Order of Determination of Facts and Conducts by Special Jurisdiction for Peace in Colombia: Part I-Ali Akbar Siapoush

Ali Akbar Siapoush-Ph.D.of International law,Shahid Beheshti University.

akbar.siahpoosh@gmail.com

2021/04/10

The Special Jurisdiction for Peace (JEP) is the justice section of the Comprehensive System of Truth, Justice, Reparation, and Non-Repetition, created by the Peace Agreement between the National Government and the FARC-EP in 2016. The JEP has the function of administering transitional justice and hearing crimes committed in the armed conflict framework before December 1, 2016. 

According to its website, the JEP's work focuses on the most serious and representative crimes of the armed conflict, in accordance with the selection and prioritization criteria defined by the law and the magistrates. It may also hear crimes committed by former FARC-EP combatants, members of the security forces, other State agents, and civilian third parties. Regarding the latter two, the Constitutional Court clarified that their participation in the JEP would be voluntary.

Critics of Colombia's peace agreement complain that it lets the guerrillas off easily; moreover, a report presented in August 2020 by Colombian senators and representatives of the opposition raises many red flags about the execution of an Agreement that brought hope to many Colombians.

But, on January 26, 2021, the JEP proved the critics wrong. In its first ruling since its creation four years ago,  in the Case 01 (which prioritizes the taking of hostages and other severe deprivations of liberty mainly between 1993 and 2012), it indicted eight FARC leaders for war crimes and crimes against humanity. All the accused persons are connected to the group's practice of taking hostages and ransoming them to finance its war against the state.

The order states that The Chamber for the Acknowledgment of Truth, Responsibility and Determination of Facts and Conduct of JEP (hereinafter, the Chamber), in the exercise of its constitutional, legal, and regulatory powers, proceeds to determine the facts and conduct of Case No. 01, which are attributable to the participants who are signatories of the Final Peace Agreement and were members of the Secretariat of the former FARC-EP guerrilla group. The Chamber will make the determined facts and conducts available to these parties, for them to decide whether or not to acknowledge their responsibility under the terms of Article 79 paragraph h) of Law 1957 of 2019, Statutory Law on the Administration of Justice in the Special Jurisdiction for Peace (LEAJEP) and Article 27b of Law 1922 of 2018 (Procedural Law of the JEP).

Present note, in its first part, briefly presents the background and findings of the Order and in its second part, discusses how the Chamber reached these conclusions and would take a look at the emphasis it puts on the sufferings of the victims.

Background

The JEP opened Case 01 on July 4, 2018, and in its investigative process, has managed to identify by details 21,396 victims of kidnapping. Case 01 was opened using the term "illegal detention of people by the FARC-EP," with which the JEP sought to avoid accusations of prejudgment by legally qualifying the conduct before the time indicated by law. Based on the Order of Determination of Facts and Conducts, on January 26, 2021, the case as a “macro-Case”, was renamed: Hostage-taking and other serious deprivations of liberty. A macro case accumulates hundreds and thousands of events that correspond to the same motives, the same way of operating, under the same commands, the same criminal plans, and very similar criminal orders and actions. Therefore, the macro-cases accumulate all the crimes that correspond to the same pattern. The investigation clarifies the motives, the chains of command, the mode of operation, the power structure, the orders, the criminal plans, the criminal actions, the reasons for the victimization, and verifies the damage caused to establish the responsibility of both the group as of the individual. Macro-cases address massive human rights violations and their investigation and decisions made by judges do not focus on individually caused behaviors but in the behaviors caused by the command and belonging to the organization. The macro-cases also identify the people who determined the crimes under study and played an essential role in their commission and prioritize the assignment of responsibility to those most responsible.

As state by the Order itself, the purpose of this ruling is to verify that there are sufficient grounds to understand that: (i) the facts recounted herein did indeed exist; (ii) they are not “amnestiable conducts” according to the Final Peace Agreement, Law 1957 of 2019 and Law 1820 of 2016; and (iii) those who were members of the Secretariat of the former FARC-EP guerrilla participated in these conducts. In addition, this ruling seeks to materialize one of the constitutional purposes of the Chamber of the JEP: to offer truth to the victims and Colombian society, thus contributing to the clarification of the truth of the armed conflict and the construction of historical memory. To this end, the objectives of the investigation set forth in Article 11 of Law 1922 of 2018 will be addressed, including those that refer to determining the circumstances in which the events and conducts under the jurisdiction of this Chamber occurred.

