The agreement represents "an historic opportunity for Colombian society to build a peaceful...
The latest ICTJ Program Report explores transitional justice issues in Colombia and charts our work in the country with the longest running armed conflict in the world. In this interview, head of ICTJ's Colombia office Maria Camila Moreno answers questions on the ongoing transitional justice mechanisms in the country, and describes ICTJ's work with civil society groups on issues of criminal justice, reparations and memory. She provides a look ahead to the new peace negotiations between the Colombian government and the FARC, and identifies key transitional justice issues at stake for the talks.
To date, the most relevant transitional justice initiatives in Colombia are those that were created after 2005, when a process began to demobilize more than 30,000 members of paramilitary groups. These groups were responsible for hundreds of thousands of human rights violations, including many that are considered to be international crimes.
The 2005 Justice and Peace Law created special criminal proceedings that would allow for greatly reduced sentences (maximum of eight years) in exchange for full confessions and contributions to reparations by those to be tried. The government identified some 4,000 paramilitaries to be processed in this system. Almost 2,000 of these cases are currently in different stages of prosecution, but unfortunately, seven years after the law was passed, only 3 people have been convicted and sentenced.
So far, the implementation of the Justice and Peace Law has not sufficiently provided justice, truth, or reparations. Confessions made during the process have created a record of thousands upon thousands of crimes, and made possible the exhumation of nearly 42,000 remains of disappeared persons, but the whole truth is yet to be revealed.
|The hearings have not revealed, for example, who facilitated, promoted, and financed the armed organizations, information which is key to dismantling them fully. Nor has the process been successful in returning illegally acquired property to its rightful owners, and it has done little to provide victims with reparations, as was planned in the legislation.|
Since 2010, the government of President Juan Manuel Santos has taken a more systematic approach to transitional justice. First, to address the issue of the thousands of other demobilized paramilitaries who had not been considered for the Justice and Peace process, new legislation was passed (Law 1424, December 2010) that requires the demobilized paramilitaries who are believed not to have been responsible for serious crimes to participate in a new truth-seeking process. This new process will be conducted by the Historical Memory Center, a government institution in charge of the country’s policies on memory related to the armed conflict. Through this new mechanism, which is expected to begin later this month, the paramilitaries will provide information on the actions and structures of the illegal armed groups, and who supported them, in exchange for suspended sentences on the charges of aggravated conspiracy, illegal possession of arms and similar lesser crimes. ICTJ is working closely with the Historical Memory Center to develop the methodology for this very large effort, which will hopefully provide new elements of truth about the conflict to Colombian society.
In addition, a comprehensive Victims' Law, passed in June 2010, aims to provide integral reparation to victims through individual and collective measures, which include economic compensation, rehabilitation, and land restitution, among others. But with more than 4 million victims of the conflict, implementation is extremely complex. The Colombian government created a new institution, known as the “Victims Unit,” to coordinate this task. Its main challenge is to guarantee the required inter-institutional coordination among numerous state agencies and ensure mechanisms that allow for strong victim participation.
In our own support of the implementation of the Victims’ Law, we are drawing on our experiences in other countries to focus especially on the design of collective reparations, which potentially can provide a forum for integrating the state’s actions on truth, reparations, and even criminal justice.
Over the past 10 months, the government also started to build some of the necessary conditions for crafting a political solution to the conflict with the guerrilla organizations (the FARC being the strongest of these).
Most relevant for transitional justice, after an arduous debate, Congress approved a constitutional reform known as the Legal Framework for Peace. By providing a legal basis for the prioritization and selection of cases, the reform will facilitate the reorientation of criminal prosecutions along more strategic lines, with a strong focus on identifying and prosecuting those most responsible for violations during the conflict.
|In addition, the constitutional reform provides a framework for Congress to pass several additional laws, including legislation: to redefine what conduct is to be considered as actions connected to political crimes (and thus potentially subject to some form of amnesty or pardon) for the purpose of allowing former insurgents to participate in politics; to establish differential treatment for the different parties in the conflict; to create new judicial and non-judicial mechanisms to guarantee the state’s obligations to investigate and punish crimes committed during the conflict; and to create a truth commission.||
The past several months of public debate was very important for generating a more common understanding of the challenges for attaining peace, and has helped to identify some parameters for what might be acceptable regarding accountability for crimes committed during the conflict. While the constitutional reform clearly represents an important step towards the negotiations, much of the detail on accountability will actually be worked out through the implementing laws.
We will be following these debates very closely and trying to contribute with input that accounts for both international best practices and Colombia’s very complex political and juridical reality.
The central challenge for the negotiators is the knowledge that ending the conflict with the FARC depends on an exchange of arms for their participation in the political arena. This probably means opening the possibilities for amnesty or pardon for political and connected crimes and the application of other measures of accountability for other crimes. The FARC’s military commanders are seen as the most responsible for committing serious abuses, and under normal criminal law, would be disqualified from future political participation.
