Last week Wednesday (23 September 2015), Colombian President Juan Manuel Santos met in Cuba with the leader of the Colombian guerrilla movement FARC (alias Timochenko”), to publicly announce the agreement to establish a ‘Special Peace Jurisdiction’ reached between the Government and FARC. This is certainly a milestone in the Colombian peace process. While many local and international voices (including heads of government and State of other countries) have been supportive of the agreement (see here and here), a few have rejected its content considering that it fosters impunity. Among those who have objected to the agreement is Alvaro Uribe, the former Colombian president who has been very vocal in his opposition to the conditions of the current peace process and has favored either a militaristic strategy or one in which the guerrilla members subject themselves to ordinary criminal sanctions.
Given the controversy, it is worth briefly considering whether, as critics pose, the agreement would be contrary to international law standards or whether, according to its supporters, it is not only consistent with them but proves to be a unique opportunity to end the conflict with the FARC, which is the oldest operating guerrilla movement in the world.
To do this, it is necessary to briefly look at the content of the agreement. In assessing the agreement, it is important to bear in mind that its full contents are yet to be revealed, and indeed some aspects have not been fleshed out fully. However, the main points of the agreement are set out in the oral statements of the Colombian President and, in greater detail, in written form in a joint communiqué, which can be found (in Spanish) in the official webpage of the Colombian presidency.
The “Special Peace Jurisdiction” – A new Mixed Tribunal?
The key aspect of the agreement is the creation of a judicial body – ‘Special Peace Jurisdiction’ – which will make decisions on cases related to the Colombian armed conflict and has the capacity to issue extraordinary decisions that differ from those of ordinary criminal trials. The members of the body will mostly be Colombians but it will also include a few foreigners (point 3 of the joint communiqué). The composition of the body gives it a mixed nature. One may speculate as to the reasons for the choice of a mixed body. Arguably, the parties seek to legitimize the procedures and outcomes of the Special Jurisdiction, perhaps with the aim of forestalling future criticisms made by international law bodies or networks, especially if, as the media has expressed, at least judges will have to be knowledgeable in international law. This component and the knowledge of the members of the body may also seek to persuade foreign and international bodies to trust the outcome of its proceedings. In other words, a likely strategy is that the Colombian government expects those third parties to pay attention to what the body says in good faith and to not outright reject the alternative sanctions it imposes. After all, given the consideration that some international lawyers have that serious violations of human rights cannot be excused, the workings of the body, if properly framed in international legal terms, can have an expressive function so as to persuade that there is no impunity or that the unique sanctions it imposes do not contravene international human rights standards. Concerning this, it is interesting to note that in the case of Marguš v. Croatia,the European Court of Human Rights contemplated the possibility that there may be cases in which the lack of imposition of traditional criminal punishments of human rights abuses does not generate an internationally wrongful act. The Court stated that:
“139. A growing tendency in international law is to see .. amnesties [for grave breaches of fundamental human rights] as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances.”
Interestingly, the Colombian agreement does not seek to grant amnesties, as the ICC prosecutor herself has mentioned (on this, see below). A similar idea has been expressed by Judge Diego García-Sayán in the Inter-American Court of Human Rights case of el Mozote v. El Salvador. He stressed the importance of conducting a proportionality test to ascertain the legality of measures taken in the context of transitional justice.
Does the Creation of the Special Peace Jurisdiction Violate International Human Rights Law?
President Santos has stressed that what the agreement reached is the decision to refer cases to a judicial mechanism rather than to an extra-judicial one, with the intention of lending credibility to its operations. However, Nilson Pinilla, a former justice of the Colombian Constitutional Court has stated (here, in Spanish) that work of the body belonging to the Special Peace Jurisdiction could violate the right to a ‘natural judge’, that is to say, the right found in article 8 of the American Convention on Human Rights, according to which “[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law”.
While, a strict literal reading of the Article 8 may suggest so, it could be argued that an evolutionary interpretation in the context of other international norms indicates only that a tribunal must be lawfully constituted prior to its operations in a way that respects due process and must respect the principle of legality concerning substantive and procedural norms that it will implement (thus satisfying the conditions of foreseeability and accessibility, as described by the European Court of Human Rights in the Kononov v. Latvia Case). The practice of bodies such as the International Military Tribunal at Nuremberg and the ad hoc International Criminal Tribunals also suggests the strict literal reading is not warranted as a matter of general customary law, insofar as they were created or established after the crimes they investigated and tried took place. Moreover, the International Criminal Tribunal for the Former Yugoslavia (ICTY) considered in the Dusko Tadic Case that the aforementioned principles may slightly differ when it comes to national jurisdictions, it stressed that the central guarantee is that the respective tribunal respects due process and operates impartially. It cited the view expressed in the negotiation of the International Covenant on Civil and Political Rights that a requirement that a tribunal be “pre-established by law” would prevent the domestic reorganization of the judiciary. While the ICTY examined this question in paragraphs 41-48, its key consideration was that:
“The third possible interpretation of the requirement that the International Tribunal be “established by law” is that its establishment must be in accordance with the rule of law. This appears to be the most sensible and most likely meaning of the term in the context of international law. For a tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments. This interpretation of the guarantee that a tribunal be “established by law” is borne out by an analysis of the International Covenant on Civil and Political Rights.” (Para. 45)
Structure and Operation of the Special Peace Jurisdiction, and Alternative Punishments
Apart from the condition of the members and the respect of the rule of law, it is worth noting that, as to the structure of the body belonging to the Special Peace Jurisdiction, it will be divided in two main parts: Justice Chambers and a Peace Tribunal. Furthermore, it will have the power to conduct two types of procedures. One of them will apply to individuals who acknowledge their responsibility and reveal the truth of their violations and abuses on time. Those individuals will be sanctioned with an alternative punishment. To ensure that they have told the truth, their statements will be verified and contrasted with evidence and the outcome of prior decisions and investigations of the Colombian Judiciary. The other procedure that can be conducted in the context of the Special Peace Jurisdiction will be applicable in relation to individuals who do not confess, do so falsely or do it lately (it has not yet been revealed which is the period in which acknowledgments will be deemed to be made on time). These individuals will be investigated and tried (points 3 and 6) and, unlike those who properly reveal the truth on time, they will face ordinary criminal sanctions (detention in State prisons, mainly).
