Rionegro, Antioquia, December 08, 2015
Author:Centro Democrático Press Office
With the sole aim to contribute to a stable peace meaning relief for Colombians, we insist in certain issues about justice.
Under the Rule of Law, impartial and objective justice, whose decisions are always based on checking rules against facts regardless of a judge's political ideology, is of the essence for pluralism and people's participation.
Balance between peace and justice should not be broken; justice is required for a peace deal to be respected by either violent actors (FARC) or by others who intend to take over their criminal acts. Besides, if justice is not proper, stability is not granted on the long-term for the benefit of both the peace deal and signatories.
Firstly, we are concerned about hearing some representatives from the Colombian State – save for the Office of the Inspector General of Colombia – saying that “justice cannot impede peace” in a too general way. Even officials from the Constitutional Court of Colombia, in spite of acting in an arguably decent manner, are also saying that “we are witnessing this exceptional peace talks circumstance;” this could permit that Constitution is transgressed. This is a very serious precedent that could be used by both the ELN and criminal gangs in the future. This risk is not improbable if we remember that many of those who are now recognizing FARC as a political actor used to say, in 1991 right after the then new Constitution was proclaimed, that this was a group engaged in narcoterrorism.
We are hereby expressing the following concerns because impunity is being favored here despite that it does not keep balance between peace and justice, but appears to be aimed at disregarding justice for the sake of a peace deal with FARC.
Restorative justice and jail as a punishment
Neither prevalence of restorative justice, which focuses on reparation of victims, nor the reparation itself must prevent those responsible for atrocious crimes from being punished with jail, as it is agreed that regular guerrillas should not be jailed.
Jail as a punishment is not only a legal matter invoking the idea that, based on international jurisprudence, punishment is jail, despite that some, in the name of the “extent to which things are interpreted in Colombia,” are supporting the idea that international law can be observed without jail sentences. Well, this is not only a legal matter, but also a matter of setting good or bad examples, dissuading criminals from acting again, or promoting them.
As well as restorative justice demands jail as a punishment and as a way to dissuade criminals from acting again, reparating victims must supplement, but never replace punishment.
Punishment may not be replaced by reparation of victims, which is a matter of ethics related to reparating the victims, of humanity related to compensating those who have been harmed, and even of civil law related to granting back equal conditions for those unlawfully affected. From points of view related to criminal law and even to restorative justice, punishment is a way to protect potential victims because, by dissuading criminals from acting again, it is aimed at giving victims the “assurance that violence will not be repeated.”
If ringleaders responsible for atrocious crimes are not jailed in regular prisons for the sake of peace, they should be taken into custody to penitentiary-like places – even if these are farms or similar –, at least while they are serving a shorter sentence.
Vaguely restricting freedom is not a punishment and would lead to either future misinterpretations or to an impression that people have been deceived.
Transitional justice and the peace deal court
We have repeatedly said that Colombia should be a place where offenders submit themselves to justice – under no impunity but generous reciprocal concessions –, rather than to transitional justice. Our nation is not in transition from a dictatorship or similar to a democracy, which has been respected and has succeeded in overcoming obstacles without negotiating with terrorists.
We have repeatedly said that Colombia is not another case of a Latin American civil insurrection against dictators. Therefore, we have repeatedly said that our issue has not been an armed conflict between peers, but an attack against the Rule of Law as initially challenged by armed Marxist–Leninists and later by narcoterrorists acting independently or together with the former.
For the sake of peace, we are reluctantly agreeing to accept that guerrillas are considered an actor in a unilateral conflict and are submitted to transitional justice administrated by the special court mentioned in the peace deal text, but not applicable to civilians nor to Armed Forces officials.
Colombian people have not been a part of the conflict, but a victim of violence.
Our Armed Forces, who have always respected democracy and Colombian laws and fulfilled their duty to protect our people and our territory, must be neither peered with terrorist groups nor considered an actor in the 'conflict.'
This transitional court of justice, whose members would be directly or indirectly chosen by guerrillas for the sake of the “peace talks exceptional circumstance,” would tend to acquit guerrillas by having them confess their notorious crimes by invoking the right to rebellion and a series of excuses.
There are founded reasons to believe that this transitional court of justice will tend to sentence civilians, militaries, and police officers. Without disregarding its ideological origins, this “peace talks exceptional circumstance” would be the excuse supporting this sentence, which, based on a policy of balance, would justify that, if guerrillas confessed atrocities, civilians and Armed Forces and police officers would have to confess theirs.
This would force civilians and the armed forces and police officers to confess crimes they did not committed in order to be spared from jail; this would not lead to reach a peace compromise, but to make a mess with justice, and that would be difficult to overcome.
We insist that military and police officers should be given legal concessions, not impunity, and not under transitional justice.
Drug trafficking and kidnapping
We think that drug trafficking and kidnapping must not be considered to be connected with political offenses, as an excuse for offenders to be explicitly pardoned or somehow benefited.
