Colombia: The Justice Accord: An end to impunity?

By Gearóid Ó Loingsigh

23057806949_7a866ec13d_bThe accord dealing with justice signed by the FARC and the Colombian government, last September 23rd was announced amidst great fanfare.  Just like the other accords, great joy broke out amongst the NGOs, the government and a part of the press and so called intellectuals.  They had completely forgotten that the FARC had said in a communiqué issued in 2014 that they would not bow down to justice.  But just like everything said by insurgent organizations in various parts of the world, what they say they won’t do is the clearest indication of what they are thinking of doing.  So, we have an agreement on justice.

Is the optimism, joy and hope really justified?  And if they are, what do they mean?  When the FARC signed the other agreements on the agrarian question, drugs and political participation we had to put up with the declarations of NGOs and so called intellectuals, not only announcing the coming end of the conflict but the transformation of the country.  When the three accords were finally published we could see how wrong, or better still, how cynical they were.  The Agrarian Accord is a pathetic document, bereft of content which not only does not agree to a minimal land reform, but it dismisses it and focuses on the land of the drug barons and not the land belonging to the oligarchy, which the FARC rose up against so many years ago.  Moreover, it says nothing that does not already exist in the current Colombian legislation.  As Senator Claudia López pointed out at the time:

It is very important that the agreements with the FARC have been published.  I can’t see anything exotic in them, on the contrary, I read them and I ask myself: Was it for this that we have been killing each other for 60 years, for this we have let so much lead fly, for this there are six million victims?  For this? to update the land registry, to agree to finance rural development, guarantee that those who take part in politics are not murdered?  This makes me ashamed of my country.  The great revolution of the FARC, ends up in demanding that the laws that we already have, be implemented.  I feel sorry for the country, for the victims.  Such a killing spree for such basic things.1

She is quite right.  Not even the land bank is new.  There already is a type of land bank in Colombia, which has existed since the 1960s, it was called the INCORA (Colombian Institute for Agrarian Reform) now known as the INCODER (Colombian Institute for Rural Development).  It doesn’t work very well, it doesn’t do what it should, but it is a land bank, whether we like it or not.  Of course this bank is extremely corrupt, to the point that instead of giving land to peasants it gave 38,000 hectares in Vichada Department to para-politicians and friends of the paramilitary leader Macaco2.  There is also an agricultural model in place that gives lie to any intention to carry out even a partial reform.  This model is the handing over of state lands to large foreign and national companies, what one analyst has referred to as the Riopaila model.

The company bought 42,000 hectares in Vichada, for which 27 Joint Stock Companies were set up and received loans from Riopaila to buy the land.  At the same time these “companies” leased out the land to Riopaila for a term of 30 years for the price of the state lands in question.3

The Riopaila case was by no means unique and all of this happened whilst the FARC “negotiated” the Agrarian Accord.  Maybe the most disappointing aspect is that the key points were nothing more than a copy of the agreement signed between the URNG in Guatemala4, a country were we know, without a shadow of a doubt, that there was no land reform but rather a counter land reform based on African palm, sugar and mining-energy projects.

The Justice Accord

So, looking at the Agrarian Accord, how might it go with the Justice Accord?  The government announced the end of the conflict for March 2016 and the usual suspects came out to tell us what a great agreement it was.  It is worth pointing out, that for the moment, we only have the joint communiqué, the accord as such has not been published.  Nevertheless, it has led to great controversy.  We are not going to deal with the diatribes of the Colombian right, represented by Uribe, as in all peace processes the stupid and foolish comments of that kind of people only serve to distract us from reality.

The agreement contains various points such as a special jurisdiction to judge the guerrillas, the participation of foreign judges, the trial of state agents and mechanisms to establish the truth, or rather to ensure that all those who enter into this process tell the whole truth.

