In less than two months, the Colombian peace accord is due to be concluded. As an avid defender of peace, but similarly, a proponent of international criminal law and how international justice functions, it was natural that I look towards a particular aspect of the peace process: the Special Jurisdiction for Peace.
As members of the Peace Community hear the news that future ex-combatants (legal and illegal armed actors) might receive amnesty, while leaders charged with the most serious crimes are to face a special tribunal of independent judges in order to benefit from alternative penalties for crimes committed during the Colombian conflict, we heard cries of anguish.
“Doesn't this essentially mean impunity?” a young man (my age) cried out.
Justice
From a mountain in the Peace Community of San José de Apartadó, does justice look similar, from say, the perspectives from the International Criminal Court (ICC) in The Hague, in Belgium?
Having worked previously in the ICC, I now have the privilege of seeing the perspectives of both.
Can I really say the perspectives are one and the same?
Under the Special Jurisdiction for Peace, the future demobilisation of FARC guerillas is expected to allow for amnesty towards those choosing to enter within this alternative justice system.
In this regard, it is similar to the AUC demobilisation process in 1996 where Law 418 (1997) granted amnesty from criminal investigations, prosecutions and convictions to all those who chose to demobilise.
Amnesties do have a role to play in catalysing peace. In order to move forward from a conflict, there needs to be an incentive for armed actors to demobilise and to rejoin society.
On the other hand, there is also a need to ensure that justice is duly served, and that perpetrators are not provided blanket amnesties for serious human rights or international law breaches for the sole reason of moving forward from a conflict, thereby depriving victims in the conflict of their right to an effective remedy.
Under international law, amnesty can be provided after the end of a conflict. However, amnesty should not be granted to protect perpetrators of crimes against humanity, war crimes, genocide or gross violations of human rights.
It also must not interfere with a victim's right to an effective remedy, or otherwise restrict the Colombian citizen's right to know the truth of violations of international law and human rights.
According to the Additional Protocol 2 of the Geneva Convention, at the cessation of hostilities, authorities shall endeavour to grant the broadest possible amnesties to persons that had participated in a non-international armed conflict.
Hence, amnesties can be granted for crimes such as rebellion, sedition or treason, as well as the act of killing members of opposing forces during hostilities (i.e. legitimate acts of war).
However, amnesties in general should not cover genocide, crimes against humanity, war crimes, enforced disappearances, torture and other gross violations of human rights (including acts, such as extrajudicial, summary or arbitrary executions). Such amnesties cannot be valid even when they are used to secure a stable end towards conflict or to induce rebels to demobilise.
Further, amnesties cannot be used to restrict the enjoyment of human rights, especially those of victims in the conflict. In particular, truth, justice and reparations must be complementary and not be absolute alternative responses to violations of international law and human rights committed during conflicts.
From the perspectives of the Office of the Prosecutor of the International Criminal Court, these issues must be similarly worrying. According to Article 17 of the Rome Statute of the International Criminal Court, the ICC has an obligation to intervene if it can be shown that the Colombian state is either unable or unwilling to prosecute perpetrators for serious human rights abuses or violations of war crimes, genocide or crimes against humanity.
(On a practical level, due to the ICC's respect for the sovereignty of its state members and its principles of complementarity, bringing a case to the ICC is also a lot more problematic than a simple analysis of jurisdiction.)
So from the perspectives of the victims on the ground, justice will be seen to function if ex-combatants, not just those on the ground but also those who carried out orders, receive substantive form of punishments and not just blanket amnesties or light alternative penalties.
From the perspectives of the ICC, justice will function if amnesties are not declared against the most serious war crimes by the most responsible.
But what does justice look like from the negotiating tables of La Havana? Is the agreement in line with international law? What is the position of the ICC? Will the victims be satisfied? These are questions still to be answered. – February 2, 2016.
* This is the personal opinion of the writer, organisation or publication and does not necessarily represent the views of The Malaysian Insider.
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