The Special Jurisdiction for Peace in Colombia: Challenges and Opportunities for Accountability

The Special Jurisdiction for Peace in Colombia (SJP) officially opened its doors on 15 March 2018. The SJP is one of the key accountability mechanisms of the Peace Agreement signed between the Government of Colombia and the Revolutionary Armed Forces of Colombia-Popular Army (FARC-EP) on 24 November 2016. In particular, the SJP is the judicial component of the Comprehensive System for Truth, Justice, Reparation and Non-Repetition, and is designed to investigate and prosecute serious violations of human rights and international humanitarian law committed during the Colombian armed conflict. To date 38 judges have been selected to sit at the SJP, 20 of the them are women. Additionally, 14 foreign judges will serve as observers. According to the Legislative Act 01 of 2017, the SJP consists of an Investigation and Indictment Unit, three Trial Chambers, and a Tribunal for Peace, which will have an Appeal’s Division serving as final instance. This article analyses some of the main features of the SJP as well as other complementary mechanisms in the quest for accountability.

Personal and material scope of jurisdiction

The SJP will have exclusive jurisdiction over the crimes committed prior to 1 December 2016 in the context and by reason of the armed conflict, such as grave breaches of international humanitarian law and gross human rights violations. However, the beginning date of the armed conflict has not been established due to differing interpretations. According to the Director of the Investigation and Indictment Unit, priority will be given to cases of sexual violence committed during the armed conflict, which is a fundamental step to guarantee the non-repetition of these crimes. Alongside the SJP, Colombia’s ordinary justice system will continue with the prosecution of crimes that took place outside the context of the armed conflict.

With regard to the persons subject to the jurisdiction of the Court, the SJP will have competence over those who have directly or indirectly participated in the armed conflict, including State agents and members of FARC-EP. In order to benefit from the conditions established in the peace agreement and the SJP, the members of the FARC had to be identified through their inclusion in the so-called ‘list of membership’. This list was subject to a verification procedure by the High Commissioner for Peace, who was assisted by an Inter-Institutional Committee composed of governmental officers, members of the police and the military, and the Office of the Attorney General. The opening of the SJP started with the submission of the first report which included 6.094 members of the FARC who agreed to appear before the court. Such conduct could consist of funding or collaborating with armed groups and paramilitary groups. However, neither the Legislative Act 01 of 2017 nor the Law on the Administration of Justice in the SJP approved in November 2017 clarified whether ‘third parties’ refers exclusively to natural persons or whether legal persons, specially corporations, could also be included.

Compatibility of the SJP with the Rome Statute system

In parallel, the International Criminal Court continues its preliminary examination on the alleged commission of international crimes during the armed conflict in Colombia. In the last report of December 2017, the Office of the Prosecutor (OTP) found four issues of concern with regard to the compatibility of the SJP’s provisions with customary international law and the Rome Statute system: the definition of command or superior responsibility; the definition of ‘grave’ war crimes; the determination of ‘active or determinative’ participation in the crimes; and the implementation of sentences involving ‘effective restrictions of freedoms and rights’. In particular, the definition of command responsibility has caused some controversy because its scope is narrower than the one contained in Article 28 of the Rome Statute. According to Article 24 of the Legislative Act 01 of 2017, regarding members of the armed forces, command responsibility should be based on four concurring conditions:

1. That the criminal action or actions were committed within the area of responsibility assigned to the unit under his/her command according to the respective level, and are related to the activities under his/her responsibility;
2. That the superior had the legal and material ability to give orders, modify them, and enforce them;
3. That the superior had the effective capacity to develop and execute operations within the area where the criminal acts where committed, according to his/her specific level of command;
4. That the superior had the material and direct ability to take the adequate measures to prevent or suppress the criminal acts of his/her subordinates, as long as he/she had the actual or updatable knowledge of the commission of these crimes.

This definition requires that the superior has de jure authority over their subordinates (‘legal and material ability to give orders’). Therefore, those superiors with de facto but not de jure powers could potentially escape the action of the court. The provision also requires ‘the actual or updatable knowledge of the commission of these crimes’ by the superior, which seems to imply the direct knowledge of the specific conduct. Consequently, this could conflict with the alternative given by the Rome Statute that the commander ‘should have known’. With regard to the definition of ‘grave’ war crimes, the OTP found that ‘the legal requirement that the conduct was committed in a systematic manner could lead to granting amnesties or similar measures to individuals responsible for war crimes that, while not committed in a systematic manner, may nonetheless fall under the ICC jurisdiction’. To avoid any incompatibilities with international humanitarian law, the Colombian Constitutional Court eliminated this provision from the Amnesty Law in its revision of the law decided on 1st March 2018.

The OTP is also concerned with the possibility of granting special treatment to those responsible for serious contributions to grave crimes since ambiguities remain in relation to the actual meaning of an ‘active or determinative’ participation in those crimes. Another controversial issue has been the system of alternative penalties. Alternative penalties for very serious offences could be imposed on and responsibility before the court. In this regard, these penalties will consist of effective restrictions on freedoms and rights except those relating to political participation and will not involve imprisonment. However, no specific definitions outlining what that exactly entails have been shared. In addition, the OTP has been critical of between the operationalization of those activities that are not part of the sanction, like the participation in political affairs, and the object of the sentence which has to ultimately provide redress for the victims. According to Carrillo-Santarelli, one of the key elements for the effective functioning of the SJP is that the benefits granted to the ex-combatants, such as the alternative penalties, are at the same time subject to the obligation to contribute to the redress of the victims not only as a requirement to access those benefits but also to keep them in the future.

 Additional mechanisms: truth and reparation for victims

In addition to the SJP, the peace agreement contemplates other transitional justice mechanisms, such as a Truth Commission, the Special Unit for Finding Missing Persons and a set of measures designed to provide reparation for victims. The Truth Commission has the main purpose of uncovering the truth, offering an explanation to the society about the complexity of the armed conflict, and contributing to the elucidation of violations and other infringements. The Special Unit for Finding Missing Persons consists of an extrajudicial mechanism in charge of identifying missing persons who are still alive and locating the remains of those deceased. Unlike the progress made with the previous mechanisms, the organizational structure and the personnel who will be assigned to this unit have not been established yet.

In relation to the framework of reparations, the peace agreement distinguishes a series of measures to be implemented: acts of acknowledgement of collective responsibility and public apology by both the Government and the FARC-EP, reparation programmes, rural reform plans, and land restitution measures, among others. In this context, it is interesting to highlight that the FARC-EP, considered the main non-state armed group of the conflict, has also committed to contribute to the material reparation of the victims through their list of goods and assets, and in general to their comprehensive reparation, on the basis of the facts identified by the SJP. This is in line with Principle 15 of the UN 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 according to which a person, a legal person or other entity, can be found liable to provide reparation to the victim.

The way forward

The SPJ represents a historical opportunity for accountability and reparation for victims in Colombia that could serve as a role model for future transitional justice processes worldwide. Most of the ambiguities and lack of clarity of certain legal concepts mentioned above will need to be solved by the judges in their interpretation of the documents. Moreover, the SJP should avoid the problems of implementation faced by the previous Justice and Peace Law, specifically with regard to the actions of paramilitaries. The success of the SJP will also depend on the harmonious coordination with the rest of non-judicial mechanisms serving to the common goal of building a future of peace and justice in Colombia. Finally, one of the remaining challenges is the negotiation of a final peace agreement with the second biggest armed group, the National Liberation Army (ELN), which has been suspended due to the taking of hostages by the group in the last months.