Some commentators emphasised the fact that state agents will also be tried and the accord recognises the existence of political crimes and related crimes, for which nobody will be sentenced i.e. the guerrilla that kills in combat will not be sentenced for this.  This is seen as progress and an achievement of the negotiations.  But we should remember that the idea of a guerrilla as a criminal is relatively new and forms part of the new world order after the attack on the Twin Towers.  Before that, they were seen as armed rebels, an altruistic agent who did not seek personal gain. So, this achievement is relative but is nonetheless important.

But it is not true that state crimes have been placed on the same level as the insurgency.  The agreement does not say this, but rather the opposite.  Whilst the “intellectuals” unreservedly applaud the accord as historic, the MOVICE (Movement of Victims of State Crimes) dared to ask some pertinent questions and questioned the reach of the agreement.

Various things worry the MOVICE: the mechanism to select cases and the candidates for the special jurisdiction; the state agents will receive special treatment; it is not known how many prosecutors will be assigned to the cases of state agents; the lack of clarity on the non-repetition of crimes by state agents, amongst other things.  On the state’s crimes the MOVICE says:

On the other hand, with the majority of state crimes those most responsible have never been linked to any criminal prosecution for these events, which means that the majority of these cases will not be remitted to the Peace Jurisdiction and will remain in impunity, repeating the experience of what happened with the so called Justice and Peace Law, where the majority of the paramilitaries were never investigated for their role in international crimes and consequently were never part of the procedures laid down in Law 975.5

Indeed, those most responsible and the companies were never touched during the process with the paras.  Salvatore Mancuso stated that the majority of the oil companies in Casanare paid money to the AUC, however, no investigations were undertaken against them.  In 2006, José Felix Lafaurie, supreme capo of the cattle ranchers in the FEDEGAN association acknowledged that the cattle ranchers had financed the AUC paramilitaries and morever, he stated that he had information on the payments made by national and international companies and palm and rice companies6. Nothing ever happened to him, he was never investigated nor was he asked for the information that he had.  There are those who seek to promote the naïve hope amongst the people that a low-life such as Lafaurie will be charged or that they will tell the truth.  If it didn’t happen in the context of the process with the paramilitaries it is not going to happen now in the process with the FARC.

Human rights groups traipse around the world sowing illusory hopes in the justice systems and the peace agreements signed in other countries, without even looking at what the real result of these processes were.  South Africa is spoken of in such terms, as if it were a great success.  Some police officers were not amnestied but De Klerk, the top boss of the death squads, of the torturers, of the apartheid system itself received a Nobel prize.  Such was the impunity in South Africa that they never touched any of the companies and today Colombia is a victim of that process.  The mining company Anglogold, one of the main beneficiaries and victimizers of apartheid was let loose around Colombia.  It has not only managed to install itself in this country, but it will be one of the beneficiaries of peace in Colombia, just like it was in South Africa. 

In 2012, the police murdered 34 miners in Marikana, South Africa.  One of the directors of the mining company was Cyril Ramaphosa, now vice-president of the country.  Impunity is not just for yesterday’s companies, but also for today’s ones as well.

If we take a look at Guatemala, we can see that there was no justice for the victims of state crimes.  After much pressure, an attempt was made to bring to justice Ríos Montt, the genocidal mass murderer, responsible for the slaughter of 200,000 people and that attempt failed.  It failed despite the Comprehensive Agreement on Human Rights signed in 1994 that stipulated:

  1. The Parties agree on the need for firm action against impunity. The Government shall not sponsor the adoption of legislative or any other type of measures designed to prevent the prosecution and punishment of persons responsible for human rights violations.

  2. The Government of the Republic of Guatemala shall initiate in the legislature necessary legal amendments to the Penal Code so that enforced or involuntary disappearances and summary or extra-judicial executions may be characterized as crimes of particular gravity and punished as such; likewise, the Government shall foster in the international community, recognition of enforced or involuntary disappearances and of summary or extra-judicial executions as crimes against humanity.

