Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (26 page)

Fourteenth, definitions of related crimes and political crimes in the JPL should be carefully considered as they will have a significant impact in a post‐conflict society. Illustrative of the importance of drug trafficking in Colombia, the issue that has generated the most heated debates has been whether drug related crimes should be treated as related crimes and thus cumulated and included in the alternative punishment scheme. Drug trafficking crimes committed by armed groups to fund their activities, and also the possibility that drug traffickers could pose as members of armed groups and benefit from alternative punishment, constitute major concerns. While granting alternative punishments for crimes against humanity and war crimes generates little hesitation among government officials, this is not the case with drug trafficking. Drug crimes capture more attention and concern in Colombia than crimes against humanity and war crimes. Furthermore, there is more awareness of the issue of
extradition to the United States on drug trafficking charges, than for crimes committed against foreigners on the basis of passive personality or universal jurisdiction. This also reflects the tension between those who reject and those who accept the penetration of drug trafficking within
Colombian society.

The
extradition issue lurks in the background of the talks. It surfaces, for example, in the debate over the reformulation of the crime of sedition to include self‐defense groups. The paramilitaries are interested in attaining the status of political offenders, in an attempt to shield themselves from extradition.
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The Uribe administration has explained its support of a wider definition of sedition, in an effort to equate paramilitaries with guerrillas, acknowledging the political nature of their organization and their crimes. In practical terms, reformulating the crime of sedition would have no impact on paramilitaries' cases, since this crime would be covered under Law 782 of 2002 and amnesty would be granted for it. Again, concerns regarding the possibility of extradition – particularly for drug related crimes – rather than principled opposition to granting political status to paramilitaries have weighed on this
debate.

Fifteenth, the
International Criminal Court (ICC) constitutes a new international factor conditioning the resolution of the conflict.

The Rome Statute came into effect for Colombia on November 1, 2002.
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A few days after its ratification, the government revealed that it had invoked Article 124, which allows states to limit the jurisdiction of the Court over war crimes for a seven‐year period. However, to the extent that the crimes involved constituted widespread or systematic attacks on civilians, the ICC will have jurisdiction under Article 7 regarding crimes against humanity.

The ICC has jurisdiction only if the state “is unwilling or unable genuinely to carry out the investigation or prosecution.” Among the circumstances under which the Court would find unwillingness on the part of the state, the Rome Statute mentions domestic prosecutions for the purpose of shielding. There might be some discussion regarding Colombia's willingness to prosecute and whether the JPL is a form of shielding.

The JPL appears to have been conceived in an effort to try to avoid triggering the ICC's jurisdiction. First, it is framed not as an amnesty law, but as a criminal proceeding that results in an alternative sentence. If there were no prosecution efforts at all, but rather a refusal to investigate or prosecute, Articles 17 and 20 of the Rome Statute would not be applicable and thus the ICC would have jurisdiction over the crimes. The existence of a proceeding, however flawed, raises Articles 17 and 20 barriers, shifting the burden to the Prosecutor who has to show that the proceedings are being carried out without adequate independence, or that there is an undue
delay.

An indicator of shielding could be a disproportionately lenient sentence in light of the gravity of the crime. According to the Rome Statute, when imposing a sentence, the Court should take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. The Court itself is to issue sentences of up to thirty years or life imprisonment, and may reduce them in exchange for cooperation. However, any sentence reduction must be the result of an individualized hearing, and may only take place after the person has served two‐thirds of the sentence (or 25 years).
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While this would suggest that the Court may regard across‐the‐board probation or even five‐ to eight‐year sentences as too lenient, Article 80 seems to give states some leeway in imposing sentences, as it establishes the principle of non‐prejudice to the application of domestic penalties and laws. It is not clear whether a post‐conviction suspension of sentence or probation, even in exchange for information or reparations, would be considered within this margin of leeway, or whether, as we believe, it would be so disproportionate, given the heinous nature of the crimes at issue, as to inevitably constitute evidence of
shielding.

