The Legal Framework for Peace, drawn up to facilitate the peace talks between the FARC guerrilla group and President Juan Manuel Santos‘ government, allows “a gross violation of Colombia’s human rights obligations,” said human rights groups.
Colombia investigator for Amnesty International Peter Drury said that he is concerned that the framework is deliberately aimed at allowing Colombian authorities to shirk their investigative duties. “There is a subtext where the government is sending a strong message to the combatants that it will be business as usual from the outset,” he told Colombia Reports.
The framework is a constitutional amendment drawn up by the Colombian government to facilitate the journey towards peace with the FARC guerrilla group, engaged in a bloody armed conflict in the country for nearly 50 years.
It is a “framework providing several measures regarding transitional justice,” said the Colombian Commission of Jurists, an NGO which uses judicial means to uphold human rights. Transitional justice is the method of rebuilding stability and trust in order to reach the end of armed conflict, generally encompassing not only criminal justice but moral justice as well.
The problem with the bill according to Amnesty, is that the measures include the “acceptance of differential treatment to illegal armed groups.” Although it is usual for some concessions to be made at the end of an armed conflict, the human rights organizations are concerned that the Colombian government is using the framework to avoid its responsibilities under International Law.
The legislation gives responsibility to Congress for the selection of crimes to be prosecuted and according to Drury, also allows the use of criteria to “prioritize and select certain cases for criminal investigation,” leaving others not investigated nor prosecuted.
“Only war crimes committed ‘systematically’ are obliged to be investigated, this limits the prosecution and doesn’t follow other international standards,” said Drury. This would imply that many serious abuses of human rights would go unpunished as they would not meet the specifications for investigation.
If this happens, the possibility of justice for the victims of the conflict which has ravaged Colombia and resulted in thousands of kidnappings, assassinations and bombs would be severely limited, said the human rights groups.
Through the framework the Colombian government is sending “a strong signal of unwillingness” to move forward with accountability, said Human Rights Watch in documents sent to Colombia Reports.
President Santos has given firm backing to the framework saying it is a “comprehensive strategy for transitional justice which will satisfy the rights of victims and make the transition to peace.”
The president has also said in the past that the bill “insists on prosecuting the most senior criminals, the leaders, who are not subject to the waiver of prosecution.”
However according to the human rights groups this implies that “only those most responsible,” in effect those who pulled the triggers or detonated the bombs, will be prosecuted for crimes against humanity, rather than the intellectual authors and the economic supporters of the crimes. The hierarchy of the guerrilla organizations would not be investigated and would remain unpunished.
Individuals will be “shielded from criminal responsibility,” said Human Rights Watch, “it is essentially an amnesty in disguise.”
According to the groups, the framework allows the State to “renounce the obligation” of criminal prosecution when investigating certain cases. “The vast majority of guerrillas would not be investigated which means they can continue committing abuses and will not be prosecuted, it sends a very dangerous message to those involved in the armed conflict,” said Amnesty’s Peter Drury.
Although International Humanitarian Law obliges governments to investigate and prosecute human rights violations, Drury said that the “language of the legislation is limiting,” allowing Congress to classify the crimes and only scratching at the surface of the FARC’s infrastructure without bringing the chief authors to justice.
Entire cases could then be exempt from criminal investigation, and prosecution and prison sentences of those convicted of “heinous crimes” could be suspended according to Human Rights Watch, which is in “direct contradiction with Colombia’s obligations under international law.”
“The obligation to investigate, punish and repair human rights violations cannot be put aside by states,” said the commission of jurists. “The possibility of selecting only certain cases would suppose the granting of prohibited criminal benefits.”
In any case the jurists’ commission said the framework is very “fragile” and is likely to be declared unconstitutional for not complying with state obligations to human rights. It could also activate investigation by the International Criminal Court as “the national authorities are not capable of, or are unwilling to provide justice,” said the jurists.
According to Drury the truth and full justice is “required for a stable and balanced peace, for real peace as opposed to pacification.”