WOLA: Advocacy for Human Rights in the Americas

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22 Mar 2017 | Commentary

Colombia’s New Transitional Justice Law Violates the Spirit of the Peace Accords

The accords sought to place victims at the center, but Colombia’s Congress would push some victims into second-class status. WOLA urges Colombia’s high court to act.

Transitional justice—how to hold human rights abusers accountable while convincing them to disarm—was the most controversial subject in four years of peace talks between the Colombian government and the FARC guerrillas. It has also been the most controversial part of the resulting peace accord.

WOLA has had concerns about some language in the peace accord, which held open the possibility of impunity for individuals who, though they didn’t pull the triggers themselves, either commanded, planned, enabled, or helped to cover up war crimes. While we have voiced those concerns, we have withheld judgment because the offending language lacked specificity and left much up to future definition.

On March 21, though, Colombia’s Congress settled on more specific language, and WOLA opposes it.

The provisions we oppose are in the final reconciled draft of a law, foreseen by the peace accords, to enact a transitional justice system, known as the Special Peace Jurisdiction (Jurisdicción Especial para la Paz, or JEP). We are most concerned about two changes that the Congress added.

1. The bill waters down the definition of “command responsibility” in a way that almost certainly runs afoul of Colombia’s international human rights commitments.

Colombia is a signatory to Article 28 of the Rome Statute [PDF], the founding document for the International Criminal Court. Article 28 requires that states hold accountable military and armed group commanders who “knew or, owing to the circumstances at the time, should have known” that their subordinates were committing a war crime—like a large number of extrajudicial executions or collaboration with paramilitary groups—and failed to act. Claiming ignorance of subordinates’ activity does not get a commander off the hook.

The language that Colombia’s Congress just approved falls short of this standard. It would only hold responsible commanders who had “effective control,” along with “knowledge based on the information at their disposal before, during or after” the abuse took place, and “measures within their reach to prevent the commission, or continued commission, of the acts subject to punishment, as long as the factual conditions would allow it.”

This means that top military leaders and unit commanders may avoid punishment. In fact, they might even avoid having to divulge to the JEP any details about what happened, thus depriving victims of their right to the truth.

In order to avoid participating in the JEP, all former officers would have to do is claim that they didn’t have “effective control” over the personnel who committed the abuses. To say “there’s nothing I could do” may be a bit embarrassing, but it amounts to a “get out of transitional justice free” card. And it doesn’t explain or address many officers’ long pattern of failure to cooperate with civilian prosecutors and investigators after the fact..

This softening of “command responsibility” predates the congressional legislation, though the transitional justice bill spells it out further. The government-FARC peace accord had originally included a stronger standard, explicitly applying the Rome Statute’s Article 28 to military and guerrilla commanders. But retired Colombian officers lobbied strenuously to weaken the measure. And in an extraordinary move, hours before the final accord’s November 24 signature, the Colombian government unilaterally changed the accord’s text to remove the reference to Article 28. The FARC complained, but rather than hold up the signing, went along with it.

“I observe with some concern that in the peace accord’s final version, every direct reference to Article 28 of the statue was eliminated,” the International Criminal Court’s prosecutor, Fatou Bensouda, wrote in January. “However, the definition that the legislators finally adopt will have to adjust itself fully to the definition established in the Rome Statute.” This adjustment did not happen.

Worse, the law only applies this softer standard “in the case of members of the security forces.” Article 28, presumably, still applies to former FARC commanders. The implications of this for victims is outrageous. Victims of the FARC would have the right to learn the truth about what happened to them. Guerrilla commanders will have to apologize, make reparations, and pay at least a modest penalty of restricted liberty. Victims of the military, on the other hand, would not be entitled to truth, reparations, or criminal accountability from former armed forces commanders. The law creates two classes of victims: something that the peace accords not only did not foresee, but actively sought to avoid.

2. The bill makes it much harder to prosecute civilians who aided and abetted armed groups’ operations that resulted in war crimes.

The peace accord intended transitional justice to apply not just to former guerrillas and security-force members, but also to civilians who may have aided or abetted war crimes. Colombia’s Congress has changed that, too, in a way that may make powerful civilians untouchable.

The bill now makes civilians’ participation in the transitional justice system voluntary. The JEP tribunals can only compel them to appear if they have other evidence: they cannot base their cases “exclusively on reports received by the JEP, but must corroborate them through other means of proof.”

WOLA believes that these additional obstacles to trying civilians were added not to protect guerrilla supporters, but to protect backers of pro-government paramilitary militias. These groups, for a time confederated as the United Self-Defense Forces of Colombia (AUC), carried out the majority of massacres, killings, and displacements committed in Colombia between 1995 and 2005. As scandals like “para-politics” have shown, many of the paramilitaries’ (and probably some of the guerrillas’) worst abuses would not have been possible without their alliances with political bosses, landowners, organized crime figures, and even private corporations. The Congress has just taken the unconscionable step of weakening accountability over these individuals.

WOLA notes with concern that the changes to the bill’s language came from members of the political party of Germán Vargas Lleras, who just stepped down this week as Colombia’s vice president. Vargas Lleras was a lukewarm supporter of the peace accords, and is now a frontrunner for the 2018 elections.

What now?

Once President Santos signs the Special Peace Jurisdiction law, it goes to Colombia’s Constitutional Court for review. Colombia’s system empowers the Court to alter laws to harmonize them with the country’s Constitution and international commitments.

The Constitutional Court is the best hope for stripping out this objectionable language in the transitional justice bill. Eleven years ago, the Court made essential changes to the “Justice and Peace Law” governing transitional justice for ex-paramilitary fighters. We urge it to play this role again.

This is crucial because in their current form, the new provisions in the transitional justice law are a slap in the conflict’s victims’ faces. They violate both the spirit and the intent of the peace accord—especially a part of the accord that took 19 long months to negotiate. If for some reason the Constitutional Court fails to bring Colombia’s transitional justice system in line with international standards and the spirit of the accords, WOLA will urge the International Criminal Court to act.