Country Report: Colombia

1. Introduction

Colombia has been wracked by violence and terror for over 70 years, beginning with the civil war known as La Violencia between 1948-1958 and continuing to the present day.1 Various armed opposition groups rose from the ashes of La Violencia, some of which remain as serious threats to Colombia’s internal security. These groups include the notorious Fuerzas Armadas Revolucionarias de Colombia (FARC), as well as the Ejército de Liberación Nacional (ELN), the Ejército Popular de Liberación (EPL), and the Movimiento 19 de Abril (M-19).2 The origins of each group are unique, but the common bond they share is the goal of demolishing the prevailing capitalist social order, which they see as an entrenched ruling oligarchy secure in its position due to the large amount of economic and military aid from the United States.3

The means by which the different opposition groups pursue this goal vary from peaceful political demonstration to violent armed struggle, and the state has responded forcefully in what has been described as a ‘concerted effort to disrupt, dismantle and destroy all viable opposition’ through a ‘coordinated campaign of violence against Colombian citizens…in order to instil fear and dissuade political organization.’4 One tool in this campaign has been the use of paramilitary forces to enforce the status quo by terrorizing civilians, who also suffer at the hands of the opposition groups. The principal paramilitary actor, reportedly formed by drug lords and landholders in response to the violent activities of FARC, is the Autodefensas Unidas de Colombia (AUC).5 The relationship between the Colombian state and the paramilitary AUC is somewhat murky, but it has been reported that as of November 2008, more than 70 members of the Colombian Congress were found to have some connection, usually financial, to the AUC in a bid to maintain control in their municipalities.6 The parapolíticas scandal, as it is known, has added yet another dimension to what is already a complex conflict.

Colombia presents a chicken-and-egg conundrum with regard to the violent climate under which many of its civilians suffer, but the political dimension of the violence is undeniable. Perhaps because of this, Colombia has relied heavily on the use of amnesties to attempt to resolve the conflict, with mixed results. First deployed as a de-escalating tactic by President Belisario Betancur in 1982,7 conditional amnesties are now offered through the Justice and Peace Law (JPL), which represents the latest attempt by the Colombian

1 Ana Gómez Rojo, ‘The ICC’s Colombia Investigation: Recent Developments and Domestic Proceedings’ (16 June 2009) <http://www.amicc.org/docs/Colombia_Update.pdf> accessed 27 January 2012; Constantin von der Groeben, ‘The Conflict in Colombia and the Relationship between Humanitarian Law and Human Rights Law in Practice: Analysis of the New Operational Law of the Colombian Armed Forces,’ (2011) 16(1) Journal of Conflict and Security Law 141 1. 2 ibid.; United States Department of State Office of the Coordinator for Counterterrorism, ‘Country Reports on Terrorism: Western Hemisphere Overview’ (18 August 2010) <http://www.state.gov/s/ct/rls/crt/2010/170259.htm> accessed 24 November 2011.3 Sam Raphael, ‘Paramilitarism and state terror in Colombia’ in Richard Jackson and others (eds), Contemporary State Terrorism: Theory and Practice (Routledge 2010) 163. 4 ibid. 5 Ana Gómez Rojo, ‘The ICC’s Colombia Investigation: Recent Developments and Domestic Proceedings’ (16 June 2009) <http://www.amicc.org/docs/Colombia_Update.pdf> accessed 27 January 2012.6 ibid.

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government to address the political nature of the conflict and bring a measure of restorative justice to the country.

