Washington D.C., 15 July, 2005
- The Inter-American Commission on Human Rights (IACHR) has been advised of the passing by Congress of the so called "Law of Justice and Peace" in the Republic of Colombia. This legislation, that requires the presidential signature in order to enter into force, establishes a legal framework for the demobilization of members of illegal armed groups involved in the commission of serious crimes against the civilian population in the context of the armed conflict.
In view of the recent adoption of this bill, the IACHR makes public its general observations regarding the contents in light of its mandate to promote the observance and defense of human rights, as well as the task delegated to it by the Permanent Council of the Organization of American States (OAS) in the sense of "ensuring that the role of the OAS be completely in accordance with the commitments of the member states regarding full compliance with human rights and international humanitarian law" in the process of dialogue between the Colombian government and the paramilitary in Colombia.
In its reports on the general situation of human rights in the countries of the Hemisphere and on individual cases, the IACHR has consistently insisted on the states' obligation to establish adequate mechanisms to achieve truth, justice and reparation for victims of human rights violations. Establishing the truth about what happened during the conflict, searching seriously for justice through the determination of the responsibility of the perpetrators vis-a-vis the victims, and the reparation of the damage cause -- far from generating obstacles for the agreements that can lead to peace building -- constitute basic pillars of its strength.
Regarding the Law of Justice and Peace in Colombia, the IACHR notes that the determination of the historical truth regarding what happened during the last few decades of the conflict does not appear as an objective. Nor does the determination of who has sponsored paramilitarism or of the degree of involvement of different participants in the perpetration of crimes against the civilian population by action, omission, collaboration or acquiescence.
The adopted bill concentrates upon the mechanisms to establish individual criminal responsibility in individual cases and involves demobilized members of illegal armed groups receiving procedural benefits. However, its provisions fail to establish incentives for a full confession of the truth as to their responsibility in exchange for the generous judicial benefits received. Consequently, the established mechanism does not guarantee that the crimes perpetrated will be duly clarified, and therefore in many cases the facts may not be revealed and the perpetrators will remain unpunished. The provisions of the law might favor the concealment of other conduct that, once brought to light at a future date, could benefit from the same alternative penalties. These procedural benefits not only reach conduct directly related to the armed conflict, but also can be invoked regarding the commission of ordinary crimes such as drug trafficking.
The IACHR also observes that the institutional mechanisms created by the law to administer justice -- in particular the Prosecutor's National Unit for Justice and Peace, composed of 20 prosecutors -- lacks the strength necessary to undertake effectively the task of prosecuting thousands of massacres, selective executions, forced disappearances, kidnappings, tortures, forced displacement and usurpation of lands, amongst other crimes, committed by several thousand demobilized individuals during the many years that paramilitary structures have operated in Colombia. Regarding the seriousness and complexity of the crimes perpetrated, the short time limits and procedural stages provided for in the legal mechanisms to investigate and prosecute the demobilized individuals benefiting from the law also fail to offer a realistic alternative to establish individual responsibility in full measure. This circumstance will prevent the uncovering of what happened to many of the victims, thus frustrating the reparations process they are entitled to. The investigation of serious violations of human rights require adequate time limits and the opportunity for necessary procedural activity.
In terms of the reparation of the damage caused by those responsible for the commission of heinous crimes, the law places special emphasis on the restitution of unlawfully acquired property rather than on the mechanisms that might serve the full reparation of the victims. Particularly, it does not provide for specific mechanisms to repair the damage caused to the social fabric of the indigenous peoples, the afro-descendant communities, or the displaced women, often heads of household, who rank among the groups more vulnerable to violence by the participants in the armed conflict. The law fails to provide as part of the reparation owed to the victims, measures directed to preventing the repetition of the crimes committed, such as disqualification or separation from official functions of state agents involved by action or omission.
The IACHR acknowledges that, in such a complex, painful and prolonged situation as the conflict in Colombia, the deactivation of the armed participants by means of negotiation is a priority. However, in order to secure a lasting peace, guarantees for non-repetition of crimes of international law, human rights violations and serious infractions of international humanitarian law must be in place. This requires the clarification and reparation of the consequences of violence through mechanisms which prove to be adequate to establish the truth of what has happened, administer justice and provide reparation for the victims in light of the American Convention on Human Rights and the OAS Charter. The IACHR shall continue to excercise its mandate to promote and protect human rights in Colombia vis-a-vis the demobilization process and the interpretation and application of its legal framework, both through the adoption of General and special reports and the consideration and decision of individual cases.