On October 8, 2017, José Miguel Vivanco sent the following letter to Efraín José Cepeda Sarabia, President of the Senate of Colombia; Rodrigo Lara Restrepo, President of the House of Representatives; and Guillermo Rivera Flórez, Minister of Interior. The letter details Human Rights Watch’s assessment regarding one of the key legislative proposals to implement the peace agreement with the Revolutionary Armed Forces of Colombia (FARC) guerrillas.

 

Dear Congressmen and Minister,

I am writing to share Human Rights Watch’s assessment of the “Statutory” bill on the Special Jurisdiction for Peace —one of the key legislative proposals to implement the peace agreement with the Revolutionary Armed Forces of Colombia (FARC) guerrillas.

As you know, Human Rights Watch has very serious concerns that the justice provisions of the accord could result in confessed war criminals not receiving meaningful punishment for the grave crimes for which they were responsible. When the government announced the final peace accord in November, we congratulated President Santos on certain improvements as compared to the initial agreement and urged him to use the implementing legislation to address shortcomings that remained unsolved.[1] Unfortunately, as I shared with several cabinet members and government advisors during my last visit to Colombia in June, the bill fails to address many of these issues and introduces new flaws that undermine the possibilities of achieving meaningful justice for atrocities committed during the armed conflict.

  1. Restrictions on Freedoms and Rights

A key area of concern has been the sanctions to be imposed on war criminals who fully and promptly confess to their atrocities. 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 “effective restrictions on freedoms and rights” while carrying out community service projects. 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 November peace accord, however, provided some details on the sanctions for FARC war criminals that, we considered, constituted a basis for translating its provisions into meaningful punishment through proper implementing legislation.[2]  

Unfortunately, the bill largely reiterates the language included in the final version of the peace accord, leaving many loopholes and ambiguities still unresolved. These include the following:

  • The bill states that the Peace Tribunal will determine the “place of residence” of sanctioned individuals, but there is no indication of the nature or location of this place.[3]
  • The bill lacks a clear indication as to whether and to what extent the sanctioned individual’s movements will be restricted to their “place of residence” outside of the “hourly periods” when they are carrying out community service projects.[4]
  • While the bill provides that those convicted will be subject to monitoring and supervision, it does not refer to any consequences for confessed perpetrators who fail to comply with the sanctions, thus leaving open the possibility that they can continue to enjoy the benefits of the special jurisdiction even if they disregard the conditions ordered by the Tribunal.[5]
  • The bill provides that sanctions against FARC guerrillas and members of the Armed Forces can be reduced if the sanctioned individuals have carried out reparative projects since the signing of the peace accord or as part of the demining component of the agreement.[6] However, it fails to specify 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.
  • The bill provides that defendants could receive two-to-five-year sentences if they did not have a “decisive participation” in the “worst and most representative crimes.”[7] However, there is no definition or interpretative guidance offered in the bill to define these terms.

When it comes to members of the Armed Forces, the bill contains other troubling ambiguities, in addition to some of those presented above:

  • The bill provides that convicted members of the armed forces will be required to “establish residency in Military or Police units that are nearby to the places of fulfillment of their sanctions, during the days that these are executed.”[8] The bill fails to clarify, however, what sort of supervision and control will be imposed to sanctioned individuals the days they are not executing their sanctions—and are therefore allowed to leave their “places of residency.”
  • The bill indicates that, in addition to the UN mission in Colombia and the Special Jurisdiction for Peace, the Defense Ministry could carry out the “supervision, security, surveillance, and monitoring” of restrictions faced by state agents.[9] The Defense Ministry, however, has a longstanding record of being lax and permissive when dealing with personnel who engaged in human rights violations, or face investigations for such abuses. It is critically important that Congress limits the Defense Ministry’s mandate in this area to guarantee that state agents who are convicted for grave crimes are seriously monitored and supervised while serving their sentences.

Regarding the sentencing regime for the FARC specifically, the “Statutory” law does not solve the crucial issue of determining how and to what extent FARC guerrillas will be allowed to run or hold public office while serving their sentences.[10] While a fundamental aim of the peace process is to allow the former FARC guerillas to pursue their political objectives within the democratic arena, running for and holding office while serving a sentence could seriously undermine the sanctions imposed by the Special Jurisdiction for Peace.[11] 

  1. Suspension of criminal proceedings

The “Statutory” bill on the Special Jurisdiction for Peace modifies a key aspect of the Final Peace Agreement. In that accord, the Attorney General’s Office was required to continue “investigations” regarding crimes related to the armed conflict until the Special Jurisdiction for Peace requested the transfer of investigations.[12] This ensured that the transfer of cases to the new jurisdiction did not entail further delays.

