Colombia: Chance to Fix Flawed Transitional Justice Law

The justice component of the peace accord with the Revolutionary Armed Forces of Colombia (FARC) has significant flaws that the Colombian Constitutional Court should address, Human Rights Watch said today. The court is set to review Constitutional Amendment 1 of 2017, which created the Special Jurisdiction for Peace, a judicial system negotiated with the FARC as part of the talks that resulted in a peace agreement in November 2016 after more than 52 years of conflict.

The court should limit a broad provision allowing FARC guerrillas to seek or hold public office even while serving sentences for grave abuses, Human Rights Watch said. Such a change should ensure that sanctions against them are carried out fully and unconditionally. The Constitutional Court should also fix the amendment's narrow definition of "command responsibility" -the basis on which military commanders can be held criminally responsible for crimes committed by their subordinates. The definition in the amendment is inconsistent with international law, Human Rights Watch said, and could allow senior officers of the Colombian Armed Forces to escape justice.

"In passing the amendment, Congress missed an opportunity to fix substantial flaws in the justice component of the peace accord," said José Miguel Vivanco, Americas director at Human Rights Watch. "The court has a chance now to lay the groundwork for proper accountability both for senior army officers and FARC guerrillas who committed war crimes."

The Constitutional Court has, in the past, played a key role in ensuring justice for victims of the armed conflict. In 2006, the court corrected major problems in the Justice and Peace Law governing the demobilization of paramilitary death squads. In 2013, it altered a constitutional amendment -known as the "Legal Framework for Peace" - that would have allowed Congress to suspend the sentences of state agents and guerrillas convicted of atrocities.

Under the peace accord and Constitutional Amendment 1 of 2017, FARC guerrillas responsible for war crimes would face no restrictions on their political rights. While a fundamental aim of the peace process is to allow the former FARC guerillas to pursue their political objectives within the democratic arena, running for and holding office while serving a sentence could seriously undermine the sanctions imposed by the Special Jurisdiction for Peace for offenses as serious as war crimes or crimes against humanity, Human Rights Watch said.

Since its formation in the mid-1960s, the FARC has committed systematic atrocities. The guerrillas have killed and abducted civilians, taken hostages, carried out enforced disappearances, used child soldiers, conducted grossly unfair trials, forcibly displaced civilians, and subjected captured combatants to cruel and inhuman treatment.

Definitions of "command responsibility" proposed during the peace process that will eventually apply both to military officers and guerrilla commanders, have drawn concerns repeatedly from Colombian rights groups and various international organizations, including the International Criminal Court (ICC) prosecutor. Human Rights Watch has criticized definitions proposed as applicable to both parties to the accord, including one applicable to FARC guerrillas that has yet to become law. In January 2017 Human Rights Watch wrote to legislators criticizing the definition proposed then for senior officers of the Armed Forces-identical to the one passed in Constitutional Amendment 1 of 2017- as distorting international law in a way that could severely weaken accountability.

Between 2002 and 2008, army brigades across Colombia killed more than 3,000 civilians, in what are known as "false positive" cases. Under pressure from superiors to show "positive" results and boost body counts in the war against guerrillas, soldiers abducted victims or lured them to remote locations under false pretenses. The soldiers killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action.

While more than 1000 soldiers have been convicted for these crimes, few commanders who led brigades responsible for the killings and later rose through the military ranks have been held accountable. It is still unclear whether the Special Jurisdiction for Peace -which will hear cases of crimes related to the armed conflict- will handle these cases.

"If the Special Jurisdiction for Peace handles false positive killings and applies the legislature's distorted definition of command responsibility, senior officers responsible for these appalling murders may never face justice," Vivanco said.