On 15 December 2015, negotiators in Colombia published a 75-point plan detailing how justice for grave crimes committed during the country’s 50-year conflict would be implemented as part of a wider peace agreement. Some sectors of civil society have voiced concerns that certain aspects of the plan could give way to margins of impunity for perpetrators of war crimes and crimes against humanity.
Colombia’s justice deal
On 23 September 2015, the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) reached a deal on justice for grave crimes during the country’s 50-year conflict. The agreement envisages a special jurisdiction to prosecute war-related grave crimes by all sides. However, those who confess and contribute to establishing truth would receive lesser penalties. The 23 September agreement, however, did not provide specific points on how the parties envisioned a solution to aspects related to justice, sentences and reparations.
The parties set a six month deadline to sign a final agreement, and FARC acceded to giving up their weapons 60 days after said signature.
The key components of the agreement include:
- The establishment of the Special Jurisdiction on Peace to prosecute conflict-related crimes committed by all sides.
- Reduced and/or alternative sentences (which include non-custodial sanctions) would be handed down to those who confess to crimes and contribute to establishing truth, provide reparation and contribute to non-repetition. No suspension of sentences is envisioned.
- The agreement excludes all amnesties for crimes under international law as well as some grave human rights violations, but allows for amnesties for political crimes and connected crimes. The determination of what falls under the latter will be specified under an amnesty law to be adopted in the near future.
- FARC members must begin to disarm no later than 60 days prior to the signing of the final agreement.
Participation of victims and civil society in the Havana negotiations has been a key component to their advancement. Human rights organizations have raised the importance of drawing a careful balance between justice and peace. In particular, the issue of alternative sentences has been divisive within Colombian society and among some human rights organizations.
Justice and sentencing: differing views on a common goal
From the early stages of the negotiations, it was clear that some of the most decisive issues to be addressed would be the issue of justice and accountability. The complexity contributed to setbacks in the process, bringing the negotiations dangerously close to a break-off.
While it was certain that no amnesties could be provided to those responsible for grave crimes under international law – in accordance both with Colombia’s international obligations and as a state party to the ICC Rome Statute – the debate centered around the model of justice to be applied. Several actors put forward different suggestions on transitional justice. But it was the issue of sentences in particular that led to the most heated debates in Havana, and also within Colombian society.
Colombia’s attorney general voiced one of the strongest positions in favor of transitional justice mechanisms and alternative sentences (which include a wide array of non-custodial measures), from a viewpoint of restorative justice. However, differing positions among key actors had to be – and remain to be – reconciled.
The 75-point plan
On 15 December 2015, the negotiators in the peace talks issued a 75-point agreement on the agenda item related to victims, which includes the aspects on justice. This agreement builds on the declaration of principles related to victims adopted in 2014. It also includes two sub-points referring to the establishment of an integrated system on truth, justice, reparations and non-repetition as well as a commitment to the promotion, respect and guarantee of human rights.
The integrated system is comprised by five different mechanisms and measures:
- The establishment of a Truth Commission, “Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición”
- The creation of a special unit aimed at searching for the disappeared in the context of the armed conflict.
- The establishment of the Special Jurisdiction for Peace
- Measures of integral reparation aimed at peace-building
- Guarantees of non-repetition
During a press conference on 23 December 2015, Human Rights Watch (HRW) Americas Director Jose Miguel Vivanco presented HRW’s report analyzing in depth the contents of the 75-point plan presented on 15 December with regards to the agreement on victims in the Colombian peace accords.
Vivanco reaffirmed HRW’s “enthusiastic support” for the peace process but called on the parties to make urgent corrections to the agreement on victims – which includes the agreements on justice – to eliminate stances of impunity, including on the following points:
- Command responsibility: HRW states that the definition of command responsibility does not meet the definition underinternational law, as the agreement calls for effective control of the supervisor over the respective conduct of the subordinate, therefore ignoring the presumption that the supervisor knew or should have known that the forces under his or her command or control committed or were about to commit such crimes.