This was the first Order of Determination of Facts and Conduct of the Jurisdiction and is the prelude to the Resolution of Conclusions and the trials before the Tribunal for Peace. This decision of the Secretariat will be followed later this year by other decisions that will determine the responsibility of mid-level commanders and direct executors. According to this Order, the act of depriving people of their freedom and conditioning their release, as well as their well-being, integrity, and lives, especially that of hostage-taking, was a war crime. As a result of this crime, the Chamber also charged the former members of the Secretariat with other War Crimes related to the treatment of the hostages, such as homicide, torture, cruel treatment, violation of personal dignity, sexual violence, and forced displacement.  The same conducts were also crimes against humanity when they were intended and implemented to attack the civilian population in a systematic and widespread manner in the places where the guerrillas were present. Among these are the serious deprivations of liberty, as well as the murder, torture, cruel treatment, sexual violence and forced displacements that occurred at the same time as the kidnappings.

Findings

The Chamber in its 324-page order found that the provisions related to deprivations of liberty were aimed in a generalized manner at people of all social strata and, in practice, did not distinguish territories, gender conditions, age, or conditions of particular vulnerability. The motives were: to finance the armed organization, to force the exchange for imprisoned guerrillas, and to control the population of the territories by punishing them for various reasons, investigating them for their alleged closeness to the enemies of the guerrillas, or exercising control over the presence and actions of companies and public officials.

The JEP has to give a proper legal qualification of these facts by identifying whether War Crimes and Crimes Against Humanity are committed according to International Criminal Law. International criminal law identifies hostage-taking as one of the most serious violations of International Humanitarian Law (IHL) because the freedom, life, or physical integrity of the captives is conditioned on someone doing or not doing something. Rule 96 of ICRC Study on Customary Rules and the attached practice give an elaboration on the topic. The prohibition is based on international instruments; that includes inter alia:  Common Article 3 of the 1949 Geneva Conventions, which indicates hostage-taking among those acts that "are and shall remain prohibited at any time and in any place"; Articles 34 & 147 of the 1949 Geneva Convention IV; Article 75(2)(c) of the 1977 Additional Protocol I (fundamental guarantees); Article 4(2)(c) of the 1977 Additional Protocol II; Article 8(2)(a)(viii) and (c)(iii) of the 1998 ICC Statute; Article 3(c) of the 2002 Statute of the Special Court for Sierra Leone; Under Article 2(h) of the 1993 ICTY Statute; and Article 4(c) of the 1994 ICTR Statute. The 1979 International Convention against the Taking of Hostages criminalizes hostage-taking. Article 1 provides: "Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person […] in order to compel a third party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons to do or to abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offence of taking of hostages"; (read more here). It is, therefore, considered a war crime under international criminal law, regardless of whether the victims were civilians or combatants placed hors de combat. It is also a crime against humanity when it involves deprivation of liberty for the exercise of territorial control in which, arbitrarily, civilians were taken as captives of the armed organization to make inquiries about their presence in the area or to punish them with forced labor and other punishments.

According to a 1998 Human Rights Watch report, "The available evidence makes clear that the FARC uses a variety of illegal activities, including kidnapping for ransom, to fund its war"; but  The Colombian armed opposition groups usually deny their involvement in a kidnapping or tend to justify the crime by describing the income derived from the kidnapping as 'war tax' or "revolutionary tax." (read more here)

1. Command responsibility

The Chamber established the responsibility of the former members of the Secretariat of the FARC-EP for the kidnapping orders and their failure to prevent the mistreatment suffered by the victims. The Chamber has determined that the severity of the treatment that the victims experienced occurred, in some cases, regardless of their status as civilians or members of the security forces. This means that some military and police deprived of their liberty suffered equal severity to civilians, and these conditions were war crimes.

