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Colombia’s transitional process

March 28th, 2015

By Ernesto LaMassa – Research Assistant

Introduction

Violence has been at the centre of Colombia’s history for the last sixty years. Left-wing guerrillas, right-wing paramilitaries, and drug cartels have battled against each other and against the State for power and money. Recently the Revolutionary Armed Forces of Colombia (FARC by its Spanish acronym), the largest and oldest group involved in the conflict, started a peace conference with the government. After the massive demobilization of paramilitary groups between 2003 and 2005, the demobilization of the FARC has remained as the last important obstacle for achieving definite peace in Colombia. As is common in processes of this kind, the government might have to concede some prerogatives to the FARC in order to achieve a massive demobilization of its combatants. The present article will try to analyze what the Colombian government must do to make this transitional process comply with international obligations and the principles of the rule of law.

The Colombian Conflict

The socio-political background of the conflict

A few decades after obtaining its independence from the Spanish Crown in the 19th century, Colombia started a long period of internal conflict driven by the antagonism of the two largest political groups: Conservatives and Liberals. The two parties commonly used violence to resolve their conflicts.
The long conflict between Liberals and Conservative devastated the country and undermined the force of the State, leaving country areas without any state control. The conflict also increased the level of poverty and impeded the capacity of the State to boost economic development and apply social policies for reducing poverty and assure social inclusion.

On April 1948 one of the main leaders of the Liberal Party, Jorge Eliezer Gaitan, was shot to death. Gaitan was one of the presidential candidates of the Liberal Party in 1946, but the internal division of the party – as a result of the party taking three candidates for 1946 presidential election– impeded him to win the race, which was instead won by the Conservative party candidate. Gaitan was a gifted speaker, brilliant lawyer and well-known university professor, who despite his wealthy origin, was massively supported by low-income sectors of society. Within hours after the news of his assassination broke, mobs started to express their anger on the streets of Bogota.

The ineptitude with which the Conservative government managed the assassination, blaming the communists groups for the shooting, transformed the mobs in demonstration, which later resulted in a period of riots and violence called “El Bogotazo”. More than three hundred people were killed and dozens of cars and buildings were burned down during “El Bogotazo”.

The death of Gaitan unchained a long period of cruel violence, known as “La Violencia” (1946-1958), where more than 180.000 people were killed. Three main groups were involved in the conflict: Liberals, Conservatives and rural communist groups.
After years of conflict, the cruelty of the war dried up the desire for war in most of the participants. The Liberals abandoned the support of rebel groups and the conservative party organized a coup against its own government, in order to establish a new government with people more willing to reach peace.

The new President, the General Rojas Pinilla, reached a peace agreement with the Liberal armed groups, and promised criminal benefits for rebels (liberals and communists) wanting to surrender. The Marxist guerrillas did not accept the deal.
Rojas Pinilla also settles the basis for a long period of governmental coalition between liberals and conservatives that extended for sixteen years, with Marxism as the common enemy. The conflict between the State and irregular Marxist groups has not stopped since then. Many different Marxist leaning groups have been involved in the conflict. The FARC is the oldest and largest of them.

The FARC

The FARC origins can be found right after the times of “La Violencia”, following the disarticulation of the Liberal guerrillas, during the government of Rojas Pinilla. During times of “La Violencia”, some small farmers, supported by Liberal guerrillas, organized self-managed and independent communities, self-proclaimed as “republics”. One of these self-sufficient communities –the Marquetalia Republic-was led by Manuel Marulanda, who later went on to found the FARC. After the disarticulation of the Liberal guerrillas these communities were easily accessible by military forces.

The Marquetalia Republic was attacked by military forces on May 1964. Marulanda and his people could not resist the attack, but some of them escaped to the countryside to found the FARC, with the aim of combating what they thought was an abusive and corrupted political elite.
During more than sixty years of existence the FARC has started peace agreements with the State several times, but peace has never been reached. On February 2012 the Government of President Juan Manuel Santos started formal peace talking with the FARC once again.

The talks are a continuation of a process started during the mandate of the previous President Alvaro Uribe. During the presidency of Uribe the State confronted the FARC as never before. With the help of the US government the Colombian military forces fought the FARC all over Colombia and sometimes even out of the borders. However Uribe knew that total peace will never be reached without an agreement of both parties. For that matter, while military battles were taking place, envoys of the government tried to pull the FARC to start peace negotiations.

