Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (24 page)

Formal negotiations between the parties began in January 2003. Simultaneously, members of the Uribe administration – including the President – began to speak of possible alternatives to detention and prison terms for guerrillas and paramilitaries who committed heinous crimes yet agreed to participate in a peace process. On July 15, 2003, the Uribe administration and
AUC signed a formal agreement, the
Acuerdo de Santa Fe de Ralito
(Santa Fe de Ralito Accord) and announced that by December 2005, around 13,000 men would demobilize.
[16]
Two dissident paramilitary groups announced their willingness to join the peace negotiations, which would mean the demobilization of another 6,000 armed men. On November 24, 2003, the President suspended arrest orders for the leaders of
Bloque Cacique Nutibara
(BCN),
[17]
an AUC group comprised of around 850 men. BCN members subsequently handed over their weapons and returned to their homes.
[18]
A second smaller group comprised of 155 men from
Autodefensas Campesinas de Ortega
demobilized on December 7, 2003. In short, for all practical purposes the demobilization process had effectively begun.

On April 16, 2004 Carlos Castaño, the political commander of AUC, disappeared. The negotiation process stumbled for a few weeks, but continued under the leadership of Salvatore Mancuso. In 2005, Ramón Isaza Arango assumed the role upon Mancuso's demobilization. On May 12 and 13, 2004, the Uribe administration and AUC adopted an agreement establishing an area in Tierralta, Córdoba for AUC representatives to settle while negotiations take place.
[19]
On July 1, 2004, negotiations formally began. Even though a cease‐fire, a stated requirement of the whole process, has not been completely observed, negotiations
continue.
[20]
By February 2006, 22,842 AUC combatants have put down their weapons in 30 demobilizations. They have also returned land comprising 6,500 hectares, buildings, vehicles, 14,141 weapons and ammunition.

Demobilizations take place in three phases under the responsibility of the Ministry of Justice and Interior. In the first phase, AUC presents the government with a list of men, weapons, vehicles, and communication equipment that will be demobilized. In the second phase, AUC members gather in a public act before government officials; they provide some basic information about themselves, attend workshops, and receive subsistence aid. The Prosecutor's Office determines whether there are any pending criminal proceedings against them. The third phase depends on the Prosecutor's findings. If a criminal investigation, charge or conviction is pending for conspiracy or lesser crimes, they are pardoned and the criminal charges or investigations are terminated.
[21]
Subsequently, they are allowed to return to their places of origin where local authorities are responsible for providing them with basic services and assistance. If the Prosecutor's Office finds that they have criminal charges or convictions for serious crimes, they have to remain in a “concentration zone” awaiting a special process under the criminal justice system to be specifically established for demobilized combatants.

The definition of a special, more lenient framework for individuals responsible for grave crimes that cannot be granted amnesties or pardons under the existing legal framework is the object of the justice and peace legislation discussed in this chapter. Among the demobilized, an undisclosed number of men stand accused or convicted of serious crimes and await a definition of their legal situation in
Santa Fe de Ralito.
[22]
The rest of the demobilized men who are charged or convicted of lesser crimes will benefit from Law 782 of 2002 and either their criminal investigations will be closed, charges will be dropped or they will be
pardoned.

In October 2003,
President Uribe submitted to Congress a legislative initiative that established alternatives to imprisonment for members of armed groups. The Uribe administration claimed that this initiative, known as the Alternative Criminal Law, solved the prohibition on granting amnesties and pardons for atrocities set forth in criminal legislation and in Law 782 of 2002.
[23]
The
government claimed to have based the initiative on the example of Northern Ireland. The two cases differ substantially, however. While in Northern Ireland the issue at stake was
finding a legal framework for the release of the Irish Republican Army members in prison, in Colombia very few combatants are in prison and a very small number of criminal investigations result in prosecutions against or convictions of perpetrators of serious or lesser crimes.

