The whole world is waiting with bated breath at the La Habana Peace Talks between the Colombian Government and the FARC. Not only might this be this the way to end one of the longest armed conflicts in the last decades, but it could also offer a plethora of deeply-thought, well-advised measures in order to cope with the problematic legacy of the conflict.
Among these measures, the creation of a “Comprehensive System of Truth, Justice, Reparation and Non Repetition” is an extremely interesting proposal within the transitional justice scheme.
As the name itself suggests, this system takes a holistic approach, which combines different mechanisms that pursue the key goals of truth, justice, reparation and non-repetition. The proposal for the creation of this system is based on three complementary mechanisms: a Truth Commission, a Special Jurisdiction and an amnesty law. The present post examines the main features of these three mechanisms.
- The Commission for the Elucidation of Truth, Coexistence and Non-Repetition
The Agreement on the creation of a Truth Commission (TC) was reached last June and, although it might need further clarification, it already contains the basic conditions for its enactment. The “Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición” shall have the broad mandate of investigating the armed conflict in general, including its root causes, its impact on society and the serious human rights violations committed therein from a historical perspective. Besides collecting any useful material for this investigation, it may hold public hearings, thereby providing a public forum for narrative, recognition and a possible apology. The proposal devotes great attention to the criteria for the commissioners’ appointment and it envisages the creation of a follow-up mechanism in order to supervise the status of implementation of the Commission’s final recommendations.
A very interesting feature of this proposal is the clear separation provided between the TC and any judicial activity. Firstly, the Agreement clearly states as follows:
“[the TC] activities will not be of a judicial nature, and they may not imply criminal charges against those who appear before it. The information received or produced by the Commission may not be conveyed by it to the judicial authorities to be used for attributing liabilities in judicial processes or have evidentiary value; likewise, judicial authorities may not demand it”.
Though it does not clarify how to grant such a separation, this provision aims at avoiding problems of coordination and overlapping between the TC and the judicial activity. It also prevents the possible infringement of the suspects’ defence rights, including the right not to incriminate oneself, which would be violated if their statements given before the TC were used within a trial.
Secondly, the Commission will have the power to investigate and find “collective responsibilities” of all groups involved in the conflict, but apparently not to ascertain individual responsibility nor to “name names”. Declaring individual responsibility and imposing sanctions is therefore an exclusive prerogative of judicial investigation. Such a clear separation between judicial and historical (or collective) truth is certainly a positive achievement of this proposal.
- The Special Jurisdiction for Peace
The negotiations’ second key issue relates to individual responsibilities stemming from the crimes committed during the conflict. Following a long debate, a communiqué published in September disclosed an agreement for the creation of a Special Jurisdiction for Peace, which would resemble a hybrid tribunal, since it will be composed of both Colombian and foreign judges, which however will constitute a minority.
Its core idea is to distinguish between two parallel paths and three levels of sanctions, depending on whether or not the suspect recognises the truth and his/her responsibility for the crimes. Thus, a sentence shall be imposed on those suspects who make such recognition, every time their statements are confirmed by resorting to additional evidence.
The agreement says that the sanction “will have a component involving the restraint of liberties and rights, ensuring the fulfilment of the reparation and restoration functions thereof through the engagement in jobs, works and activities and, in general, the satisfaction of the victims’ rights”. Where the person involved admits to have committed very serious crimes, the penalty will consist of the “effective restraint of liberty, under special conditions” from five to eight years. This rather ambiguous provision does not imply prison, but alternative restricted spaces such as prison farms or work camps, where people have their freedom of movement restricted but are under a more flexible regime than in jail. Additionally, convicted people will be required to cooperate in activities like demining, building infrastructures, etc. These sanctions are therefore aimed at contributing to victims’ reparation. Besides, they might prove extremely useful for reintegration and resocialisation of convicted people.
A second set of measures will be applied to those suspects who make a belated recognition of their responsibility (namely, after a judicial proceeding has been opened against them). They will be sentenced to the same reduced period of restraint of liberty (five to eight years), but this time these would be served in prison “under ordinary conditions”.
Finally, suspects who do not make such recognition shall face a trial based on cross-examination and be subject to an ordinary prison penalty of up to 20 years.
This three-level system of sanctions clearly aims at providing incentives to perpetrators to disclose the crimes and recognise their responsibility. Accordingly, the imposition of both reduced prison penalties and alternative penalties amounts to a flexible and creative application of criminal law, which is legitimised by the special circumstances of the peace process. Furthermore, these alternative sanctions show a shift from a purely retributive criminal system towards forms of restorative justice.
- Amnesty provisions
The Agreement for the creation of a Special Jurisdiction for Peace also envisages the enactment of an amnesty law. Point 4 of the Agreement affirms that “upon the termination of hostilities, pursuant to IHL, the Colombian State will grant the broadest possible amnesty for political and related/connected crimes”. The reference to International Humanitarian Law (IHL) recalls the view already expressed by the Inter-American Court of Human Rights (IACHR) in the El Mozote v. El Salvador case. According to that Judgment, to determine the validity of an amnesty law enacted within negotiations to put an end to an armed conflict, one should make reference not only to International Human Rights Law, but also to IHL, especially to art. 6 of the II Additional Protocol to the Geneva Conventions that recognises amnesty as a tool for peace (para. 284 et seq.). This would be the case for Colombia as well, insofar as its current priority are the ongoing negotiations to cease a long-term armed conflict.
The exact meaning of the “related crimes” category will be defined by a law enacted by the Parliament. Yet, the Agreement already establishes that a number of crimes shall be excluded from its scope, namely, “the conducts typified in the national legislation as corresponding to crimes against humanity, genocide, and grave war crimes, among other serious crimes such as the taking hostages or other serious deprivation of liberty, torture, forced displacement, forced disappearance, extra-judicial executions and sexual violence”. The exclusion of conducts that amount to core international crimes and to other serious crimes seems in line with the international duty to prosecute international crimes, insofar as one interprets it in a flexible manner, namely, allowing partial or conditional amnesties that do not cover international crimes.
- Challenges ahead
There are still important challenges ahead to reach a full agreement on the delicate issues of truth, justice and reparation within the peace talks in La Habana.
First, the negotiating parties still have to define further details for the creation and functioning of the three mechanisms described above. Moreover, since the principle underlying the whole process is that “nothing is agreed until everything is agreed”, each of the partial agreements might theoretically be submitted to revision.
Second, after the Final Agreement is signed, Colombian citizens are required to ratify it in a referendum or plebiscite, the result of which is not fully predictable. Additionally, Colombian institutions will have to enact legislation to implement what has been agreed. This not only requires the necessary consensus among the political parties, but also a thorough drafting, in order to grant the compatibility of the new mechanisms with the existing institutions, proceedings and laws (not least, the constitutional reform of 2012).
Last, one cannot easily predict the reaction of international bodies such as the ICC and the IACHR, which will probably have to verify the compatibility of these mechanisms with international legal standards.
Still, the Comprehensive System that has been proposed in La Habana is in my view very smart, innovative and well grounded. Therefore, it may definitely open a new stage in the development of transitional justice.
 For a deep analysis of this issue and for further references, see D. Pastor, “Acerca de la verdad como derecho y como objeto exclusivo del derecho penal”, in E. Maculan, D. Pastor (2013), El derecho a la verdad y su realización por medio del proceso penal, at 21 et seq.