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Colombia: The Justice and Peace Law

Ley de Justicia Y Paz

Colombia: The Justice and Peace Law

Ley de Justicia Y Paz


Colombia’s Justice and Peace Law of 2005 purports to provide truth, reparations, and a measure of justice to victims of the continuing armed conflict, but it has not lived up to its promise.  Although more than 30,000 AUC fighters have demobilized since 2002, fewer than 10% of them fall within the purview of the Justice and Peace Law, the rest qualifying for a more liberal amnesty.  Further, the Justice and Peace Law was widely criticized when it was enacted for its failure to provide adequate incentives for truth telling and reparations.  The Colombian Constitutional Court revised some portions of law to address this concern; however, its promises of both peace and justice have so far remained elusive.

Ceasefire & Demobilization: Law 418

Shortly after Álvaro Uribe Vélez was elected President of the Republic of Colombia in August 2002, several leaders of the Autodefensas Unidas de Colombia (AUC) announced their intention to negotiate terms for the demobilization of their forces, and they declared a unilateral ceasefire for that purpose in December that year.  [1]    

A legal framework for individual and collective demobilizations already existed.  Law 418 of 1997 grants amnesty from all criminal investigation, prosecution, and conviction to those fighters who choose to participate in an individual or collective demobilization.  In light of the AUC’s ceasefire, in December 2002, the Colombian government formally extended the Law 418 regime by adopting Law 782.  Then in January 2003, the government further regulated the regime through issuance of Decree 128, which elaborates the procedures by which individuals and groups may apply for the benefits of demobilization.  Such benefits include the legal benefits of Law 418 as well as social benefits aimed at reintegration. These include health benefits, protection and security, and economic support. [2]

International law does not recognize amnesty for the most serious human rights abuses, however, and these laws reflect that limitation.  Within the framework that existed when the AUC demobilized, benefits did not extend to the most serious human rights abuses, inter alia, acts of barbarism, terrorism, kidnapping, genocide, and homicide committed against a non-participants in combat. [3] Thus, negotiations between the Colombian government and the AUC were largely focused on developing legal incentives for the demobilization of paramilitary soldiers who were excluded from the benefits of Law 418, Law 782, and Decree 128.

With its signing on July 15, of 2003, the first Santa Fe de Ralito agreement set goals for demobilization by the end of 2005 and created a formal framework for negotiations between the government and AUC-linked paramilitary groups.  The second Santa Fe de Ralito agreement, signed on May 13, 2004, “set up a 368-square-kilometer zona de ubicación (concentration zone) in Tierralta, Córdoba, to facilitate and consolidate the negotiation process between the government and the AUC, improve verification of the ceasefire, and establish a timetable for demobilization.” [4]   As the Inter-American Commission on Human Rights pointed out, “This Resolution had the effect – under the provisions of Law 782 of 2002 – of suspending the arrest warrants for the members of the AUC who [were] within the perimeters of its 368 km2 area during the period it is in effect.”[5]    

The process of demobilization under the second Santa Fe de Ralito agreement required leaders of armed groups to submit to the government lists of soldiers and weapons to be surrendered. [6]    Individuals would then be sent to a zona de ubicación for identification and review of criminal warrants and investigations.  If an individual were suspected of human rights violations not covered by Law 418, they would be returned to the zona de ubicación.  If not, they would be granted the benefits of amnesty and social support aimed at reintegration back into their home communities in accordance with Decree 128.  The result of this cursory procedure was that many individuals believed to have committed serious human rights abuses were granted the amnesty benefits of the Law 418, Law 782, and Decree 128. [7]   

