Another Challenge for Colombia’s Transitional Justice Process: Aggravated Differential Treatment between Armed Forces and FARC

A new proposal for a constitutional amendment has caused another highly controversial debate in Colombia. The proposal foresees the creation of “special chambers” within the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, SJP) with the exclusive competence to try members of the Armed Forces. Just a quick reminder: The Final Peace Agreement was concluded between the Colombian Government and the Revolutionary Armed Forces of Colombia – People’s Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) in November 2016. It introduced the SJP as the Peace Agreement’s single legal mechanism, responsible for bringing all parties to the conflict to justice. The new government and its party in the Colombian Congress (“Centro Democrático”) are keen to make some reforms to the SJP. A few weeks ago we have discussed here a proposal to radically limit the access of the SJP and other organs of the Colombian TJ System to information related to national security. The now proposed constitutional amendment is the result of a debate that had already started earlier this year at the time of the negotiations regarding the SJP’s Rules of Procedure and Evidence (RPE). It evolved around the introduction of Article 75 RPE which provides for a special procedure for the Armed Forces in relation to the crimes committed during the armed conflict. The rule was finally adopted and ultimately paved the way for this recent proposal.

The authors of the proposal (among them former President Alvaro Uribe Vélez, one of the Peace Agreement’s most vocal opponents) consider that the Armed Forces “have fought in the name and in favor of the legitimate State”, including those members  that committed crimes not eligible for amnesty; in contrast, the FARC are characterized as just a “criminal organization pursuing criminal purposes” (Explanatory Statement to the proposal (ES), p. 11 [all translations by the author]). The proposal’s aim is, of course, to strengthen the position of the Armed Forces, especially of those members involved in international crimes and thus possibly subject to national or international proceedings. However, as it stands the proposal will do a disservice to the Armed Forces which should rather stick to the existing mechanisms of the SJP in order to have higher security with regard to the International Criminal Court (ICC). For reasons of space, I cannot explain here the multiple problems of the proposal with regard to the current Colombian constitutional system (especially, but not exclusively regarding the SJP), and its international obligations (regarding the jurisprudence of the Inter-American Court of Human Rights, the ICC and under International Humanitarian Law). Instead, I will focus on the serious problem that the proposal creates for its presumed beneficiaries with regard to the preliminary examination undertaken by the ICC’s Office of the Prosecutor (OTP).

The proposal has implications for the application of the complementarity principle, which regulates the relationship between national jurisdictions and the ICC. The ICC will determine a case to be inadmissible under Art. 17(1) where the case is being investigated or prosecuted (or has been investigated) by a state, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. In  order to determine unwillingness, Art. 17(2)(a) stipulates that the Court will consider whether the proceedings were or are being  undertaken for the purpose of “shielding the person concerned from criminal responsibility.” Creation of a sort of parallel jurisdiction within the framework of an already existing special jurisdiction (the SJP) gives rise to the strong suspicion that it has the “purpose of shielding” members of the Armed Forces “from criminal responsibility”. According to the proposal, this parallel jurisdiction would have its own judges, prosecutors, etc. and would allow for “institutional legal defense”, tasked with defending the good name of the Armed Forces (Art. 6 of the Proposal). The “special chambers” jurisdiction would override that of any other chamber of the SJP and its decisions would be final, including the res iudicata effect of a “closing organ” (Arts. 3 and 9). Additionally, the last fact obviously  is incompatible with the jurisprudence of the Colombian Constitutional Court, according to which no instance of the SJP can escape from constitutional control (cf. C-674/17 section 5.4.4.).

Furthermore, the ICC, in determining unwillingness of national authorities to investigate or prosecute, will under Article 17(2)(c) consider whether the proceedings are conducted independently or impartially and whether they are conducted in a manner which is inconsistent with an intent to bring the person concerned to justice.  The present proposals raise various doubts concerning the independence and impartiality of the envisaged “special chambers” and the “intent to bring the person concerned to justice.” What guarantees the impartiality of the judges of these chambers if the Colombian president can select them and the parliament (with a vast representation of his party) can approve his decision with a simple majority? Also, the fact that up to two of three of these judges could be retired military officers (Art. 2) does not to contribute to an appearance of impartiality. It rather converts this new “special chambers” into a sort of military justice (in fact, the ES, p. 12, explicitly refers to the “military criminal justice“), i.e., to a justice which historically has been considered one of the main causes for impunity in Latin America, precisely due to the lack of independence and impartiality of its members.

This negative impression of the proposal is reinforced by the authors’ extremely one-sided and simplistic vision of the nature of the (decades-long) Colombian conflict. According to their reasoning, the Armed Forces (and implicitly the paramilitary groups) have defended the “legitimate State” against a terrorist and criminal aggression with no legitimacy (not even a historical one). Following this interpretation, the possible crimes committed by the Armed Forces “should be understood as a [mere] deviation (sic!) from the purpose of the public force” (ES p. 11). As a consequence, the proposal foresees that the (possible) benefits granted by the new jurisdiction to the members of the Armed Forces do not depend on a “confession or recognition of responsibility” (Art. 4a). This is in contrast to the existing procedure in the SJP (for the FARC). Moreover, release on parole for members of the Armed Forces is possible after having only served a sixth part of their sentence (Art. 4b).

In essence, the proposal is based on a highly ideological narrative and thus loses sight of the fact that ex post facto moralistic and political considerations of this nature are neither of interest, nor of relevance, to an international criminal tribunal like the ICC. For it shall and will only inquire whether international crimes have been committed or not, regardless of the perpetrators’ (good or bad) motives. And if the ICC concludes that these “special chambers” are neither independent nor impartial and will shield perpetrators from criminal responsibility, it will consider admissible proceedings against the most responsible perpetrators themselves – notwithstanding the benefits they have received by these “special chambers”. The ideological drive of the proponents also explains the unfounded allegation that the selection process of the judges by the independent selection panel (Comité de Escogencia) has been biased – and, thus, all SJP judges are biased – and this for the mere fact that three “foreigners” formed part of this five persons panel (ES, p.12). I note in passing that the same selection procedure by the very same panel applied to the foreign (sic!) amici curiae and I was impressed by the professionalism and transparency of the whole procedure. Note also that the three foreign members of the panel are renowned and highly respected international justice experts (Diego García Sayán, Peruvian, former President of the Inter-American Court of Human Rights; Juan Méndez, Argentinean, former UN Special Rapporteur on Torture; and Álvaro Gil-Robles, Spain, former Commissioner of Human Rights of the Council of Europe). Despite all this, the proposal concludes with the further unfounded statement that the panel’s selection procedure was carried out for the sole purpose of satisfying the “demands of the FARC” (ES, p. 12), thereby transforming the SJP into a mere FARC-Tribunal. The distortion of the facts ultimately becomes evident when it is being asserted that the former Santos government said that “the judgment and treatment of the Armed Forces would not be part of the negotiating table” (ES p. 10) – which is plainly wrong. What was excluded was not the SJP’s jurisdiction over the Armed Forces – how could it be in such a type of international negotiation and in light of Colombia’s international obligations? – but only their doctrine, structure, and composition.

All in all, one must sadly conclude that such a kind of legislative proposal, with such a highly ideological narrative and even plainly wrong allegations, does a disservice to the Colombians’ search for justice and reconciliation.

The author writes this post in his private academic capacity. He wishes to thank Susann Aboueldahab (CEDPAL, Göttingen) and Juliette Vargas (German-Colombian Peace Institute CAPAZ/CEDPAL, Bogotá) for assistance in preparing this English version.