The punishment of those who confess on time is, not surprisingly, one of the most contested points of the agreement. The agreement simply mentions that those persons will be subject to effective restrictions on their liberty “in special conditions”, provided that they have previously abandoned their arms (in the case of the FARC members, point 9). Comparing this with the sanction of those who do not confess on time, it is evident that they will not be imprisoned in ordinary cells or prisons. That being said, what those special conditions actually mean has not been specified or devised yet (see here). Apparently, the FARC agreed at the last minute that the effectiveness of that liberty restriction could be supervised by the State. Furthermore, detractors of the agreement consider that this specific issue implies that there will continue to be impunity for grave crimes. This controversy echoes the debate on what is “justice”, for instance in the context of the ICC. It is true that States are obliged to punish human rights violations, insofar as lack of sanctions and impunity can foster future violations and re-victimization and also fail to provide necessary guarantees of non-repetition. However, the history of criminal law shows that imprisonment has not been the only punishment meted out, and criminal punishment seeks (at least theoretically) to achieve different aims, including rehabilitation. Therefore, alternative punishments, in my opinion, can very well fit in a non-formalistic and static interpretation of sanctions and justice.
Logically, since the Office of the Prosecutor of the International Criminal Court has been conducting an on-going preliminary examination of the situation in that country, it is important to see if it has said anything about the announcement of the agreement between the Government and the FARC. In this regard, on 24 September 2015 Fatou Bensouda issued a statement welcoming the agreement in light of the importance of achieving peace (a factor which, needless to say, helps to prevent re-victimization and future violations). Apart from this, she noted “with optimism that the agreement excludes the granting of any amnesty for war crimes and crimes against humanity, and is designed, amongst others, to end impunity for the most serious crimes.” Nevertheless, she highlighted that her Office will “carefully review and analyse the agreed provisions in detail as part of its on-going preliminary examination of the situation in Colombia.” In response, the Colombian foreign minister announced that she will inform Ms. Bensouda of the details of the agreement with the FARC.
Another controversial point is that it is not only the FARC but also other actors in the armed conflict, including members of the armed forces, that can benefit from this special jurisdiction. Some, as Uribe and members of his political party, Centro Democrático, say that this equates illegal groups and the army, while others think that this may be forbidden. In any case, there are no self-amnesties (forbidden, according to the Inter-American Court of Human Rights, as mentioned in the Barrios Altos case, nor is it envisaged that serious violations can benefit from amnesties. In this sense, it is said that only political crimes (as defined in Colombian law) and related crimes (‘conexos’) can be the object of amnesties, but that conduct of crimes against humanity, war crimes and genocide can not be granted amnesties. This seems to have satisfied, for instance, Ms. Bensouda. Other international human rights agents have welcomed the agreement, including UN Secretary-General Ban Ki-moon and his Special Representative Zainab Hawa Bangura (see here). It cannot be ignored that the FARC have committed heinous crimes and abuses in the past, such as kidnappings and killings of civilians.
The agreement also focuses on the rights of victims and the reparation of the harms they have suffered, which is very commendable given the centrality that victims must have. In this sense, reparation of the victims is a goal of the agreement (as indicated in paragraph 2 of joint communiqué No 60). To realize this goal, the agreement envisages two aspects: firstly, that for individuals to benefit from the Special Peace Jurisdiction they have to repair victims; and secondly, that the decisions of the body and its Tribunal have to aim to ensure that victims are provided reparations. This is something crucial insofar as it recognizes, firstly, that non-state actors can violate human rights (as Andrew Clapham has recently reminded us); and secondly, that as a consequence victims are entitled to reparations and abusers are obliged to repair. It is interesting to note that this is consistent with the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. In paragraph 15, they indicate that:
“In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim” (emphasis added).
Therefore, the State may well decide to contribute to the reparation of victims in cases when, for instance, a given individual lacks full funds to fully repair victims, who after all are entitled to full reparations.
It is not clear what the legal status of the agreement will be, as it is not considered a treaty, even though it could have been one since States may grant non-state actors the capacity to enter into agreements binding under international law on a case-by-case basis. President Santos mentioned that the Colombian citizens will have to endorse it (‘refrendar’, in Spanish), but the specific technical aspects of this, or whether the Parliament will have to intervene, are yet to be seen. Some express the need to shield the agreement from an eventual negative outcome. That being said, public opinion, and even victims of the FARC, have been mostly supportive of this possibility of ceasing a tragic conflict.
A final remark is that the government commits itself to protecting the FARC members. This is no small detail and lack of such commitment could have led to a lack of agreement. This is because of the killing of Unión Patriótica members years ago, who were former guerrilla members who ceased their armed operations. Trust is important. And peace in Colombia (achieved in a way consistent with the rights of victims) is necessary.