The Justice and Peace Law: A Framework for Transition

On July 22, 2005, President Uribe signed the Law 975, Ley de Justicia y Paz (Justice and Peace Law), which complements but does not supersede the Law 418 framework. [8] The Justice and Peace Law regulates the procedures to be followed for those demobilized members of illegal armed groups who had been excluded from the existing amnesty procedures and establishes judicial benefits based on their contribution to justice and reparation.  Unlike previous demobilization efforts in Colombia, which had promised blanket amnesty in exchange for peace, the Justice and Peace Law of 2005 contained a transitional justice component, facilitating the trial, conviction and sentencing of paramilitary leaders. [9]  With the stated goal of advancing the peace process and reincorporating fighters into civilian life, the law provides benefits including reduced sentences (5 to 8 years, less time spent in the concentration zone) in return for truth telling, reparations to the victims, and a promise not to return to lawlessness. [10]  


The Justice and Peace Law established a framework attempting to provide incentives for peace while also respecting the rights of victims to truth, justice, and reparations. It also established the Comisión Nacional de Reparaciones y Reconciliación (CNRR) [National Reparations and Reconciliation Commission] to assist in guaranteeing these rights. [11]

In terms of the right to truth, the Justice and Peace Law mandates a "duty of memory" and requires the Colombian Government to preserve historical memory in archives constructed through judicial proceedings used to establish the facts of individual cases and individual criminal responsibility. [12]   

Applicants for benefits under the Justice and Peace Law must offer versiónes libres, or voluntary depositions, in which applicants freely confess all crimes committed. Voluntary depositions are taken in two sessions.  First, the demobilized fighter presents his or her version of the facts, including the date, place, motive, other perpetrators or participants, the victims, and any other information that will clarify the crimes that he or she committed as a member of an illegally armed group, as well as to indicate all illegally gained property and goods, which are to be delivered to the Reparation Fund.

 In the second session, a prosecutor interrogates the applicant to extract more information.  At this stage, victims or their representatives and the public attorney may request clarifications or verifications of facts, present evidence, and report anything relevant to the conduct in question.   After making a statement, the demobilized fighter is brought before a judge to ensure that he or she is formally charged within 36 hours. [13]     

The Justice and Peace Law also assigns the CNRR some duties pertaining to the clarification of truth. The CNRR must guarantee that victims participate in judicial investigation procedures and that their rights are recognized, present a public report on the reasons for the emergence and development of illegally armed groups, and monitor and verify the reinsertion process and the work of local officials so as to insure full demobilization of participating paramilitaries and the full operation of institutions in those territories. In this way, the CNRR assumes the function of a truth commission without technically being one.  In addition, judicial proceedings advanced after the effective date of the law will not rule out the application in the future of other non-judicial mechanisms to reconstruct the truth. [14]  

The law was highly criticized at the time it was enacted.  International human rights organizations and experts in transitional justice claimed that it provided de facto amnesty for violators of human rights, hindered the dismantling of paramilitary structures, and failed to guarantee the rights of victims to reparations and truth. [15]    A New York Times editorial opined that the law would better be titled the: “Impunity for Mass Murderers, Terrorists and Major Cocaine Traffickers Law.” [16]  


After the Law's passage, several human rights and victim-survivor groups filed lawsuits with the Colombian Constitutional Court challenging its constitutionality. [17]    On May 18, 2006, the Constitutional Court ruled on the merits of this challenge, issuing its opinion in Gustavo Gallón Giraldo y Otros v. Colombia. The Court upheld the law in general terms but declared other articles partially or wholly unconstitutional. [18]

Regarding the right to truth, the Court held that the law did not design an effective incentive system for promoting the full and accurate revelation of truth. The Court required that to be eligible for benefits, demobilized fighters had to provide complete and accurate confessions, rejecting the award of benefits regardless of whether an applicant failed to do so.  The Court found that because the law provided no genuine incentive to tell the full truth, a more serious sanction for withholding information should apply. The more serious sanction would assist in dismantling illegally armed groups by facilitating a fuller inquiry into "macrocriminal phenomena" in Colombia. Failure to provide the full truth – or omitting the truth – must trigger the state's legal responsibility to investigate and sanction, resulting in subjection to the normal criminal justice system and making the free-confession alternative a one-shot deal.