  3. No special law or exclusive jurisdiction may be invoked to uphold impunity in respect of human rights violations.7

It couldn’t be clearer.  The document also expressly prohibits armed private justice groups.  Although, some lower ranking officers were tried, there was total impunity for the high ranking military officers, amongst them Ríos Montt, and of course there is total impunity in relation to the murders committed by the private justice groups nowadays, despite the conformation of the International Commission Against Impunity in Guatemala.  However, impunity is what there is.  Amnesty International in its recent report points out that:

In May, Congress passed a non-binding resolution stating that genocide had not occurred during the internal armed conflict. The resolution directly contradicted a 1999 UN investigation which concluded that genocide, war crimes and crimes against humanity had occurred during the internal armed conflict, in which 200,000 people were killed and 45,000 people were forcibly disappeared. Over 80% of those killed and disappeared were of Indigenous Maya ethnicity.8

At the same time the report points out that:

In July, Fermín Solano Barrillas, a former member of the armed opposition during the internal armed conflict, was sentenced to 90 years in prison for directing the massacre of 22 people in 1988, in El Aguacate, Chimaltenango department.9

In other words, whilst Ríos Montt walks free, and Congress says that the genocide carried out by him and others is a fairy tale, ex guerrillas are prosecuted.  They may well be right in the case of this guerrilla, but it does contrast sharply with the case of Ríos Montt.

It is a clear example of what can be expected.  In Colombia, we can clearly state that there will not be any major sanctions made against high-ranking officers and less still against politicians as a result of the agreement on justice.  In El Salvador the Amnesty Law was passed in 1993, one year after the end of the conflict.  That law is the guarantee of impunity in the country and the reason why the military, politicians and businessmen sleep easily at night.

Trying Politicians

The ink had hardly dried and the first controversies erupted.  The Chief Prosecutor of the Nation, said, in statements to the press, that under the new agreement the former president Uribe Vélez will be subjected to criminal prosecution.  The state reacted quickly “The Minister for Justice, Yesid Reyes, who referred to the issue explained that ‘it was never considered that former presidents would have to go before that tribunal’ and added that such statements ‘end up harming the process’.”10

One should listen carefully to the minister, not only does he rule out any possibility of trying the likes of Uribe, but he also says that those who propose this, harm the peace process.  This phrase will be heard repeatedly in the future, “in the name of peace, do not ask for more, do not demand more,” the victims seeking justice will be the new terrorists who want to destabilise the country.  This hasn’t just be seen in other countries, in Colombia we have seen examples of this when the church demands that the victims forgive the victimizers, just like they explicitly stated in the process with the paramilitaries.11  Forgiveness is only half of the slogan Neither Forgive Nor Forget.  They will have to forgive and forget.  This is the essence of the accord in relation to the state’s agents.

Not only should Uribe be tried, but so should all of the presidents, as Uribe didn’t do anything that they didn’t do at some stage, even his actions in the 1990s as governor of Antioquia were covered by the decree issued by Gaviria and the government of Samper.  He didn’t set up the Convivir (Rural Security Cooperatives) on his own.  He did it by applying the legislation in force,with the blessing of the state.

Humberto de la Calle in the dock

While we are at it, we can ask for the head of the government’s negotiating team to be tried by the special jurisdiction.  De la Calle was Minister of the Interior in 1990 and 1991 when the Trujillo massacre was at its height.  The III Division of the army, under the command of Manuel Bonnet (future head of the armed forces) murdered hundreds of people.  Bonnet did not accept any responsibility, not even chain of command responsibility, but President Samper did accept the state’s responsibility for that massacre.  So, do the ministers of that government bear any responsibility and if not, why not?

Humberto’s exploits don’t end there.  He was vice-president for two years under Samper.  He quit for ethical reasons surrounding drug money in the electoral campaign of Samper.  This was something important and ethical for him, however, he did not resign over the Convivir.  So, setting up, organizing and supplying civilian groups with arms, who would later kill other civilians and became the legal façade of the paramilitary groups was not an ethical question.  It is not a crazy notion to propose that De la Calle be tried by the special jurisdiction and that he tell us the WHOLE truth in order to obtain the judicial benefits that would apply in the case.

