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Transitional Justice Without Truth?

Published on August 27, 2018        Author: 
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During his election campaign, Colombia’s new president Iván Duque announced that he would seek amendments to the peace agreement with the FARC-EP of 24 November 2016 and the ensuing unique Colombian system of Transitional Justice (TJ) (Sistema Integral de Verdad, Justicia, Reparación y No Repetición, SIVJRNR– see here for details of that system). Now, the parliamentary group of his party (Centro Democrático, CD) in the Colombian Congress has followed his words with deeds and launched a proposal for a constitutional amendment (Transitional Article 5A) (of which the government, however, was, according to its spokesperson, not aware). Under this amendment, all the TJ-organs, in particular the Truth Commission (Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición) and the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, JEP), will be denied access to confidential information affecting national security. This proposed amendment follows another change that the CD  has proposed to the procedural regime of the Special Jurisdiciton for Peace, shortly after the presidential election (still in the former Congress). Under that change, surrender of military personnel to the Special Jurisdiction for Peace would be voluntary and there would be a separate jurisdiction for the military. However, the constitutionality of this rule is very doubtful because it would undermine the constitutional TJ framework. From this perspective, it is consistent that the new government is now preparing an amendment of the Constitution itself, by denying the TJ organs access to information.

Of course, the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory. Such a cultural memory is important for any transitional society in its entirety, both for victims and perpetrators, as both groups are part of this society. But how can a proposal that practically hinders the establishment of truth and memory be reconciled with victims’ rights that the new government has repeatedly called for, in particular the right to truth? How can historical truth be established without access to the information in question? Especially if access to the information is impeded in such a broad way (by excluding any information, data, confidential documents relating to national security), so categorically (“under no circumstances or under any circumstances …”) and in an authoritarian fashion (“Ignorance [of this prohibition] … constitutes a serious offense” sanctioned by disciplinary action), with not only all public servants being covered, but also private persons exercising or having exercised a public office.

If this proposal actually becomes law (though the recent majority formation in Congress makes this unlikely), it would significantly hinder, perhaps even make impossible, the work of the Colombian Truth Commission and also the JEP (as far as the establishment of truth is concerned). What’s more, the complex Colombian TJ system may be struck a fatal blow, as this system cannot operate meaningfully without truth, which in turn requires access to the aforementioned information. Perhaps that’s the actual objective of the proposal but why then not say it openly so at least a public discussion about TJ’s future in Colombia would be possible.? (I note in passing that the proposal was leaked to the author by an international organization operating in Colombia). Be that as it may, the sheer existence of the proposal should raise concerns in the international donor community about the government’s concrete plans. It follows clearly from it that the new government is making every effort to further privilege the armed forces and thus risks eventually turning the TJ-system into a one-sided instrument against the FARC-EP. This contradicts not only the basic idea of ​​the peace agreement, but also the very concept of any transitional justice.

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12 Responses

  1. Laura R

    Thanks for sharing this. It is a very shameful situation. The public opinion must not only have a public discussion, but also mobilize to stop this law. Without truth we are not achieving justice at all. To what extend the SJP will be limited in its legal assessments, if with this, they are directly shielding the military?

  2. Juan Pappier

    Dear Kai,

    I fully agree with the content of your post. Yet I’m surprised you say the legislative proposal has been “leaked” to you, when it’s been posted in the official website of the Colombian Congress for 10 days now: http://www.camara.gov.co/sites/default/files/2018-08/P.A.L.087-2018C%20%28COMISION%20DE%20LA%20VERDAD%29.docx

    Juan

  3. Raj Krishna

    Quite an informative and well written piece. I completely agree with the author on the point that the proposal if actually becomes a law would significantly hinder, perhaps even make impossible, the work of the Colombian Truth Commission and also the JEP, which I believe would be a step in wrong direction.

  4. Luis Viveros Luis Viveros

    Professor Ambos,

    When it comes to objectively and impartially commenting on any given subject—particularly in Europe’s most reputable blog—it would be important to explain clearly what being an “amicus curiae” means. Recently we had an interesting debate about a certain Chinese-sponsored article and the ethical issues involved in its publishing without clearly explaining what a scholar’s agenda is in the topic at hand. Like, are “amicus curiae” paid by Colombia’s TJ system? Have you been paid to provide input in the design of the TJ system? and so on and so forth. “Amicus curiae” in the TJ system in Colombia are quasi-judges (you were gonna, but that was changed), is this your approach to independency in your role?

    Respectfully, and I truly mean this, remind us all where all those constitutional concerns you are now so worried about come from? They come from a constitutional framework drafted by a summit of perpetrators (of the FARC and the military) in Habana, Cuba.

    Please provide us with some insight as to why you consider that judges with little to no expedience in ICL should be dealing with this, please tell us why judges that have publicly made statements on the criminal responsibility of individuals and institutions to be judged are seating in the tribunal, because, Mr Ambos, that is really why this amendment was introduced.

