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JUSTICE AND PEACE ?– Colombia’s transitional justice

systemPeter Burbidge

Westminster University

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Transitional justice principles

• UN (Louis Joinet) principles 1995

• Justice – access for victims + an adequate punishment for war-crimes etc.

• Truth + collective memory

• Full reparation for victims

• Guarantee of non-repetition

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Transitional Justice examples

• South Africa peace settlement with amnesties subject to Truth & Reconciliation commissions.

• Northern Ireland – Good Friday agreement – release of “political” prisoners. No further prosecutions?

• Colombia – a transitional justice system but without the transition to peace!

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Colombia’s civil conflicts

• 1948 Bogatazo uprising leads to Violencia civil war – conservatives v. liberals.

• 1958 national front- alternate governments

• 1964 – FARC peasant guerrilla uprising starts. [other groups e.g ELN, M19]

• 1965 – government “state of emergency”. Decree 3398 allows MoD to arm civilians temporarily.

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The paramilitaries - 1

• 1968 - Decree now permanent – “self-defence groups” created with military support.

• 1970s onwards – land-grabs, drug-trafficking, massacres, murders.

• Targets – peasant farmers, trade-unionists, journalists, politicians – lawyers.

• 1987 19 merchants massacre [1989 - investigators massacred]

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The paramilitaries - 2

• 1989 – Decree 1194 makes self-defence groups a crime

• Also a crime - promoting, directing, fostering, financing, organising, training or equipping especially if ex-military.

• State responsibility for “interpretation of legal framework that gave them cover” Inter-American Court of Human Rights.

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Peace initiatives – up to 1991

• Conditional amnesties for political crimes offered in 1981, 1982, 1985, 1989, 1990.

• 1984 FARC ceasefire - creation of Union Patriotica (UP) with communists.

• 1984 -1990s assassination of 3,000 UP party members by paramilitaries.

• 1985 M19 occupation of Supreme Court ends with over 100 dead (13 judges).

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The 1991 constitution

• March 1990 – M19 signs peace deal forms Alianza Democratica (AD-M19)

• May 1990 AD-M19 win 13% of vote.• Constituent assembly (AD-M19 with 19

members) votes new constitution. Rejected by FARC.

• International treaties e.g American Convention on HR have higher status than Colombian law

• Human rights, social, environmental and economic rights

• Right of complaint to Constitutional Court (tutela)

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State of play - 2002

• Guerrilla numbers (combatants) – FARC 13,000, ELN 4,000 [MOD figures]

• Paramilitary numbers (AUC) – 13,500• Many child soldiers • 3.6 million displaced persons• Over 60% best land in AUC hands• FARC and AUC links to drug-trafficking.• At least 300,000 dead.

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Uribe – democratic security

• Elected May 2002 (re-elected 2006)

• Big military increases

• Strategy - demobilise paramilitaries, negotiate with ELN (Cuba), put military pressure on FARC.

• NB. Changes to justice system (inquisitorial to oral accusatorial) 2005

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Demobilisation

• December 2002 – AUC permanent ceasefire. Law 782 of 2002 – amnesty & rehabilitation.

• November 2003 – 1st of 37 demobilising ceremonies. AUC held in camps.

• By June 2006 30,944 paramilitaries demobilised – 17,564 weapons collected.

• Individual demobilisation – 12,000 (mostly FARC) Rehabilitation programmes.

• June 2005 Justice and Peace law 975 of 2005 – alternative sentence.

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Amnesty?

• Constitution 1991 allows amnesty for “political crimes” e.g. rebellion.

• 2005 Law – membership of armed group = sedition = rebellion = political crime.

• Hence paramilitaries can be amnestied!• Constitutional Court (May 2006) amnesty invalid

as incorrect procedure (not retrospective)• Supreme Court (Aug. 2007) no amnesty for AUC

members as not rebelling so not political!

