Colombia’s Constitutional Court on Tuesday declared that politicians, civilians and other third party actors will participate “voluntarily” in a transitional justice system for war crimes committed during half a century of armed conflict.
The ruling by the court declared that the special justice courts outlined in the peace deal between Colombia’s government and the Marxist FARC are constitutional, however with some adjustments, one of which could allow third party involvement in grave crimes to go unpunished.
More than 13,000 Colombians on trial for ties to illegal armed groups
Non-combatants in Colombia’s armed conflict such as businesses, unions, state officials and civilians were originally due to be called before the transitional court if they were suspected of committing or aiding crimes related to the conflict.
In 2015 President Juan Manuel Santos claimed that leaving these cases open would involve a “high cost for justice, for impunity and for the country.”
Among the alleged civilian participants in the conflict are more than a hundred former congressmen and governors who are suspected of having benefited from paramilitary drug money or intimidation of the electorate.
Former president Alvaro Uribe, former vice-president German Vargas and Santos’ cousin, former vice-President Francisco Santos, have all faced such accusations.
Tuesday’s Constitutional Court ruling, however, removes the possibility of those accused being forced to appear in front of the Special Jurisdiction for Peace (JEP).
Civilians and State agents who are not members of the security forces, will only accede to that judicial system voluntarily, depending on the advantages they can obtain as a counterpart to their decision to provide truth, reparation and guarantees of non-repetition.
Constitutional Court ruling
This may make former presidents, prosecutor generals, attorney generals, judges, ministers, governors and congressmen likely to duck out of answering to the justice system for varying levels of involvement in the half century-long conflict.
Everything you need to know about Colombia’s transitional justice system
A green light for the FARC to enter politics
Colombia’s congress is still debating a statutory law that will establish the JEP transitional justice courts. The law they are debating has been caught in serious delays over the past few months, in large part because of issues now resolved by the Constitutional Court’s ruling.
In particular, the issue of whether FARC representatives should be allowed to take part in electoral politics while simultaneously answering for potential war crimes has been a divisive issue.
The controversy was heightened by the FARC’s decision to launch its leader “Timochenko” as a presidential candidate for Colombia’s 2018 eelections.
The high court has since determined that until the JEP imposes sanctions against ex-guerrillas, the sentences and charges imposed by the criminal justice system against participants in the conflict will be suspended, clearing the way for FARC members to participate in politics.
“[For] those who already have a conviction in ordinary justice, sentences are suspended. That suspension of the sentences suspends the inabilities, and therefore they can participate in politics,” highlighted Luis Guillermo Guerrero, president of the Constitutional court.
The Constitutional court ruling followed this up by declaring that while FARC representatives are free to engage in politics, it will be up to JEP judges themselves to decide if and when that should be prevented on a case-by-case basis.
The JEP must determine the conditions under which the sentence must be served and whether [the demobilized] lose political conditions or not. It will be the JEP that will determine if the seriousness of the conduct allows participation in politics or if it is incompatible.”
Constitutional Court ruling
The Court clarified for that those who fail to comply with the justice mechanism, “there is no justification for them to have political benefits.”
The ruling also noted that in all cases, the satisfaction of international standards must be fulfilled with the duty of the State to persecute and punish crimes that violate Human Rights and International Humanitarian Law.
Colombia’s congress continues to delay crucial vote on transitional justice courts
The JEP was one of the principal tenets of the agreement signed last November between the government and the FARC as the transitional justice system will try to bring justice and accountability for thousands of war crimes committed over the course of more than 50 years of armed conflict.
President Santos urged Colombia’s Congress in a statement on Wednesday to approve their JEP law, which has been recognized by many to be the backbone of a peace process currently facing a number of implementation issues.
Today I want to make a vehement call to the Congress of the Republic. This has been the Congress of Peace, a Congress that has assumed–until now–the historical responsibility of helping us end an internal war of more than half a century… Now we have about two weeks left to approve, through the fast-track procedure, important rules that develop the peace agreement, and Congress must be up to this momentous task. In particular, I refer to the law that regulates the Special Justice for Peace, which is the backbone of the agreement.”
President Juan Manuel Santos
Colombia’s congress only has to until the end of November to pass the JEP law through a special legislative “Fast Track” route.
If Congress does not pass the law before the end of the special “Fast Track” window, the bill will have to be passed through a regular legislative process–meaning it could take at least two years before it sees the light of day.