One rule for the military, another for the rest? Special courts and hiding accountability in Colombia Daniela Castillo, Volunteer for CAJ and Master’s Student at TJI

Since the 2014 Stormont House Agreement, there have been a number of alternative proposals to deal with the legacy of the Northern Ireland conflict recently examined in a report by the CAJ-QUB Model Bill Team. Many of these came from groupings seeking various forms of amnesty or ‘statutes of limitations’ for the security forces, specifically the military. A number of these models involved applying a differential process to military cases, which could have the purpose and effect of limiting investigations or proceedings against the military, with the risk of facilitating impunity for human rights violations during the NI conflict. Such proposals were set out as either an alternative to the SHA or would amend this existing Agreement in a manner whereby it would not be able to function as intended in relation to accountability for cases involving the security forces.

This guest post from Daniela Castillo explores proposals for a similar parallel process for the military in another jurisdiction grappling with resistance to the implementation of its peace agreements – Colombia. 

In 2012, the government of Juan Manuel Santos initiated talks with the, now decriminalised FARC  Colombian Revolutionary Armed Forces – People’s Army (Fuerzas Revolucionarias de Colombia – Ejército del Pueblo). This led to a general agreement for the termination of the conflict and the construction of a stable and lasting peace that was based on six central areas: first, agricultural development policy; second, political participation; third, end of the conflict; fourth, illicit drugs; fifth, victims; and, finally, implementation. This was an extensive process where the six thematic areas were formalised and in 2016 the peace agreement was signed, inaugurating one of the biggest challenges in Colombia.

One of the most important institutions created in the peace agreement was the Special Jurisdiction for Peace -JEP (Jurisdicción Especial para la Paz) created to administer justice to consolidate the transition towards peace and restore social fabric. The JEP is to further the rights of victims to justice, truth and non-recurrence, underpinned by legal guarantees for those appearing and a territorial, multi-dimensional and gender focus. The mission of the JEP from now until 2033 is one of transitional justice, with specific aims to establish criminal responsibility for the gravest violations committed during the armed conflict, assist in providing reparations, and contribute to reconciliation and peace building (see the JEP website for further info). The JEP is divided in three different judicial chambers. The first chamber focuses on truth recovery, responsibility and determination of facts; the second chamber on amnesty and pardons for qualifying offences; and, finally, the third chamber on dealing with the continuation or discontinuation of criminal proceedings in certain cases.

In May 2017, this institution began its mandate within the transitional justice process in Colombia. The implementation of its remit in practice was not straightforward as the JEP encountered many obstacles that are still a challenge today. In 2018, we had presidential elections which led to a change of government. Iván Duque won the elections with the hardline Centro Democrático political party. During his campaign, Duque committed to making unilateral changes to the peace agreement already agreed in 2016 and reforming the JEP. When he won the presidency he began to take forward, through legislation, amendments to the peace agreement.

In 2018, President Duque’s party, the Centro Democrático, under the leadership of senator Paola Valencia and former president Alvaro Uribe (who had opposed the peace agreement), proposed a bill to change the structure of the JEP, with the aim of having a differential treatment for members of the security forces within the JEP (as summarised in this news story). This meant that the JEP would have to create an additional chamber for the military involved in the armed conflict. This chamber would hold its hearings behind closed doors.

The proposal within the bill is to create two first instance sections of the chamber. This are namely a judicial review section and an appeal section. Each section would be composed of three judges who would be personally appointed by the President of the Republic, who is hardly impartial. The appointed judges could also be drawn from retired military officers, further questioning impartiality. Ultimately, judges who may be former military personnel themselves are to pronounce, after secret trials, whether or not a soldier is guilty of a grave violation of human rights. It cannot be understated what a risk this poses to the potential for justice as part of the peace process in Colombia.

As alluded to earlier, Iván Duque in his presidential campaign, sought changes to the peace agreement and to the JEP. These reforms were explicitly aimed at providing for differential treatment for the military, with the argument that the military play a role of defenders of people and pursue military objectives. So, the changes would create an exclusive and separate legal framework to consider crimes committed by the Security Forces during in the armed conflict.

The bill has to date proceeded through Congress twice, but has not been successful. This is because it would indirectly seek to facilitate impunity in some cases for the military in relation to serious human rights violations. Alberto Brunori, representative of the United Nations office in Colombia, opposed the bill on the grounds it fettered the competency of the JEP to discharge its truth-recovery remit. Other opponents argue that the creation of the new chamber supposes the creation of a new judicial process that is tailored to favouring the military concealing their role during the armed conflict and that such differential treatment does not uphold the rights of victims.

At present, the military are still required make their statements under the jurisdiction agreed in 2016, without having access to the proposed special chamber. Confessions by the military within the framework of the existing process have led to the location of mass graves, and to truth recovery in relation to both specific cases and in general. This has demonstrated that differential treatment is unnecessary. The creation of special chambers for the military would create a scenario of impunity, lack impartiality, and cause the truth to be suppressed. The rights of the victims would not be guaranteed. The special chambers would only generate benefits for the military by thwarting effective investigations.