By contrast, the “Statutory” bill provides that the Attorney General’s Office will continue its investigations only for the purpose of creating reports for the Special Jurisdiction for Peace on the status of investigations and evidence collected. The latest version of the bill adds that the ordinary justice system “cannot carry out activities such as, amongst others, the following: ordering arrests or executing pending arrest orders, questioning defendants, imposing charges, imposing measures to ensure the defendants’ cooperation with justice or carrying out such pending measures, deciding on indictments, sending defendants to trials, or ruling on cases.”[13] Even without the passage of the “Statutory” bill, to date, Human Rights Watch is aware of some cases that have been put on hold pending the establishment of the Special Jurisdiction for Peace. In one case involving “false positive” killings, a judge in Bogotá ruled that the Special Jurisdiction for Peace would have jurisdiction to hear the case, effectively suspending the prosecution until that system is put in place.[14]

It may be reasonable to temporarily suspend the indictment and arrest of FARC members alleged to be responsible for war crimes while they carry out the reintegration process, as long as they are subject to rigorous supervision. However, there is no equivalent reason to extend such accommodation to state agents who are not demobilizing and would have no practical difficulties in facing time in court.

High-level officials from the Attorney General’s Office told Human Rights Watch in June 2017 that, at the time, they estimated that the Special Jurisdiction for Peace would require the transfer of cases around 2022.[15] If this estimate is correct, the new provision in the “Statutory” bill would cause significant delays to already prolonged cases and could reduce the evidence available at the Special Jurisdiction for Peace regarding cases currently under investigation to test confessions or confront accused who do not confess to any crimes.

  1. Command responsibility

Since the original version of the justice component of the peace accord was announced, Human Rights Watch has closely followed developments involving the principle of “command responsibility;” this principle can serve an indispensable role in closing impunity gaps and ensuring accountability for grave crimes.

Most recently, in July, we explained that the “command responsibility” definition included in Constitutional Amendment 1 of 2017 for members of the armed forces departed from established norms of international law in a way that could severely weaken efforts to secure accountability.[16] The Statutory bill, which refers to the “command responsibility” definition in the amendment, is an opportunity to fix these serious flaws.[17]

In addition to the issues we have previously raised, we note with concern that the definition included in the “Statutory” bill for FARC guerrillas fails to clarify the crucial issue concerning the standard of knowledge required for “command responsibility.”[18] Whereas under international law, a commander may be criminally responsible if he had reason to know and should have known of the crime (i.e., had constructive knowledge), the definition in the bill could be interpreted to require that judicial authorities prove that the commander had actual knowledge of the crime. Given that actual knowledge can be extremely difficult to prove, narrowing the definition of knowledge in this way could mean that many commanders who would bear criminal responsibility under international law could avoid accountability before the Special Jurisdiction.

We are also concerned that the legislation introduced in Congress fails to include a command responsibility definition for state agents who are not members of the armed forces. Under international law, however, as the case-law and statutes of international courts make clear, command responsibility is applicable both to civilian superiors and military commanders.[19] 

  1. Victim participation in proceedings

Victim participation in criminal trials can advance victims’ access to justice, contribute to the quality and legitimacy of court processes, and ensure victims are informed about relevant proceedings.[20] By providing a bridge between victims and affected communities, on the one hand, and courts, on the other, victim participation can also help ensure that justice is not only done, but seen to be done by those most impacted by the crimes. UN experts have called on states to ensure a “broad legal standing” to victims, and some international tribunals, including the International Criminal Court, have provided for victim participation in their own proceedings.[21]

We note that the “Statutory” bill provides that the rules of procedure of the Special Jurisdiction for Peace will “contemplate victims’ participation.”[22] We will follow this issue closely as the rules of procedure are discussed, and urge Congress to ensure an appropriate framework for meaningful victim participation.  

  1. Selectivity

Finally, we are concerned about broad language in the bill allowing the Special Jurisdiction to waive criminal prosecutions for people who may be responsible for international crimes. A provision in the “Statutory” bill provides that a Panel of the Special Jurisdiction for Peace “can determine criteria to focus the criminal prosecution exclusively on those who had a decisive participation in the worst and most representative crimes.”[23] The provision adds that “regarding the people and acts that are not subject of selection, [the Panel] can waive the criminal prosecution.”

This provision could mean that the Special Jurisdiction would only prosecute a limited number of cases of any crimes and a limited number of those responsible, while the prosecution of other cases and other perpetrators would be precluded. Effectively this creates the potential for broad immunity to be bestowed a large number of people who accused of international crimes, but may be deemed to not have “decisive” responsibility or be involved in cases that are the “worst and most representative crimes.” Interpretative guidance should be provided in the law to ensure that the definition of “decisive” and “worst and most representative crimes” used by the Special Jurisdiction for Peace are consistent with international law.

I hope that Congress will take these concerns into consideration as it discusses this critically important bill. We share this assessment with the hope that Congress will try to progressively increase the strength of the Special Jurisdiction for Peace to ensure that it is suited to deliver meaningful justice for grave atrocities committed during the armed conflict.

 

Sincerely,

 

Jose Miguel Vivanco

Human Rights Watch

 

[1] Letter from Human Rights Watch to President Santos on the new peace agreement with the FARC, November 23, 2016, https://www.hrw.org/news/2016/11/23/letter-president-santos-new-peace-agreement-farc

[2] Letter from Human Rights Watch to President Santos on the new peace agreement with the FARC, November 23, 2016, https://www.hrw.org/news/2016/11/23/letter-president-santos-new-peace-agreement-farc.  

