Are Colombian Armed Forces officials being fooled?

They are being deluded by extending to them the Deal with Farc, although they will be jailed as in other countries that were not democracies.


Our Armed Forces have been at our democracy's service, not at any dictatorship's service. Just this should prevent them from being considered political actors and peered with terrorists, as the incumbent Colombian administration has done.


Several articles of the Deal with Farc (e.g., articles 32 and 34) provide for extending the deal to civilians, State officials, soldiers, and police officers who will be subjected to both the same standards and the transitional court of justice, notwithstanding the subtlety of mentioning a treatment that “can be different, but balanced and equal.”


Article 38 provides for considering death in combat (murder), as a conflict-related political offense. This could cover the murder of military soldiers in Cauca, regardless of the fact that they were sleeping, because combats were occurring, or the murder of a group of prosecutors who were about to start legal proceedings and arrests near the town of Puerto Leguízamo, Putumayo.


Article 39 also provides for considering the apprehension of combatants (the kidnapping of soldiers, police officers, State officials, and even civilians) as a conflict-related political offense. We may argue that there was torture or inhuman treatment, which can be categorized as serious war crimes. However, propagandistic kidnappings of police officers and soldiers, occurred in the last years, would be categorized as political offenses.


We believe that Colombia's military and police officers' life and freedom are as protectable and valuable as those of civilians. Indulgence to murder and kidnapping of Armed Forces and Police officials weakens and delegitimize protection to civilians.


The purported ambiguity in article 60 does not exist. In fact, all those who are subjected to this type of justice and admit liability for very serious crimes will not be jailed. The text is as follows: “[...]; in no case shall these conditions be construed as jail or prison sentences.” Apparent ambiguity might exist because, in reference to very serious crimes where liability therefor is admitted, an imprisonment penalty is mentioned, essentially under retributive justice, but no incarceration terms and conditions are mentioned. This would mean a penalty solely aimed at reparating victims, which is very ignored because Farc organization has not been demanded to give up the money from its illegal acts, and a risk that violence is repeated due to the bad example set and based on impunity.


However, it seems to be irrelevant whether the offense is political, related thereto, or serious; in no case, shall offenders be jailed as long as truth and liability are admitted. Anyway, these offenders will be eligible for politics.


Article 36 provides for constitutional reforms to grant all those subjected to this type of justice the right to become eligible for politics, regardless of the seriousness of crimes or penalties. Besides, one can infer from the text that those sentenced to jail may be elected for not admitting the truth nor liability.


Several senior officials from the military reserve force, in a well-deserved retirement, celebrate, as a great success, article 44 that holds senior military or police officials harmless against any liability when commanders were neither effectively controlling nor aware of a criminal situation and, once this situation has occurred, have taken preventive and researchful actions. However, this is not news. A different thing is that ordinary justice sometimes mistakenly or willfully disregards this.


Furthermore, it is humiliating that Article 59 holds terror ringleaders harmless against any liability in similar situations as well. Once again, terrorists' status is incredibly equalized to that of the Armed Forces at our democracy's service.


Holding Armed Forces officials (who are servants of the rule of law) and terror ringleaders harmless against any liability, for the same reasons, is a nonsense. While the mission of the Armed Forces is to protect both citizens and the rule of law where crime is the exception, terrorists' intentions are crimes as their sole rule, although they now claim a right to rebellion.


Those responsible for atrocious crimes are prohibited from becoming eligible for politics under democracies. If our democracy intends to be an exception to this rule, what is going to happen to the paramilitaries, the politicians sentenced to jail or punished by being divested of both their title and their eligibility for politics, and the thousands of convicts of crimes as serious as or less serious than those committed by members of the above-mentioned terrorist organization?


From the Deal with Farc, one can infer that our military and police officers, State officials, or citizens subjected to this type of justice will risk being either pardoned or sentenced to 15 to 20 years' imprisonment, which could be avoided by admitting a crime not committed. That would be a serious and detrimental precedent to both human honor and the future of justice.


Hopefully, Centro Democrático party's proposal of creating a temporary and clearly time-limited court is considered, since this court would hear the cases of military and police officers allegedly committing offenses when taking actions to restore public order and sentence convicts to a maximum of 5 years' imprisonment.


Impunity granted under the Deal with Farc to those military and police officers and civilians who admit to serious crimes shall fall sooner or later. This Deal, which is a disguised “full stop act”, may be unstable and fall as it happened in countries where similar acts were passed because such an act was either expressly abrogated (e.g., in Argentina and Chile) or inapplicable (e.g., in El Salvador and Peru).


Not even a constituent or constitutional assembly may ensure stability for this Deal. A plebiscite or the Special Legislative Commission for the Constitutional Reform may neither do so. A constituent or constitutional assembly may manage to ensure stability for this Deal if it dared to have Colombia withdrawn from those international treaties and organizations prohibiting impunity for atrocious crimes such as the International Criminal Court and the Organization of American States whose Inter-American Commission on Human Rights is one of the pillars. Would this be the case?


Álvaro Uribe Vélez


February 28, 2016.

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