No CrossRef data available.
Article contents
Punishment and pardon: The use of international humanitarian law by the Special Jurisdiction for Peace in Colombia
Published online by Cambridge University Press: 14 February 2022
Abstract
Transitional justice systems generally aim to achieve two goals. One is to bring the perpetrators of past atrocities to justice to ensure that they do not go unpunished, which involves the State fulfilling its duty to investigate, prosecute and punish serious human rights violations and breaches of international humanitarian law (IHL). The other is to bring about reconciliation to heal a divided society and achieve peace and stability. This normally requires the adoption of measures of clemency, such as granting amnesty, so that those who took part in the country's violent past can return to civilian life. The use of IHL is relevant in attaining both these goals because its complex nature means that it provides the legal basis for their implementation. However, this very complexity can mean that there are contradictions or complementarities between its characteristics. This article looks at the case of the Special Jurisdiction for Peace (JEP) in Colombia, showing how this transitional jurisdiction has used IHL as a legal basis both for investigating, prosecuting and punishing serious violations committed during the Colombian armed conflict and for granting amnesty to those who took part in the hostilities. These different uses by the JEP demonstrate that IHL is a flexible tool that can facilitate the process of delivering both justice and peace after a conflict has ended.
Keywords
- Type
- Selected articles
- Information
- International Review of the Red Cross , Volume 104 , Issue 919: Selected Articles , April 2022 , pp. 1199 - 1221
- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.
References
1 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2004/616, 3 August 2004, p. 4.
2 On the subject of the tension between peace and justice and the debate on the issue, see, in particular, Ambos, Kai, Large, Judith and Wierda, Marieke (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development – The Nuremberg Declaration on Peace and Justice, Springer, Berlin/Heidelberg, 2009CrossRefGoogle Scholar; Schabas, William, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals, Oxford University Press, Oxford, 2012CrossRefGoogle Scholar; Engle, Karen, Miller, Zinaida and Davis, D. M. (eds), “Anti-Impunity and the Human Rights Agenda”, in Anti-Impunity and the Human Rights Agenda, Cambridge University Press, Cambridge, 2016, pp. i–iiCrossRefGoogle Scholar; and Christensen, Mikkel Jarle, “The Borderlands between Punitive and Non-punitive Transitional Justice: Distinct Elites and Diverging Patterns of Import/export”, International Journal of Transitional Justice, Vol. 14, No. 3, 2020Google Scholar.
3 Although the concept of “grave breaches of IHL” is specific to international armed conflicts, Article 5 of Legislative Act 01 of 2017, which creates the Comprehensive System for Truth, Justice, Reparation and Non-Repetition (SIVJRNR), determines that one of the purposes of the system is to administer justice in cases involving crimes that qualify as grave breaches of IHL. This term is therefore used throughout the article. On mechanisms for preventing impunity, see the Joinet Principles, available at: http://www.derechos.org/nizkor/impu/joinet2.html (all internet references were accessed in January 2022). See also United Nations (UN) General Assembly Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147, 16 December 2005.
4 Rincón, Tatiana and Rodríguez, Jesús, “Estudio introductorio”, in Rincón, Tatiana and Rodríguez, Jesús (eds), La justicia y las atrocidades del pasado: Teoría y análisis de la justicia transicional, Universidad Autónoma Metropolitana, Mexico City, 2012, pp. 5–58Google Scholar.
5 Mallinder, Louise, “Can Amnesties and International Justice be Reconciled?”, International Journal of Transitional Justice, Vol. 1, No. 2, 2007, p. 218CrossRefGoogle Scholar.
6 Bell, Christine, “Transitional Justice, Interdisciplinarity and the State of the ‘Field’ or ‘Non-Field’”, International Journal of Transitional Justice, Vol. 3, No. 1, 2009, p. 19Google Scholar.
7 Ibid.
8 Soto, Juan Francisco, “Legal Argumentation in Transitional Justice Adjudication: A Land of New Arguments, a Land of New Law”, in de Gamboa Tapias, Camila and van Roermund, Bert (eds), Just Memories: Remembrance and Restoration in the Aftermath of Political Violence, Intersentia, Cambridge, 2020Google Scholar.
9 Camins, Emily, “Needs or Rights? Exploring the Limitations of Individual Reparations for Violations of International Humanitarian Law”, International Journal of Transitional Justice, Vol. 10, No. 1, 2016, p. 135CrossRefGoogle Scholar.
10 Quintin, Anne, The Nature of International Humanitarian Law: A Permissive or Restrictive Regime?, Edward Elgar Publishing, Cheltenham, 2020CrossRefGoogle Scholar.
