The armed conflict in Colombia is entering a post-conflict phase. The conflict has generated over 8 million registered victims. Atrocities have been committed by all sides to the conflict (the Colombian Army, the right-wing paramilitary forces and the left-wing guerrilla groups such as FARC-EP and ELN). Civilians have been the principal casualties in an armed conflict spanning over 50 years. More people in Colombia are internally displaced than in anywhere else in the world (7.2 million). But the conflict’s most emblematic atrocity is the extrajudicial killings of innocent civilians during the so-called ‘false positives’ scandal.

False Positives Scandal

After the demobilization of the AUC (right-wing paramilitary groups), a ‘cash-for-kills’ policy was introduced by Defense Minister Camilo Ospina (during ex-President Alvaro Uribe’s presidency). This policy awarded extra pay ($1,500) for Colombian Army personnel in exchange for evidence of ‘positive combat kills’ (see Directive #29/2005). The result was a state-sponsored onslaught against the most vulnerable of Colombian citizens. Poor or mentally ill civilians were lured by offers of employment and driven for hundreds of miles into FARC-EP controlled areas. They were executed and dressed in FARC-EP combat uniforms. Photographs were taken and the kills were presented as ‘combat-kills’. According to one study, which focuses on the links between US Aid and the false positives scandal, there were over 5,763 extra-judicial executions between 2000 and 2010.

National Prosecutions

The false positives scheme came to light in 2008 when 22 men from Soacha disappeared and were found dead hundreds of miles away in North Santander. Colombia is under a legal duty to prosecute those responsible for international crimes. There have been some prosecutions. Up to February 2016, the Colombian courts passed 817 convicting sentences against 961 members of the armed forces. There are also a number of ongoing investigations. However, the dispensation of justice has been slow. In one case, in Soacha, a mother has waited over nine years for the legal system to bring charges against military officers.

Furthermore, there are still thousands of individuals under investigation. But a new obstacle to justice has emerged. The recently concluded peace agreement has led to defendants arguing for a postponement of investigations until a new ‘Special Tribunal for Peace’ is up and running.

The Special Tribunal for Peace

At the end of 2016, over four years of negotiations concluded in the adoption of a peace agreement by the Colombian government led by Juan Manuel Santos and the largest rebel group, FARC-EP. President Santos has received the Nobel Prize. The leadership of the FARC-EP will enter Colombian politics. The Colombian population has been promised a sustainable peace, justice and reparations for the victims.

One of the central pillars of the post-conflict justice mechanisms is the creation of a new Special Jurisdiction for Peace (known as the “JEP” in Spanish). The JEP creates a special system of transitional justice that will be tasked with dealing with the atrocities committed by all sides during the five-decades-long armed conflict. In brief, the system is designed to provide ‘alternative sentences’.

A new Special Tribunal for Peace will be set up to hear individual cases. If an individual wants to access these (more lenient) sentences, they must come forward, plead guilty, provide a full account of the events that occurred, and undertake to make reparations to the victims of their actions. An individual, found guilty of serious crimes, may enter the JEP and receive a sentence of up to eight years in prison. This form of ‘limited justice’ aims at satisfying the requirements of peace (the rebels laying down their weapons) and the requirements of justice (satisfying the rights of victims to the truth and accountability).

The peace agreement causes new delays to criminal justice

There have been several reports of suspended prosecutions. A case in Caldas, involving the kidnapping and and murder of José Alirio Jaramillo Grisales, implicates three high-ranking military officers. This case has been suspended pending the creation of the new Special Tribunal for Peace. On 9 July 2017, a judge in Manizales, suspended an ongoing court case against nine armed forces personnel suspected of committing extrajudicial executions as part of the ‘false positives’ scandal. Nine military personnel are accused of assassinating Walter Ray Caldas Cano, Alix Amparo Insuati Serna, Joiver Fernando Henao, Alexánder Mota,

Juan Carlos Perafan Guevara and Jorge Antonio Benavides Enríquez. In Soacha, María Ubilerma Sanabria, mother of 16 year old victim Jamie Valencia, was denied justice when her case was suspended.

Defense lawyers have argued that the ‘ordinary’ justice system is not competent to hear the cases against the military officers. This has convinced judges. For example, a case in Manizales, the judge was convinced that the cases should be heard at the new post-conflict tribunal owing to mostly economic reasons. The judge stated that there would be little point in proceeding against the generals given the likelihood that the case would be taken to the new post-conflict tribunal. According to the judge, there would be no point in wasting time and resources and the case ought to be suspended.

This is plainly wrong. Firstly, the new tribunal does not yet exist. Thus, judges are creating a legal limbo which may become a dangerous precedent. Those suspected of committing crimes against humanity against the civilian population are not investigated by ordinary justice system – but neither are they investigated by the newly created post-conflict system.

Further, these decisions fail to implement the peace agreement. The peace agreement foresees a time-lag between the creation of the new system and the ongoing ‘normal’ justice system. The peace agreement states that ongoing cases will continue until the Special Tribunal for Peace is prepared to take over specific cases (see Point 48, Part 5, Peace Agreement). Judges in the ordinary criminal justice system simply cannot know that the new system will hear the case. That is a matter for the JEP tribunal itself when it comes into operation.

The judges may have been led astray by an interview given by the Interior Minister, Juan Fernando Cristo, in which he states that: “All the ongoing cases against the Armed Forces for crimes committed because of the armed conflict, or in direct or indirect relation with the armed conflict, will be made aware to the JEP [my translation]”. The key here is that it cannot yet be know which cases will be judged ‘linked to the armed conflict’.

 

International Criminal Justice – Is Colombia ‘unwilling or unable’ to prosecute?

 

In suspending the case and passing the buck to the JEP, the judge in Manizales actually said: ‘what is it to wait six more months? [my translation]’. In this context, the suspension of the case against the military raises concerns in relation to Colombia’s international obligations. Article 17 of the Rome Statute states that if a state party is ‘unwilling or unable’ to prosecute a case that comes within the jurisdiction of the ICC then it can legitimately initiate proceedings. There must be an ‘unjustified delay in the proceedings which in the circumstances is inconsistent with the intent to bring the person concerned to justice’ (Rome Statute, Article 17 (2) (b)). Article 13 states that the investigations can be initiated by the ICC Prosecutor propio motu. If Colombia continues to deny victims access to justice in cases that come within the jurisdiction of the ICC, then there may be good reasons for the Prosecutor to submit a request to the Pre-Trial Chamber for authorization to initiate an investigation. This may be self-serving insofar as it has become clear that the ICC needs to investigate non-African cases for reasons of political legitimacy. In January, ICC Prosecutor Fatou Bensouda made it clear that some of the changes to the peace agreement were worrying and that the ICC would be watching the situation.

However, ICC involvement may also destabilize the fragile peace process. As such, all parties ought to proceed with caution. The best option is for the Colombian ordinary justice system to implement the peace agreement. The agreement states quite clearly that ongoing investigations against those accused of crimes against humanity or war crimes ought to continue. Therefore, for so long as the JEP is still ‘under construction’, the ordinary justice system should carry out its legal duty and prosecute those suspected of extrajudicial killings. The Colombian system ought to be given a chance. But very soon, the ICC may feel that it has no choice but to intervene.

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