How Colombians renegotiated criminal accountability for international crimes

By Lily Rueda @Lilyrueda  and Hamish Collings-Begg @hamish_cb –

The Government of Colombia has closed the final chapter of a very controversial peace negotiation process with the FARC-EP. In October, Colombian voters rejected the initial peace agreement in a plebiscite, which resulted in the opening of the renegotiation of the most controversial topics. After a mere 40 days of renegotiation, the signing of a new document took place last week in Bogotá. The Government stated that this is a new agreement, which will unite a divided country and it has requested its urgent implementation given the fragility of the temporary ceasefire with the FARC-EP. For the rebel group, this document reflects, as they say, the limits of what they can reasonably concede. This new deal, however, still does not satisfy a strong political opposition that continues to reject it and demands “substantive rather than cosmetic changes”. The situation is indeed delicate and urgent. During the last week, violent confrontations have reappeared and resulted in the murder of two social leaders and two suspected guerrilla members. Thus far, accounts on why the deal was rejected have been quite simplistic, by portraying the issue of criminal penalties as being the major issue of division in the country. However, if the Colombian case contains a lesson, it is that the discussion on justice and accountability after mass atrocities cannot be decontextualized from national political circumstances, which do not necessarily relate to criminal law matters. In this commentary, we explain the extent to which criminal accountability for international crimes was renegotiated and what was its place within the whole political discussion.

The peace agreement reached in August (or the Cartagena Agreement as some refer to it in Colombia), included a comprehensive system of transitional justice, to ensure judicial accountability for conflict-related crimes, and to guarantee the realisation of the victims’ rights to truth, reparation and non-repetition. The system envisaged the creation of a Special Jurisdiction for Peace (SJP), guided by five principles:

  1. the granting of amnesties and pardons for political crimes, whilst specifically excluding the possibility for such amnesties and pardons for international crimes, as defined in the Rome Statute;
  2. the criminal prosecution and punishment of those responsible for genocide, crimes against humanity and severe war crimes;
  3. the creation of a special set of reduced and alternative sanctions, which contained a strong restorative dimension;
  4. the prosecution of state agents, guerrilla members and third parties alike; and
  5. the granting of certain judicial benefits, conditional upon the perpetrator’s participation in specified activities aimed at guaranteeing victims’ rights.

After the results of the plebiscite became known, some international analysts attributed the rejection of the peace agreement to the fact that perpetrators of international crimes were going to avoid jail time, as if justice was the only matter of negotiation. In fact, the discussion regarding the reasons for the popular rejection of the peace deal within Colombia was far more complex and nuanced. The justice chapter was one out of six items in the peace agreement and the leaders of the political opposition proposed several changes to all chapters of the accord. To put things into perspective, out of the 57 topics that were contested by the opposition, justice-related matters occupied just 9 of them. And within these 9 justice-related topics, even the opposition was not unified and the controversies were not limited to just the issue of the lack of prison sentences. Different political agendas were mixed, and even religious views were poured in to more than 400 specific, and sometimes contradictory, recommendations to change, add, clarify or refine the agreement. It seemed as though each person was trying to fish in their very own troubled waters.

The renegotiation did not alter the basic principles of the transitional justice system as originally designed, nor did it fundamentally change the scheme for criminal accountability or the nature of the sanctions. There were, however, several important modifications. We will briefly explain each one of these matters.

The restorative nature of the sanctions. The strongest criticism of the transitional justice scheme was that perpetrators of international crimes would face certain restorative sanctions – labelled as “effective restriction of liberty” – instead of jail time. When proposing amendments, opponents suggested that these sanctions could be fulfilled in agricultural colonies. Under Colombian criminal law, such “agricultural colonies” combine both retributive and rehabilitative objectives. Whilst inmates are somewhat deprived of their liberty, their reclusion would take place in remote areas, working in agricultural projects. The revenues flowing from these activities are then directed to the funding of the colonies themselves.

However, the FARC-EP did not yield on this matter. The new text retains the same restorative sanctions, albeit with their goals further clarified (p.144). The restoration of the harm caused by the conflict, the reparation of victims and the ending of the situation of social exclusion which caused the processes of victimization, are all core purposes of these alternative penalties. Nonetheless, in order to reach a greater consensus, the FARC-EP did agree to some further precisions on how the “effective restriction of liberty” will take place. The text now requires that the execution of the restorative sanctions shall take place within judicially-specified geographic boundaries, and following specific timetables (p.165-166). Whilst the sanctions are being executed, the place of residency of those undertaking them will also be judicially determined. In addition, there will be a monitoring process undertaken by the UN Monitoring and Verification Mission, in relation to the satisfactory fulfilment of the sanctions.

The relationship between the SJP and the regular justice system. During the renegotiation stage, the magistrates of the Criminal Chamber of the Supreme Court of Justice reached out to President Santos to express that, whilst they supported the general makeup of the SJP, they also urged for it to operate with controls and balances, particularly in relation to those which ordinary courts are currently subjected to. The renegotiating parties were receptive to these concerns, and as such the transitional justice system will now have specific points of connection with, and, to some extent, of control by, the ordinary justice system. On this point, the FARC-EP have conceded a lot more than one would have initially expected, especially considering that at the commencement of the peace talks they were not willing to accept any sort of recognition or submission to ordinary and pre-established judicial authorities.

