Between February and June 2014, Jelia Sane worked as a legal adviser for the Political Prisoner’s Solidarity Committee, Colombia’s oldest human rights NGO. Here she reports on the ongoing peace negotiations

It was with a mix of excitement and trepidation that I landed in Bogota, perched high in the Andes at 3000m
above sea level, one chilly afternoon last February.Having recently finished Bar school and with pupillage
some months away, I had moved to the Colombian capital to work for an NGO. Despite previous stints in Argentina and Cambodia, nothing could have fully prepared me for the complex reality of grassroots human rights work in Colombia.During the next five months, I travelled throughout this spectacularly beautiful country, visiting prisons, training human rights defenders (HRDs), meeting victims of displacement and litigating cases of extra-judicial killings and disappearances.

A multi-lateral conflict

With much of the world’s attention on the Middle East,Colombia’s bloody armed conflict quietly rages on, as the
army, paramilitaries, traffickers and guerrillas battle for territory and control. To be sure, this has been a war without quarter, epitomised by gross violations of international law and appalling levels of political violence. As one victim states: “If we look to the left we see the insurgents. If we look to the right we see the paramilitaries. If we lift our eyes to the heavens and pray to God, we see the Government’s helicopters.” In the last 50 years, around 200,000 civilians have died and over 5 million have been driven from their homes, generating the world’s 3rd largest internally displaced population (IDP) after Syria and the Sudan.

Over the years, successive governments have cast themselves on the international stage as the innocent victims of drug and terrorist violence. Without seeking to downplay the seriousness of the insurgency’s crimes or the headline-grabbing brutality of the cartels, this is a grossly distorted narrative, which serves to obscure the army’s and paramilitaries’ pre-eminent responsibility for the excesses of the war, and the State’s systematic failure to hold them accountable.

In reality, most victims carry no weapon, wear no uniform and profess no allegiance to the myriad of armed actors operating in the country. They are campesinos living in conflict zones, Afro-Colombian and indigenous leaders, dissidents,trade unionists, and public officials. They are targeted because of a perceived affiliation with the enemy (a strategy chillingly described as ‘removing water from the fish’), for living on territory of military or economic importance, or simply for daring to challenge the status quo.
In 2012, after decades of failed negotiations, President Juan Manuel Santos (2010-) initiated peace talks in Cuba with the Revolutionary Armed Forces of Colombia (FARC). Recognising that peace requires more than the cessation of hostilities, the roadmap addresses agrarian reform, illicit drugs, political participation and reparations. Despite staunch opposition from former president Uribe and powerful landowners, most Colombians are supportive of the process.

Two years in, agreement has been reached on half of the agenda items, raising timid hopes that a political solution to Latin America’s longest running conflict may be in sight.A deal in Havana would be a historic first step in redressing the tremendous land and wealth inequities that spawned the
insurgency, allowing the ageing FARC leadership to vindicate decades of armed struggle.

But, in the absence of a ceasefire, Cuba seems far removed from the depths of Colombia. To build a durable peace, a number of seemingly Herculean obstacles must also be overcome.

Protecting defenders of human rights

First, because social ownership of any future agreement is contingent upon the support of affected communities, a radical shift in attitudes towards victims and civil society generally is desperately needed.

State officials and paramilitaries have traditionally stigmatised HRDs – including land restitution claimants, trade unionists and lawyers – as guerrilla sympathisers, exposing them to considerable risks. This is why Colombia remains one of the world’s most dangerous countries for such work, as I starkly realised when my boss collected me from the airport with bodyguards and an armoured car.

An increasingly common way to silence HRDs is to subject them to politically motivated prosecutions, on spurious charges of ‘rebellion’ or ‘subversion’. The tenacity with which these cases are pursued is striking, in a justice system otherwise plagued by impunity. In this way, Colombia’s war is expanding into its prisons, many of which are managed by retired army personnel. A look at life inside the country’s detention facilities reveals the existence of a humanitarian crisis so grave it was declared unconstitutional in 1998. Detainees face deplorable sanitary conditions, a chronic lack of access to clean water and adequate healthcare, and systematic physical and psychological torture and ill treatment.

