Luis Guillermo Pérez, president of the José Alvear Restrepo Lawyers Collective, talks to PBI about transitional justice in Colombia.

PBI: How would you describe the case of Colombia with regards to transitional justice?

Luis Guillermo Pérez: Colombia has experienced cases of transitional justice but at the time it was just not recognised as such. This concept of international law is rather new, having come about in the last two decades. Colombia has experienced negotiated solutions to armed conflicts throughout the country since our independence in 1810 right up to the present day. More than 60 of these processes have brought to an end internal or civil wars with amnesties or pardons.

Today however, the situation is different due to the law 1448 of 2011 in which the President Juan Manuel Santos, in contrast to his predecessor, publicly recognized that state crimes do exist, [recognized] victims of state crimes who must receive reparations. Now, the problem with this law, given that there are more than six million victims in Colombia, is that through the administrative reparation process, the possibility of judicial reparation is limited. Hence, victims are not compensated when it comes to the damages they have suffered, which generates significant dissatisfaction.

Likewise, the President has offered to return two million hectares of land as part of his development plan, yet only twenty thousand have actually been handed over and not necessarily to those most in need.  In this way, the process has been, until now, a failure. More than 70 leaders of the land restitution process have been murdered precisely because you cannot apply transitional justice in the middle of a war.

PBI: What are the main difficulties in developing the mechanisms required for transitional justice in Colombia?

LGP: I would say that the principal obstacle is precisely that we lack a solid peace process, that there are talks but the possibility of ending the conflict is still not quite within reach.

The second key difficulty is the fact that there has been no significant restructuring of the state and that many members of the state security apparatus are themselves enemies of the peace process.

The third impediment is that the war is clearly big business for certain important sectors in this country as well as many members of the armed forces and the military itself which is one of the largest in the world not only proportionally but also in terms of active personnel. Colombia has more than five hundred and thirty thousand soldiers and police dedicated to national security, or insecurity, depending on your interpretation of cases in which they participate in breaches of the peace and violations of human rights. The United States military has four hundred and fifty thousand men, making war big business. How do you feed five hundred and thirty thousand men? How do you sell uniforms for five hundred and thirty thousand men? Where do you buy arms and munitions for five hundred and thirty thousand men?  This is the business of war. The business of war that benefits many people, this is a huge obstacle.

So, the fourth obstacle is related to prescriptions set out on paper of which, despite what is written saying something else, the application of the law ends up being distinct to that prescribed, the Justice and Peace Law is just one example. This law, reviewed as it was through several rulings by the Constitutional Court really should have been useful in clearing up many cases of dirty war in Colombia but, due precisely to the interests at stake dissuading people from talking, the law ended up, in general terms, being a failure.

However, we do have to recognize that the paramilitaries have brought to light some important truths for Colombia such as the fact, which human rights defenders have continually denounced, that paramilitarism was not a phenomena unrelated to the state, but rather created by the state and developed by the armed forces as a dirty war strategy.  This has been confirmed by many of the criminal proceedings of the seven rulings of the Inter-American Court of Human Rights against Colombia on this subject.  And I would say, finally, that these attempts at transitional justice have also failed because we are yet to open a serious national debate on the issue of justice in this country as well as the prison system in Colombia; what do we understand by incarceration? What would alternative sentencing mean for us?

PBI: Transitional justice is not just criminal justice; it must fulfil a need for the truth, memory, comprehensive reparation, and institutional reform. What does civil society propose to achieve this?

LGP: There exist many proposals, but let’s start by mentioning one that has not come from civil society but rather from our own government that I have not talked about until now; the Legal Framework for Peace, which consisted of a constitutional reform through Legislative Act 1 of 2012. With this, the possibility to create a Truth Commission was established and the possibility to begin legal proceedings against those responsible for international crimes was established, be it guerrillas, the paramilitaries, or others.

There are also some problems with this proposal due to it not being a process of negotiation within a peace process, but rather, a mechanism for surrender to which, the government anticipates, those guerrilla groups involved in negotiations will submit themselves. From civil society’s point of view, opinion is split. There are those who support the Legal Framework for Peace claiming that it has potential and that from this point onward legal instruments must be developed allowing statutory laws to be elaborated within this framework that will contribute to guaranteeing the transitional justice and peace process.

Other organizations however, such as ours, believe that this Framework, seeing as it does not form part the negotiations within a peace process, is unlikely to be accepted by the guerrillas as a mechanism to which they are willing to submit themselves. Hence, different solutions will have to be thought up for how to guarantee the political, legal, and institutional fulfillment of the guerrilla. There are several legal initiatives, for example, that have supported the Legal Framework for Transitional Justice and consider it to strengthen the possibility of a reinsertion [into civil society] of the guerrilla movement.

