The big news from Colombia this week was that the Santos government and the FARC-EP have reached agreement on a Transitional Justice Accord (TJA). This comes after agreement has been reached in the areas of agrarian reform, political participation and the cultivation of illicit drugs. The peace talks have been ongoing since 2012 saw the signing of the General Agreement on Conflict Termination (see here).
The new TJA
The Transitional Justice Accord sets out a new Special Jurisdiction for Peace.
This creates a new, presumably temporary body, in the Colombian justice system. The aim of the new court 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”.
It is unclear how long the court will be active for. Some in Colombia predict that the ‘post-conflict’ Colombia will last about 7 years and that it will be violent as the FARC-EP lay down their weapons and criminal gangs attempt to take advantage of the resources they leave behind (see Ariel Ávila).
A hybrid court. The Chambers will be presided over by a majority Colombian judges but will include a minority of international appointees. The effect of the internationalized panel follows the trend of using international actors to underwrite aspects of the domestic peace process.
The trend towards accountability in international criminal justice continues. There will be no amnesty for 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. This is much in line with Christine Bell’s assessment of the terrain (see On the Law of Peace at Ch. 12).
However, there is an amnesty for ‘political’ crimes. This begs the question of what counts as a ‘political’ crime. Some crimes which cannot be amnestied i.e. ransom kidnapping or extortion, were linked to the ‘political cause’ (i.e. it brought resources to the FARC-EP struggle against the government, or the paramilitaries against the FARC-EP). The TJA says that the details of what crimes are ‘political’ will be worked out in the new amnesty law.
This new law will presumably attempt to provide a ‘grey area’ which provides a measure of flexibility in deciding when an amnesty applies. International Humanitarian Law makes provision for amnesties in some situations : see Art 6(5) 1977 Protocol II to the Geneva Conventions.
The court will have jurisdiction over all those 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 include civilians who participated in the conflict, i.e. by sponsoring the paramilitaries in their commission of atrocities can be investigated and tried according to this mechanism. However, crimes which fall outside of the conflict, such as certain extrajudicial killings will need to remain in Colombia’s normal judicial system.
Accept or Deny?
It will be split into two ‘Chambers’ to deal with three types of perpetrator –
1. those that admit to their guilt
2. those that are late in admitting to their guilt
3. those that persist in denying their guilt
Different penalties attach to each of these situations.
Those of type 1 will have a restriction of liberty in ‘special conditions’. 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 sentence can last 5 – 8 years.
Types 2 and 3 will be investigated and tried at the new court. Sentences can be between 5 – 8 years for those that admit their guilt. Those that do not admit to their guilt are open to tougher sentences upon being found guilty after a trial at the new court (up to 20 years).
It is interesting to note that the expressive function of sentencing may simply be unable to deal with the types of crimes and atrocities being considered. There is also the problem of child soldiers. How will the special court deal with the situation where a child is recruited into the FARC-EP (for example) and then proceeds to commit atrocities or war crimes, (such as perhaps recruiting child soldiers). There may be interesting crosscurrents with the Dominic Ongwen trial at the ICC which will need to deal with the limits of international criminal justice in just this type of case.
The FARC-EP have 60 days after this date to being the process of ‘laying aside weapons’ (translation from ‘dejacion de armas’).
Although it is not in the text of the TJA, Santos declared that there are 6 months to agree all outstanding matters and reach a final peace accord. This makes 23 March 2016 as the end-date for signing the comprehensive and final peace agreement.