Letter to President Santos on the Amnesty Bill

Washington, D.C., December 25, 2016

Dear President Santos,

I am writing to share Human Rights Watch’s assessment of the Amnesty bill the Colombian Congress started discussing last week.

We appreciate that the Amnesty bill presented by the peace delegations has the stated purpose of excluding human rights atrocities, which would be investigated, prosecuted, and sanctioned by the Special Jurisdiction for Peace.[1] However, we are concerned that the choice of wording in some provisions in the Amnesty bill could limit accountability for abuses, for which there is a duty to prosecute. Specifically, the bill (a) lacks cohesion with Colombian criminal law; (b) employs vague legal categories that should be clarified; (c) only excludes explicitly some war crimes; and (d) relies on a limited definition of child recruitment.

We are also concerned that the conditional release mechanism created in the bill for state agents or guerrilla fighters responsible for war crimes seems to lack basic safeguards necessary to ensure that war criminals are not allowed to escape justice.

Amnesties

As you know, the bill includes several types of de facto or de jure amnesties, labeled with different names in the bill.[2] Such amnesties and pardons are not prohibited under international law as long as they do not extend to serious human rights violations. The bill states that it seeks to comply with international law and provides that none of the amnesties under the bill can be afforded to those responsible for a range of human rights atrocities.[3] However, the enumeration of such atrocities contains ambiguities that could open the door for de jure or de facto amnesties for human rights abuses, as explained below.

(a) Lack of cohesion between the bill and Colombian criminal law

The list of atrocities for which amnesties cannot be afforded includes several legal categories that do not have an explicit counter-part in Colombian legislation. For example, it refers to “extrajudicial executions” but there is no offense labeled “extrajudicial execution” under Colombian law.[4] Extrajudicial executions in Colombia are prosecuted as “aggravated homicide” or “homicide against a protect person” but there is nothing in the bill to confirm that “extrajudicial executions” include the offences of “aggravated homicide” or “homicide against a protect person” contained in Colombian law or that these offences cannot be subject to amnesty.[5]  Similarly, the bill refers to “abduction of minors,” although there is no offence labeled “abduction” in the Colombian criminal code.[6]

We are aware that the Special Jurisdiction will carry out “its own” categorization of the criminal acts “based on the Colombian criminal code and/or international humanitarian law, international criminal law, and international human rights law.”[7] However, to ensure that these inconsistencies with Colombian law are not misused, the implementing legislation should clarify how each of the legal categories that do not have an explicit counter-part under Colombian law are defined.  

(b) Vague legal categories

The list of atrocities for which amnesties cannot be afforded also includes categories from international criminal and humanitarian law that would benefit from further clarification in their scope and meaning within the Special Jurisdiction for Peace. For example, categories such as “other forms of sexual violence” and “grave deprivations of liberty,” should be clarified.[8]

In addition, the bill provides that the Panel of Legal Situation can waive the criminal prosecution of FARC guerrilla fighters who did not take “decisive” participation in atrocities.[9] There is no definition provided in the peace agreement or the bill for the term “decisive”, nor interpretative guidance offered to ensure the definition used will be consistent with jurisprudence from international law. Clarity should be provided to ensure that amnesties are not bestowed on a large number of guerrilla fighters who bear serious criminal responsibility but may be deemed to not have taken “decisive” participation.

(c) Only ‘grave war crimes’ explicitly excluded from amnesties

The list of atrocities for which amnesties cannot be granted refers to “grave war crimes.”[10] And another provision in the bill specifies that “grave war crimes” are violations of international humanitarian law committed in a systematic manner.[11] As this language seems to mirror language contained in the Rome Statute of the International Criminal Court, it seems to imply that only those crimes most likely to be prosecuted within the jurisdiction of the ICC if Colombia fails to prosecute them itself, will be excluded from amnesty.[12] However other serious war crimes could be afforded amnesties if those accused argue that they were not committed in a systematic manner. Colombia’s obligation to investigate, and where appropriate prosecute, war crimes is not limited to those that the ICC would likely prosecute, but to all war crimes.  

(d) Limited definition of ‘child recruitment’

The list of atrocities for which amnesties cannot be provided refers to “child recruitment, as defined in the Rome Statute.”[13] Under the Rome Statute, child recruitment as a war crime is defined as the recruitment of a child under 15. However, Colombia is a party to the Optional Protocol to the Convention on the Rights of the Child on Child Soldiers, which prohibits the recruitment of any child under 18 and Colombian law defines child recruitment as the recruitment of any person under 18.[14] While recruitment of children aged 15 - 17 may not constitute a war crime, the Special Jurisdiction for Peace should be able to prosecute for violations of the prohibition in Colombian law on recruitment of all children.

