Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (25 page)

The JPL creates the NCRR. Its members are the Vice‐President, the
Procurador
General, the Minister of Interior and Justice, the Minister of Finance, the Director of the
Social Solidarity Network, the Ombudsman, and two representatives of victims' organizations. The JPL also creates Regional Commissions for the Restitution of Property, responsible for promoting actions to reclaim property rights, and a Victims
Reparations Fund administered by the Social Solidarity Network. The assets of the Fund will be the property handed over by the beneficiaries of this law, public resources and donations.

The NCRR is created for an eight‐year term. Its functions include: to guarantee the participation of victims in judicial proceedings and in the protection of their rights; to submit a public report on the reasons for the emergence and evolution of illegal armed groups; to follow up and verify demobilization processes (including the possibility of inviting international organizations or foreigners to participate in this activity); to follow up and periodically evaluate reparations – as established in this law – and make recommendations; to submit a report to the government on reparations to victims; to recommend reparations criteria to the VRF; to supervise the administration of the VRF; to coordinate the Regional Commissions for Restitution of Property; and to carry out reconciliation actions aimed at preventing new violent acts.

The JPL establishes the obligation of the state to preserve historic memory, which in this case includes the causes, developments, and consequences of the actions of illegal armed groups. It also indicates that the right to truth entails the preservation of archives and that access to them should be permitted to victims and their relatives, as well as to researchers, ensuring the right to privacy of victims of sexual violence, and avoiding causing unnecessary harm to the
victims.

The JPL represents a leap forward in contrast to the blanket amnesties passed in other countries of the region on the 1970s and 1980s. It contemplates a procedure to investigate the facts, pass judgment on the crimes, punish the perpetrators, and provide redress to the victims, while demobilizing combatants. As such, it reflects both a perceived need to meet the demands of international and regional law and to “talk the talk” of transitional justice. However, some important aspects of the legislation need to be improved in order to render it consistent with international standards. Next, we examine issues in the JPL that are cause for concern.

First, the JPL assumes that there is an effective, functioning justice system, with ongoing criminal investigations on cases relating to the armed conflict. That is not the case, however. There are significant gaps and failures in the collection of evidence, cases do not result in convictions, and worse still, many cases do not reach the indictment stage. It is important that the government considers the conditions under which
the JPL will be implemented, in order to create a realistic and sensible mechanism. The government has not followed previous recommendations of international bodies concerning the justice system. The inefficient justice system is probably one of the most important factors in the human rights crisis in Colombia. Thus, there is no reason to think that, without sustained attention, the new institutions will fare any differently, yet the entire scheme rests on the fragile base of existing criminal investigations and proceedings.

Second, from a practical perspective, it is necessary to consider the implications of the procedure set forth in the JPL. The Prosecutor's Office has only 60 days to carry out the criminal investigation resulting in charges against an individual. Allowing ample time for the investigation is fundamental in light of the complexity of the crimes, the armed groups' organization and command responsibility structure, and the difficulties in gathering evidence. However, once the individual is charged with an indictment, the procedure is swift, particularly if the individual decides to enter a guilty plea. Special consideration should be given to the rule that orders the cumulation of all criminal procedures against an individual into one single procedure as it presents practical difficulties, given that investigations will not advance simultaneously. It may force the Prosecutor to close pending investigations in order to comply, thus leaving crimes unsolved.

Third, the JPL favors the interests of demobilized individuals over those of the victims and society at large. A demobilized individual may obtain an alternative punishment for crimes for which he was convicted prior to the demobilization, during the demobilization, and even after he was sentenced to an alternative punishment. In all of these cases, it is sufficient that he collaborates with the criminal investigations or that he enters a guilty plea. The victim, on the other hand, has only one procedural opportunity to request a reparations motion. Additionally, for convictions that do not take place during the demobilization, the victim must initiate reparation motions according to the regular, more cumbersome, procedure.

Fourth, the allocation of resources is essential for the success of the JPL. Therefore, concerns have been raised regarding whether the Prosecutor's Unit specially created by the JPL will have sufficient staff and resources to carry out all the pending criminal investigations and prosecutions. This is a crucial element to ensure that the process does not result in impunity. Accordingly, efforts should focus on strengthening the capacity and resources of this Unit.

Fifth, victim status granted under the JPL should abide by international standards. A remarkable feature is that its definition of victims
applies the standards set forth by the
Inter‐American Court, that is, it considers the victims' relatives as victims themselves. However, it also includes in its definition of victims members of the Armed Forces and the Police who suffered direct harm as a result of the action of non‐state armed groups, and their relatives. Granting victim status to members of state armed groups flies in the face of basic norms of international humanitarian law, as it blurs the fundamental principle of a distinction between combatants and non‐combatants.

Sixth, the JPL should be consistent with its main objective of demobilizing combatants, rather than attempting to achieve contradictory goals. Following the procedure set forth in Law 782 of 2002, which contemplates individual and collective demobilizations, the JPL sets forth the possibility of granting alternative punishments in both situations. While supporters of individual demobilizations consider them necessary to encourage desertions from non‐state armed groups, opponents criticize them for deflecting efforts to bring pressure for collective demobilizations. The JPL establishes that demobilizing individuals must collaborate in dismantling the organization to which they belonged. The underlying purpose is to co‐opt combatants. Rather than focusing on offering conditions that ensure that combatants effectively and safely demobilize, and that allow them to find a livelihood unrelated to the conflict, the JPL promotes betrayal and demands that combatants continue to be involved in the conflict.

