December 16, 2015
Tuesday’s historic accord on victims explicitly seeks to ensure the rights of victims through an Integrated System of Truth, Justice, Reparations, and Non Repetition. According to the joint communiqué issued by the government and FARC-EP delegations on Dec. 15 as they closed their 45th cycle of peace talks, this innovative system begins with the explicit recognition of victims as “citizens with rights.”
Integrated System for Victims’ Rights
The accord takes as its compass a Declaration on Principles formed by the parties in June 2014, at the beginning of the delegation’s discussions on the topic of victims. The system forges a complex and integrated set of institutions and frameworks meant to satisfy the rights of victims to truth, justice, reparations, and non-repetition. This new architecture for peace includes both judicial measures for the investigation and sanction of violations of human rights and international humanitarian law, and complementary extrajudicial measures to clarify what happened, locate those persons who disappeared in the context of the conflict, and provide individual and collective reparations to those persons and regions harmed by the conflict.
In the presentation of the accords on Dec. 15, lead government negotiator Humberto de la Calle noted that the agreement will provide restorative measures, accountability, and juridical security. Lead FARC negotiator Iván Márquez underscored that this is the “first peace accord that has not closed with a general amnesty, but with the creation of justice for all human rights violations.”
Special Jurisdiction for Peace
Among the judicial measures is a Special Jurisdiction for Peace, constituted by a special tribunal for peace and justice courts. Details of this Special Jurisdiction for Peace, announced somewhat prematurely last Sept. 23 (see my previous posts), were clarified in the parties’ joint communiqué and the accompanying 63-page agreement that constitutes the provisional draft of the agreement on victims. (None of the agreements reached thus far on the four agenda items will be considered final until the full agreement is signed.)
Particularly contentious items had included the terms for the appointment of judges on the Special Tribunal for Peace, and the extent of the tribunal’s jurisdiction over ex-Presidents. These and other pending issues (including reparations) have been clarified, though there are still some minor points that have been put on a back burner along with the other “salvedades” from previous agreements.
No “Exchange of Impunities”
The new Special Jurisdiction for Peace (SJP) presumes the innocence of those charged and has jurisdiction over all those who directly or indirectly participated in the conflict, including guerrillas as well as State agents or other parties. The parties promise that there will not be an “exchange of impunities” and that those accused of war crimes, crimes against humanity, and genocide, as well as those accused of common crimes, will be investigated, prosecuted, and punished.
The United Nations issued a statement recognizing the particular value of the differential approach of the accord, particularly with regard to women’s rights. The Special Jurisdiction for Peace specifically rejected amnesty for sexual violence.
The justice system outlined on Tuesday privileges truth-telling and the assumption of responsibility by those who participated directly or indirectly in the conflict and became involved in human rights violations or infractions of international humanitarian law. In the Special Jurisdiction for Peace, those who fail to provide the truth or accept responsibility for their criminal actions will face 15 to 20 years of jail time. Those who delay coming clean before they are sentenced will be sentenced to 5-8 years in jail.
Reduced alternative sentences of 5-8 years of “effective restriction of liberty and rights” will be granted to those who fully assume responsibility for their crimes, provide the full truth of what happened, and carry out reparative actions. Where and how the “effective restrictions of liberty” will be enacted have not been specified, though government negotiator Humberto de la Calle noted that there would be appropriate monitoring mechanisms “according to the particularities of each case” and in keeping with the spirit of the agreement. (See El Espectador, “Acuerdo sobre victimas busca cerrar heridas de decadas”, Dec. 15, 2015.)
Amnesties for Political Crimes
On the other hand, the parties’ integrated system provides “the broadest possible” amnesty and pardons for “political” and “related” crimes. These measures conform with standards of international and national law. Political crimes include the crime of rebellion, which traditionally has received amnesty under Colombian law.
An amnesty law is anticipated to determine the scope of the crimes that would be covered in the transitional justice system. Related crimes will likely include drugtrafficking and other crimes committed in the service of the rebellion.
Investigations and Dismantling of Criminal Bands
The agreement on victims provides additional judicial measures, such as a new unit for the investigation and dismantling of criminal organizations and their networks. This would cover those successor groups that emerged following the demobilization of paramilitary groups.
Other Mechanisms for Truth, Justice, Reparations and Guarantees of Non-Repetition
In addition to the retributive justice demanded under the Special Jurisdiction for Peace, the accord on victims emphasizes restorative justice and reparations. (See El Espectador article summarizing reparations here.) The accord calls for integrated reparations that will complement agreements already reached on rural development, political participation, and cultivation of illicit crops. Such reparations will favor the populations, collectives, and territories that have been most affected by the conflict.
A Commission for Clarifying Truth, Harmony (Convivencia), and Non-Repetition will be launched once a final agreement is reached. This truth commission will draw on the work of the Historical Commission on the Conflict and its Victims, established by the parties at the peace table. Their reports on the origins, causes, and impacts of the conflict were issued in Feb. 2015 and will constitute “fundamental inputs” for the truth commission, noted Iván Márquez, head of the FARC delegation. “Without truth,” noted Márquez at the launch of the Victims Accord, “reconciliation is not possible.”
Likewise, a special unit for the location of persons who disappeared in the conflict will be established. In recent months, the parties have agreed on protocols and measures for other restorative measures. These include clearing the land of mines and other explosive devices (IEDs) and unexploded ordnance; these measures are already being implemented jointly by the Colombian Army and FARC-EP soldiers in the departments of Antioquia and Meta.
Vision for the Future
The accord on victims is forward thinking. It calls explicitly for measures to prevent re-victimization and repetition, encourages society to reject war, to secure the end of the conflict, and to “impede the emergence of new forms of violence.” It assumes peace as “the all-encompassing right (derecho síntesis) of all human rights,” said Iván Márquez.
The Accord heralds hope for the new year. As Humberto de la Calle said in his closing statement when the accord was made public, “the face of peace is beginning to appear. Peace is possible. It is time to believe.”