Letter to President Santos on the new peace agreement with the FARC

Washington, D.C., November 22, 2016

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

Dear President Santos,

I am writing to share Human Rights Watch’s assessment of the justice provisions of the new peace agreement your government has reached with the Revolutionary Armed Forces of Colombia (FARC) guerrillas. Let me first congratulate you on reaching this new accord. We applaud your government’s efforts to bring an end to this long and bloody conflict which has caused so much suffering to the Colombian people.

As you know, Human Rights Watch had very serious concerns that the justice provisions of the original agreement would have resulted in confessed war criminals not receiving any meaningful punishment for grave crimes for which they were responsible. When you announced a new round of negotiations after the October plebiscite, we offered recommendations for addressing the flaws in these provisions so as to provide a minimal guarantee of justice.[1]

We are encouraged that the new agreement, while not fully resolving the flaws in the original, contains language that could make it much easier to fix at least two of the most important ones—ideally through implementing legislation, or, failing that, by the Constitutional Court.  

Command responsibility

One of the most important changes in the agreement—as you yourself recognized when you presented it on November 15—regards the principle of “command responsibility.”[2] This is an issue—as you correctly noted in your presentation—that is of great concern to the International Criminal Court. 

The references in the original peace agreement to this crucially important principle proposed a definition that could have led to its much narrower application than international law requires and could have allowed FARC and army commanders to avoid accountability for atrocities committed by their troops, even when they should have been held criminally responsible.  

The problem was twofold. First, whereas under international law criminal responsibility vests when commanders had “effective control” over the troops who committed the crime, the definition in the original agreement appears to require that judicial authorities within the Special Jurisdiction for Peace prove the commander had effective control over the criminal conduct itself. Narrowing the definition to effective control over the specific conduct rather than over the troops could mean many commanders who bear criminal responsibility would avoid accountability before the Special Jurisdiction, given that it is often very difficult to prove the former in these cases.

Second, whereas under international law if a commander had reason to know and should have known of the crime (i.e. had constructive knowledge) they may be criminally responsible, the definition in the agreement appears to require that judicial authorities prove that the commander had actual knowledge of the crime. Likewise narrowing the definition of knowledge to actual rather than also constructive knowledge could mean many commanders who bear criminal responsibility would avoid accountability before the Special Jurisdiction, given that this too can be extremely difficult to prove. Although the vague language in the agreement could yield alternative interpretations regarding these two evidentiary requirements, under the “principle of favorability”—a fundamental guarantee enshrined in Colombian law—courts must apply the interpretation that is most favorable to the defendant.[3]

As you noted in your November 15 speech, the new agreement includes language that should resolve the first of these flaws. It states that the “effective control” requirement for establishing command responsibility is the same as the one set forth in Article 28 of the Rome Statute—which, as the International Criminal Court has made clear, does not require showing direct control over the criminal conduct itself, but rather the ability to prevent or repress the commission of that criminal conduct or to submit the matter to competent authorities afterwards.[4]

What remains less clear in the new agreement is the evidentiary standard regarding knowledge.[5] The new agreement does not contain new language regarding this issue. Nonetheless, the explicit linking of the definition of “command responsibility” to Article 28 of the Rome Statute—albeit with specific reference to “effective control”—could provide a basis for applying the evidentiary standard enshrined in the Rome Statute and requiring that judicial authorities prove either constructive or actual knowledge of the crime. 

Rather than leaving this matter open for interpretation, however, we strongly recommend that you promote implementing legislation that establishes explicitly that all the evidentiary requirements for establishing command responsibility under the agreement will be the same as those set forth in Article 28 of the Rome Statue. 

Restrictions on Rights and Liberties 

The original agreement stated that war criminals who fully and promptly confess their crimes would be exempt from any time in prison and would be subjected to “restrictions of rights and liberties” while serving their sentences. However, it provided virtually no indication of what these “restrictions” would entail nor how they would be monitored and enforced—and therefore no reason to believe they would constitute a meaningful punishment in light of the gravity of the crimes.

