On 4 April 2017, the Colombian Congress passed amendments to the Constitution creating the ‘Integral System of Truth, Justice, Reparation and Non-repetition’ (‘El Sistema law). This law is part of the fast-track package used to implement the peace deal signed between the government of President Juan Manuel Santos and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on 24 November 2016. The new El Sistema law brings the implementation of the deal one step closer to reality as it creates a unique transitional justice mechanism oriented towards truth and reparations to victims. Yet the law’s limited reach and lack of popular support for the deal may stall further progress.
The Legitimacy Question
The document signed in November 2016 is the second version of the peace deal, after Colombian voters rejected by a narrow margin the first draft in the referendum of 2 October 2016. This result was largely unexpected. There are many factors that explain the failure of the first peace deal in the national plebiscite. The first is the strong cult of personality and influence of the former President Álvaro Uribe, who actively campaigned against signing a peace treaty with guerillas by appealing to concerns of different groups of population. Bad weather conditions on the polling day, coupled with the lack of infrastructure in many parts of the country, also effectively prevented many people from travelling to polling stations. Finally, little information and time was allotted to voters to study the deal prior to the referendum.
The ‘no’ result created serious challenges for the government, which wished to press ahead with the deal. Over the course of several weeks following its initial rejection, the government of President Santos introduced amendments tackling some of the concerns of the ‘no’ campaign. For example, the new deal provides for a more limited role of international judges within the newly created Special Jurisdiction for Peace (SJP) and guarantees special treatment for the army. These changes were limited, however, as the negotiators balanced conflicting interests of different stakeholders – ‘yes’ and ‘no’ campaigns, FARC, and the civil society.
In order to secure approval of the second deal, the President chose not to risk holding a second referendum but rather invoked his special powers in passing ‘fast-track’ legislation through Congress. The fast-track solution means that the main laws implementing the peace deal were adopted as a ‘package deal’ in a ‘yes’ or ‘no’ vote in Congress. These laws entered into force upon their adoption and prior to their review by the Constitutional Court. This is in contrast with the regular procedure, whereby the Constitutional Court scrutinizes the project of the law before it enters into force. While the Constitutional Court retains its critical review powers with respect to fast-track laws, the fact they are already in force make it more difficult politically to strike them down.
The government’s decision to proceed along the fast-track route, rather than holding a second plebiscite or giving up on the deal altogether, delivered a strong blow to the legitimacy of the eventual outcome, dividing the country into two camps – those who voted ‘yes’ and those who opposed the deal. The decision created room for identity politics, with the population currently split between those who are ‘against the peace’ and those who believe their votes ‘have been stolen’. The standoff between two ideological camps makes it essential for the success of the deal to move forward with its implementation in an expedited fashion. With presidential and parliamentary elections looming in 2018, the hope is that the deal will gain its legitimacy through its effective implementation, thereby eliminating the possibility for a future government to challenge the hard won peace arrangement.
The El Sistema Law
The El Sistema law is the second law in the fast-track package, the first one being the amnesty law for minor offences committed during armed conflict, which was approved by Colombia’s Congress on 6 December 2016, despite strong opposition of the right-wing Democratic Center party. The amnesty law was essential in securing demobilization of FARC by guaranteeing amnesties for political crimes (such as rebellion or sedition), while the El Sistema law addresses the most contentions part of the peace deal, tackling questions of justice and reparations (section 5 of the deal and item 5 of the negotiations agenda).
Item 5 of the peace deal agenda presented particular challenges, as FARC initially insisted on the idea of collective, rather than individual, responsibility for crimes committed during the protracted civil war. It was possible to reach an agreement relying on the idea of ‘justice for all’ rather than ‘justice for FARC’, meaning that all parties to the conflict, including the army, which holds prominent position in Colombian governing circles, agreed to submit themselves to the jurisdiction of a future tribunal. As a result, the peace deal envisages the creation of a holistic justice system aimed at unifying Colombia’s scattered transitional justice landscape. The emphasis is not so much on retribution but rather on establishing the truth about the past, creating mechanisms for reparations for victims and guarantees of non-repetition. The El Sistema law brings this system to life by approving the creation of its various components: the Truth Commission, the Unit for the Search of Missing Persons, the Special Jurisdiction for Peace (SJP), and other measures aimed at reparation and non-repetition.
The El Sistema law makes it clear that the system incorporates both restorative and retributive aspects as it seeks to achieve justice not only through penalties but also through repairing damage caused to victims affected by the conflict (Article 13). This is both innovative and controversial. In practice, such ‘dual’ focus of the system entails at least three consequences.