11 Alexander, Amanda, “A Short History of International Humanitarian Law”, European Journal of International Law, Vol. 26, No. 1, 2015, p. 114CrossRefGoogle Scholar.
12 Ibid.
13 On the evolution of these different currents, see Kalshoven, Frits and Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law, Cambridge University Press, Cambridge, 2011CrossRefGoogle Scholar.
14 A. Quintin, above note 10, p. 31. However, the author points out that this take is not entirely accurate because the overall aim of the law of The Hague was also to limit the effects of war, which means that, to some extent, it too entails a restrictive rather than a permissive vision of IHL.
15 A. Alexander, above note 11, p. 116.
16 F. Kalshoven and L. Zegveld, above note 13, p. 20.
17 A. Alexander, above note 11, p. 124. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978). Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978).
18 Ibid., p. 135.
19 A. Quintin, above note 10, p. 27.
20 Kinsella, Helen and Mantilla, Giovanni, “Contestation Before Compliance: History, Politics, and Power in International Humanitarian Law”, International Studies Quarterly, Vol. 64, No. 3, 2020, p. 655CrossRefGoogle Scholar.
21 A. Alexander, above note 11, p. 125.
22 H. Kinsella and G. Mantilla, above note 20, p. 654.
23 Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, International Committee of the Red Cross, Geneva, 2016, p. 17.
24 A. Quintin, above note 10, p. 336.
25 On the triple classification of acts of violence during a NIAC, see, for example, Dinstein, Yoram, Non-International Armed Conflicts in International Law, Cambridge University Press, Cambridge, 2014, pp. 11–15CrossRefGoogle Scholar.
26 E. Camins, above note 9, p. 126.
27 See Seneviratne, Wasantha, “Continued Relevance of International Humanitarian Law in Post-Armed Conflict Situations: A Critical Analysis with Special Reference to Sri Lanka”, Sri Lanka Journal of International Law, Vol. 24, No. 33, 2012, p. 34Google Scholar.
28 Bell, Christine, “Peace Agreements: Their Nature and Legal Status”, American Journal of International Law, Vol. 100, No. 2, 2006, p. 381CrossRefGoogle Scholar; Freeman, Mark and Orozco, Ivan, Negotiating Transitional Justice: Firsthand Lessons from Colombia and Beyond, Cambridge University Press, Cambridge, 2020CrossRefGoogle Scholar.
29 E. Camins, above note 9.
30 W. Schabas, above note 2, pp. 177–8; Juana Inés Acosta and Ana María Idárraga, “Alcance del deber de investigar, juzgar y sancionar en transiciones de conflicto armado a una paz negociada: convergencias entre el Sistema Interamericano de Derechos Humanos y la Corte Penal Internacional”, Revista Derecho del Estado, No. 45, 2019.
31 E. Camins, above note 9; W. Seneviratne, above note 27.
32 On the subject of the anti-impunity or criminal turn in international law, see Engle, Karen, “A Genealogy of the Criminal Turn in Human Rights”, in K. Miller, Engle Zinaida and Davis, D. M. (eds), Anti-Impunity and the Human Rights Agenda, Cambridge University Press, Cambridge, 2016CrossRefGoogle Scholar.
33 For a typology of amnesties and their political and peace-seeking functions, see Mallinder, Louise, Amnesty, Human Rights and Political Transitions, Hart Publishing, Oxford, 2008Google Scholar.
34 Schabas and Engle provide an insightful summary of the historical debate on the possibility of societies with a violent past granting or not granting amnesty in the light of international law. W. Schabas, above note 2; K. Engle, Z. Miller and D. M. Davis, above note 2.
35 This was the case in South Africa, a landmark example of transitional justice and the use of amnesty to achieve truth and reconciliation. On this subject, see L. Mallinder, above note 33, p. 227.
36 W. Schabas, above note 2, p. 180.
37 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc. S/2011/634, 12 October 2011, p. 18.
38 Sebastián Machado Ramírez, “Límites a la exoneración de responsabilidad en el derecho internacional: la selección y priorización de casos en la jurisdicción nacional”, Anuario Colombiano de Derecho Internacional, Vol. 7, 2014.
39 W. Schabas, above note 2, p. 198.
40 L. Mallinder, above note 33, p. 155.
41 S. Machado Ramírez, above note 38, p. 33.
42 L. Mallinder, above note 5, p. 221.
43 W. Schabas, above note 2, p. 180.
44 S. Machado Ramírez, above note 38, p. 33.
45 Clamp, Kerry and Doak, Jonathan, “More than Words: Restorative Justice Concepts in Transitional Justice Settings”, International Criminal Law Review, Vol. 12, No. 3, 2012CrossRefGoogle Scholar.
