Written Testimony to the US Senate on transitional justice in Colombia

On August 2, 2017, Human Rights Watch submitted the following written statement to the Subcommittee on Western Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights, and Global Women’s Issues of the United States’ Senate regarding our concerns on Colombia’s Special Jurisdiction for Peace:  

Mr. Chairman, Committee members:

Thank you for the invitation to appear before the Senate Committee on Foreign Relations on behalf of Human Rights Watch (HRW) to discuss our assessment of the justice component of the peace accord between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas.  I would like to submit, for the record, my written testimony.

Let me first stress that HRW applauds the efforts of the Colombian government to bring an end to the country’s long and bloody conflict which has caused so much suffering to its people. The peace accord signed on November 12, 2016, undoubtedly poses a landmark opportunity to advance the protection of fundamental human rights in the country. Indeed, since the ceasefire amongst the parties to the accord, Colombia has benefited from a very significant decrease in reports of human rights abuses^.[1]

Human Rights Watch, however, has very serious concerns regarding the justice component of the accord, which could seriously undermine the prospects for a sustainable peace. 

The FARC committed systematic atrocities for more than five decades, beginning in the 1960s. Its forces killed and abducted civilians, took hostages, carried out enforced disappearances, used child soldiers, conducted grossly unfair trials, forcibly displaced civilians, and subjected captured combatants to cruel and inhuman treatment.

Army soldiers also engaged in atrocities. Between 2002 and 2008, army brigades across Colombia killed more than 3,000 civilians, in what are known as “false positive” cases. Under pressure from superiors to show “positive” results and boost body counts in the war against guerrillas, soldiers abducted victims or lured them to remote locations under false pretenses. The soldiers killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action.

Human Rights Watch is concerned that, as it stands, the justice component of the accord could allow those responsible for many of these atrocious crimes to escape meaningful justice. The key shortcomings in the justice component of the accord include the following:

Sanctions

First, the accord provides that war criminals who fully and promptly confess their crimes would be exempt from any time in prison and would be subjected to modest and vaguely-defined “restrictions of rights and liberties”. While the final accord reached in November provided a little more clarity regarding these sanctions, there are still a range of ambiguities and loopholes that can and should be addressed in the implementing legislation of the accord to ensure that war criminals are not allowed to escape meaningful punishment.^[2]

As they stand, such sanctions could run counter to Colombia’s obligation under international law to provide sentences that reflect the gravity of the offense. Indeed, Human Rights Watch knows of no precedent from other courts or tribunals adjudicating war crimes where those most responsible for the worst crimes did not face custodial sentences.

Command responsibility

Second, the agreement includes a clause that would make it possible for military commanders to escape responsibility for the atrocities committed by their troops by claiming they did not know about them.  But under the international law principle of “command responsibility” prosecutors do not need to prove that commanders actually knew about the crime —which is often impossible— but only that they had reason to know and should have known.^[3]

What is worse, in April 2017, the Colombian congress passed a constitutional amendment establishing a special definition of “command responsibility” for army soldiers that, if accepted by the country’s Constitutional Court, would require prosecutors to prove several additional conditions —such as showing that the criminal actions were committed within a commander’s area of responsibility— that are not required under international law.^[4]

These changes would introduce new and indefensible barriers to accountability for armed forces personnel. In particular, they could allow senior officers responsible for “false positive” killings to escape justice. While more than 1,000 soldiers have been convicted for these crimes, few commanders who led brigades responsible for the killings and later rose through the military ranks have been held accountable. Amongst the officers who commanded brigades responsible for multiple killings are General Juan Pablo Rodriguez Barragán, who is currently the country’s top commander, and retired General Jaime Alfonso Lasprilla Villamizar, who at least until recently was —and as far as we know still is— Colombia’s defense attaché in Washington.^[5]

Political participation

Third, the justice component of the accord includes a broad provision allowing FARC guerrillas to seek or hold public office even while serving sentences for grave abuses. We understand that a fundamental aim of the peace process is to allow the former FARC guerillas to pursue their political objectives within the democratic arena. But allowing people convicted of war crimes or crimes against humanity to run for and hold political office while serving their sentences would severely undermine the credibility and seriousness of the sanctions imposed by the Special Jurisdiction for Peace.

Amnesty law

Finally, while the accord provides that amnesties would not cover serious human rights violations, an amnesty law passed last December includes language that could allow people responsible for atrocities to benefit from amnesties. For example, the law allows those responsible for certain war crimes to benefit from amnesties if they are able to show that their crimes were not committed in a systematic manner. Colombia, however, has an obligation to investigate, and where appropriate prosecute, all war crimes, regardless of whether these were systematic.^[6]

In the upcoming months, Colombian authorities have a chance to fix these shortcomings ideally through implementing legislation, or, failing that, through the Constitutional Court —which, in the past, played a key role in ensuring justice for victims of the armed conflict.  Only by addressing these issues would Colombia be able to achieve a just and sustainable peace. 

Mr. Chairman and Committee members, thank you for your attention to this critical issue.