First, the SJP – the judicial system that will have primary jurisdiction over all cases arising out of the conflict – will have to adopt a policy of prioritization in its work. It is logistically impossible to prosecute all those responsible within the limited timeframe allotted to the SJP, which the law sets at ten years with a five-year extension period (Article 15). The Office of the Prosecutor, presently tasked with collecting all the relevant material to pass on to the SJP, is working on grouping potential cases with reference to their gravity and symbolic value. The first level of prioritization will happen on the basis of the types of crimes. There are currently seven themes singled out for further prosecution at the SJP: sexual violence, false positives (killings of civilians by the army with the purpose of falsely presenting them as guerilla fighters), enforced disappearances, mass murders, displacements, recruitment of children, and environmental crimes.
Secondly, the SJP will have the power to choose between ordinary and alternative penalties when sanctioning those coming before it. With respect to FARC, the alternative penalty is currently understood as sentencing persons to reside within a designated demobilization zones, or Zonas Veredales Transitorias de Normalización, (the effective restriction of liberty) for a period of five to eight years, coupled with reparations to victims and other restorative measures. Moreover, those given alternative penalties will be able to participate in political life along with serving the sentence imposed by the SJP (Article 20). It was unclear until the El Sistema law was passed whether this right could be exercised simultaneously with the sanction or whether the convicted person must wait five to eight years prior to joining political life (a position advocated by some NGOs). Confession is the condition for receiving lighter treatment in the form of alternative penalties, and the decision as to the nature of punishment will depend on the time when such confession is made. Those who confess early in the process are likely to benefit from alternative penalties, while those who confess later during trial face five to eight years of jail time; those who do not acknowledge their responsibility at all risk fifteen to twenty years of imprisonment (paragraphs 60, 61, 62 of item 5.1.2 of the peace deal). The leniency of sentences provided by the deal was one of the key arguments of the ‘no’ campaign.
It is important to note that state agents and the army cannot benefit from amnesty because auto-amnesty is prohibited under the law. The deal specifies however that all warring parties receive differentiated but comparable treatment (paragraph 44 of item 5.1.2 of the peace deal). What this means in practice is that the deal and the implementing law provide for the possibility of commuting sentences of those who cannot be subject to amnesty, which is a comparable solution. Similar treatment is more challenging when it comes to alternative penalties because state agents and the army cannot serve their sentences in the zones specifically designated for demobilized guerillas. As things stand, they will serve their punishments in prisons. This aspect creates discontent in some of the ‘no’ voters arguing for tougher treatment of FARC.
Finally, the El Sistema law expressly provides opportunities for reparations. It is well known that FARC acquired significant wealth during conflict, for example through illegal mining. The law creates explicit incentives for FARC to declare their assets to the government (to be later used for reparations) by including them in a special inventory covered by the SJP jurisdiction. Offences relating to assets discovered at a later stage and not on the inventory will be subject to ordinary criminal jurisdiction.
The legitimacy deficit of the deal caused by the lack of popular support is one of the biggest obstacles on the way to its successful execution. Unresolved concerns of the ‘no’ campaign keep reappearing during the process of adoption of implementing legislation. One result of these lingering disagreements resulted in the creation of two separate regimes under the El Sistema law – one for the army and largely regulated by Colombian law, and the other for FARC under the auspices of international law. This is a significant change compared to the more unified approach in the peace deal. The law introduces a separate chapter dedicated exclusively to the army and designating it as lex specialis.
The chapter on the army also contains a controversial provision on command responsibility, which uses a narrower definition than that contained in the Rome Statute of the International Criminal Court (ICC). According to Article 24, responsibility of the members of armed forces is triggered only with respect to the conduct of subordinates over which the commander had effective control and knowledge based on the information available to them before, during or after the event (detailed discussion of the provision is found here). This construction based, to some extent, on Colombian penal law makes it difficult, if not impossible, to convict a commander based in Bogota for crimes committed in the regions. While there is a clear discrepancy between Article 28 of the Rome Statute and Article 24 of the El Sistema law, the real question is whether domestic policy makers have the flexibility in implementing international criminal law standards. The Constitutional Court of Colombia is likely to rule on this issue in the course of its review. If the current formulation of command responsibility remains intact, it may lead to possible responsibility gaps triggering future involvement of the ICC. Colombia remains under the preliminary examination of the ICC, whose Chief Prosecutor has already signaled her concern over the issue of command responsibility.
Implementation of the peace deal will test the readiness of Colombian society to embrace change and let go of purely retributive expectations of justice. While many still believe that FARC must face harsh punishment for the crimes committed during the war, it is instructive that those parts of the country most affected by the conflict overwhelmingly voted ‘yes’ in the referendum. The new victim-focused model based on truth and reparations reinvents the idea of justice and challenges traditional ways of thinking about punishing mass atrocities. It remains to be seen how this model will be implemented in Colombia.