The agreement on transitional justice signed yesterday by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) brings a ray of hope to the millions of victims of human rights violations and abuses committed during Colombia’s 50-year-long long armed conflict, said Amnesty International.
However, vague definitions and potential amnesties raise fears that not all human rights abusers will face justice. The only way for Colombia to move forward from its troubled history is to ensure all those who were responsible for the torture, killings, enforced disappearances, crimes of sexual violence or forced displacement of millions of people across the country are finally held to account for their crimes.
“This agreement is a very significant development and a clear sign that, finally, an end to hostilities is tantalizingly close. However, it still leaves many issues unresolved when it comes to ensuring that the many victims will receive truth, justice and reparation in accordance with international law,” said Erika Guevara-Rosas, Americas Director at Amnesty International.
“Colombia has a duty to investigate and, if there is sufficient admissible evidence, prosecute all those suspected of criminal responsibility for crimes under international law. This obligation is non-negotiable, even in the context of a peace process."
The two sides announced that, with only one item left to resolve, on disarmament and demobilization, a peace deal would be signed no later than 23 March 2016, six months from now. The FARC has agreed to lay down its arms 60 days later.
The issue of justice has been one the thorniest discussion points in the peace talks, which have been ongoing in Cuba since 2012. Throughout this period, Amnesty International has strongly argued for the talks to prioritize the human rights of the conflict’s victims, including their right to justice.
The FARC and the government have agreed to set up a “Special Jurisdiction for Peace” consisting of a tribunal and special courts with Colombian judges and magistrates chosen by both the FARC and the government, as well as some limited participation by foreign experts.
The courts will have jurisdiction over all those who directly or indirectly participated in the armed conflict and are implicated in “grave crimes."
These are defined as crimes against humanity, genocide and war crimes, and include forced displacement, enforced disappearances, torture, hostage-taking, extrajudicial executions and sexual violence, amongst others.
This judicial process will, however, focus only on “the most serious and representative cases” and, in the case of the FARC, only on those deemed the “most responsible.”
A new Amnesty Law will benefit those accused of “political and associated crimes.” The nature of what constitutes “associated crimes” is yet to be defined, but there would be no amnesties for those convicted of grave crimes. The attorney general said some 15,000 members of the FARC could benefit from amnesties.
Those who admit responsibility for grave crimes will be sentenced to five to eight years of “restriction of freedoms” but not prison sentences. Those who admit responsibility but do not do so immediately will serve five to eight years in prison. Anyone found guilty after denying responsibility will serve up to 20 years in prison.
The focus on the “most responsible” could ensure that many human rights abusers avoid justice since the term has not been clearly defined. There are also fears it could be difficult to obtain convictions for certain crimes, including extrajudicial executions and sexual violence.
On June 4 this year, the government and the FARC also announced plans for a truth commission, but there are concerns that the courts may not be able to use any information that arises in the commission. This could undermine the ability of the tribunal and the special courts to prosecute human rights violations and abuses.
Amnesty International is calling for independent criminal investigations to be carried out to ensure that those benefitting from amnesties are not implicated in human rights violations and abuses.
The government must ensure that any peace deal with the FARC does not go the same way as the demobilization process with paramilitary groups that began in 2005 under the Justice and Peace Law. Under that process, around 90 percent of the 30,000 or so paramilitaries who supposedly demobilized received de facto amnesties without any effective prior investigations into their possible involvement in crimes under international law. Of the remaining 10 percent who faced criminal investigations, only a few have reached the trial stage a decade later. Many middle-ranking and rank-and-file paramilitaries failed to demobilize.
Colombia’s internal armed conflict has pitted the security forces and paramilitaries against a variety of guerrilla groups for more than 50 years.
The conflict has been marked by systematic and widespread abuses and violations of human rights and international humanitarian law, and by an abject failure to bring to justice those suspected of criminal responsibility in such crimes.
The security forces and paramilitaries, either acting alone or in collusion, and guerrilla groups have been responsible for a litany of abuses against civilians, including unlawful killings, forced disappearances and abductions, forced displacement, torture and crimes of sexual violence. Very few of the alleged perpetrators have ever been held to account.
These abuses and violations continue to disproportionately affect certain communities and groups, especially in rural areas, such as Indigenous People and Afro-descendant and peasant farmer communities, as well as human rights defenders, including trade unionists and community leaders. There is growing expectation that the country’s second largest guerrilla group, the National Liberation Army (ELN), will begin official peace talks with the government in early 2016.