The new agreement provides a little more clarity with regard to sanctions for members of the FARC who confess to their crimes. (The sanction regime for members of the Colombian Army remain to be determined by the government.)[6] Regarding monitoring, it establishes that the UN mission on Colombia and the UN Office of the High Commissioner for Human Rights will verify the fulfillment of the sanctions. It also states —like the original deal— that the execution of the sanctions will be monitored by a verification mechanism within the Special Jurisdiction for Peace.[7]

Regarding restrictions on liberty, the new agreement stipulates that the Peace Tribunal will establish the territorial dimension of restrictions on movement imposed on sanctioned individuals, and that these must be no larger than a rural hamlet, the smallest political unit in Colombia, which can have a population up to around 1000 people.[8]

However, this restriction applies only to the “hourly periods” established for performing restorative projects.[9] What remains unclear is what restrictions the sanctioned individuals would face during the hours and days that they are not performing these projects. The agreement states that the Peace Tribunal will determine the “place of residence” of sanctioned individuals.[10] But there is no indication of the size, nature or location of this place. (A government negotiator has said that these “places of residence” must be inside of the areas of confinement, but there is not explicit language to that effect in the deal.)[11]

The agreement also lacks a clear indication as to whether and to what extent the sanctioned individual’s movements will be restricted to their “place of residence.” It does contain one provision that would seem to indicate that there will indeed be restrictions on movements at all times. This new provision states that the verification mechanism within the Peace Jurisdiction will “authorize movements that are not related to the fulfillment of the sanction when these have not been explicitly authorized in the sentence.”[12] This language appears to refer to movements that occur outside of the “hourly periods” when the sanctioned individuals are performing their restorative functions—and, consequently, that the tribunal will impose meaningful restrictions on their movement during those times as well.  

It is critically important that the implementing legislation clarifies this point. Concretely, for the sanctions to amount to a meaningful punishment, the implementing legislation should be explicitly clear that when not performing their restorative projects, the sanctioned individuals will subject to an arrangement in which their movements will be restricted to the “place of residence” established by the tribunal, with very limited exceptions allowed. In addition, it is critically important that the implementing legislation establish that these places have clearly defined, enforced, and protected borders.[13]

An additional concern is that the new agreement stipulates that the duration of the sentences can be reduced if the sanctioned individuals have carried out reparative projects during the demobilization process—or after being disarmed and before being sanctioned so long as they remain in a "territorial location that is perfectly definable and verifiable” during this period.[14] The agreement should establish that such sentence reductions will be granted only for time served in conditions similar to those provided for in the sanctions—including being subject to monitoring and requiring authorization to move.

Political participation

The new version of the agreement still provides that FARC war criminals can run for and hold public office even while serving their sentences. Under the deal, “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.”[15] We agree with you that a fundamental aim of the peace process is to allow the FARC to pursue their political objectives within the democratic arena. However, running and holding office while serving a sentence appears to be incompatible with the punishment due for offenses as serious as war crimes or crimes against humanity and could undercut victims’ rights to justice.

It is critical that this flaw is fixed during the implementation to ensure that war criminals’ participation in politics does not undermine the sanctions imposed by the Special Jurisdiction for Peace. Your government could avoid this outcome, for example, by establishing that the time devoted to serving or running for public office will not be counted as time served in fulfillment of their sentences. In addition, this flaw could be fixed by the Constitutional Court, which, in its 2014 on the Legal Framework for Peace suggested that criminals could only run or hold public office “once they have served their sentences and carried out their demobilization.”[16]

Again, we congratulate you on the progress that you have made toward achieving peace in Colombia. We believe the new deal is an improvement on the original, but that more work is needed to ensure that it does not allow confessed war criminals to escape meaningful punishment for their crimes. If the implementing legislation addresses the points raised above—regarding command responsibility, restrictions on rights and liberties, and political participation— Colombia will have created a mechanism that offers at least a minimal degree of justice to the victims of abuses committed by the FARC.

Sincerely,

José Miguel Vivanco
Human Rights Watch