Criminal prosecution alternatives necessary in post-conflict Colombia: Transitional justice expert

Posted on Jan 14 2014 - 9:29am by Rico
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In the event of a peace deal between the government and rebel group FARC, Colombia would need an alternative model for criminal prosecution, newly designed victim reparation programs and an independent truth commission, according to a transitional justice expert.

With peace talks entering their first rounds for 2014 on Monday, a possible peace deal between the two parties ending more than fifty years of armed conflict seems more likely than ever.

Researchers and politicians alike are imagining different scenarios for a potential post-conflict Colombia, facing challenges like the criminal prosecution and demobilization of more than 20,000 combatants (in the event of peace with the FARC and ELN, Colombia’s second largest rebel group) and the reparation of several million victims of the armed conflict.

MORE: ‘More than 20,000 to demobilize in event of peace with FARC and ELN’

One of the leading international think tanks in this area is the International Center for Transitional Justice whose head of the Bogota office, Maria Moreno, told Colombia Reports that the three main challenges for Colombia would be the creation of an alternative model of criminal prosecution, the design of appropriate reparations measures for victims and the implementation of a truth commission.

These challenges correspond to three core elements of  transitional justice, a holistic approach to achieve justice in times of transition from conflict and/or state repression, which the think tank considers essential to reach sustainable peace.

Alternative Model of Criminal Prosecution

One of the key elements for any successful and sustainable peace process is an alternative model of criminal prosecution which goes beyond the ordinary criminal justice system, Moreno said.

This temporary justice system — expected to eventually process more than 20,000 FARC fighters and activists – should be a compromise between adequately prosecuting perpetrators of war crimes, while offering alternative penalties for the majority of the FARC combatants in exchange for them laying down arms.

“Because neither with 40 years of jail for all FARC members who committed crimes, nor with no sanction at all, there will be the possibility of sustainable peace,” the expert told Colombia Reports.

Prosecuting the rebel leaders considered to be the most responsible for war crimes would not only be the state’s responsibility towards the Colombian people, according to Moreno, but also the country’s obligation due to several international human rights treaties it signed.

Learning from mistakes: Justice and Peace Law

Moreno stressed that a system of transitional justice “is not a new experience in this country,” referring to the Justice and Peace Law that came into power in 2005 and provided the legal framework that resulted in the demobilization of the paramilitary AUC between 2003 and 2006.

According to Moreno, this peace process failed to obtain the levels and justice and reparation because the government — then led by former President Alvaro Uribe — first attempted to prosecute each demobilizing member of the AUC individually; a mission that was doomed to fail, leading to a disastrous lack of results in the period of the first 5 to 6 years of the law being in place.

MORE: Possible convictions under Peace and Justice law in limbo

“We were talking about 400,000 crimes and 2,000 offenders! With the ordinary criminal justice system that would have taken up to 100 years,” the researcher claimed.

Little by little the government adopted the idea of collective responsibility of armed structures produced by a conflict system, which cannot be dealt with by the means of ordinary criminal justice.

This, according to Moreno, constitutes the most important lesson that should be learned from that experience and should be used for the creation of an alternative model of criminal prosecution for a potential post-conflict situation with the FARC.

Institutional Capacity

Moreno approved a plan by Colombia’s Inspector General to create transitional justice units, stating that “the creation of new legal structures within the existing justice system would be necessary.”

MORE: New Inspector General justice commissions ‘may stall Colombia peace talks’

Rejecting the idea of international war crime tribunals like in the case Ruanda or Libya, Moreno stressed that Colombia would not need those, because, “in contrary to these countries, in Colombia there exists the sufficient institutional capacity and a state under the rule of law that works rather well.”

Victim Reparations

Regarding the next core element of Transitional Justice, victim reparation, Moreno claimed that in Colombia there exists a fundamental problem designing appropriate laws and programs, referring to Colombia’s most ambitious reparations law of 2011.

This victims Law allows victims of violence committed by left-wing guerrillas, right-wing paramilitaries and state officials after 1985 to claim a financial compensation between approximately $4,500 and $11,000.

The law, officially called Law 1448 of 2011, also allows displaced farmers to reclaim land that was stolen or obtained under threats by illegal armed groups or their henchmen. However, due to an array of reasons hardly any of the displaced farmers have effectively been able to resettle on their original land.

According to the researcher, the law is not working as hoped because it was not designed appropriately.

“There is a conflict between complexity and effectiveness which is a typical Colombian problem. We design such sophisticated bills and programs that we always struggle with our capacities to realize them,” Moreno said, stating that, “we always want to create complex things that are hardly realizable, instead of focusing on simple things that can be executed.”

According to Moreno, the government generated too high expectations by announcing that it would create the “most advanced” law that would “immediately improve” the victims’ situations, while on the ground the authorities were too overstrained and underfunded to adequately deal with the “thousand problems” they were supposed to solve.

So the lesson learned here, according to the researcher, would be the design of less complex reparations programs that should be sufficiently funded in order to be capable of dealing with the upcoming challenges which should be considered when discussing victim compensation as the fifth point on the peace talk’s agenda.

Truth Commission

As the last core element of Transitional Justice considered to be decisive for reaching sustainable peace in Colombia, Moreno mentioned the necessary implementation of a national truth commission.

The FARC has demanded the implementation of an international truth commission. According to the rebels, this commission should investigate the 50-year history of the armed conflict in Colombia with a special focus on the state’s and the elites’ responsibility of creating the circumstances that gave birth to the conflict.

MORE:  Lack of ‘truth commission’ threaten Colombia’s peace talks’ progress: FARC

However, Moreno pointed out the rebels’ appear to have lack of knowledge of what it takes to implement an efficient truth commission.

“Implementing a truth commission takes about two to three years. To do so in the midst of an armed conflict is impossible. This has to happen when the peace deal is signed,” said the expert.

According to her, the FARC’s underlying message is that it will only accept its own responsibility under the condition that the state is also willing to do so.

Moreno agreed that the state carries certain responsibility for the causes and crimes of the conflict, but she firmly rejected the FARC’s proposal for a truth commission, stating that “only when both parties let these kind of conditions go, the truth can emerge.”

In order to reach sustainable peace, she said, it will be necessary to implement a truth commission after a potential peace deal is signed. This commission then needs sufficient space and time to reveal truth, free from any pressure exerted by one of the warring parties.

International Experiences

Moreno stressed that transitional justice in Colombia could copy mechanisms from other peace processes elsewhere in the world, but that every society is unique and has to come up with their individual model because “there is no universal recipe.”

Sources

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