victims.
What does “restriction of liberty” mean? The accord is still vague, but we now it doesn’t mean “jail.”
“Effective restriction means that there may be appropriate mechanisms of monitoring and supervision to guarantee good-faith compliance with the restrictions ordered by the tribunal. …The Special Peace Jurisdiction will determine the conditions of effective restriction of liberty that may be necessary to ensure compliance with the sanction, conditions that in no case will be understood as jail or prison, or adoption of equivalent security measures.”
This confinement’s austerity and geographic scope remain to be defined. The place of confinement, chief government negotiator Humberto de la Calle told Colombia’s El Tiempo newspaper, “will be a function of the place where reparations occur.”
“For example, there will be guerrillas contributing to de-mining at the site where it takes place. In these sanctions we’re not talking about jail. There won’t be a lot of people all going to one place, but simultaneous reparations programs in several sites. And that is where there will be the presence of those who have been punished with restriction of liberty, movement, and residence. …If someone must go and de-mine in El Orejón (Antioquia), he goes, and it could be that tomorrow he has to go and de-mine in Lejanías (Meta). But look, he won’t have the entire department [province/state] as his base, as some opponents of the peace process said at the beginning.”
How large this “base” may be, though, hasn’t been determined. “If the restriction of movement consists only of not being able to leave the country or a department, or if the labor restriction consists of going to Congress or the town council, it will be very hard for people to trust in transitional justice,” wrote journalist Juanita León of La Silla Vacía. “If it is more strict, it could give the system more legitimacy.”
Support for the process will also depend on the level of austerity of both sides’ convicted human rights abusers’ confinement. Many Colombians recall with shame the sumptuous conditions that drug lord Pablo Escobar enjoyed during his brief stay in his custom-built prison outside Medellín in the early 1990s. While the December 15 accord is unlikely to repeat that experience, it holds open the possibility of a “restriction of liberty” that is insufficiently punitive to meet international standards. “Ay, President Santos,” wrote center-right El Tiempo columnist María Isabel Rueda. “I’d like to help you out, but this sounds like a picnic.”
Concerns about leniency run both ways. A 2011 scandal surrounded the “resort” conditions in which military personnel found guilty of serious rights crimes were being held at the Tolemaida army base. As the December 19 announcement places the armed forces in charge of confining their personnel accused of serious war crimes, that experience risks being repeated.
There is still no clarity about whether the system would apply to the most serious military human rights crime of the past ten years: the “false positives” scandal, which continues to move slowly through Colombia’s courts. In order to satisfy top leaders’ policy of rewarding high “body counts,” military personnel killed at least 3,000 civilian non-combatants, mostly between 2004 and 2008. Civilian courts have sentenced a few hundred to long prison terms—but there is a possibility that these convictions could be reduced, or even overturned, within the new “Special Peace Jurisdiction.”
December 23, 2015
(708 words, approximate reading time 3 minutes, 32 seconds)
Colombian government and FARC negotiators made a big announcement on June 4, at the end of their 37th round of talks in Havana. They had come to agreement on the nature and mandate of a Truth Commission, or “Commission for the Clarification of Truth, Coexistence, and Non-Repetition,” that would be charged with “clarifying and making known the truth about what happened in the conflict.”
This is the first point of agreement reached within the “Victims” agenda point, which the negotiators have been discussing for about a year. The announcement gives the peace process a badly needed shot of momentum at a time when, following the end of the FARC’s unilateral cease-fire, the pace of fighting has quickened.
According to the lengthy summary document both sides released on June 4, the “Clarification” Commission will have 11 members, 3 of whom can be foreigners. Upon the signing of a final peace accord, the Commission will have six months to establish itself, and the commissioners will have three years to perform their work. This is an appropriately long amount of time for a complex and politically charged task: the commissioners will not be rushed.
The Commission’s final report will not name the worst individual perpetrators. It will be limited to identifying “collective responsibilities.” The text explains that the commissioners will be directed to report on:
“The collective responsibilities of the State, including of the Government, and the other public powers, of the FARC-EP, of the paramilitaries, as well as of any other group, organization or institution, national or international, that has had any participation in the conflict, for the practices and acts referred to above.”
There will be no “naming names.” That will be the work of whatever transitional justice body that the negotiators agree to establish, which will operate independently of the Truth Commission.
The Commission’s report, though, can explore the responsibilities of a wide range of institutions and “collectivities,” including private corporations and foreign governments. Presumably, it could name the military units or FARC fronts that exhibited a pattern of committing the most serious violations.
An existing body, the Center for Historical Memory originally set up by the 2005 “Justice and Peace Law,” has already done this, to some extent, in its numerous published reports. One imagines that the “Clarification Commission” would have to be more explicit, detailed, and systematic than its predecessor in its naming of responsible institutions and groups.
The Commission will not recommend punishments, nor can it share evidence with the judicial system. The text reads:
June 8, 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.”
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.
February 15, 2015
An October 27 gathering of FARC victims in Bogotá.
On October 30 Colombia’s FARC guerrilla group made its clearest recognition that it owes something to its victims. It came in a statement issued during the 30th round of peace talks between the FARC and Colombia’s government in Havana, Cuba. These talks are on their fourth agenda topic, “Victims.” The statement came on the eve of a fourth of five planned visits to Havana of conflict victims.
“It is evident that we have intervened actively and we have impacted our adversary, and in some way affected the population that has lived immersed in the war,” read guerrilla negotiator Pablo Atrato.
“We make ourselves expressly responsible for each and every one of the acts of war executed by our units in conformance with the orders and instructions imparted by our command, and we assume its derivations. We are conscious that the results of our actions have not always been foreseen or expected by the FARC-EP, and we assume the consequences, as could not be otherwise. The FARC-EP will assume responsibility for what concerns us.”
Pablo Atrato reads the FARC statement about victims on October 30.
This sounds sensible, but still modest given the FARC’s treatment of civilians in Colombia’s long conflict. Though pro-government paramilitary groups committed a majority of massacres, extrajudicial killings, and forced displacement, the FARC is responsible for a significant share of these. For their part, the guerrillas dominate categories like kidnapping, child recruitment, use of landmines, indiscriminate bombings of civilian populations, and attacks on civilian infrastructure.
When confronted with the group’s victimizer status, FARC leaders’ usual response has been defiant: to avoid the issue, to insist that the government recognize its own victims, or even to say that FARC members themselves are victims.
Some observers applauded the latest FARC statement’s acceptance of reality. “The 30th round of peace dialogues between the government and the FARC produced the event that the country has most been expecting in the two years of negotiations in Havana: the recognition of responsibilities on the guerrillas’ part,” read an analysis in the Colombian daily El Espectador. “For the first time in its history,” read the newsweekly Semana, “the FARC guerrilla group admitted… that its actions have affected the civilian population throughout the armed conflict.”
Others noted that FARC negotiators had said similar things in the past. “Without a doubt there has also been cruelty and pain provoked by our forces,“ FARC Secretariat member Pablo Catatumbo had said in August 2013. ”We must all recognize the need to take on the issue of victims, their identity and reparation with total loyalty to the cause of peace and reconciliation.” Before a group of visiting conflict victims in Havana three months ago, chief FARC negotiator Iván Márquez had asked for forgiveness and signaled an intention to make amends.
The October 30 communique was “a first step,” Congresswoman Clara Rojas, who spent six years as a FARC hostage, wrote on Twitter. Though it was “an important step toward full satisfaction of victims’ rights,” chief government negotiator Humberto de la Calle said, the FARC statement wasn’t enough.
November 9, 2014