46 Rule 159 of customary IHL reads: “At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.” Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1.
47 The Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace contains six sections: (I) Comprehensive rural reform; (II) Political participation; (III) End of the conflict; (IV) Solution to the problem of illicit drugs; (V) Agreement on the victims of the conflict; and (VI) Implementation, verification and public endorsement. This article is concerned with Section V.
48 Colombian Office of the High Commissioner for Peace, Biblioteca del Proceso de Paz con las FARC-EP, “La Discusión del punto 5: Acuerdo sobre las Víctimas de Conflicto: ‘Sistema Integral de Verdad, Justicia, Reparación y No Repetición’, incluyendo la Jurisdicción Especial para la Paz y el compromiso sobre derechos humanos y de las medidas de construcción de confianza”, Bogotá, 2018, p. 42.
49 Article 5 of Legislative Act 01 of 2017. This article establishes that the objectives are to “uphold the right of victims to justice; provide Colombian society with the truth; protect the rights of victims; contribute to achieving a stable and lasting peace; and adopt decisions that provide legal certainty to those who participated directly or indirectly in the internal armed conflict with regard to the acts referred to herein”.
50 Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera, available at: https://www.jep.gov.co/Marco%20Normativo/Normativa_v2/01%20ACUERDOS/Texto-Nuevo-Acuerdo-Final.pdf?csf=1&e=0fpYA0. English translation available at: https://undocs.org/en/S/2017/272.
51 Article 5 of Legislative Act 01 of 2017. For an overview of the operation of the JEP, see, for example, María Camila Correa Flórez and Andrés Felipe Martín Parada, “La Jurisdicción Especial para la Paz: un modelo de justicia transicional en Colombia”, Revista Electrónica de Derecho Internacional, Vol. 3, No. 3, 2020.
52 Article 7 of Legislative Act 01 of 2017.
53 The JEP began operating in March 2018. The Panel for the Determination of Legal Situations is responsible for granting members of the armed forces and police special treatment with regard to criminal matters and, for the discharge of this function, can also use the sources of international law listed in Article 5 of Legislative Act 01 of 2017 and Article 23 of Act 1957 of 2019.
54 The JEP has its own legal framework comprising: (I) Legislative Act 01 of 2017 which creates a section of transitional provisions in the Constitution to end the armed conflict and build a stable and lasting peace; (II) Act 1820 of 2016 which creates provisions on amnesty, pardons and special treatment with regard to criminal matters; (III) Act 1922 of 2018 which adopts rules of procedure for the JEP; (IV) Statutory Act 1957 of 2019 on the Administration of Justice by the JEP; and a battery of implementing regulations.
55 The JEP has three jurisdictional criteria: personal – members of the FARC-EP and the armed forces and police are required to appear before the JEP for their involvement in acts committed during the armed conflict or in direct or indirect connection with it; and subject matter and temporal – “the JEP only has preferential jurisdiction to hear cases concerning acts directly or indirectly associated with the armed conflict and … only those committed before 1 December 2016. Ordinary courts of law therefore have jurisdiction over crimes committed after this date” (M. Correa Flórez and A. Martín Parada, above note 51, p. 35). State agents and third parties can appear before the JEP voluntarily if the jurisdictional criteria are met.
56 On how war crimes have been a way of incorporating or absorbing grave breaches of IHL, see, for example, Öberg, Marko, “The Absorption of Grave Breaches into War Crimes Law”, International Review of the Red Cross, Vol. 91, No. 873, 2009CrossRefGoogle Scholar.
57 The JEP can impose three types of punishment. (I) It can impose penalties, according to its own punishment system, on those who disclose the whole truth and fully acknowledge their responsibility when required before the Acknowledgement Panel. The penalties include participating in works, projects and activities with reparative and restorative purposes and a sentence of five to eight years to be served in a non-prison setting if the person played a determining role or from two to five years if they did not. These penalties, which are imposed by the Trial Chamber for cases in which there has been full disclosure of the truth and admission of responsibility, effectively restrict the rights and freedoms of the perpetrators. (II) Alternative penalties are imposed by the Trial Chamber for non-acknowledgement cases on those who only tell the truth and acknowledge their responsibility at a later stage in the process but before sentencing. They consist of a custodial prison sentence of between five and eight years if the person was a participant in the acts in question. (III) Lastly, ordinary sanctions are imposed on those who are convicted without having acknowledged their responsibility. They consist of custodial prison sentences of between fifteen and twenty years imposed by the Trial Chamber for non-acknowledgement cases. On this subject, see Observatory on the Special Jurisdiction for Peace (ObservaJEP), “Cápsula informativa. Sanciones propias y TOAR: ejes y procedimientos”, 8 June 2020, available at: http://observajep.com/images/capsulas/13274137075ee04e480b4100.00617661.pdf.