While President Santos was elected with Uribe’s support, only a few months after he took power, differences with his predecessor started to rise, especially in topics regarding foreign policy and internal security.

One of the main points of debate between Uribe and Santos has been the peace talks with the FARC. While it was during Uribe’s government when the first contacts with the FARC started, the former president has accused Santos that his peace plan will pardon most of the grave crimes the group members have committed.
The second round of the recent presidential elections, celebrated on June 2014, confronted Santos and a protégée of former President Uribe. The main issue of debate between the two candidates was the peace talking with the FARC. Santos won the elections with 50.9% of the votes. This result indicated that the Colombian electorate is split regarding support to the negotiations and its possible implications. Nevertheless, the electoral results placed Colombia in the road to transition one more time.

The tension in Transitional Justice

When a country is transitioning from a conflicting socio-political regime to a peaceful one, an ad-hoc legal structure might be needed to complete the transition. There are three main elements a society requires to peacefully come in terms with the past and move on to the future: to forget, to forgive and to achieve justice. Some of the tools used to achieve transition include, but are not limited to, truth commissions, reparations, apologies, and purges.

Simply because a society is in the process of constructing a new socio-political regime, it does not automatically imply that old political factors are willing to embrace the new status quo without any concessions. Sometimes socio-political transitions require exceptional measures that in normal circumstances would be unacceptable. In other words, difficult transitions require granting some concession in pro of achieving peace and stability. This is the case of the Colombian transition.

Measures such as criminal benefits, allowing political participation or forgiving human rights violations might be needed to reach peace. This creates a tension that can be difficult to handle for political institutions. This tension renders jurisprudential, moral and political dilemmas that must be addressed to achieve a fair equilibrium.

Transitional justice in Colombia

Since President Santos arrived to power in 2010, he attempted to launch formal peace negotiations with the FARC. After some contacts the FARC decided to accept the propositions and formal peace talking started.

During the first stage of the process, celebrated in Cuba from February to August 2013, the parties agreed on a number of topics on which the conversations will verse. These topics were included in a document called “General Agreement for the Termination of the Conflict and the Construction of a Stable and Long-Lasting Peace.” This has been used as a roadmap for the peace conferences and will also serve as a base to elaborate a legal structure for transition. The document contains six topics on which the peace conversations are versing:

a) Policies for agrarian development.
b) Political Participation for groups linked to the FARC.
c) Security of demobilized combatants.
d) Solution to the problem of drug trafficking and production.
e) Prosecution of human rights violations and reparation of victims.
f) Implementation and verifications of the final agreements.

These points have been debated in Oslo since October 2013, in what is known as the second stage of the peace conferences. After more than seventeen months of peace conversations in Oslo, the Colombian society has not been informed about the status of the conversations. However, even though the peace conversation has not reached a permanent peace agreement yet, the government has already started to construct the legal platform for transition. So far, two legislative enactments have been approved by the Congress on that matter.

On June 2011 the Congress approved the “Law of Victims and Land restitution” which established a set of measures to achieve the reparation of victims from the conflict. The law grants material and symbolic reparations to all victims of the conflict no matter which side the perpetrator was on. As part of the measures to assure the reparation of victims, the law guarantees land restitution for those that were stripped from their land as consequence of the conflict.
Experts and academics have praised the law because it includes many effective mechanisms for reparation, such as the inclusion of special provisions for woman and children, and the inclusion of programs for physical and psychological rehabilitation of victims. However it has also been criticized for excluding the members of irregular groups as possible victims.

In July 2012 the Congress approved “The Legal Framework for Peace”, a succinct document that establishes the foundations for the transitional legislation that will be issued after the peace conference ends successfully. The enactment lays down two main provisions. Firstly, it establishes that the Congress shall pass new legislation to allow special criminal treatment for those FARC members who want to demobilize and renounce to violence.
Secondly, the enactment establishes that the Congress shall approve a law defining in detail the category of political crimes, which at present is loosely defined in the Colombian legal system. The Colombian Constitution only allows access to public office to those sentenced by political crimes and not by ordinary crimes. The enactment orders that a clear definition of the category of political crimes must be made, but specifically excludes from this category genocide and crimes against humanity. This might be a prelude that the governing party in the Congress will try to expand the category to other crimes, opening the door for political participation to those condemned by terrorism, drug trafficking or war crimes.
Despite these steps forward, most of the legal transitional building is not constructed yet. An agreement with the FARC will be needed to know in detail what is required to complete a massive demobilization of FARC combatants.