The Court conceived of the right to truth as expansive, including knowledge of the causes and circumstances of rights violations. The Court also required that the location of disappeared persons be part of the information proffered. Additionally, any limitation on access to archives would only be permissible to protect witnesses and victim-survivors. [19]

In apparent compliance with the high court’s ruling, the Colombian Government decreed that the National Prosecutor’s Office and the Justice and Peace Courts should seek out complete confessions and investigate their veracity, including the location of the victims' bodies and an identification of all disappeared persons.  The government further decreed that these authorities ensure that the victims be permitted to participate in criminal proceedings and be guaranteed reparations. [20]   However, the government also may have reinstated some of the provisions the Constitutional Court had held as unconstitutional.  For example, Decree 3391 has been interpreted as reestablishing the allowance for time spent by demobilized persons in the concentration zone to be discounted from their prison sentence, which provision was invalidated by the Constitutional Court. [21]   

Implementation of the Justice and Peace Law has fallen far short of its formal aspirations. The Inter-American Commission on Human Rights has noted that early in the process, those prosecutors assigned to participate in the versions libres “were frequently commissioned only hours before they were dispatched to the concentration zone from various parts of the country.” [22]   In addition, prosecutors were provided no training and instead were merely given a standard questionnaire that was used in all demobilizations.  As a result, the voluntary depositions provided very little information.  “Of those demobilized who passed through the demobilization circuit (totaling approximately 28,000) 90% offered no significant information on illegal acts or crimes committed by the paramilitary units to which they belonged.” [23]

The lack of prosecutorial training and preparation was compounded by the fact that the majority of demobilized fighters were eligible for amnesty under the scheme of Law 418.  Of the more than 30,000 fighters who demobilized between November 2003 and mid-2006, only 2695 declared an interest in applying for benefits.  Only a portion of those provided accurate identifying information allowing them to be located in order to participate in the voluntary deposition process. [24]

Victims’ rights to truth, justice, and redress have not been adequately served under the Justice and Peace process.  In addition to those limitations already enumerated, victims of the AUC often are not able to participate in the process, either because they do not receive adequate notice or are unable to pay the sometimes prohibitive costs required to attend the sessions.  Further, victims’ participation is restricted to an indirect means of questioning the applicant, whereby the victims or their attorneys may submit questions to an investigator, who may pass those questions to the prosecutor, who may choose to ask some of the questions or none at all. There is no opportunity for the victims to offer follow up questions or participate in cross examination. [25] Finally, participation of the victims and survivors is inhibited by the fact that many victims survivors still live in areas terrorized by members of the AUC who have not demobilized, by demobilized units that continue to hold positions of influence in their communities, by criminal gangs, by new armed groups, and by existing armed groups that have been strengthened since the demobilization. [26]

» Read more on the ATS lawsuit against the notorious paramilitary leader “Macaco.”