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Human Rights - impunity

• Inter-American Commission/ Court of human rights (Washington + San Jose)

• No amnesties for major HR violations.• Impunity: “the failure to investigate, prosecute,

capture, judge and convict those responsible for violations of human rights”

• Mapiripan 2005 – Prosecutors must a) identify victims; b) recover and preserve evidence; c) identify and take statements from witnesses and d) determine the cause, place and time of death etc

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Rome Statute of the ICC 1988

• International Criminal Court – Nov. 2002 - jurisdiction over Colombian war crimes committed after that date:

• Genocide (Rome Statute art. 6)• Crimes against humanity (art.7)• war crimes (art.8) – Colombian declaration

under art.124.• State must investigate, prosecute and

impose adequate penalties.

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War crimes – art.8

• Is this an “armed conflict”? i.e. “protracted armed conflict between government and organised armed groups or between such groups”.

• If only “internal disturbances” Art.8 does not apply. Gov. says fighting terrorists!

• Colombia’s suspension under Art.124 expires Nov. 2009. ICC will then have jurisdiction for war crimes since 2002.

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Justice and Peace Law

• Covers crimes committed whilst member of armed group

• Basic idea initial penalty under Penal Code (say 60 years) is reduced to 5-8 years alternative sentence provided free and full confession.

• If not full truth (crimes, location of bodies etc) the initial After sentence must serve probationary period of half the sentence. Any crimes committed revive the initial penalty.

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Rights of victims - reparation

• (1) The Compensation Fund i.e. assets and resources recovered from armed group plus government budget and private donations.

• (2) The National Commission for Reparation and Reconciliation (Gov. members + Advocate General + H.R. Ombudsman + victims associations).

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Rights of victims continued

• (3) Measures include restitution, compensation, rehabilitation, just satisfaction, symbolic remedies e.g. apology, public acceptance of responsibility + guarantees of non-repetition + collective measures e.g. the reconstruction of displaced communities.

• (4) Relatives showing damage (psychological, physical or financial) count as victims with rights to reparation, truth and justice.

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Rights of victims - Truth

• Joinet plus UN restatement 2005• right to know truth about atrocities,

circumstances and motives for them• right to collective memory through the

preservation of archives • right of family to know the whereabouts of

the victim.• May 2008 Extradition of Mancuso + 14

others?

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Rights of victims in Justice & Peace

• Access to justice, to be heard, to bring evidence, & receive prompt reparation

• To indicate property not handed over by D.

• To have adequate safety guarantees

• To bring proof of damage

• Rights to legal assistance, humane treatment, translators etc

• www.fiscalia.gov.co/justiciapaz/Victimas

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Confession hearings

• First hearing – duty to give true & full confession on links with armed group, structure and activities.

• Victims informed

• Second hearing – victims can question D over each matter confessed – bring contrary proof etc.

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Does it work?

• 3,017 AUC in process – hearings begin.• Threats to witnesses/ victims leaders • Discovery of bodies – over 10,000 disappeared.

Thru J&P aprox.1,000 sites discovered.• A certain lessening of violence• Limited funds recovered - no compensation but

some restitution of lands.• Resources for 2008 – prosecutors up from 23

to 225; researchers from 40 to 800!

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Risks for lawyers in this

• Demobilised guerrillas etc act as paid informers.

• Evidence of extra-judicial killings by military

• Guilt by association – Government labelling of NGOs, lawyers etc “linked” to FARC. Cp Finucane case in N.Ireland.

• Claims against NGOs e.g. for defamation

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Claims against multinationals

• Assassination of Trade unionists (78 in 2006)• Chiquita Bananas – fined $25 m. by US court for

paying off AUC up to 2004 [NB AUC on US terrorist list on 10/9/2001]

• Claims in US courts for damages by victims• Others thought to have used paramilitaries

include Coca Cola, Repsol, BP etc. [See reports of Tribunal Permanente de los Pueblos www.tppcolombia.info ]

• June 2006 UK claim for £15m by 60 farmers against BP settled by mediation.

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Conclusion

• 2005 Law = a reasonable framework but under-resourced hence

• Results so far inadequate.

• No substitute for a political settlement as causes of paramilitarism still exist.