Learning from the transitional experience of the paramilitary groups

On July 2003 the government and the “United Self-defence Forces of Colombia” (the AUC by its Spanish acronym), the main right-wing paramilitary group in the conflict, reached an agreement to complete a massive demobilization of combatants and breakup of the organization before the end of 2005. A second agreement was signed on May 2013 that demarcated an area of 368 km in Tierralta, Cordoba, to concentrate AUC’s combatants and facilitate the demobilization process.

In the framework of that negotiation the Congress approved a transitional legislation named the “Law of Pace and Justice” that regulated issues such as reparation of victims, truth enquiry and criminal benefits for demobilized combatants. One of the main relevant inclusions of the “Law of Peace and Justice” was the creation of a truth commission (Comisión Nacional de Reparación y Reconciliación) aimed to facilitate the reinsertion of combatants into civil life, organize the reparation of victims and lead the investigations of truth enquiry together with judicial institutions. The law also included reduced sentences for demobilized combatants -between 5 and 8years- in return for truth telling, reparation of victims, and the commitment of not returning to irregular activities.

The law however was widely criticized because it granted low prison sentences, did not include reparation programmes for victims of State actions and because it granted criminal benefits too easily, without ensuring full collaboration of demobilized combatants with authorities in the truth enquiry process. The Constitutional Court, in its decision “Gustavo Gallón Giraldo y Otros v. Colombia”, remedied the issue of criminal benefit access, ordering the inclusion of a sanction for combatants withholding information; however most polemic elements of the law were declared lawful, and little has been done to improve the legislation.

In addition to the concerns on the fairness of the legal regime that regulate the demobilization of the AUC, the process has highlighted some issues regarding the institutional efficiency in the functioning of the State apparatus that must be addressed to ensure an effective transition. For example, during 2014 and 2015 tens of processed ex-paramilitary combatants have been released as their 8-year prison sentence limit has been completed, some of them even before their trials ended. Likewise, the slowness of the criminal trials is delaying the reparation of victims, who in most cases cannot assure symbolic or financial reparation if the process has concluded. It is necessary that Colombian institutions critically analyze the transitional legal regime and the functioning of the AUC’s demobilization process, in order to address some of the problems that may occur in the demobilization process of the FARC.

Colombian transitional justice and the rule of law

There is no doubt that the Colombian government will need to grant some concessions to the FARC if it wants to achieve peace. However any commitment must comply with international regulations and the principles of the rule of law to be legitimate. In the next section I will analyze some of the requirements the legal structure for transition must include to comply with international obligations and the principles of the rule of law.

Human Rights abuses

After more than fifty years of military conflicts both FARC and the State have committed grave human rights violations that must be investigated. There is no complete transition without justice, so while the government might need to concede criminal benefit to FARC members in order to achieve a massive demobilization of combatants, proven perpetrators of systematic human rights violations and terrorist attacks must be criminally prosecuted without generous legal concessions. “The Legal Framework for Peace” is not clear in excluding the possibility of granting a general amnesty or criminal benefits to cases of crimes against humanity, genocide, terrorism or systematic violation of human rights. Granting amnesties or criminal benefits for those crimes will undoubtedly contravene the Rome Statute and the obligations derived by international human rights law. The Inter-American Court of Human Rights has been clear in this regard stating in one of its decisions that “[t]he State has the legal duty to prevent, in a reasonable way, human rights violations. (…) This duty of prevention, includes all legal, political, administrative and cultural measure, that promote the protection of human rights and assure that any possible violations will be effectively treated as an illegal act and, therefore, susceptible of carrying sanctions for the perpetrators” . Additionally, prison sentence limits included in any future legislation must be fair and proportional with the committed crime. The experience with the AUC showed that a short prison sentence can provoke an incomplete sense of justice, which may affect the social reconciliation process and erode institutional credibility.

Likewise, any plan to prosecute human rights abuses during the conflict must, not only include formal investigations and trials against military officers involved, but moreover impose more severity to them than to rebels, as members of the armed forces represent the public institutionality, which make their acts even more reprehensible. The “Law of Victims and Land restitution” opens the door to reparation of victims of State actions, however, that reparation will not be completed if justice is not imposed to military agents responsible for grave crimes.