- Sentencing: In addition to concerns previously raised regarding the proportionality between the gravity of the crime and the sentence imposed, HRW states that while it is true that international bodies, including the ICC, have recognized reduced sentences, there were still unanswered questions with regards to alternative sentences. One particular point raised was related to non-compliance with sentences. Moreover, allowing the parties to determine which projects comprise alternative sentences is also problematic, according to HRW.
- Composition and mandate of the Special Tribunal for Peace: HRW has also called for further clarifications in the selection process for the judges of this tribunal to ensure their independence by for instance delegating the selection process to the UN Secretary General.
- Political participation of those convicted for crimes against humanity and war crimes: HRW raised concerns regarding the fact that individuals convicted for grave crimes can exercise their political rights shortly after their conviction has been fulfilled
- Prioritization vs. selectivity: This issue had already been the object of concern within the Legal Framework for Peace. In its latest report, HRW points out that the Special Tribunal for Peace may indeed opt for prioritization, but NOT selectivity, since this is a means for impunity.
- Extension of these benefits to authors or presumed authors of false positives: While recalling the announcement that the special jurisdiction may be extended to authors or alleged authors of false positives, HRW also recalled that to date most investigations and prosecutions for these crimes have been conducted only with regards to soldiers, but no general has been brought to justice for these crimes.
ICC preliminary examination in Colombia
Colombia has been under ICC preliminary examination since 2004. The Office of the Prosecutor (OTP) has been monitoring the peace negotiations closely, strictly from its judicial mandate. In the aftermath of the agreement reached in September, the OTP reaffirmed that the laudable goal of bringing the decades-old conflict to an end must pay “homage to justice as a critical pillar of sustainable peace,” and stated that it will carefully review the agreed provisions.
On the other hand, the OTP put forward strict guidelines on the non-application of suspended sentences, an important aspect considering that the 2012 Legal Framework for Peace in Colombia did envision the suspension of sentences. In two letters in August 2013 to the Colombia’s Constitutional Court, the OTP made clear its position rejecting suspended sentences and signaling that sanctions imposed must not lead to impunity.
In May 2015, the OTP further expanded its position on sentences during a seminar on transitional justice and the ICC in Bogotá organized by the Vance Center, Universidad del Rosario, United Nations, the International Center for Transitional Justice, Diario El Tiempo, the Hanns Seidel Fund and the Coalition for the ICC.
ICC Deputy Prosecutor James Stewart outlined that states have wide discretion in sentencing in light of the Rome Statute’s silence on the specific type or length of sentences for ICC crimes when prosecuted nationally. He underlined however that effective penal sanctions must “serve appropriate sentencing goals, such as public condemnation of the criminal conduct, recognition of victims´ suffering, and deterrence of further criminal conduct.”
Stewart stressed that suspended sentences are incompatible with the Rome Statute, since their intent is to shield perpetrators from criminal responsibility. As for reduced sentences, they could be compatible with the Rome Statute if they fulfill certain conditions such as acknowledgment of criminal responsibility and non-repetition guarantees. Meanwhile, the deputy prosecutor noted that given the wide array of custodial and non-custodial measures that could fit under alternative sentences, a number of factors would need to be considered in order to assess the compatibility of such measures with the Rome Statute. He underlined that “the question will be whether alternative sentences, in the context of a transitional justice process, adequately serve appropriate sentencing objectives for the most serious crimes.”
The ICC’s watchful eye
Colombia’s Constitutional Court must review the scope of the peace agreement so as to ensure full compatibility with international standards according to HRW. A failure to do either would open the possibility of international bodies, including the ICC, to intervene. The role of the ICC in the Colombian context is now more important than ever. It must continue to accompany and monitor the process, ensuring that the implementation of the justice pillar is compatible with Colombia’s obligations under the Rome Statute, specifically the requirement of no impunity for perpetrators of grave crimes. Should the outcomes be successful, the Havana agreement could represent an historic process for long-awaited peace and justice in Colombia.
A version of this article was originally published in the 2015-16 Global Justice Monitor, the annual international justice review of the Coalition for the International Criminal Court, a civil society network in 150 countries.
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