But this won’t happen.  As with other peace processes, the main beneficiaries will not lose their status or privileges as beneficiaries and of course they will not lose their liberty either and the reason is a simple, though rarely mentioned one: the FARC lost the war, the state won.  The only person who has said this, is Humberto de la Calle.  Peace processes are based on a lie that nobody wins and nobody loses and that peace is a project involving us all.  But it is not so.  The FARC withdraw from battle and dissolve, the official army does not.  It is quite clear who wins a war: those that are left standing and the winner places all the blame for all the ills that afflict the country, all of the horror of the war, all the suffering, on just one actor: the loser.  That is why the FARC will be tried: they lost and as a bone tossed to them, some low ranking military officers maybe tried, although they will receive special treatment.

The journalist William Ospina described it very well in his column in El Espectador:

Although the FARC have acknowledged that they are the main culprits for the crimes and atrocities of this war, I have to repeat what I have said so often: the leaders of Colombia in the last century are the main cause of the problems of the nation, it is their vision of this country and the way they have administered it that is the cause of everything.  They are responsible for the bandits of the 50s that they armed and indoctrinated; the rebels of the 60s, whose rights they restricted; for M19, due to the electoral fraud of the elections of 1970; of the mafias in the 1980s, due to the closing off of business opportunities and the continuous and suicidal dismantling of the legal economy; for the guerrillas due to the abandonment of the countryside, the exclusion and irresponsibility of the state; for the paramilitaries that aimed to give protection to the landowners that the state would not give; they even bear responsibility for the FARC, for this half century of useless war against an anachronistic enemy that could have been included, 50 years earlier, in the national project, had such a project existed…

What amazes me is the astuteness of the leadership of this country, which once more achieves its aim of showing to the world the culprits of the violence, and they pass under the radar as the cause of the problems.  To such a degree that they are always there, in the midst of it all, not only do they manage to be invisible, they manage to show themselves as being innocent; not only are they absolved of all responsibility, they are the ones who end up absolving and forgiving.12

As Julio Cortázar said in El Libro de Manuel “it is very important to understand who practices violence: whether it is those who cause misery or those that fight against it.”  The peace process with the FARC and in particular the agreement on justice negates this aspect.  The state is the main culprit of the violence and if we search for war criminals, we will find them in the Congress of the Republic, in the General Staff of the Armed Forces and of course, in the state’s negotiating team in Havana.

The complaints of the MOVICE.

It is fitting that the MOVICE complains and asks questions, that it demands the participation of victims in the process to select cases etc.  But the MOVICE will have to begin to rid itself of its illusions in the process and the agreement.  Its struggle against impunity is not nearing its final stage, but rather it is barely beginning.  The agreement and the process are not ushering in a new era of justice and an end to impunity, but rather impunity will have new mechanisms and those that seek justice will be accused of seeking the end of “peace” and “reconciliation”.  They will have to struggle just like the Guatemalans to bring the likes of Montt to justice, they will have to find brave prosecutors who know that for their courage and daring they will be persecuted and harassed like their counterparts in Guatemala.

Impunity is not just a problem in Latin America.  In Ireland those responsible for state massacres and torture were never identified, never mind tried.  The murderers of lawyers such as Pat Finucane have not been tried, nor even fully identified, although it is known that state agents took part.  Neither have the British agents involved in the Dublin and Monaghan bombings been identified and to date the British and Irish states deny the involvement of state agents.  A commission was set up to investigate the Bloody Sunday massacre where 13 civilians were murdered before TV cameras.  The inquiry found that the soldiers on the ground were partly responsible, but not their military commanders, not the government and less still queen Elizabeth who decorated the officer in charge of the massacre.