The situation of HRDs has improved under Santos. His administration has condemned attacks against them and begun engaging in dialogue with civil society. Nonetheless, these policies have failed to trickle down to the local level. In many of the regions, displaying immense courage and resilience, HRDs continue to operate in a climate of fear and hostility, such that international accompaniment is often indispensable.

Enforcing the rule of law on the paramilitaries

A second issue is the persistence of paramilitary violence.Between 2003 and 2006, 30,000 members of the AUC
(Autodefensas Unidas de Colombia) ostensibly demobilised in exchange for a government sponsored reintegration programme. In 2005 the Justice and Peace Law (JPL) was adopted, offering reduced custodial sentences (five to eight years) to demobilised paramilitaries who confessed to war crimes and crimes against humanity, failing which they remained liable under the ordinary criminal law.

10 years on, the JPL has delivered neither peace nor justice.Although nearly 40,000 crimes, including 20,000 homicides,have been acknowledged, only 14 individuals have been convicted. This – coupled with the 2008 extradition of 30 paramilitary commanders to the US on drug charges – has circumvented victims’ rights and exacerbated the already sky high levels of impunity in Colombia.

Worryingly, the demobilisation process has not dismantled the AUC’s criminal and financial networks, nor severed its historic ties with the State. Existing groups have mutated into less visible and more fragmented structures, and successor groups headed by former commanders have emerged. Financed by drug trafficking, post-demobilisation groups exercise social and territorial control through violence and intimidation,
disproportionately targeting HRDs-predominantly in regions with a strong paramilitary legacy and corrupt local officials. In Buenaventura, the Urabenos and Empresas displaced upwards of 12,000 people in 2013. Terrified residents have spoken of ‘casas de pique’ or chop houses, where groups dismember victims before dumping them in mass graves.

Rather than categorising these groups – many of which operate under responsible command and exert territorial control – as non-state actors for the purposes of humanitarian law, the government has addressed the violence as an organised  crime issue. Insisting that these new structures (‘emerging  criminal gangs’ or BACRIMS) are radically different to the paramilitaries means the political and legal implications of
acknowledging the failures of demobilisation can be avoided. Regardless of their classification, Colombia must adopt a comprehensive law enforcement strategy to prevent, investigate and sanction BACRIM violence. Yet aside from the arrest of a handful of leaders, the official response has been woefully inadequate. The police and prosecutorial units charged with combating BACRIM activity have been poorly resourced, meaning little accountability, and thus deterrence, for their crimes.

A transitional justice mechanism

Thirdly, essential to the viability of any peace deal is the adoption of a victim-centred transitional justice mechanism. The challenge will be incentivising the parties to lay down their arms without forsaking the need for justice and accountability.

Both sides are likely to accept that the FARC’s political crimes – i.e. acts not inconsistent with humanitarian law – should be subject to a general amnesty, in accordance with Additional Protocol II to the 1949 Geneva Conventions. They will no doubt establish a truth commission; a real necessity in this context given the thick web of connections between politics, economics and violence.

The difficulty will be criminal sanctions for the countless crimes committed during the war. Under the 2012 Legal Framework for Peace, prosecutions are reserved for those ‘most responsible’ for war crimes and crimes against humanity, and suspended sentences are available.

After decades of sustained criminality, Colombia’s criminal justice system may well be overburdened if proceedings are to be instigated against every single alleged perpetrator. However, a high degree of selectivity and the possibility of altogether renouncing prosecuting international crimes by lower ranking perpetrators risks creating a significant impunity gap. The Inter-American Commission has expressed concern over the selection provisions and Fatou Bensouda has stated, in no uncertain terms, that suspending sentences violates the Rome Statute.

A long and difficult balancing exercise lies ahead for the negotiators. A transitional justice deal based on the lowest common denominator between the FARC and the government may be politically expedient, but would face considerable implementation challenges, not least given Colombia’s obligations under domestic and international law. Perhaps more importantly, abandoning justice and failing to confront the legacy of half a century of conflict will inevitably lead to renewed cycles of violence, robbing ordinary Colombians of a peace that has been elusive for far too long.

Contributor Jelia Sane
Doughty Street Chambers