It has also now been clarified that the SJP will have a temporal nature and limited scope (p.129). In practice, it will have 15 years to conclude all judicial activities (p.145). The SJP will also apply substantive ordinary Colombian criminal law and international law (p.147). However, in terms of procedural law, the jurisdiction will create its own norms, whilst following due process and fair trial principles (p.153). Furthermore, three procedural mechanisms were included to curtail certain powers of the new magistrates, who are now to be all Colombian and not partially foreign as was originally agreed upon (p.167-168). Firstly, a special procedure to solve jurisdictional conflicts between the SJP and other courts was agreed upon (p.144). Second, the possibility of being able to use amparo proceedings against acts, omissions or decisions of the bodies of the SJP was included. The option for the Constitutional Court to be the court of last resort in these cases was also introduced (p.160). Finally, while the SJP will have the ability to revise judgments that were issued by the regular court system, it will not, however, be able to revise decisions issued by the Supreme Court. The only exception to this rule will be in those cases in which persons were convicted as combatants, according to international humanitarian law (p.163).

There are new provisions to facilitate the fulfilment of victims’ rights. There are now two additional mechanisms to facilitate the fulfilment of victims’ rights, which also represent additional concessions from the FARC-EP. In the first place, the FARC-EP have agreed upon presenting to the Government an inventory of all their assets (p.186). From these resources the FARC-EP, along with the state, will provide material reparation to victims. Whilst generic references to the “obligation to repair” were included in the previous agreement, with this additional clause, there is now a specific obligation for the FARC-EP to renounce its true sources of funding and for the state to use those resources to fund the reparation scheme. Secondly, it was agreed that the Government, with assistance from the FARC-EP, will undertake a special humanitarian process in order to provide for and gather information regarding the search for, location, identification of, and, where relevant, return of remains, of disappeared persons. This mechanism will operate even before the Unit for the Search for Disappeared Persons itself is set up, and it will include cooperation from several victims’ organizations, as well as having the International Committee of the Red Cross in a coordinating role.

Amnesties or pardons for drug-trafficking. One major point of controversy under the Cartagena Agreement, was the way in which drug-trafficking could be considered to fall within the definition of a crime connected to political crimes, and could thus receive special legal treatment from the transitional justice system. Several proposals from the opposition pushed for explicitly banning the possibility of any amnesties or pardons for this conduct. While no such ban resulted from the renegotiation, some further clarification of the issue did. In the first place, the parties agreed that the ordinary legal criteria as established by Colombian case law shall be used to determine what crimes are considered ‘connected’ to political crimes (p.150). Furthermore, a clarification was included regarding what would constitute the act of funding the rebellion. Wording was included to ensure that acts which did not result in the personal enrichment of the rebels, and which did not constitute crimes against humanity, grave war crimes or genocide, could still be considered as acts directed towards funding the rebellion (p.151).

Command responsibility as defined in the article 28 of the Rome Statute (RS). The agreement introduces a new provision regarding the attribution of liability to commanders for the actions of their subordinates (pp.152, 164). This new clause sets out that a standard for judging superior’s “effective control of the respective conduct” of his/her subordinates will be that as defined by article 28 of the RS. This new provision is particularly problematic insofar as under the Colombian constitutional legal framework, the RS cannot be directly applied to criminal cases. Furthermore, this mode of liability is currently quite foreign to regular Colombian criminal practice. This new clause originally, according to the text of the revised agreement as released on November 12, applied to both the FARC-EP and to the military forces of the state (pp. 152, 164). However, a joint communiqué by the parties on the morning of the ceremonial signing of the new deal clarified certain “typographical errors” including that this provision had been mistakenly pronounced to be applicable in relation to state forces, and was as such to be removed from the text. It is worth noting that in the meantime, this new provision was forcefully rejected by military personnel. Some have since criticized this clarification, claiming a perceived influence from the military sector.

The influence of religion and conservative agendas. The influence of conservative and religious agendas was evident in the justice chapter of the peace deal insofar as families and religious communities were recognized as victims of the conflict (pp.126, 134) and that the “gender-sensitive” language was softened. For instance, the expression “gender-based approach” was replaced by “equality of opportunities between men and women” (pp.131, 137). Fortunately, the pressure was not strong enough to manage to eliminate the agreement’s progressive wording on the LGTBI populations’ rights, as was the intent of some voices within the opposition.

As it was the case in the justice chapter, the general accord was also modified in matters related to comprehensive rural reform, provisions for the definitive ceasefire, solutions to the illicit drug problem and the implementation, verification and endorsement of the whole peace agreement. The only item in which the FARC-EP did not move an inch was on their future political participation. This has continued to be a matter of heated controversy. As to the possibility of a new plebiscite, President Santos said he has “learned the lesson” and the revised agreement will be instead endorsed by and implemented through the Congress. This process will start this week. If the President reaches the majority he needs in the Congress, which it appears as though he will, within five months the FARC-EP will be completely demobilized and all their weapons will be surrendered to the United Nations. Then, the implementation of the transitional justice system will begin.


This commentary reflects the personal opinions of the authors