Conditional release

(a) State agents

As you know, the bill includes benefits for members of the armed forces who are in detention for their alleged role in human rights abuses. Under the bill, those who have already faced at least 5 years in detention for human rights abuses and promise to confess their crimes in the future are eligible for conditional release until they are prosecuted by the Special Jurisdiction for Peace.[15] Those who have yet to fulfill 5 years in detention would be held in military units.[16] Colombia’s Defense Ministry estimates that over 1,000 public security agents could benefit from the conditional release and over 900 will be transferred to military units.[17]

The bill provides that prison directors will “supervise” state agents conditionally released, until the Special Jurisdiction for Peace determines their legal situation.[18] This is a curious decision, because, under Colombian law, judges — not prison authorities— are in charge of supervising people under conditional liberty.[19] We are concerned that prison directors may not have the resources or even the legal powers to carry out a serious supervision of those under conditional liberty.

We are also concerned that the conditional liberty mechanism created under the bill lacks two key safeguards under Colombian law: there is no entity given the power to require the accused pay bail or attend court periodically.[20] Such requirements are norm under Colombian law when conditional release is granted in criminal cases, however the bill provides that defendants will only be required to report changes in residence, ask for authorization to leave the country, and attend to the Special Jurisdiction for Peace once it is in place.[21]

Furthermore, the bill is unclear as to whether conditional liberty will be revoked if the accused commits new crimes —a condition that is normally applied to a criminal defendant under Colombian law.[22] The bill provides that defendants must commit to “non-repetition”, but fails to clarify whether that refers to the crimes the defendant is accused of or if it also includes other crimes. The bill also appears to suggest that it is only once the Special Jurisdiction is functioning that the commitment of “non-repetition” takes effect.[23] 

In addition, there is no clarity as to who would be in charge — and under what procedure— of revoking the conditional liberty if the defendant fails to comply with his obligations under the bill. While the bill details a procedure for conferring the conditional liberty, which includes the participation of the Defense Ministry, the Executive Secretary of the Special Jurisdiction for Peace, and ordinary judges, it only provides that the conditional liberty “will be revoked” if the defendant fails to comply with his obligations.[24]

Finally, the bill fails to clarify if the time under conditional liberty will be counted as time served in fulfillment of the sanctions. While there is no language to this respect in the bill, under Colombian law time under conditional liberty is normally counted as time served for the purpose of sentences.[25] If no further clarifications are carried on this issue, the Amnesty Law could further undermine the credibility of the sanctions for confessed war criminals under the Special Jurisdiction for Peace, allowing them to serve only a few years under restrictions of liberty.

(b) Guerrillas

The bill also provides that FARC guerrilla fighters responsible for war crimes will be conditionally released until they are prosecuted under the Special Jurisdiction for Peace.[26] This mechanism also lacks some of the basic safeguards included under Colombian law.

Like the regime created for state agents, the one for guerrillas lacks a requirement that conditional liberty will be revoked if defendants are accused of committing new crimes.[27] The bill also fails to clarify if the time guerrillas serve under conditional liberty will be counted as time served in fulfillment of the sanctions for their war crimes, which opens the door to undermining the credibility of their sanctions.

In addition, nowhere does the bill specify that those who fail to comply with these requirements would have their liberty revoked. The bill provides that a judge will “verify” the defendant’s compliance with the conditional release terms and that they can be “monitored” with “electronic surveillance or other mechanisms”, but does not specify the consequence in case of non-compliance.[28] 

Mr. President, we share these concerns with the hope that your government will use the implementing legislation to guarantee that the peace process is grounded in the rights of victims of atrocities committed by both sides of the conflict. Your government must ensure that the peace process is not misused to undercut the possibilities of meaningful justice for atrocities —something that happened with the recent unilateral change to the definition of “command responsibility” for state agents. Let me stress that state agents responsible for abuses are not a party to the peace negotiations and concessions to them are unnecessary to achieve peace in the country. If your government yields to military pressure and allows the military to misuse the peace accord to escape justice, it will taint the peace process and the efforts you have carried out to pursue it.  

In this sense, we are gravely concerned about the recent statements by Attorney General Néstor Humberto Martínez, who noted that his office would “transfer to the Special Jurisdiction for Peace all [the cases involving] state agents who committed ‘false positives’” and is preparing “reports” for that purpose. The Attorney General’s Office appears to have suspended the criminal prosecution of state agents responsible for atrocities to prepare these reports. That would be an open violation of his duties under the Colombian legislation and would entail a virtual denial of justice for victims.

Respectfully,
Jose Miguel Vivanco
Human Rights Watch