In 2004 and 2005, several attempts to reach a consensus on modifications of the bill among Congress members and cabinet members failed as opposing views on accountability for grave crimes became more apparent. Finally, and under the leadership of President Uribe, a new version titled
“Modified Draft Bill to the
Justice and Peace Law” (JPL) was submitted to Congress, which borrowed elements from prior drafts. The JPL was approved by Congress on June 21, 2005 and was signed by President Uribe on July 25, 2005.
[24]

The JPL claims that its purpose is to facilitate peace processes and the integration into civilian life of groups or individuals who are members of illegal armed groups, guaranteeing the victims rights to truth, justice and reparations. It aims to achieve those objectives by creating a legal framework for the investigation, judgment, punishment, and granting of benefits to members of illegal armed groups who demobilize and who may not be granted amnesties, pardons or any other benefit established in Law 782 of 2002. The bill establishes an alternative system of criminal justice, which entails the suspension of a criminal sentence and its replacement with an alternative punishment. Benefits are granted commensurate with the individual's contribution to attaining peace, justice, and reparations to the victims, as well as her or his
resocialization.

The JPL defines an “illegal armed group” as a guerrilla or self‐defense group, or a significant or integral part thereof, such as a
bloque
or
frente
, capable of launching sustained military actions, under a responsible command. It defines victims as persons who individually or collectively suffered direct damage as a result of crimes committed by illegal armed groups. Damage includes physical or mental injuries, emotional distress, economic loss, or violation of fundamental rights. The spouse, parent or child of a victim who was
assassinated or disappeared is also a victim. The JPL also includes definitions of the rights to justice, truth, and reparations.

The JPL sets different conditions for individual and collective demobilizations. In the case of collective demobilizations, benefits may be granted to members of an illegal armed group who are investigated, accused or convicted for crimes committed in relation to their participation and membership in this group, and who may not benefit from Law 782 of 2002. As established in that law, their names must appear on the lists of demobilized individuals that the President sends to the
Prosecutor's Office. Other requirements established in the JPL include that: the group must have agreed with the executive branch to its demobilization and dismantling; property obtained as a result of illegal activities must be handed over; minors recruited to the group must be handed over to the state's child welfare agency; groups must put an end to all illegal activities and cease all obstruction of the free exercise of political rights; and that groups must not have been created for drug trafficking or illegal profit‐making purposes. Members of illegal armed groups who are detained at the moment of the demobilization may benefit from the JPL.

Beneficiaries of individual demobilizations must fulfill similar requirements, including a need to show that the purpose of their activities could not have been drug trafficking or making illegal profits. In addition, individuals must provide information and collaborate in dismantling the organization to which they belonged.

The JPL provides for an oral hearing. Issues raised during the hearing must be resolved there, and notice of decisions is given during the hearing, pursuant to the newly implemented criminal procedure code. Beneficiaries may appoint defense counsel, and if they do not desire to do so, one will be appointed by the Public Defender's Office. The JPL creates a Special Unit for Peace and Justice within the Prosecutor's Office responsible for investigating the crimes to which this legislation applies and prosecuting them.
[25]
Tribunales Superiores de Distrito Judicial
(Appellate Tribunals) are the competent courts for this special procedure. Additionally, the JPL creates a Judicial Counsel (
Procurador)
for Justice and Peace in order to assist victims.

In practice, the special procedure would work as follows. The Prosecutor's Office receives the names of those individuals who are demobilizing, and may open, or continue pending, criminal investigations against them. Individuals demobilizing may choose to submit their version of the facts to the Prosecutor, describing the crimes they committed, with the aid of an attorney. This is also the procedural opportunity to surrender any property for reparations to victims. If the individual enters a guilty plea, the Tribunal holds a hearing to confirm that he is doing so voluntarily. Once that is confirmed, a sentencing hearing is held in the next five days. If from other evidence or testimonies, the Prosecutor determines that one of the individuals demobilizing committed other crimes and omitted to mention them in his oral statement, he will ask the Tribunal to hear the charges.

