Colombia debates how to end its war

Although there is more or less a consensus on when the complex Colombian war began to be written, between 1948 and 1964, there is still no consensus on how to put an end to it.

Although the two largest and most powerful armed groups in the armed conflict demobilized—the paramilitaries in 2004 and the FARC guerrillas in 2016—the former commanders of those two armies have recently expressed discontent with the transitional justice processes to those who accepted: Justice and Peace for the paramilitaries;

the Special Jurisdiction for Peace, or JEP, for the guerrillas and the public force.

Courts where, broadly speaking, they confess their crimes before the victims of war and can receive alternative prison sentences in exchange.

But in neither of the two jurisprudences, they say, does the final point of the conflict—or of their cases—seem to be visible yet.

Rather, they consider, new labyrinths seem to open up.

They are courts that “must have a vocation as a closing court, otherwise we will continue to feed the vicious circle of our violence,” Salvatore Mancuso, a former paramilitary commander who returned to Colombia last week after more than a decade in the country, wrote in a letter. a United States prison.

He joined Justice and Peace in 2006. “We are worried that we are going to die owing to the country,” Pastor Alape, former FARC commander, told

Semana

magazine days before .

“There is no end in sight for all this,” added his partner Joaquín Gómez.

Both have been in the JEP since 2018.

These wishes for closure have also been expressed by the Government, at the beginning of the year, in the mouth of the chancellor, Álvaro Leyva, in front of the UN.

“The idea has arisen, among contemporary peace negotiators, that it is well worth thinking about a tribunal, a hybrid court, to eventually find a definitive closing mechanism, a turning of the page,” the minister said in January, before he was temporarily suspended from office for other matters.

The Colombian transitional justice system, with its complexities, is also one of the most admired in the world.

The prosecutor of the International Criminal Court two years ago closed his case in Colombia because he considered that the Colombian State was doing an “imaginative and functional” job to judge the crimes of the armed conflict, satisfactorily complying with the values ​​of the Rome Statute, something that also has applauded the UN mission in Colombia.

“Colombia has the most valuable international experience in creating mechanisms, jurisprudence, to judge and compensate victims, and that experience is not insignificant,” pro-government senator Iván Cepeda, a victim of the war, tells EL PAÍS. dedicated his career to promoting truth and memory processes in the country.

There are two reasons why these criticisms of transitional courts are occurring at this time.

The first is that there is now a Government willing to listen to them.

In the previous Presidency, of Uribista Iván Duque (2018-2022), the former FARC did not throw darts at the JEP for being slow or complex.

They defended it without hesitation in the face of Uribismo's efforts to “tear up” the peace agreement.

The JEP survived that Administration and that of Gustavo Petro arrived, who gave it his full support.

Now, the former FARC more calmly point out what they don't like.

They know that now there is someone who is watching.

“The main purpose of the Government is to reach the truth of everything that has happened in the armed conflict, to compensate the victims and to ensure that there is no impunity.

If a law called full stop is compatible with that, we could analyze it,” Justice Minister Néstor Osuna said at a press conference in response to the debate.

Former President Uribe has also joined this (“The full stop law is inapplicable in Colombia. I have publicly proposed a political amnesty”) and former Minister of Justice Yesid Reyes (“the JEP is minimalist by nature. If the latter intends to establish the truth of our internal armed confrontation, will exceed the limits of its mandate"), among others.

The second reason why the debate over the final point comes now is that, indeed, transitional justice may have very ambitious and laudable goals, but it has also become a labyrinth with no exit.

Justice and Peace has been in operation for almost 20 years and has not yet processed 50% of the criminal acts of which the paramilitaries have been accused.

Mancuso has been giving free statements for almost two decades and, if nothing changes in the functioning of that system, he will last many more years answering for having been a paramilitary commander.

The JEP, which has 10 years to investigate macrocrimes, began operating in 2018 and has not been able to issue its first sentence.

It has, however, opened new macro cases to investigate and judge those most responsible from an ethnic, gender, or economic point of view.

At the current pace of work, the JEP magistrates will hardly be able to have sentences for the 11 macro cases that have been opened in the remaining five years.

There are other more immediate flaws as well.

With the peace agreement with the FARC, some 13,000 people were demobilized and most were entitled to amnesties to be able to reintegrate into civilian life—unless they had pending criminal investigations.

“In these seven or eight years, only 600 amnesties were issued.

At this rate it would take 50 years,” criticizes one of the former FARC commanders, Rodrigo Granda.

The JEP has been collapsed at this point, which has especially affected the rank and file guerrillas.

Gina Cabarcas, an expert in transitional justice and director of the NGO Criminal Justice and Policy Laboratory, understands these frustrations as an expected result given the complex nature of transitional justice.

“These mechanisms are always very difficult due to the massiveness of the facts to be taken into account: if around one and a half million criminal news items reach the Prosecutor's Office per year, here we are talking about eight million displacements, or more than 300,000 homicides,” he explains.

Although hundreds of violent events have already been grouped into macro cases, the number of crimes makes it likely that any system will overflow.

“And second, transitional justice mechanisms will always have a very big challenge: they are always torn between criminal law and being courts for peace;

They want to guarantee justice and at the same time be scenarios of peace.

Harmonizing those two things is a very big challenge,” she adds.

The FARC and former paramilitary commanders like Mancuso, however, may appear cynical in this debate because, despite the complexity, transitional justice has granted them exceptional benefits, which no other citizen in Colombia has.

The former paramilitary was sentenced to 8 years in prison in Justice and Peace, instead of the 40 years he would have had in the ordinary justice system (the North American justice system, however, sentenced him to more than a decade for the crime of drug trafficking).

The FARC will have alternative penalties for confessing the truth about his crimes.

The road is long and the end point is far away.

But telling the truth about a decades-long conflict in front of millions of victims could hardly be an express process.

Two other factors, even more complex, prevent reaching the end point of the war.

On the one hand, no court yet covers civilian third parties involved in the conflict: powerful businessmen or politicians, for example, who have been identified by the armed actors, but who cannot benefit from transitional justice.

Initially, the JEP was contemplated as a closing court, but the negotiations in Havana and the Constitutional Court truncated that possibility.

The debt to that crucial side of the truth of the conflict remains open.

And, to make the closure issue even more complicated, the conflict is not over.

Although thousands of paramilitaries and guerrillas have demobilized, there are six armed groups or criminal gangs active in the country currently negotiating with the Government.

At the negotiation table with the ELN, for example, one of the points planned to be discussed is how they are going to respond to the victims.

With a new court?

One that promises definitive closure?

One that includes civilian third parties?

One that simplifies amnesties and macro cases?

The closure of this book is still very far away.

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