Nonetheless, Colombia’s Constitution recognizes a few types of criminal activity, such as sedition, as political crimes, and allows the possibility of amnesty or pardons for those who have committed such crimes and what are called “connected crimes,” so that they can participate in political activities and be elected.
|Legislators during peace negotiations often confront the problem of how to define political and connected crimes in such a way that is not so strict as to be an insurmountable obstacle to peace, while not being so flexible as to violate international law or to send a message of impunity to the public. With this in mind, the constitutional reform mentioned above clearly excludes crimes against humanity and genocide from consideration as conducts connected to political crime.|
Within those limitations, the challenges are still very complex for Colombia; ICTJ hopes to develop analyses on these issues that can contribute to the negotiations.
Increasing public awareness of ongoing transitional justice processes has provided a useful basis for discussions of future transitional justice measures that will emerge in the context of an eventual peace agreement with the FARC. The past seven years of work on these issues has also helped to create public recognition of victims’ rights and increased social awareness about processes dealing with truth and memory. Before 2005, concepts of transitional justice or categories like “victims” were hardly mentioned in our society. In Colombia, where criminality is a massive and systematic problem, our experiences have shown us that transitional justice, understood as an integrated approach for achieving accountability, has a key role to play in building sustainable peace.
ICTJ has insisted on the need to dismantle criminal structures responsible for mass human rights violations. So far, the Justice and Peace Law has not fully revealed the identity of those most responsible, including those who provided political and financial support to the paramilitary organizations and determined their activity. Even though during 2012 a few of these names have started to emerge from the investigations , the focus is still very much on the military commanders of these organizations, which does not reflect the true complexity of the structures and all of the factors that made them viable.
The main obstacle for advancing criminal prosecutions is the lack of an effective approach to systematic crimes, which must focus on unraveling how those structures actually worked and identifying those most responsible. ICTJ has provided technical assistance to the Justice and Peace tribunals in Bogotá and Medellín in producing analyses that reveal the complexity of the structures and the support networks that made it possible for them to commit their crimes. More recently ICTJ has started to provide technical expertise to the Prosecutor´s Office toward the creation of its Context and Analysis Unit, which draws on our previous practical experience with context analysis in Colombia and a number of other countries.
Memory initiatives help address the impact that violence has on victims and on the broader society. In Colombia, victimized communities know this in a very intuitive manner, and they continually organize memorialization activities such as candle-light marches, symbolic returns to the towns from which they were displaced, and other activities that keep their traditions alive. These memory initiatives help recognize the dignity of the victims and can bring broader public awareness about the costs of the conflict for thousands of fellow citizens.
Despite these efforts, we are still a long way from being able to say that that most Colombians recognize the real impact the violence has had on victims, or society as a whole. And we are even further still from being a society that recognizes how the conflict has corrupted its institutions, and that seeks to reform those institutions accordingly.
|Despite these efforts, we are still a long way from being able to say that that most Colombians recognize the real impact the violence has had on victims, or society as a whole. And we are even further still from being a society that recognizes how the conflict has corrupted its institutions, and that seeks to reform those institutions accordingly.||
We have supported some communities in their memory initiatives, like the Nasa indigenous people in Cauca, through their main organization, ACIN. And we have provided support to help influence public policies on memory, for example through their participation in events like “Memory: Public policies for transformation,” which we organized together with others last November. Dozens of organizations working on this topic from around the country used the forum to discuss with government officials their proposals on the role the Museum of Memory and the Historical Memory Center, both created by the Victims’ Law.
Civil society in Colombia, as everywhere, plays a very important role in transitional justice. Across the country, NGOs are working to support victims in different fields: some provide victims with legal assistance, and others specialize in providing psycho-social support or in assisting victims in accessing reparations. And civil society organizations have done a very important job regarding memorials, as I’ve already mentioned. They have also produced research on issues of gender and children in the context of the conflict.
ICTJ works to help increase the participation and strengthen the influence of civil society in the development of transitional justice measures, especially by creating opportunities for discussion between public officials and civil society representatives. In addition, we have a permanent forum with non-governmental organizations in several cities where we discuss accountability and provide expertise on transitional justice issues. This forum has also been enriching to us, since it gives us a real foundation upon which to formulate our analysis and public recommendations.
I would say ICTJ has played a key role in the transitional justice process in Colombia by trying to work with all of the stakeholders in the process. First of all, it has shared its expertise and recommendations with those in charge of public policies on transitional justice and the government institutions that implement them. We have also worked very consistently with the justice sector, such as the Supreme Court of Justice and the institutions involved in the Justice and Peace process.
|ICTJ continues to work to build a common understanding of transitional justice with a range of civil society and victims’ organizations and to work with them to help ensure effective input into relevant policy decisions. And we continue to develop our engagement with members of the international community working to support transitional justice in Colombia to share analysis and perspectives on common challenges.|
Throughout the past seven years, ICTJ has contributed to a better understanding of transitional justice in a country that needs an integral approach as it addresses systematic and prolonged human rights violations. And because of the diverse actors involved, each relating to the conflict in different ways, this makes an integral approach to ongoing and future transitional justice measures more important than ever.
Colombia is still one of the most challenging places for transitional justice in the world: but ICTJ has shown it is ready and able to take on that challenge.
Photo: People take part in a demonstration against war outside the Constitutional Court in Bogota on June 13, 2012. EITAN ABRAMOVICH/AFP/GettyImages