All crimes committed by an individual while he was a member of the illegal armed group are integrated into one procedure, resulting in one conviction and one sentencing. Additionally, any prior convictions
and sentences will be cumulated to this one. However, if the individual enters a guilty plea to some but not all the charges against him, the crimes for which he is not admitting his responsibility will continue to be dealt with under the regular criminal procedure. The punishment for the crimes for which he entered a guilty plea and/or collaborates as a witness or informant is cumulated to the alternative punishment. Furthermore, if after a ruling under the JPL or Law 782 of 2002 there is reason to believe that the individual committed other crimes related to his participation in the illegal armed group prior to his demobilization, those crimes will be investigated, prosecuted and judged under the ordinary criminal law. However, that individual may receive an alternative punishment if he enters a guilty plea or collaborates with the investigation of the crime. In that case, the alternative punishment would be cumulated to the punishment already imposed, abiding by the maximums set forth in the JPL. Finally, the decisions of the Tribunal may be appealed.

Reparations are considered in the same hearing, pending a prior request from the victim, the Prosecutor or the
Procurador
's delegate. The Tribunal holds a hearing in the next five days in which evidence and arguments on reparations are presented. Parties are encouraged to reach a settlement. If that is not possible, the Tribunal rules on the reparations motion during sentencing.

During the sentencing phase, the Tribunal rules on the regular punishments the individual would otherwise face, as well as on alternative punishment. In the sentence, the Tribunal describes the actions the individual must undertake, the economic and moral reparations he must pay to the victims and any loss of property to be used for
reparations. Alternative punishments consist of a prison term of between five and eight years, depending upon the nature of the crimes and the degree of collaboration offered. Beneficiaries must contribute to their resocialization through work, study or teaching during their imprisonment term, and promote the demobilization of the illegal armed group to which they belonged. Additional prison term reductions are not applicable. However, the principle of lenity applies and accordingly, if an individual is sentenced to a prison term of less than five years, he will serve that term instead of an alternative sentence. Additionally, once the alternative prison term is served, the individual is released on probation for one half of the prison term served. The alternative punishment may be revoked if the individual fails to comply with the probation terms, which entail obligations such as appearing periodically before the Tribunal, informing of any change of address; refraining from committing any crimes; and observing good behavior.

The JPL grants the government the power to determine where alternative prison terms should be served. It provides that those places should be similar to the rest of the prisons in terms of “safety and austerity”, but contemplates the possibility of serving prison terms abroad. Additionally, up to 18 months of the time individuals spent in the concentration zones during the negotiation process, should be counted as time served.

The JPL establishes that the state has the obligation to protect the rights of the victims: to privacy; to their safety, and that of their relatives and witnesses; to reparations, provided by the perpetrator of the crime; to be heard and be permitted to present evidence; to receive adequate information for the protection of their rights; to know the truth about the crimes committed against them; to be informed of the decision to prosecute and to challenge it; to be represented by an attorney or the Procurator's Office; to receive assistance for their physical or mental recovery; and to a translator or interpreter if necessary; and to receive humane and dignified treatment.

In those cases in which it is not possible to identify the perpetrators, but the link between the harm caused and the illegal armed group benefiting from this law is established, the Tribunal should order the
Reparations Fund to pay reparations to the victims. The JPL defines reparations as the duties to restitution, compensation, rehabilitation and satisfaction. Accordingly, for a beneficiary of the JPL to be released on probation, he must have handed property for reparations over to the Victims Reparations Fund (VRF), carried out the reparation actions he was ordered to do, and collaborated with the
National Commission on Reparations and Reconciliation (NCRR), or signed an agreement with the Tribunal promising to comply with such obligations. The JPL lists the following as reparation actions: handing over to the state illegally obtained property; public statements that re‐establish the victims' dignity; public acknowledgment of the harm caused to the victims, expressing remorse, asking for forgiveness and promising not to commit those crimes again; and providing effective collaboration in finding and identifying
kidnapped or disappeared persons and the human remains of victims.