With the right-wing opposition abstaining, the pro-government coalition in Colombia’s Senate passed, by a 61–2 vote, a law to create the “Special Jurisdiction for Peace” (Jurisdicción Especial para la Paz or JEP), the new transitional-justice system. Tribunals will judge ex-guerrillas and military personnel who carried out war crimes, as well as civilians who may have ordered, planned, or funded them. The next step is reconciling differences in the law’s House and Senate versions.
The Senate’s major changes to what was agreed in the peace accord are:
- Defining “command responsibility” for war crimes to a standard below that of the Rome Statute ([PDF], the international law creating the International Criminal Court), to which Colombia is a signatory. Article 28 of that statute says that commanders are legally responsible for war crimes that they, “owing to the circumstances at the time, should have known” about. The Senate version of the law, reflecting strong pressure from retired military officers, waters that down to commanders having “effective control of the conduct” of those who committed the crime. Former officers are likely to try to evade accountability by claiming that killers under their command were not under their control. If it stands, this is not going to go down well with the International Criminal Court or with human rights groups, including WOLA.
- Weakens the JEP’s ability to punish civilians who aided war crimes: they now cannot be tried if the evidence against them comes only from the JEP’s own proceedings.
- Puts off for a later law to determine how the JEP will go about deciding, case-by-case, what past drug-trafficking activity is a “political crime” that can be amnestied.
Colombia’s ability to implement the accords
Analysts are voicing worry, or outright pessimism, about the Colombia’s government’s ability—or will—to honor its peace accord commitments. Alejandro Reyes, a prominent Colombian scholar who advised Santos’s first agriculture minister, told the Los Angeles Times that he sees big pushback coming from a nexus of landowners and organized crime:
Researcher Reyes said carrying out those ambitious plans is a tall order for the government because as much as one third of the 15 million acres in question is now controlled by violent drug traffickers and other criminal groups.
“Many narcos and mafiosos have tried to seem legitimate by becoming huge landowners, mainly for cattle ranches,” said Reyes. “You can be sure they will react against any efforts to implement agrarian reform.”
In a piece published at Spain’s daily El País, Enrique Santiago, a Spanish lawyer who served as legal advisor to the FARC during the peace talks, ripped into the Colombian government’s poor implementation of the accords so far.
“The ZVTN [disarmament zones] were to have been built before December 1… but today it is an exception to see one with even half of its infrastructure built,” Santiago observes. “On December 30 the amnesty law was approved… however, judges haven’t applied it.… As of today they have approved less than 70 amnesties of guerrillas, five authorizations of transfer to ZVTNs, and no paroles.” The guerrillas’ own security is also at stake, Santiago adds: “One of the accord’s most important measures is the creation of a specialized Investigative Unit for the dismantling of paramilitary organizations… but the current Prosecutor-General, ignoring the peace accord, seeks to impede this special unit’s launch.”
El Tiempo reporter Marisol Gómez visited a FARC demilitarization zone in the northwestern department of Chocó that had only 31 guerrillas present because facilities still weren’t ready yet.
Violence in Chocó
Chocó, Colombia’s poorest department, has also been the site of numerous recent paramilitary incursions into zones of former FARC influence. These, along with fighting between the Urabeños neo-paramilitary group and the ELN guerrillas, have already displaced hundreds in the Upper Baudó River region, in the almost completely stateless southern half of Chocó.
More than two dozen retired generals and admirals wrote a letter to President Juan Manuel Santos voicing concern that the FARC’s disarmament sites will become permanent “independent republics,” the Los Angeles Times reported.
Meanwhile Defense Minister Luis Carlos Villegas said that 420 military personnel accused of war crimes (or perhaps accused or already sentenced for war crimes, it’s not clear) have already agreed to have their cases tried by the new Special Jurisdiction for Peace.