Transitional justice law allows peace process to continue, but concerns are raised

News from Colombia | on: Wednesday, 15 March 2017

After three unexpected days of debate, months of delay, and attempts by members of congress to obstruct its passing, at 11pm on 14 March 2017 the latest law being considered by Congress in relation to the peace agreement between the Colombian government and the FARC was passed.

The legislation being debated will create the “Integral System for Truth, Justice, Reparation and non-Repetition”, a fundamental part of the chapters relating to both victims and justice in the peace agreement, and indeed a central element to the entire peace negotiation.

Essentially the objective of the legislation was to create a legal basis for the process of obtaining truth and applying alternative sentences to those who are found responsible of carrying out serious crimes as part of the armed conflict.

Amongst other things the legislation will allow for the creation of the special peace justice system which will be responsible for the transitional justice processes.

The legislation was met with considerable resistance in Congress and although the final vote saw its ratification by 61 votes to 2, there were many changes to the original text that had been agreed between the government and the FARC.

For a full review of the legislation see below.


Special Peace Justice System

Whilst both the Government and the FARC congratulated congress for passing the legislation, the changes caused alarm amongst social organisations such as the Voices for Peace coalition that have been given a voice but no vote role in Congress for the passing of peace related laws, and the Patriotic March who spoke of a “bittersweet” moment, and in other statements FARC leaders expressed their dissatisfaction that there had been alterations to what had previously been agreed.

The changes and delays were seen to be targeted particularly at benefiting the military, those with connections to paramilitaries, and as a result skewing the responsibility for the war towards the FARC.
They were more than 80 modifications proposed to the legislation according to the Colombian Interior Minister.

Of particular concern were two articles which directly contradict what had been agreed in Havana: the first sees the removal of the financing of paramilitary groups as something that would be investigated by the newly formed peace courts and the second sees possible sanctions for FARC members that would limit their right to take part in the political system.

Previously people could be obliged to attend hearings under the special peace justice system if they were named in testimonies as having funded paramilitary groups, they will now only attend on a voluntary basis. Full investigations into those suspected of financing paramilitary groups will now be moved to the normal Colombian justice system.

If the Special Peace Courts decide that FARC members have not complied with their sentences they can deny their access to take part in the political process (for example as a member of congress or another political office).

A further concern which had been expressed by victims organisations was the fear that the chain of responsibility would be altered to the benefit of the military commanders. There were changes in this area so that now there will be a chain of responsibility only if four conditions are met:

  1. The crime is committed within the zone of command responsibility.
  2. The superior had the “legal and material capacity” to give orders.
  3. The superior had the capacity to carry out operations in the area.
  4. The superior had the possibility to prevent the activity.

According to the Minister of Defence, the cases of False-Positives (Close to 4,000 innocent civilians were murdered by the Armed Forces and presented as guerrillas killed in combat) will be considered in the Special Peace Justice System.

The Uribe-led Democratic Centre abstained in the vote whilst the Radical Change party, which forms part of the government coalition, was responsible for the most significant modifications to the agreement including the two key issues of paramilitary financers and FARC political participation.

The three key structures created by the Integral System for Truth, Justice, Reparation and non-Repetition:

  1. Special Peace Justice System
  2. Truth Commission
  3. Unit for the Search of the Forcibly Disappeared

Truth Commision

Will operate for three year and will have eleven sub-commissions.

The President of the Truth Commission will be elected together by the FARC and the government.

Special Peace Justice System:

Will operate for fifteen years from the date of starting operations.

Will be formed of four courts:

1. Court for Amnesties and Pardons

Will issue amnesties or pardons depending on recommendation from Court for Truth Recognition.

2. Court for Establishment of Judicial Situation

Will consider legal situation of those whose cases come to the Special Peace Justice System who are not responsible for the most serious crimes. Will consider any current sentences.

3. Court for Truth Recognition

Consider if the actors are providing the full truth. Decide if the crimes are related to the armed conflict. Receive information from other state investigation units.

4. Special Peace Court

The principal sanctioning court of the Special Peace Justice System.
Formed of 20 judges and four non-Colombian judges who do not have the right to vote.

Will consider the most serious and emblematic crimes committed as part of the armed conflict.

Will have the objective of ensuring rights of victims to full truth and reparation are upheld.

Connected to the Special Peace Court will be the Investigation Unit which will carry out the investigations as per the referrals from the different courts.

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