58 JEP, Acknowledgement Panel, Ruling 019 of 2021, 26 January 2021, footnote 1633, p. 258.
59 While this article is concerned with amnesty granted to guerrilla fighters, it should not be forgotten that there is also the Sentence Review Chamber that can grant legal benefits to soldiers; the condition that benefits cannot be granted for war crimes applies here too.
60 JEP, “Criterios y metodología de priorización de casos y situaciones en la Sala de Reconocimiento de Verdad, de Responsabilidad y de Determinación de los Hechos y Conductas”, available at: https://www.jep.gov.co/Documents/CriteriosYMetodologiaDePriorizacion.pdf.
61 The JEP has opened seven macro-cases (Case 001 “Hostage-taking and Other Severe Deprivation of Physical Liberty by FARC-EP Members” opened on 6 July 2018; Case 002 “Serious Human Rights Situation Affecting People in the Municipalities of Tumaco, Ricaurte and Barbacoas (Department of Nariño)” opened on 10 July 2018; Case 003 “Deaths Unlawfully Reported by State Agents as Casualties in Combat” opened on 17 July 2018; Case 004 “Humanitarian Situation in the Municipalities of Turbo, Apartadó, Carepa, Chigorodó, Mutatá and Dabeiba (Department of Antioquia) and El Carmen del Darién, Riosucio, Unguía and Acandí (Department of Chocó)” opened on 11 September 2018; Case 005 “Humanitarian Situation in the Municipalities of Santander de Quilichao, Suárez, Buenos Aires, Morales, Caloto, Corinto, Toribío and Caldono (Department of El Cauca)” opened on 8 November 2018; Case 006 “Victimization of Patriotic Union (UP) Members” opened on 4 March 2019; Case 007 “Recruitment and Use of Children in the Colombian Armed Conflict” opened on 6 March 2019.
62 Those who admit their responsibility are sentenced according to the SIVJRNR punishment system by the Trial Chamber for cases in which there has been full acknowledgement of the truth and responsibility, and proceedings are instituted against those who deny the allegations in the Trial Chamber for non-acknowledgement cases.
63 Article 79 of Act 1957 of 2019.
64 JEP, Panel for Amnesty and Pardon, Ruling SAI-AOI-001-2018, 8 November 2018; JEP, Panel for Amnesty and Pardon, Ruling SAI-AOI-002-2018, 9 November 2018; JEP, Panel for Amnesty and Pardon, Ruling SAI-AOI-003-2018, 27 December 2018; JEP, Panel for Amnesty and Pardon, Ruling SAI-AOI-006-2019, 4 February 2019.
65 The Colombian Constitutional Court defines “political crime” as “a crime motivated by a sense of justice that leads perpetrators and co-perpetrators to adopt attitudes that are unlawful under the constitutional and legal framework in order to achieve their aim”, Colombian Constitutional Court, Judgment C-009 of 1995, 17 January 1995. This definition was supplemented by the affirmation in a Colombian Supreme Court judgment that a political crime is one that harms or jeopardizes “the political, constitutional or legal organization of the state”, Criminal Cassation Chamber of the Colombian Supreme Court, Judgment of 5 December 2017 (25931). In view of the altruistic motivation of political crimes, those who commit them cannot be treated in the same way as those who commit other types of crimes. Paragraph 17 of Article 150 of the Colombian Constitution provides that amnesties can only be granted for the political crimes listed in Title XVII of the Penal Code (rebellion, sedition, riot, conspiracy and seduction of troops). Amnesty can also be granted for crimes related to political crimes because, as the Constitutional Court states, “[w]ithout the nexus, political crimes would have no effect within the legal system. It therefore follows that the effects reserved for political crimes should also apply to related crimes”, Colombian Constitutional Court, Judgment C-577 of 2014, 6 August 2014.
66 This Act, which establishes provisions on amnesties, pardons and special criminal treatment, among others, forms an integral part of the JEP's legal framework and governs everything relating to the granting of amnesties and special criminal treatment for members of armed and security forces.
67 Article 23. Criteria for determining whether an unlawful act is related to a political crime. “The Panel for Amnesty and Pardon shall grant amnesties for political and related crimes. Crimes considered to be related to political crimes are those that meet any of the following criteria: a) crimes specifically related to the conduct of the rebellion and committed in the course of the armed conflict, such as killing in combat permitted under international humanitarian law and the capture of combatants during military operations; b) crimes directed against the government and constitutional order; and c) crimes committed to facilitate, support, finance or conceal the rebellion. The Panel for Amnesty and Pardon shall determine whether an unlawful act is related to a political crime on a case-by-case basis.”