[3] Statutory bill regarding the Special Jurisdiction for Peace (Proyecto de ley Estatutaria de la Administración de Justicia en la Jurisdicción Especial para la Paz), bill no. 8/2017 (Senate), http://www.comisionprimerasenado.com/documentos-pendientes-de-publicacion/ponencias-y-textos-aprobados/1423-ponencia-para-primer-debate-proyecto-de-ley-estatutaria-008-de-2017-senado-016-de-2017-camara/file (accessed October 2, 2017), art. 130 (d). Under the Colombian Constitution, “Statutory” laws are special laws that regulated such issues as fundamental rights and justice. Statutory laws require prior review by the Constitutional Court.

[4] Statutory Bill Regarding the Special Jurisdiction for Peace, arts. 130, 140. See Letter from Human Rights Watch to President Santos on the new peace agreement with the FARC, November 23, 2016,

https://www.hrw.org/news/2016/11/23/letter-president-santos-new-peace-agreement-farc.

[5] Statutory bill regarding the Special Jurisdiction for Peace, arts. 19, 92 (d), 140.

[6] Statutory bill regarding the Special Jurisdiction for Peace, arts. 115 (8), 135, 142, 143.

[7] Statutory bill regarding the Special Jurisdiction for Peace, art. 132

[8] Statutory bill regarding the Special Jurisdiction for Peace, art. 130 par. 1

[9] Statutory bill regarding the Special Jurisdiction for Peace, arts. 138, 139.

[10] Statutory bill regarding the Special Jurisdiction for Peace, art. 30.

[11] Human Rights Watch, “Colombia: Amicus Curiae regarding the Special Jurisdiction for Peace,” July 17, 2017, https://www.hrw.org/news/2017/07/17/colombia-amicus-curiae-regarding-special-jurisdiction-peace.

[12] See Final Peace Agreement (Acuerdo final para la terminación del conflicto y la construcción de una paz estable y duradera), November 12, 2016, http://www.altocomisionadoparalapaz.gov.co/Prensa/Documentos%20compartidos/Colombian-Peace-Agreement-English-Translation.pdf (accessed October 1, 2017), para. 48 (j), page 166.

[13] Statutory bill regarding the Special Jurisdiction for Peace, art. 78 (j).

[14] See “Colombia: Prosecution Suspended on Army Killings Case,” news release, April 5, 2017, https://www.hrw.org/news/2017/04/05/colombia-prosecution-suspended-army-killings-case.

[15] Human Rights Watch interview with senior level officials of the Attorney General’s Office, June 29, 2017.

[16] Human Rights Watch, “Colombia: Amicus Curiae regarding the Special Jurisdiction for Peace,” July 17, 2017, https://www.hrw.org/news/2017/07/17/colombia-amicus-curiae-regarding-special-jurisdiction-peace.

[17] Statutory bill regarding the Special Jurisdiction for Peace, art. 67.

[18] Statutory bill regarding the Special Jurisdiction for Peace, art. 66.

[19] Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, art. 28; Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), art. 7(3); Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc. S/RES/955 (1994), art. 6(3); Statute of the Special Court for Sierra Leone (SCSL Statute), January 16, 2002, http://www.rscsl.org/Documents/scsl-statute.pdf (accessed October 2, 2017), art. 6(3). See also, e.g., Prosecutor v. Mucić et al. (“Čelebići”) (Trial Chamber), ICTY, Case No. IT-96-21-T, November 16, 1998, https://www.legal-tools.org/doc/6b4a33/pdf/ (accessed October 2, 2017), para. 378; Prosecutor v. Aleksovski (Trial Chamber), ICTY, Case No. IT-95-14/1-T, June 25, 1999, https://www.legal-tools.org/en/doc/52d982/ (accessed October 2, 2017), para. 103; Prosecutor v. Kordic and Cerkez (Trial Chamber), ICTY, Case No. IT-95-14/2-T, February 26, 2001, https://www.legal-tools.org/en/doc/738211/ (accessed October 2, 2017), para. 418.

[20] See generally Institute for Security Studies and REDRESS, Victim Participation in Criminal Law Proceedings: Survey of Domestic Practice for Application to International Crimes Prosecution, September 2015, http://www.redress.org/downloads/1508victim-rights-report.pdf (accessed October 3, 2017), pp. 7-11.

[21] Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity (“Impunity Principles”), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005, principle 19; Rome Statute, art. 68(3). See also United Nations Commission on Human Rights, “Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, by Professor Diane Orentlicher,” E/CN.4/2004/88, February 27, 2004, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/113/55/PDF/G0411355.pdf?OpenElement (accessed October 5, 2017), para. 44.

[22] Statutory bill regarding the Special Jurisdiction for Peace, art. 14.

[23] Statutory bill regarding the Special Jurisdiction for Peace, art. 18.