President Juan Manuel Santos of Colombia presents a copy of a peace agreement that was forged in his country to United Nations Secretary-General Ban Ki-moon. Sept. 19, 2016. AP Photo/Craig Ruttle. The final agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) has attracted a great deal of interest from the international community regarding the system of justice agreed by the parties. This is quite understandable; given that it is unusual for two undefeated contenders at an armed conflict to agree on an accountability mechanism under criminal law. The usual practice has been the opposite: pardon or general amnesty formulas agreed bilaterally or mechanisms where the prevailing party judges the party that has been defeated.
The system of justice created for accountability is a complex one because, on the one hand, it includes several mechanisms (a truth commission, a unit for searching missing persons, and a criminal system of justice called Special Jurisdiction for Peace - JEP). On the other hand, the system does not include final or extreme formulas since it is the result of negotiations. It does not include a maximalist prosecutorial system (where all veterans and all those who were involved in crimes should stand trial and be put in jail), nor a blanket, indiscriminate amnesty. It includes accountability mechanisms in varying degrees, depending on factors such as:
- The seriousness of the offense (the most serious crimes are to be prosecuted and punished)
- The nature of the involvement (prosecution will focus on those who have been involved in a decisive way in the most serious crimes)
- The degree of commitment of those who are brought to justice to both the peace process and the rights of the victims (the greater their contribution and participation, the greater their chances of being granted legal benefits)
For this reason, the JEP system consists of mechanisms such as (i) accountability court rooms where judicial officers, through speedy procedures, are to grant legal benefits such as amnesties, pardons and cessation of criminal proceedings; (ii) a proper court of law responsible for ascertaining the liability of the main participants in the most serious crimes, and for imposing sanctions; and (iii) a mechanism for the granting of amnesty, pardon and early release to those who have stood trial or are being prosecuted for less serious crimes.
So, although the system that has been agreed does not envisage a blanket amnesty, it does establish delimited amnesty and pardon mechanisms for certain crimes and persons.
Amnesty and pardon in Colombia and the world
In the common use of the term in international and comparative law, amnesty means any action preventing a trial to be conducted or the punishment stage to be reached for someone who has committed a particular crime. It is used as a generic term for any measure that seeks to prevent a crime or the perpetrator of a crime from being prosecuted (such as a general amnesty law or the decision by a prosecutor or judge not to start or carry on with proceedings), or to prevent a punishment from being carried out (such as giving a very light sentence for a serious crime, thus making it completely disproportionate, or the waving of the punishment established by an already imposed sentence).
Colombian legal tradition defines the term more narrowly and the agreement reflects Colombian criminal terminology, which can be somewhat confusing for a non-specialized international audience.
First, in Colombia we make a distinction between amnesty and pardon. The former refers to non-initiating or stopping legal proceedings when a court sentence has not yet been determined. The latter refers to the judicial pardon granted to those who have already been convicted, including those who may have already partly served their sentence and the remaining part gets lifted.
There is a long tradition in Colombian constitutionalism of recognizing amnesties and pardons, though restricted to political and related crimes, as long as they are not "heinous crimes". Political crimes are committed by those who take up arms against the state (the classic insurgents). The legal tradition has understood that for a rebellion to occur, it is natural for the insurgency to resort to a series of generally illicit activities which are necessary to maintain, finance and execute its deed. These crimes are called related crimes. Heinous crimes such as non-combat killings or crimes that are committed taking advantage of the victim’s helplessness.
The Colombian 1991 Constitution has kept this legal tradition and so only accepts amnesties and pardons under the above-mentioned restrictions. The Constitution delegates the granting of amnesties to the legislative branch (Article 150.17), while pardon can be granted by both the legislative branch (Article 150. 17) and the government (art 201.2). Consequently, pardons or amnesties can only be granted to demobilized fighters, and only for political or related crimes. Serious crimes such as those committed by state agents or civilians who were not in the guerrillas are excluded.