68 JEP, Appeals Chamber, Judgment TPSA-AM-203, 27 October 2020, Case of Jaime Aguilar, p. 27.
69 Article 8 of Act 1820 of 2016, “Pursuant to recognition of political crimes and in accordance with international humanitarian law, at the end of the hostilities, the Government of Colombia shall grant the broadest possible amnesty.”
70 Colombian Constitutional Court, Judgment C-007 of 2018, 1 March 2018.
71 Comandos de Atención Inmediata (CAI) in Colombia are police units with a relatively small jurisdiction, strategically located in peripheral urban areas of the municipalities, localities, communes and districts of the main cities with these administrative divisions. The purpose of the CAIs is to orient and strengthen the police presence and protect citizens’ rights and freedoms in their local area. By working closely with the community and local authorities, they enhance the decentralization of the services provided by police stations for more community-based policing. Their main function is to remain in “constant contact with the community to prevent crime and wrongdoing and ensure public safety, security and peaceful coexistence in communities, with the efficient and timely use of available resources and technological tools”. See Policía Nacional, Manual para el Comando de Atención Inmediata, Bogotá, July 2009, available at: https://www.camara.gov.co/sites/default/files/2020-09/RTA.ANEXO_.MINDEFENSA.MANUAL.ESTATUTO%20DE%20OPOSICI%C3%93N.pdf.
72 Although in this case the Amnesty Panel also assessed blasts at a dock and a hotel and the destruction of a bridge, for the purposes of this article, only the CAI attack will be discussed.
73 JEP, Panel for Amnesty and Pardon, Ruling AOI-006 of 2019.
74 JEP, Appeals Chamber, Judgment TP-SA-AM-168, 18 June 2020, Case of Luis Alberto Guzmán Díaz.
75 JEP, Panel for Amnesty and Pardon, Ruling AOI-006 of 2019.
76 Ibid.
77 Decree 1814 of 1953.
78 Special Court for Sierra Leone, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao, Case No. SCSL-04-15-T, Judgment, 2 March 2009.
79 According to its website (https://esdegue.edu.co/), the Military Academy (Escuela Superior de Guerra) “is a higher military educational institution that trains officers of the armed forces, the future generals and admirals of the Colombian Army, Navy and Air Force and senior figures in Colombian society in national security and defence, with a view to strengthening channels of communication and integration”.
80 JEP, Panel for Amnesty and Pardon, Ruling SAI-AOI-D-003-2020, 12 February 2020, Case of Marilú Ramírez Baquero.
81 Ibid.
82 Ibid.
83 Ibid., p. 55.
84 Ibid., p. 43.
85 Ibid., p. 48.
86 Article 343 of the Colombian Penal Code.
87 It is important to note that IHL clearly prohibits acts of terrorism targeting civilians and people not taking part in the hostilities. It could therefore be argued that an attack on a military target would not constitute an act of terrorism. See Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 33; Additional Protocol I, Article 51(2); and Additional Protocol II, Articles 4 and 13.
88 They were also charged with other acts of severe deprivation of liberty as a crime against humanity. The individuals indicted for war crimes and crimes against humanity were Rodrigo Londoño Echeverry, Jaime Alberto Parra, Miltón de Jesús Toncel, Juan Hermillo Cabrera, Pablo Catatumbo, Pastor Lisandro Alape, Julián Gallo Cubillos and Rodrigo Granda Escobar in Case 001 concerning hostage-taking and other severe deprivation of liberty by the FARC-EP.
89 JEP, Acknowledgement Panel, Ruling 019 of 2021, 26 January 2021, p. 90.
90 The Panel recalled that the elements of this crime are those established in Article 8(2)(c)(iii) of the Rome Statute: “1. The perpetrator seized, detained or otherwise held hostage one or more persons. 2. The perpetrator threatened to kill, injure or continue to detain such person or persons. 3. The perpetrator intended to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. 4. Such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no active part in the hostilities. 5. The perpetrator was aware of the factual circumstances that established this status.” UN General Assembly, Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002).
91 JEP, Acknowledgement Panel, Ruling 019 of 2021, 26 January 2021, para. 719.
92 ObservaJEP, “Informative Capsule: Judgment on Case 001”, 9 February 2021, p. 1, available at: http://observajep.com/images/capsulas/101562074860252052274128.91650344.pdf.
93 Ibid.
94 Ibid.
95 Ibid.