It is obvious that drug trafficking has been a source of terror and kidnapping has been a terror-related practice. Armed groups are said to have engaged in these crimes in furtherance of their political goals. Under democracy, this is an unacceptable excuse, as doing harm to people is not politically justifiable at all. Let us not forget that any terrorist intention is disguised by political intentions that, whether pretended or embraced by terrorists, are not an acceptable argument for atrocities against people.
It is unfathomable that Colombia, after being close to fully defeat narcoterrorism and kidnapping, is about to accept, before the world, that such crimes are political.
Our Justice and Peace Act permitted an alternative sentence only in the event that drug trafficking is not the main activity and is used as a means to finance paramilitaries or guerrillas, but never permitted amnesty, pardon, impunity, or eligibility for politics.
We cannot deny we are concerned about the possibility of those crimes being considered political and unpunishable when drug trafficking is now making progress again in Colombia and thousands of Colombians are being spared from kidnapping by paying more and more blackmail.
We cannot deny we are concerned about the increase of drug trafficking and illegal crops, which is the consequence of the Government's new policy to quit fumigating, reduce manual eradication, and abandon the Familias Guardabosques program, and the lack of alternative commercial crops.
We cannot deny we are concerned about the fact that the fight against illegal crops has been postponed until it is resumed together with FARC, which is the world's first cocaine trafficking cartel.
Eligibility for politics
For the sake of peace, we have accepted that those who are under the compromises reached with the Government become eligible for politics, except for those responsible for atrocious crimes against humanity, serious war crimes, drug trafficking, blackmailing, etc. Nevertheless, this is detrimental to a provision set out in 1991 Constitution, which prohibited anyone sentenced to jail from being elected, save for those charged with negligent homicide and/or political offense.
We are concerned about the intention of some to give those responsible for atrocious crimes eligibility for politics. That would be an award for crime and set a bad example for current and future generations. Why should an offender be awarded with eligibility for politics in spite of having had the opportunity to behave and gain people's trust?
In spite of criticisms of electoral processes and so much literature on 'restricted democracy,' Colombia has permanently widened its democracy. Guerrillas used to send leaflets to universities, saying that they would give up weapons on condition that mayors and governors were elected by people. However, once this was approved, guerillas reacted by threatening and murdering mayors, governors, and voters.
At the time of the National Front, temporary restrictions did not hinder the Colombian Communist Party from being covered by the MRL (Spanish initials for Liberal Revolutionary Movement) led by Alfonso López Michelsen, thereafter elected as president of Colombia.
The Patriotic Union tragedy occurred in the midst of the “combination of all forms of struggle” idea disseminated by guerrillas in order to justify the use of weapons alongside politics, with a weak State that was unable to protect those expressing different views.
The times of Democratic Security were a great progress in reference to effectively protecting the opposition leaders.
All this implies that eligibility for politics has not been prevalently restricted in Colombia; instead, guerrillas in Colombia have always preferred violence to votes. This marks a difference from dictatorships where liberties are deprived and, therefore, insurrection was inevitably based on the use of weapons. If they waived the right to stay in the path of democracy by choosing the path of atrocities, why must they be awarded with eligibility for politics?
If FARC ringleaders were given eligibility for politics, what can we think about congresspersons who have been divested of both their title and their eligibility, paramilitaries engaged in atrocities similar to those of FARC, and thousands of Colombians deprived of eligibility and sentenced to jail for crimes not necessarily atrocious?
The scope of the truce
Security for Colombians does not appear to depend on the Government today, but on the scope of the truce called by guerrillas. We are now going through dangerous times where, even though most notorious violence rate has reduced, its actual destructive potential is greater. Crime rate has decreased in reference to the most visible crimes such as kidnapping and massacres, attacks against infrastructure, and illegal checkpoints. However, crime rate has increased in reference to the least visible crimes such as rearming, drug trafficking, blackmailing, and illegal control of lands. In many Colombian regions, people prefer to pay blackmail and follow what violent actors say because people do not feel there is a trustworthy security policy. FARC, ELN, and criminal gangs are involved in increased violence and crime.
The peace negotiations should not lead to disregard security policy and demotivate the armed forces.
We will continue to discuss the plebiscite and to propose more participative ways to endorse peace deals. We will also continue to insist on an overseen concentration area ensuring that crimes committed outside that area would not be attributable to FARC and substantially differing from those areas proposed by guerrillas, where Colombia would be giving up sovereignty.
We will continue to examine the compromises published despite that we, Colombians, are now forced to say Yes to all that the Government and FARC group decide, in order to prevent ourselves from being described as war lovers.
We reiterate these concerns because we think that peace is not only the Government and FARC business, but all Colombians' business.
It comes to our attention that international analysts are repeatedly shown and proposing on the media what they would never accept in their countries in reference to terrorists.
Notwithstanding our condition as a minority, we will continue to propose a national deal that protects democratic values in order to reach and sign a peace compromise.
We are concerned that, due to eagerness based on political reasons, a Justice Compromise based on ambiguities and postponements is reached and signed, which, in spite of being favorable to the Government, would result in more problems on the long-term.
Álvaro Uribe Vélez
Rionegro, Antioquia, December 08, 2015