The peace agreement and the amnesty law
The amnesty question was widely discussed at the negotiating table. Especially for the FARC, recognizing amnesty for political crimes was not only politically and symbolically very important (for it meant acknowledging the fact that its armed struggle was politically motivated), but also for pragmatic reasons (for it provides legal guarantees that its troops will not be prosecuted in the future because of their past in the guerrilla). This is why the FARC pushed for the "broadest possible amnesty" to be granted under the terms of Article 6.5, Protocol II, of the Geneva Conventions. In addition, the insurgency was emphatic that the disarmament process should be linked to the passing of the amnesty law, so as to avoid the possibility that, after surrendering their weapons, ex-combatants could be betrayed and prosecuted for crimes other than the most serious ones.
The agreement on justice (which created the JEP) thus establishes the granting of (i) broad amnesty for political and related crimes to demobilized FARC members, (ii) the extinction of criminal procedures or suspended sentences to those who, while not being FARC members, were convicted of the same crimes; and (iii) similar measures of extinction of criminal procedures or sanctions to state agents, as an equivalent measure to the amnesty granted to the insurgents.
The specific rules for these measures were subsequently outlined in an annex (that is considered a special agreement under the provisions of Article 3 of the Geneva Conventions) to be approved by Congress as the very first law regulating the agreement, once the latter is validated at the plebiscite. The main features of this regulation are:
- In no case and for no reason will amnesty or equivalent treatment be granted for acts that constitute international crimes, such as crimes of genocide, crimes against humanity or systematic war crimes. These crimes will be brought to court and those responsible will be sentenced to prison or to have their freedom restricted in some way to serve a restorative sentence.
- No crimes unrelated to the armed conflict will be granted amnesty. So, crimes that have been committed for personal or that of a third party’s gain shall not be considered connected with the armed rebellion. Nor will crimes committed by civilians or state agents not due to, in connection with, or directly or indirectly related to the armed conflict.
- The special treatment that may be granted could be: (i) amnesty for rebel ex-combatants; (Ii) waiving criminal prosecution, which is a guarantee for those who have not been prosecuted that they will not be in the future; (Iii) cessation of procedures for those who are being prosecuted; and (iv) extinction of liability for compliance with the sanction for those who have already been convicted and the sentence they have served is harsher than the penalties established in the agreement.
- The procedure for the granting of amnesties is divided into two categories. On the one hand, an automatic one (called in legal terms De Jure), which will be granted for rebellion and the most obvious related crimes (that is, those where there is no doubt as to whether they were committed with the altruistic aim of rebellion and not for profit or personal gain). On the other hand, the determination of related crimes considered to be difficult cases (where there does exist a grey area of doubt), which the JEP will consider and decide whether amnesty applies or not.
- Amnesties and their equivalent for state agents, called "waiver of criminal prosecution for state agents", entail the release from prison of all those who, for this reason, have been deprived of their freedom.
- To access amnesty or the waiver of prosecution, former guerrillas and state agents must commit to the system on reparations, truth and guarantees of non-repetition.
- State agents who have been convicted of international crimes and decide to be in the system will enjoy special prison treatment in military or police units as long as they commit to truth and the reparation of the victims. A military person who resorts to special justice for peace may only re-entry the security forces if he or she stands trial and is acquitted.
- Civilians who have been convicted of acts of rebellion, related crimes and crimes associated with social protests, such as disruption of public transport or damage to property, may access the system without any obligation to regard themselves members of the FARC, or be included in the FARC’s list of combatants.
So, the system designed by the agreement is a complex one which, in principle, does not conflict with existing international law. This has been confirmed by the Prosecutor of the International Criminal Court in a recent statement in which she "noted with satisfaction that the final text of the peace agreement excludes amnesties and pardons for crimes against humanity and war crimes under the Rome Statute." But, at the same time, this degree of sophistication will require a great deal of effort for its implementation to meet the expectations and not to become an unfulfilled promise, both for the victims and for those who in good faith submit to the system. There is still a long way ahead and much work to be done.