    These judges make for a nice picture of diversity, but they haven’t dealt with a single gross human rights violation case, at least most of them haven’t. What they have in common is a certain ideological view. And please don’t tell me these judges are great: I remember that you once stated that most judges in Colombia wouldn’t pass the German test to become a member of the judiciary, do these, even when they have no judicial expedience at all?!

    Please tell us why, since you helped create this, all the cases against the military where there was already truth, reparation and justice (decades-long sentences imposed by ordinary independent judges) were included in this system. They are now freely roaming the streets of every major city in Colombia, in exchange of nothing: they had truth (judicial truth as required by international law), they had or were in the process of getting reparation (real reparation, of the “full reparation” kind, not 7,000 dollars for rapes, torture, massacres), and let’s not talk about reconciliation: seeing the FARC’s leadership in Congress has been really nice for all the victims that were silenced during the conversations in Cuba).

    But most importantly, please tell us why you have not pronounces yourself on the amicus curiae of the ICC Prosecutor that basically stated that that TJ system is afoul of basic obligations under international law. http://cr00.epimg.net/descargables/2017/10/21/17135b6061c7a5066ea86fe7e37ce26a.pdf?int=masinfo

    Let us not go into the inconsistencies of what you think about the Colombian system and other systems where you have not a vested interest, but perhaps you should. Reading your Fujimori post the other day I really couldn’t understand if maybe you had been hacked, because none of those sanctions’ purposes are present in our system.

    Would you accept a system like Colombia’s for Germany? Maybe, maybe not. But you know what, Colombia didn’t, but that did not matter for all the experts making loads of money from legitimising a system that clearly contravenes the letter and spirit of the Rome Statute.

    We deserve better. I haven’t met a single victim from the military that agrees with penalties that do not involve prison. Thousands of perpetrators were already in jail or prison.

    You are perhaps the most reputable legal expert in Colombia on this matter, please act like the quasi.judge you are and do not engage in the day-to-day political debate by explaining things in so a general manner that it is impossible to disagree with you. Your recent column in your German university newspaper is full of inaccuracies that do not reflect the complexity of the debate.

    Please forgive the tone of my reply, but in academia there is nothing more important than being frank and honest.

    Regards,

    Luis

  5. Luis Viveros

    Dear Juan Pappier,

    I am almost sure that a previous post replying to Prof Ambos will be censured. But perhaps asking a much more simple question won’t: what to make of the fact that an “amicus curiae” (quasi-judges in the Colombian TJ system) engages in the political debate on the basis of (what he thought were) leaked materials?

    Any ethical issues there, should “amicus” of the Colombian kind be militant?

    Regards,

    Luis

  6. Susann Aboueldahab Susann Aboueldahab

    Dear Luis,

    I just wanted to let you know that Prof. Ambos and myself have analyzed the role and statuts of amicus curiae under the Colombian TJ system on this blog. I note in passing that these amici do not receive any renumeration nor are they in any form part of the Colombian judiciary.
    https://www.ejiltalk.org/foreign-jurists-in-the-colombian-special-jurisdiction-for-peace-a-new-concept-of-amicus-curiae/#more-15745

    Perhaps you know that Prof. Ambos’s main position is Professor of Law at Göttingen University and of course in that position he is able to comment on public issues like the one under discussion.

    Susann

  7. Thank you Professor Ambos,

    1. “…the new proposal amounts to a frontal attack on any TJ-system, because its central component is the establishment of (historical) truth and, based on this, a cultural memory.”

    – Yes, but another way of putting it may be as an attempt to control the production of memory, the historical narrative and the truth. In essence, the contests and disagreements over the JEP procedure, JEP composition, (and now) the JEP’s access to information are all continuations of the struggle, they are all about who won, who lost, and what it was all about.

    2. Amicus Curiae

    – The TJ system is obviously not perfect. In post-conflict situations, the tension between ending the fighting (and saving future lives) and dealing with atrocities (justice for the lives lost) produces messy agreements which are contested as time goes on. I agree that the ‘alternative sentences’ regime is particularly concerning. Nevertheless, even if Prof Ambos is ‘internal’ to the TJ-system, I see little problem in him maintaining his independence as a scholar. After all, he has no voting rights in the TJ system, the power of non-Colombian magistrates was significantly watered down after the ‘no’ in the referendum.

    3. The magistrates:
    “These judges make for a nice picture of diversity, but they haven’t dealt with a single gross human rights violation case, at least most of them haven’t. What they have in common is a certain ideological view.”

    – I’m not sure if the magistrates, or some of them, would self-identify as ‘experts’ in ICL, whatever that means nowadays. If not, good thing there are expert amicus curiae present. Surely, the important point is that the magistrates know the TJ system, the 2016 agreement, the Constitutional structure of Colombian and that they are persons of moral standing that can refer to the law to make the kind of decisions that will need to be made, i.e. “did X tell the full truth?”, “does X deserve 5 years of restricted liberty or 8”, “what is restricted freedom?”, “will the ICC accept this as an appropriate punishment?”.