A peace process that brings a resolution to Colombia's long lasting and bloody internal armed conflict may become a foundational moment that would help to cement a society respectful of human rights. In this scenario, the interplay of domestic and international legal factors exerts pressure towards a political process where certain ethical and legal imperatives must be respected. In this process international standards and institutions will play a pivotal role.

As the discussion on the legality and wisdom of the JPL proceeds, the main underlying issue is whether it takes all necessary and possible steps towards dismantling illegal armed groups. This issue is linked to truth related efforts. Many claim that in the case of paramilitary groups, there are strong interests opposing truth‐seeking and truth‐telling mechanisms as they would result in uncovering the identities of prominent figures who funded and supported such groups. Another key element is the relationship between drug trafficking and armed actors. Finding a way to differentiate drug trafficking as a funding source for paramilitaries or guerrillas and drug traffickers trying to become paramilitaries or guerrillas in an effort to benefit from the political status granted to armed actors has become crucial. In spite of international and domestic pressures to separate these actions, they appear to be intertwined. Thus, the resolution of this issue will be fundamental for the success or failure of the paramilitary demobilization process and its legal framework.

A number of issues emerged as the JPL was approved by Congress. First, the Uribe administration lacks a clear plan for carrying out the demobilization process and seems oblivious to the appropriate legal framework that should inform that process. Second, the Uribe administration's position of denying the existence of an armed conflict has had a negative impact on the legislative process creating confusion and contradiction among legislators. This denial results in the lack of an open public debate about what Colombian society is willing to accept in exchange for the demobilization of an armed actor. Third, the lack of information and understanding of international legal standards and of the conditions that would trigger the action of international criminal justice and human rights bodies is evident. Further educational and promotional efforts are necessary in order to create the conditions for informed decisions. Fourth, a greater commitment on the part of armed actors to a peace process and unilateral gestures such as respect for declared cease‐fires, release of kidnapped persons, or information on the disappeared would contribute to the process as indicators of the good will of all parties. Fifth, the voices of the victims have not been
adequately represented in this debate and thus have not been duly considered.

The success of the negotiation process will depend on the creation of a democratic procedure aimed at dismantling non‐state armed actors by legal means. Hence, it is important to convoke broad segments of society, particularly victims. The JPL does very little to allow victims, as opposed to perpetrators, a voice. In order to complement the action of justice, initiatives that enable the narrative integration of the past need to be considered. Victims should be granted an opportunity to give their own fullest account of events. Testimonies are crucial to overcome impunity and demand that memory be exercised as a social practice. Additionally, these projects further contribute to create a narrative that will give meaning to past events, and thus help to buttress a broad social agreement demanding that grave acts of violence should not be repeated. These initiatives also create the opportunity for an integral revision of the past and of the conditions that made such violence possible.

The state has ample room to maneuver to ensure and protect the victims' rights. There are no pre‐set formulas: it is possible to turn to available tools, adapt mechanisms used in other countries, or create new ones that respond to emerging needs. In this process the participation of judges is crucial because they are the only ones who can guarantee the right to justice, embracing the rights of the accused to due process and the legal acknowledgment of the victims.

The legality of the JPL has already been challenged in the Colombian Constitutional Court, and debates around it continue. Internal and international influences will impact the process and influence its outcome. Domestic and international legal frameworks create opportunities and also establish limits to state actions. If the Colombian state fails to abide by those standards, international bodies will have the opportunity to act. The pressures of the armed actors to receive the most favorable treatment will confront an international legal regime that establishes the right to truth, justice, and reparations.

The challenge is for the JPL to stand both the test of the Colombian legal system and international legal standards. The experience of other Latin American countries cannot be disregarded. After more than two decades, the attempts to unilaterally close efforts to obtain justice have been unsuccessful. The argument that impunity strengthens democracy has been proven wrong: impunity undermines democracy. Recent history shows that democracy will grow strong if it is capable of ensuring that those who break the law and undermine democracy pay a heavy price. That is the lesson that any pacification process should leave
engraved on Colombian hearts and minds.

[1] *The authors wish to express their gratitude to Naomi Roht‐Arriaza, Juan E. Méndez, Andreas Feldmann and Steve Kostas for their comments and suggestions. Authors appear in alphabetical order.