Seventh, the confession of demobilized individuals should be a requirement of the JPL. There have been ample discussions concerning whether confession should be mandatory or voluntary. The JPL has opted for the latter, arguing that individuals cannot be forced to incriminate themselves, much less when the result of a confession is a conviction.
[26]
Demanding confessions and admissions of their participation in an armed group could have provided invaluable information to ensure and protect the victims' right to truth as well as the general truth‐seeking process. This seems particularly relevant for a society in which the links between illegal armed groups, state agents, and private actors merits disclosure and debate in order to facilitate dismantling these organizations and resolving the conflict. Such a requirement would also assist the reparations process set forth in the JPL. Additionally, individuals would not be forced to incriminate themselves, but would do so willingly in exchange for an alternative punishment, similar to other plea bargains.

Eighth, alternative punishments fail to consider the crimes committed, focusing only on the threat of future violence. The punishments established in the JPL are more lenient than regular ones in several
ways. These include their duration; the possibility that up to 18 months of the time spent in a concentration zone during the negotiation and investigation of the crime be counted as time served; the possibility that they may be served in another country; and the special facilities in which they will be served. Bases for granting alternative punishments include the individual's contribution to achieving peace, his collaboration with the justice system, the payment of
reparations to the victims, and his resocialization.
[27]
The lack of focus on the severity, scope and role in the crimes committed, privileging the status of the perpetrators and their possible contribution to a peace process undermines the victims' rights to justice, truth, and reparations, and rewards perpetrators. Furthermore, it creates incentives for recidivism and impunity.

Ninth, victims have no voice during the process: they are only heard during the reparations motion and if the Prosecution calls them as witnesses during the trial. On the other hand, because it is not in the victims' power to initiate a criminal investigation, if the Prosecutor decides to ask the Judge to close an investigation or a case, they will not have an opportunity to find out what happened. From another perspective, the swiftness of the procedure can also damage the right to know the truth. These failures could have been partially resolved by the
NCRR. However, the NCRR's mandate is to explore the causes of the armed conflict and the evolution of armed groups, but not account for the victims and human rights violations in general. The draft does, however, establish the obligation to preserve the archives, which may in the future result in complementary mechanisms that guarantee and protect the victims' rights.

Tenth, the JPL does not establish the state's responsibility to pay reparations to the victims in cases in which state agents participated in the crimes or when the state failed to ensure and protect the victims' rights. Even though the JPL contemplates the victims' right to reparations, it is contingent on the demobilization of the armed group or the individual perpetrator. According to some international human rights bodies, the state is obliged to pay reparations for violations committed by paramilitary groups acting in connivance with state agents. The
Inter‐American Court established the responsibility of the Colombian state in the creation and support of self‐defense groups, which later became paramilitary organizations dedicated to unlawful activities.
[28]
In the case of
19 Merchants
v.
Colombia
, the Court ordered the state to pay reparations for material and immaterial damages, offer medical and psychological assistance to the victims, and undertake other actions in the form of non‐monetary reparations, including a public apology, investigation
and disclosure of all that can reasonably be known about the fate of the victims, access to archives, and effective measures to prevent violations from recurring.
[29]

Eleventh, the JPL has limited application and victims of most crimes committed during the armed conflict will not have procedural opportunities to seek reparations. The JPL only applies to the gravest crimes, for which amnesty cannot be granted, when the authors of such crimes are demobilizing. Hence, most crimes committed during the armed conflict will not be investigated or punished and their victims will have to seek reparations through a civil action when perpetrators demobilize, in application of Law 782 of 2002, or through a reparations motion in a regular criminal proceeding if the crimes are investigated and prosecuted and the perpetrators have not effectively demobilized. Victims of state agents' actions will have to claim their right to reparations through a regular procedure, provided that they can demonstrate state responsibility. This creates unnecessary divisions among victims.

Twelfth, the
JPL should allocate sufficient funds for reparations. As established in the JPL, individuals demobilizing will pay reparations with property unlawfully obtained. It is problematic, to say the least, that their obligation to pay reparations is limited to unlawful property and that the rest of their patrimony is exempted. If property unlawfully obtained is insufficient, reparations should be covered through the Victims Reparations Fund. On the other hand, the JPL establishes that the VRF will be ordered to pay reparations in cases where the perpetrator could not be identified, but the harm and its link with the activities of the illegal group was demonstrated. This is a positive addition aiming at protecting the victims from impunity. However, it may still result in a serious obstacle for victims because, in many cases, they may lack evidence and adequate representation to demonstrate the armed group's responsibility.

As described above, there are three sources of funding for the VRF: unlawfully obtained property handed over by individuals and groups demobilizing, public resources, and donations. The VRF will most likely face a shortage of funds as the JPL does not specify the proportion of state contributions. On the other hand, experiences from other countries show that reparations are not particularly attractive to donors. Victims' rights cannot be subject to the uncertain expectation of receiving donations.

Thirteenth, in terms of non‐economic reparations, the actions demobilized individuals must carry out seem to follow the criteria established
by international law. However, some of them are more likely the responsibility of the state. For example, the JPL establishes the obligation of demobilized individuals to perform certain actions in order to re‐establish the victims' dignity. It is difficult to imagine that victims' dignity depends on the perpetrators' actions; the state has a paramount role to play. Satisfaction measures and the assurance that events will not happen again would also contribute to this
objective.