Reparations for victims

Reparation is crucial for completing transition since it represents the public recognition of victims’ suffering. The aim of reparation is to reduce the inflicted harm in order to help the victims forgive and forget. In that matter, transition to peace will not be completed in Colombia if fair reparation is not assured for all the victims of the conflict. The Colombian State must repair all the victims despite which group committed the harm. This obligation is included in the United Nations Basic Principles on the Right to a Remedy and Reparation, where it is expressed that the State should “endeavor programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.” This has been largely debated in Colombia since, as a developing country, it has budget limitations for assuming a large reparation programme for victims. The example of other transitional process could help on conceiving mechanism for coping with that responsibility. In South Africa, for example, the Truth and Reconciliation Commission (TRC) suggested the creation of a wealth tax to be imposed on rich companies that made business during the apartheid, in order to create a fund that will be used for reparations. The “Law of Victims and Land restitution” opens the door to reparation of victims of State actions, but so far little has been done to comply with this aspiration.

However, reparation is not enough to reconcile with the past: justice is needed for victims to forget and forgive. It is mistaken to focus Colombian transition solely on victims’ reparation without assuring fair punishment to those responsible for grave violations of human rights and terrorist attacks.

Truth Commission

Transition can only be completed if the truth about the conflict has been told. Moreover, a real story telling of the conflict must be established in order to determine who the victims are and how they should be repaired. Other transitional process, such as in South Africa after apartheid, proved the convenience of extra-judicial methods of truth enquiry such as truth commissions. The Colombian transition will require the installation of a truth commission headed by independent and trustworthy personalities, as it has been recognized by both transitional enactments passed so far: the “Law of Victims and Land restitution” and the “Legal Framework for Peace”.

However, depositing too much confidence in truth commissions could be problematic since making perpetrators confess the truth about their actions might require some criminal concessions to be granted, which may affect the possibility of making justice. Additionally, as Truth Commissions are non-judicial institutions in which members do not need to have a legal or judicial background, its conclusion will not necessarily be based on due process and impartial enquiry. Therefore, the work of a Truth Commission must be complemented with an ordinary judicial mechanism for guaranteeing impartiality in the truth enquiry and fair prosecution of those responsible for systematic violation of human rights and terrorist acts.

Political Participation

Providing political participation to anti-establishment groups is a sign of having a healthy democratic system. Assuring the participation of groups and people linked with the FARC after a peace agreement is signed will be necessary to achieve transition to an open and accountable democratic system. However, while probably the FARC will request access to political participation without losing its political and ideological identity, the government must exclude the participation of those members that were linked to grave human rights violations and terrorist attacks. The Colombian Constitution includes the category of “political crimes” as a legal loophole to grant amnesties and allow political participation to people connected with the conflict. According to the “Legal Framework for Peace”, the Congress shall approve a law defining the concept of “political crimes”. This will define which convicted FARC members can participate in politics after they comply with their prison sentence. However, as the enactment only excludes from this crime category acts of genocide and crimes against humanity, this could open the door to FARC members convicted for crimes of war, acts of terrorism, drug trafficking or recruitment of child soldiers. These crimes are contrary to democratic society so any future legislation must ban FARC members convicted for these reasons.

Conclusions

The signing of a peace agreement between the State and the FARC will open the door to the transitional road to peace. To complete the transition successfully it will require an ad hoc legal structure that can accommodate the demands of the FARC for demobilizing its members. However, this transitional law must comply with international legislation and the principles of the rule of law to be considered legitimate and, therefore, must do a number of things. Firstly, proven perpetrators of systematic human rights violations and terrorist attacks must be criminally prosecuted without generous legal concessions. Secondly, the Colombian State must repair all the victims despite which group committed the harm. Thirdly, the Colombian transition will require the installation of a truth commission headed by independent and trustworthy personalities. Finally, the government must exclude from political participation, those FARC members responsible for grave human rights violations and terrorist attacks.

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About Ernesto LaMassa

Ernesto LaMassa is a former research assistant at the HSC and a qualified lawyer specialised on Human Rights and Public law. His research interests include the correct interpretation of rules in public international law and the practical consequences of considering human rights as morally binding.