As Colombia’s 50-year armed conflict enters a post-conflict phase, the country is having to face up to the toll it took on millions of lives. There are more than eight million registered victims, and today, Colombia is host to 7.4 million internally displaced people – more than anywhere else in the world. Atrocities were committed by all sides, including the government, and civilians were the principal casualties.
As the post-conflict justice system takes shape, there are many individual rights violations and atrocities to be addressed. But the conflict’s most emblematic atrocity is the extrajudicial murder of thousands of innocent civilians during the so-called “false positives” scandal.
After the right-wing paramilitary AUC demobilised in 2004, the then-defence minister, Camilo Ospina, introduced a policy known as “cash-for-kills”, which awarded US$1,500 to Colombian Army personnel in exchange for evidence of “positive combat kills”. This resulted in a state-sponsored onslaught of Colombia’s most vulnerable citizens. Poor or mentally ill civilians were lured with offers of employment and driven for hundreds of miles into FARC-controlled areas, where they were executed and dressed in FARC combat uniforms. Photographs were taken of their corpses, and their murders presented as combat kills.
The scheme only came to light in 2008, when 22 men from Soacha disappeared and were found dead hundreds of miles away in North Santander. A Soacha government official, Luis Fernando Escobar Franco, filed a lawsuit and gradually many other similar cases came to light. According to one study on the links between US Aid and the false positives scandal, there were more than 5,763 extra-judicial executions between 2000 and 2010.
These murders were not linked to the Colombian armed conflict. Instead, it seems members of the army simply exploited an incentives programme for personal economic gain. Colombia has a legal duty to prosecute those responsible for these crimes, and to some extent, it has followed through. But even with the peace deal done, the dispensation of justice has been slow – and now, a new obstacle is emerging.
The peace agreement’s plan for post-conflict justice hinges on a new Special Jurisdiction for Peace. Known as the “JEP” in Spanish, it will create a special system of transitional justice to deal with atrocities committed by all sides during the five-decades-long armed conflict.
In a nutshell, the system is designed to provide “alternative sentences” for people guilty of serious crimes, who can voluntarily enter the JEP and receive a sentence of up to eight years in prison – a significantly shorter sentence than they might otherwise expect. Perpetrators who want to access these more lenient sentences must come forward, plead guilty, provide a full account of what happened, and undertake to make reparations to their victims.
This form of “limited justice” is meant to kill two birds with one stone: to help persuade rebels to lay down their weapons while fulfilling the victims’ right to truth and accountability. But the JEP’s slow setup is already creating problems. Defence lawyers across the country are arguing that with the new system coming down the line, the “ordinary” justice system is avoiding the false positives cases.
In Caldas, a judge suspended a kidnap and murder case that implicates three high-ranking military officers. In Soacha, a case was suspended against five military officers accused of murdering a 16-year-old. In Manizales, another judge suspended a case against nine armed forces personnel suspected of committing extrajudicial executions as part of the false positives scandal. That particular judge was convinced that the cases should be heard at the new post-conflict tribunal, and said there was little point wasting time and resources on a case that would probably be heard in the new system.
This rationale is both dangerous and incorrect. It will be for the JEP to decide which cases it will hear, and judges in the ordinary criminal justice system simply cannot predict its decisions. But many judges seem happy to bet that the JEP will take up their cast-offs. As the judge in Manizales put it: “what is it to wait six more months?”.
There are good reasons for the JEP to reject the false positives cases. For one, those implicated in the scandal acted for personal gain, and their crimes were not linked to the armed conflict. Besides, the peace agreement made clear that ongoing cases should continue until the JEP is up and running. Instead, cases are being suspended, and some military officers who have already convicted are even being released so they can access the JEP.
Unwilling or unable?
This is all deeply concerning, and if doesn’t change course, it could become an issue for the International Criminal Court (ICC). If Colombia continues to deny victims access to justice in cases that come within the ICC’s jurisdiction, then there may be good reason to step in. The court can initiate proceedings when a state is “unwilling or unable” to prosecute a case itself.
That would certainly flatter the ICC’s image at a time when it urgently needs to prove it’s willing to investigate cases from outside Africa. But it could also destabilise an already fragile peace process.
Colombia’s next presidential election is due in 2018, and post-conflict criminal trials are highly politicised. It must be remembered that in the 2016 plebiscite, the majority of Colombian citizens voted against the peace deal. And if the ICC were to prosecute individuals from the army but leave the FARC high command alone, the resulting resentment could easily be exploited by those willing to return to war.
The post-conflict system ought to be given a chance, and as long as the JEP is still “under construction”, the ordinary justice system should carry out its legal duty and prosecute those suspected of extrajudicial killings. But if things don’t change course very soon, the ICC may feel that it has no choice but to intervene – whatever the consequences.
Seb Eskauriatza is teaching fellow in law, University of Birmingham.