Analysis: Legal Framework for Peace
News from Colombia |
on: Wednesday, 18 July 2012
By Hasan Dodwell
A temporary reform was made to the Colombian Constitution last month with the passing of a bill that could have significant implications for both peace and justice in Colombia. The so called Legal Framework for Peace has the overt aim of facilitating a negotiated solution to the armed conflict and the government has presented its ratification as an important step towards peace in Colombia. There is however widespread concern that the reform could lead to systematic and institutionalised impunity.
The Legal Framework for Peace writes transitional justice into the constitution, as part of a potential peace agreement which brings an end to the armed conflict. The adoption of transitional justice would allow for the prioritisation of certain crimes and the later selection, by Congress, of the crimes and individuals that are to be investigated. All other crimes could face reduced or alternative sentences or a suspension of legal proceedings altogether. This modification of normal legal practice would be applied to members of armed groups that have agreed to demobilise and to Colombian state officials who have committed crimes in the context of the armed conflict. The idea of transitional justice is based on the logic that no armed group will abandon its armed struggle if the vast majority if not all of its members are to spend the rest of their lives behind bars. At the same time it recognises that the opposing side in the conflict will have to be provided with similar benefits as part of the give-and-take nature of any negotiation.
The passing of the law has indeed triggered a classic debate between those who consider flexibility in the area of legal justice as a pragmatic necessity of peace negotiations and those who believe that in order to guarantee a lasting and stable peace all actors and all crimes should be tried according to recognised international laws. Outside the perimeters of this debate however there is concern as to the true objective of the law and whether it is in fact another attempt by Colombia’s political class to provide impunity for crimes committed by state actors.
The passing of the Legal Framework for Peace takes place in a context in which on the one hand the Colombian government has been declaring its dedication to peace and on the other it has supported a series of reforms that have increased the likelihood of impunity for state crimes. The Legal Framework for Peace, alongside the now overturned Justice Reform Bill and efforts to expand the reach of military courts, form part of what Armando Novoa García, the Director at the Centre for Constitutional Studies, calls a ‘coherent project’ with the aim of providing ‘immunities and privileges to ex-members of illegal armed groups, congressmen, members of the military, and high level public servants’.
Indeed it will be Congress that decides what crimes and what individuals are offered the legal benefits provided by the adoption of transitional justice. This is extremely concerning when one considers the recent scandals that have rocked the two legislative chambers. The Justice Reform Bill passed in June caused national outrage when it was revealed that it included articles that would make it increasingly difficult for state officials with connections to paramilitary groups to be prosecuted. The legitimacy of Colombia’s political structures needs to be increased before constitutional amendments such as those sanctioned by the Legal Framework for Peace can be viewed with anything but considerable scepticism. Current and ex-members of Congress continue to be investigated for their involvement in paramilitary crimes. According to the Colombian conflict observatory Verdad Abierta, 53 members of Congress have thus far been charged in what is known as the ‘parapolitica’ scandal and a further 100 processes have been initiated with hundreds more in preliminary stages. In order to advance peace in Colombia measures need to be taken that put an end to state corruption and to dismantle the networks that continue to connect paramilitary groups to state officials. Providing possible amnesties to those officials involved will do little to push Colombia down this path.
Further concerns have been expressed by Human Rights Watch regarding the possibility that the law could be used to provide immunity to military officials involved in the ‘false positive’ scandal in which Colombian soldiers stand accused of killing thousands of civilians before presenting them as guerrillas shot in combat.
Although the constitutional reform states that only crimes committed in the context of the armed conflict can be considered for transitional justice, there is no clear definition of where the line is drawn and concern has been expressed that a liberal interpretation will allow Congress to manipulate the legislation in order to provide judicial benefits to state officials who stand accused of crimes.
The Legal Framework for Peace passed by Congress last month does contain certain positive elements that could contribute to an environment more favourable to possible peace negotiations with the guerrilla groups, it is also however open to considerable manipulation that could allow state officials to provide themselves with a self-mandated amnesty. There is still much to be defined as the legislation is, as its name suggests, a framework and new laws will have to be passed to determine who and what will benefit from the transitional justice measures. It is essential therefore, in the interests of peace, that the transitional justice that is applied is focused on achieving a successful negotiation with the armed guerrilla groups and not on providing an amnesty that allows state officials to continue to avoid justice whilst the network of corruption and connections with paramilitary groups remain in place. If, as many critics fear, the latter proves to be case, the constitutional reform will not just fail to realise its potential contribution to peace, it will actively push a negotiated solution further into the distance.
You can read more about the balance of abuses committed by the state, paramilitaries and guerrillas here.