    4 – ICC position
    – The ICC has expressed concern that the Colombian TJ system may not comply with its Rome Statute obligations in four areas: 1) command responsibility definition, 2) the ‘serious’ war crimes definition (declared unconstitutional in March by Constitutional Court) 3) the definition of ‘active or determinative participation’ in crimes and 4) the ‘alternative sentences’ regime. Yet, it has not said categorically that these are ‘reasons’ that the Colombian TJ system is in violation of the Rome Statute. They are areas of concern that the JEP magistrates, and the amicus curiae ought to take note of when developing the jurisprudence. In September 2017, Fatou Bensouda actually released a positive statement on the progress Colombia was making.

  8. Seb Eskauriatza

    Correction: I should have said the OTP not the ICC.

  9. Dear Professor Ambos,

    Thank you for bringing attention to this proposed amendment which would not only undermine the possibility of effective investigations and operations of the institutions established by the Peace Agreement (Integral System), but would be contrary to the provisions that guarantee full cooperation from the state to the Integral System institutions, and also to the Colombian Statutory Law on Transparency and Access to Information (Law 1712 of 2014) which forbids limitations to access to information in relation to human rights abuses or gross violations under IHL.

    In your blog you mention that this proposal would affect two institutions: “in particular” the Truth Commission and the JEP. As you know however there are three institutions in the Integral System, a Search Unit for Missing Persons (UBPD), which would also be obviously affected by this proposal.

  10. Luis Viveros

    Dear Susan,

    Thank you very much for your considerate reply. Because there is no need to go into freedom-of-information-act-mode here, would you please inform us:

    (1) what is the definition of “remuneration” in your study, i.e. when an amici is, in fact, called to the aid of the JEP, who, why and under what concept pays for the individual’s work, per diem, plane tickets, etc.

    (2)Is professor Ambos legally prevented from entering into contracts with other Colombian agencies, directly or as a member of another agency? All of this goes to independency, for whatever you may dispute about their role and nature, they are called upon to give opinions in cases in an independent and impartial way.

    (3) How many contracts did Mr Ambos sign with the Santos Government, what the amounts were, and why is this not an independence-related issue?

    Mr Ambos is not the worst by any means. He is a reputable, honourable jurist who believes in international justice. But he has been so fluid lately, so militant, that he should not present himself in these forums as an academic but as an activist. Most of us will never be half the academic this man is. That does not mean he shouldn’t tell us the full story. Quite the contrary in my view.

    Amici in Colombia exist for a reason: the need for external legitimacy and expertise (for some of our judges have never dealt with a petty crime even). Mr Ambos is becoming just another ‘talking head’—regularly appearing in magazines, upping his image. This man was the only person with the knowledge and expertise to prevent the amateurs who call themselves judges say nonsense when it came to ICL. But by becoming just another national commentator, a talking head as it were, he will lose that hard-earned legitimacy.

    I take this opportunity to reiterate my sincere admiration and expect that my words are taken as an effort to engage in frank debate, not as the personal insult who some have tried to make it into.

  11. Luis Viveros

    Dear Mr Eskauriatza,

    Thank you for your reply on what I now know is your area of expertise.

    I will only go some of your comments. The remuneration issue: everyone has to one paid for what they do. Originally he was to be paid just as any other JEP judge. That was amended. Now he is paid for his time. Nothing wrong with that. He is well paid, and he has done enough in life to deserve that. The ethical issue is that he writes everywhere, in many languages (with different levels of detail I might add) as if he were an independent academic with no “meat” in the game. He was supposed to he a judge, now is is an amicus—a consultant as it were—and he is paid for everything related to that. Academics need to explain the breadth of their own self-interest in the subject matter they are writing about. “Amicus curiae” is not enough: you need to explain how you were elected and what you possible benefit from it is. Mr Ambos is, by no means, an external observer on this matter.

    And, I am sorry, but If I am going to be prosecuted for international crimes I am entitled to expect, no, demand that those judges know what they are talking about. In any country that fact alone would end in a mistrial; but in Colombia it will end in a nice picture, a headline and a Nobel). I am really without words when you tell me that a tribunal with jurisdiction to prosecute war crimes and crimes against humanity with judges that aren’t experts in international criminal law is not important, that what matters is their transitional justice expertise. Transitional justice IS NOT LAW, just a set of rules allowing transition, but within boundaries, this boundaries being amongst others, international criminal law.

    Ambos may enter into contracts with public institutions, but he should disclose them when presenting himself as an independent academic. You can’t have your cake and eat it. Independency includes disclosure.

    Finally, the ICC amicus. Really? You mean to tell me that a well-drafted and researched brief was set aside by a generic statement that the ICC wants peace for Colombia? They are moving ahead: officials have been identified, there is a plan in place to intervene. This charade where children were not conscripted by FARC, where false positives did not happen will end.

    Ambos has an interest, a very concrete one, in this system’s success. His objectivity is compromised. Let him explain himself instead of you all coming to his defence.

  12. Luis Viveros

    Everyone: sorry about typos, my laptop is not working very well. Please do not take it as a sign of disrespect.

    Regards,

    Luis