The Colombian Commission of Jurists has denounced the unconstitutionality of the Framework, considering that the waiving of the criminal prosecution of international crimes is contrary to the constitution. The Constitutional Court has ruled that no, this does not constitute an essential altering of the Constitution and that the Framework seeks to contribute to peace. It stipulates however, that this is conditional on regulation through statutory law and that ordinary law allows for the guarantee of justice for those highest ranking officers who submit themselves to this process. Proposals for constitutional reform of the Colombian state are being put together that seek to ensure that all those responsible for international crimes pay for their crimes. They also promote the establishment of a Truth Commission similar to that proposed by the Communities in Resistance Promoting Peace in Rural Areas (CONPAZ) that are formulating their own independent proposal for a Peace Commission. So you see, proposals do exist.

Our proposal is for a Special Peace Tribunal based on the belief that these negotiations with the FARC are a huge opportunity and that similar negotiations should be opened with the ELN. Furthermore, we believe that all those responsible for international crimes must find a way in which to confess their crimes, victims and society must receive reparations, public apologies must be made, and the culpable must submit themselves to this tribunal in order to possibly receive an alternative sentence. We believe that there must not be a “pick and choose” Tribunal for each armed group but rather, one sole Tribunal based on clear rules in which the rights of the victims will not be violated. We do, however, believe that alternative sentences need to be established.

That is to say, we are considering community work, the possibility of political participation for the insurgent commanders who submit themselves to this Tribunal, that these aforementioned request the same conditions, that they guarantee that their crimes will not be repeated, that those members of the state who have sponsored these crimes and contribute to the dismantling of these criminal structures within the very state receive alternative sentences. On this last point we differentiate between the individual criminal responsibility of those who have taken up arms for political motives such as to change the country, change the existing structures of dominance, change the status quo, from the responsibility of a state actor who has sworn to defend the constitution and the law but instead has ended up committing serious crimes; nobody pays their taxes to have criminals working for the state. Here we believe that the reference for sentencing established by the Justice and Peace law, doubling the sentences of those chiefly responsible, could act as an incentive those responsible to submit themselves to judicial process.

PBI: How can we resolve the dilemma of whether to strengthen the application of justice to the detriment of the peace process, or on the contrary, favour the peace process over the full application of justice for the victims?

LGP: The question of Justice and Peace will continue to be a source of debate for some time. Clearly, in order to achieve peace we must give up traditional demands for the application of strict justice that would normally be applied to crimes of an international character like those which have been committed in Colombia against more than six million victims.

However, peace means renouncing the application of these heights of justice, so to consider the framework of the Justice and Peace law and its impacts is inevitable.  We are going to have four hundred paramilitaries leaving prison who have committed the most horrendous of crimes, they have confessed to having tortured, skinned their victims alive, mutilated them, and raped, and now they are going start walking out of jail having served sentences of between 5 and 7 years. This is an inescapable reality with which we have to live. Hence, in a different scenario, that of truly bringing to an end to this internal armed conflict, we have to limit the possibilities for full justice in the sense that in dismantling the factors of confrontation, all the force of the crime can be transformed into something useful for the country, something useful for society.

PBI: What have been the main achievements in terms of Transitional Justice in Colombia?

LGP: In talking about achievements, we must refer to, as I mentioned previously regarding processes of reinsertion, when the Cold War ended, the Berlin Wall fell, when the M-19, then the most important urban guerrilla movement in Colombia, decided to submit itself to a peace process, they went the National Constituent Assembly they contributed to the redefining of the rules of our democracy, they co-chaired this assembly. This is one of the most important achievements for Colombia, along with the demobilization of other guerrilla groups such as the Quintín Lame indigenous movement which demanded respect for indigenous people who, until the constitution of 1991, where considered to be mentally handicapped. This is a huge advance and has a lot to do with this Peace Process.

The most important achievement however, and the most recent, has come from the confessions of the paramilitaries: that the Colombian people now know of the horrors of paramilitarism, that until this process began the people identified the paramilitaries as saviours, as heroes, just as the media presented them during the government of Uribe. Not as troublemakers or as serious criminals but rather as those allied to the state in the fight against the terrorists.

PBI: What is the situation with regards to the protection of human rights in the Transitional Justice processes of the last few decades?

LGP: Well, there continues to be a huge lack of effort in this government. This government that has recognized the victims, that has begun the Peace Process, continues to be a government profoundly lacking in terms of human rights. What is certain is that under the Santos’ Government almost one hundred trade unionists have been murdered, and most recently, just last week, over a thousand trade unionists where threatened with death. Also, more than two hundred and twenty human rights defenders have been murdered as well as hundreds receiving death threats.