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NOTES


[1] The United Nations Department of Peacekeeping Operations (UNDPKO) defines “disarmament” as “the collection, documentation, control and disposal of small arms, ammunition, explosives and light and heavy weapons of fighters and often also of the civilian population.” “Demobilization” is characterized as “the formal and controlled discharge of active fighters from armed forces or other armed groups.” “Reintegration is the process by which ex-fighters acquire civilian status and gain sustainable employment and income.” For more information, see http://www.undp.org/cpr/whats_new/ddr_practice_note.pdf.
[2] Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of Published Documents (2004-2007) (hereafter “Inter-American Digest”), Report on the Demobilization Process in Colombia, ¶¶ 62-79, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[3] Id.
[4] Lisa Laplant and Kimberly Theidon, “Transitional Justice in Times of Conflict: Colombia’s Ley de Justicia y Paz,” 28 Mich. J. Int'l L. 49, 63-64 (Fall 2006).
[5] Inter-American Commission on Human Rights Follow-Up on the Demobilization Process of the AUC in Colombia, Digest of Published Documents (2004-2007), “Report on the Demobilization Process in Colombia,” ¶ 88, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[6] See Presidencia de la República, Oficina Alto Comisionado para la Paz (President of the Republic, Office of the High Commission for Peace, “Proceso de Paz con las Autodefensas Informe Ejecutivo,” December 2006.
[7] Procuraduría General de la Nación (National Prosecutor’s Office), Comisión especial de la Procuraduría vigila proceso de desmovilización de AUC en acción preventiva, Boletín 408, Dec. 10, 2004, available at http:// www.procuraduria.gov.co/html/noticias_2004/noticias_408.htm.
[8] Inter-American Digest, Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia at ¶ 8, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[9] See generally Inter-American Digest, Follow-Up on the Demobilization Process of the AUC in Colombia, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf; Lisa LaPlant and Kimberly Theidon, “Transitional Justice in Times of Conflict: Colombia’s Ley de Justicia y Paz,” 28 Mich. J. Int'l L. 49, 59-60 (Fall 2006).
[10] Ley 975 de 2005, por la cual se dictan disposiciones para la reincorporación de miembros de grupos armados organizados al margen de la ley, que contribuyan de manera efectiva a la consecución de la paz nacional y se dictan otras disposiciones para acuerdos humanitarios. Congreso de Colombia. 25 de julio de 2005. (hereafter Ley 975/05), Artículos 1-4, 10-11, 29.
[11] Id. at art. 49-52.
[12] Id. at art. 56.
[13] Id. at art. 17.
[14] Id. at art. 7, 51.
[15] Jennifer S. Easterday, Deciding the Fate of Complementarity: A Colombian Case Study 26 Ariz. J. Int’l & Comp. L. 49 (2009). See also Amnesty International, World Report 2009: Colombia, (hereinafter Amnesty World Report) at 111, available at http://thereport.amnesty.org/sites/report2009.amnesty.org/files/documents/air09-en.pdf and Inter-American Digest, Inter-American Commission on Human Rights Press Release No.26/05, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[16] Colombia’s Capitulation, New York Times, July 6, 2005, available at http://www.nytimes.com/2005/07/05/opinion/05iht-edcolombia.html.
[17] See Inter-American Digest, Statement by the Inter-American Commission on Human Rights on the Application and Scope of the Justice and Peace Law in Colombia, ¶ 10, n.9, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[18] Sentencia C-370/06, Corte Constitucional de Colombia, 2006.
[19] Id. at ¶ 4.9.4 (p. 121); ¶¶ 6.2.3.2.2.1 – 6.2.3.2.2.10 (pp. 154 -155); 6.2.2.1.1 – 6.2.2.1.7.30 (pp. 139 – 145).  
[20] See Decree 2898 and Decree 3391.
[21] Inter-American Digest, Follow-Up on the Demobilization Process of the AUC in Colombia, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and the First Judicial Proceedings at ¶¶ 49-52, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[22] Inter-American Digest, Follow-Up on the Demobilization Process of the AUC in Colombia, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and the First Judicial Proceedings at ¶ 29, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[23] Inter-American Digest, Follow-Up on the Demobilization Process of the AUC in Colombia, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and the First Judicial Proceedings at ¶34, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
[24] Inter-American Digest, Follow-Up on the Demobilization Process of the AUC in Colombia, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and the First Judicial Proceedings at ¶¶ 44-47, available at http://www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf
[25] Id. at ¶¶ 81-82.
[26] Id. at ¶¶ 87-91,101. Although those fighters who re-arm and return to criminal activity forfeit benefits conferred under the Justice and Peace Law, fewer than 10% of the more than 30,000 demobilized AUC members applied for benefits under this law, as opposed to the more than 90% who benefited from the broader amnesties afforded under the Law 418 regime. Id. at 107.