The MOVICE will also have to rid itself of its illusions in international justice.  In its communiqué it refers to the involvement of international judges as a guarantee of impartiality.  Do they really believe this?  Notwithstanding the findings of the Inter-American Court of Human Rights, in practice, international justice works as a type of judicial imperialism.  To date the International Criminal Court has tried Africans for the conflicts there and has ignored the role of foreign interests in all of those conflicts.  In the case of Sierra Leone, it has sentenced various Africans and not a single European involved in the trafficking of so called “blood diamonds”.  It didn’t even consider trying any Europeans.  If it is a case of trying some soldiers, a foreign judge may be impartial, although we should recall that in recent years a number of high ranking officers have been tried and sentenced for the false positives by the Colombian system.  However, if at any point an attempt is made to deal with foreign companies, the international judges will not be impartial, just like they have never been in any of the conflicts where the economic interests of the imperialist countries are at stake and we are not just referring to Iraq and Syria, but also the dirty wars waged in Latin America.  Does anyone believe that the board of Chiquita who have already accepted their role in the dirty war in Colombia will be tried?  A Canadian judge will not say much about the role of Canadian mining companies and a British judge will not be that impartial when it comes to trying BP for what it has done.

Perhaps they hope that judge Baltasar Garzón will help in the fight against impunity.  After all he is the favourite judge of the human rights NGOs in Colombia, despite him violating human rights in the Basque Country, where he has closed newspapers, restricted the right of association and has processed prisoners who have been tortured.

If it is not accepted that the FARC have been militarily defeated and that the content of the accords shows a deep political defeat, the peasant, workers and human rights organizations will make no headway in their struggle against impunity.  One must first take account of the situation that the grassroots movements find themselves in.  Singing of a false and non-existent victory (or even a partial advance) helps no one.  The defeat must be seen as what it is and organise in the midst of that reality.  To act according to the logic of the great victory or advance that the accords are is to prepare for even deeper defeats in the future, as has occurred in all the peace processes with insurgent organizations, where the social organizations did not vindicate their autonomy regarding the signed agreements, but rather signed up to them in an uncritical manner and were not in a position to make progress in their struggles because they had tied themselves to agreements signed between outside forces: the insurgency and the state.  It is time to distance themselves from the process.  After all they are independent organizations and should show it.  The end of the shooting match is up to the insurgency and the state and nobody else, the social agreements should be negotiated with social agents who should have their own criteria.  To criticise or oppose an agreement is not the same as asking for more war, as the mentally impoverished intellectuals would have us believe.  The options are always greater than the false choice of more war or the peace process.

  1. El Espectador (28/09/2014) Me duele que mi mamá se angustie por mí, http://www.elespectador.com
  2. Cuellar Solano, A. ¿Conejo a lo pactado en La Havana, Caja de Herramientas Nº 00370 27/09/2013 a 4/10/2013 www.viva.org.co  
  3. López Rincón, J.H, Despojo de Tierras: el modelo Riopaila, Caja de Herramientas, Nº 00357 28/06/2013 a 04/07/2013 www.viva.org.co
  4. See U.N. A /50/956  June 6th, 1996
  5. Movice, (26/09/2015)Que el acuerdo de  jurisdicción para la paz no deje en la impunidad crímenes de estado, publicado en http://anncol.eu
  6. See El Cambio No 704 diciembre 2006/enero 2007 Diez Preguntas (Entrevista con José Félix Lafaurie)
  7. Comprehensive Agreement on Human Rights Chapter III www.usip.org
  8. Amnesty International (2015) The State of the World’s Human Rights, AI, London, page 167
  9. Ibíd
  10. Semana (29/09/2015) La metida de pata del fiscal Montealegre www.semana.com
  11. El Tiempo (24/12/2006) La Iglesia tiene su archivo de la verdad page 17
  12. Ospina,  W. El Espectador (26/09/2015) Los invisibles www.elespectador.com
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