The Order also indicates that the principal basis of responsibility of the commanders of irregular armies in the Colombian justice system, and especially in the decisions of the Justice and Peace Tribunals, has been as “perpetrators-by-means” of crimes [through] their subordinates.( § 773) As indirect perpetration, whoever commits a crime "through the intermediary of another" dominates the criminal act, but does so not because the perpetrator dominates his own actions, but because he dominates the will of the one who is his instrument, without the instrument ceasing to be responsible for his actions.  In evidentiary terms, it is this dominion over the actions of the executor that must be adequately characterized in the accusations in the ordinary justice system. The chamber reached the conclusion that in this theory of dominion of will, proposed by the German author Claus Roxin, which has an enormous influence in criminal law, the perpetrator-by-means dominates the will through the dominion of the criminal organization. In the terminology proposed by Roxin, the perpetrator-by-means is the "man behind the scenes", the criminal organization is "the organized apparatus of power" and the dominance of the will of the direct perpetrator is realized through the "dominance of the organization", not through the relationship between the perpetrator-by-means and the direct perpetrator. It is important to note that for Roxin the instrument is the organization and not the direct perpetrator.  Therefore, there is no doubt as to the liability of the direct perpetrator, who assumes responsibility for his own acts. Nor is there any doubt about the responsibility of the perpetrator-by-means who uses the organization as a means to fulfill his criminal will. ( § 774)

By examining the evidence the Chamber states that evidentiary elements affirm that, once the perpetrator-by-means has expressed his will, the organization will carry out his designs and, as a consequence, has control over the act. In this order, the Chamber determined that the commanding power of the commanders was such in the FARC-EP, and the characteristics of the guerrillas were such that the commanders were the perpetrators-by-means of the crimes that they committed in the development of the commanders' designs and the purposes of the armed organization. ( § 778)

The chamber discusses the 2010 evolution in the Colombian Criminal Code introduced by the Supreme Court of this country (§ 779) and further explains that the nature of organization armed groups is to function as an organized apparatus of power, with a fungible but responsible direct perpetrator. For both Supreme Court and the Chamber “Fungibility” implies that, if the perpetrator refuses to obey orders, he can be replaced by another, without detracting from the responsibility of the direct perpetrator. Thus, all those who participate in the crime are responsible even if they have different hierarchies and occupy different places in the chain of command. This modality of perpetration allows for greater reproach of the commanders, making the functioning of the armed organization more evident and, in doing so, guaranteeing the right to truth for the victims and promoting the collaboration of the direct perpetrators with the justice system. ( § 780)

2. Treatment with obducted persons

Regarding the treatment with the abducted persons, the Chamber determined that, although there was an order for "good treatment," this was focused, in practice, on keeping the abducted person alive, and considerations of human dignity were left in the hands of the commander or guard on duty. To describe this treatment, the Chamber resorted to the detailed accounts of the victims and survivors of the events, where they account for the humiliations and ill-treatment, to conclude that crimes related to ill-treatment such as torture, cruel treatment, and even cases of sexual violence were also committed. The Chamber also highlights the special vulnerability of children and women who were kidnapped and who experienced fear and lack of protection in a discriminatory manner due to being a member of a minority and/or due to their gender.

Moreover, accredited victims and the reports submitted by civil society to the Chamber reiterate in detail the experience of mistreatment by abducted persons. These were inflicted by many commanders and guards who caused intense physical and psychological suffering to them, motivated by the desire to humiliate, coerce and punish the captives. Therefore, the Chamber holds that the members of the Secretariat have command responsibility. The Chamber, in its analysis, concluded that the "good treatment" order concerned only the preservation of the captive's life and not his human dignity. This was at the mercy of the commanders responsible for the hostages. Although the shooting had to be authorized by the superior, the treatment was at the commanders' discretion and the guard. The superiors omitted to give instructions, follow-up, or sanctions that would allow the preservation of human dignity, for which they have command responsibility.

The Chamber determined the existence of a pattern of mistreatment in captivity in all the FARC-EP corps, manifested in facts that are repeated in the majority of the reports and accounts of the accredited victims. These were chaining and tying up as a form of punishment and humiliation; forced marches without consideration of their vulnerable circumstances; physical and psychological aggressions with blows, shouts, mockery, pushing and shoving; total violation of privacy, even during bodily depositions while being observed by armed guerrillas; the existence of camps where the confinement was such that it caused additional suffering due to overcrowding, lack of light, air and basic hygiene; lack of health care, even when they could provide it; insufficient food and/or food in poor condition.

Moreover, the Chamber finds that events of particularly seriousness occurred during captivity, such as forced isolation, beatings during interrogations, sexual violence, and forced displacement as punishment. Also, there is consistent evidence of the suffering caused to the families by the concealment of the fate of the kidnapped persons, the sale of corpses, double payment of ransom, exchanging one family member who paid for another and charging again, mockery, threats, insults and other forms of emotional violation that were used without consideration of the suffering experienced.

The second part of this note explores the process by which the Chamber reached these conclusions and would take a look at the emphasis it puts on the sufferings of the victims.