Juan Manuel Santos
President of the Republic of Colombia
Casa de Nariño
Bogotá, D.C., Colombia

 

Dear President Santos,

I am writing regarding the potential renegotiation of the peace agreement with the Revolutionary Armed Forces of Colombia (FARC) guerrillas. Human Rights Watch fully supports your government’s efforts to reach a viable agreement to end decades of violent conflict and advance the protection of fundamental rights in Colombia. We therefore commend your commitment to renewing negotiations in the aftermath of the plebiscite that rejected the original agreement.

As you know, we believe that the justice component of the original agreement contained fundamental flaws that would have severely undercut the right to justice of countless victims of grave abuses and made it far more difficult for Colombia to build a lasting peace.  Among our chief concerns was the fact that these flaws would have allowed not only members of the FARC but also members of the Colombian armed forces to escape meaningful punishment for egregious atrocities, including the systematic execution of thousands of civilians—known as “false positive” cases—committed between 2002 and 2008.

We believe these flaws can be fixed—and we are eager to support your efforts to do so. Toward that end, we would like to highlight three basic principles—missing in the original agreement—that any new agreement should uphold if it is to provide a minimal guarantee of meaningful justice to victims of abuse by both parties to the conflict.

  1.  Confessed war criminals—whether members of the FARC or the Armed Forces—should serve sentences in places of confinement with clearly defined and enforced boundaries.

Under international law, Colombia has the obligation to ensure punishment for human rights violations that is proportional to the gravity of the crime.[i]  To respect the requirement of proportionality, the new agreement should specify clearly and unequivocally that confessed war criminals will at least be required to serve the entirety of their reduced sentences in prisons or other sites with clearly defined and enforced boundaries under conditions that constitute deprivation of liberty, in line with international standards. 

  1. Commanding officers—whether members of the FARC or the Armed Forces—should be subject to criminal liability for human rights crimes committed by their troops under the principle of “command responsibility” as it is defined in international law.

Under international law, military commanders can be found criminally liable for a human rights crime carried out by their subordinates if it can be shown that they had effective control of the subordinates, had knowledge or reason to know about the commission of the crime, and had the means to prevent the crime and/or ensure it was properly investigated. The new peace accord should include a definition of “command responsibility” that is fully consistent with the one established under international law.[ii]

  1. War criminals should be prohibited from holding public office while they are serving their sentences. 

A fundamental aim of the peace process is to allow the FARC to pursue their political objectives within the democratic arena.  Members of the FARC should have their full political rights respected—including the right to run for and hold office—but only after they have fulfilled any sentences for war crimes or crimes against humanity.[iii] Running and holding office while serving a sentence is incompatible with the punishment due for offenses as serious as war crimes or crimes against humanity.

In closing, I would like to reiterate our support for your efforts to bring an end to years of war in Colombia, and our own commitment to helping however we can to ensure the peace process advances the fundamental rights of all Colombians.

Sincerely,

 

José Miguel Vivanco
Human Rights Watch

 

 

 

[i] The justice component of the original agreement is at odds with this obligation by allowing confessed war criminals to avoid any period of incarceration as punishment. Instead of being deprived of their liberty, guerrilla fighters who fully and promptly confess their crimes would be subject to “restraints of rights and liberties” while required to carry out community service projects to assist victims.   The definition of “restraints of rights and liberties” included in the agreement is so ambiguous and vague that it could allow FARC guerrillas to avoid any serious punishment. For example, those convicted to these sanctions would be allowed to carry out a range of movements as long as these are “compatible” with their sanctions and would not be subject to any consequence if they fail to carry out their community service sanctions. 

 

[ii] Human Rights Watch has shown that the definition in the original agreement contains two phrases that could be interpreted in a manner inconsistent with international law to allow army and FARC commanders to avoid responsibility for crimes committed by their subordinates. This definition could especially benefit army generals under investigation for “false positive” killings committed by troops under their control. Our June 2015 report, On Their Watch, shows that many of active or retired army generals could have criminal responsibility under the accepted definition of command responsibility under international law, including some of the 16 generals currently under investigation.

 

[iii] The original agreement includes a broad provision on political rights establishing that “the imposition of any sanction in the … [Special Jurisdiction] will not bar [anyone] for political participation nor will it limit any right, active or passive, of political participation.” This provision seems to allow war criminals to run or hold public office while serving their sentences, apparently including those who did not fully cooperate with the justice system and would therefore serve prison sentences under the accord.