The success of this strategy has been questioned. While the demobilisation process saw more than 2,000 FARC and ELN members lay down their arms in 2010, FARC still counts some 8,000 persons in its membership and remains active, sometimes acting in concert with the 1,250 remaining armed members of the ELN.8 On the other side, more than 32,000 AUC members have demobilized under the JPL, which offers amnesties or reduced prison sentences in exchange for full confessions and restitution of all illicit profits.9 Despite these incentives for demobilization, many former paramilitaries have instead been recruited into organized criminal groups, which continue to play a role in the on-going violence, especially by securing financing through drug trafficking.10

The violence thus continues, in a diminished scale than in the past but with isolated incidents no less horrific. For example, in March 2010, the FARC tricked a 12-year old child into carrying a bomb into a police station, which they detonated, killing the child and wounding 5 bystanders.11 FARC routinely uses land mines, snipers, improvised explosive devices, kidnapping, and ambush to achieve their ends of establishing a new Marxist-Socialist government in Colombia.12

The government’s response to such acts has been formidable, and numbers in the guerrilla groups have reached all-time lows. The killing of FARC leader Alfonso Cano in November 2011 struck a significant blow,13 but the conflict is far from over, and government-sanctioned violence continues to occur outside the legitimate confines of the conflict. It has been reported that between 1999 and 2009 ‘the paramilitaries, with support of the Colombian army and government, have killed some 15,000 trade unionists, peasants and indigenous leaders, human rights workers, land reform activists, leftwing politicians and their sympathizers’.14 The Committee Against Torture has received reports of state involvement in extrajudicial killings, enforced disappearances, and other practices that are linked to torture.15

The Inter-American Commission on Human Rights has consistently reported on an emerging pattern in the high number of extra-judicial executions carried out at the hands of security forces. Elements of the pattern include: signs of torture on the bodies, evidence of

7 Inter-American Commission on Human Rights, ‘Context: Origin and Characteristics of the Internal Armed Conflict in Colombia’ <http://www.cidh.oas.org/countryrep/Colombia04eng/chapter3.htm> accessed 3 February 2012.8 United States Department of State Office of the Coordinator for Counterterrorism, ‘Country Reports on Terrorism: Western Hemisphere Overview’ (18 August 2010) <http://www.state.gov/s/ct/rls/crt/2010/170259.htm> accessed 24 November 2011.9 ibid.10 ibid.11 ibid.12 Constantin von der Groeben, ‘The Conflict in Colombia and the Relationship between Humanitarian Law and Human Rights Law in Practice: Analysis of the New Operational Law of the Colombian Armed Forces,’ (2011) 16(1) Journal of Conflict and Security Law 141 1. 13 <http://www.bbc.co.uk/news/world-15604456> accessed 27 January 2012.14 Ana Gómez Rojo, ‘The ICC’s Colombia Investigation: Recent Developments and Domestic Proceedings’ (16 June 2009) <http://www.amicc.org/docs/Colombia_Update.pdf> accessed 27 January 2012.15 Committee Against Torture, ‘Concluding Observations: Colombia’ (CAT/C/COL/CO/4) < http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/420/33/PDF/G1042033.pdf?OpenElement> accessed 27 January 2012.

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economic and professional incentives for the members of the security forces who carry out the disappearances, and jurisdiction being presumptively assigned to the military criminal courts.16 Victims are typically peasants, members of indigenous communities, workers, young persons, marginalized persons or community leaders.17

Despite these reports, there is a dearth of investigations and prosecutions, with many allegations being handled administratively or militarily rather than judicially.18 This is at least partly to do with the Justice and Peace Law, which has been denounced by some as obstructing the victims’ access to justice by providing a channel for fighters to avoid criminal penalties for their heinous crimes. A cynical view of the Justice and Peace Law would point to the parapolíticas scandal and the links between many government actors and the AUC as one reason that amnesties have prevailed over prosecutions. As of July 2009, 11 members of the Colombia Congress had been convicted for crimes resulting from their connections to the AUC, and at least 250 cases were still pending against mayors, governors, and other politicians.19

Those investigations and prosecutions that have been initiated are very difficult to trace due to the lack of reliable information and failure to monitor and keep records of the cases as they progress through the criminal justice system.20 President Juan Manuel Santos has established a Programme on Human Rights and International Humanitarian Law, but their mandate is largely policy-based, and it aggregates statistics from other sources rather than performing an independent fact-finding or monitoring role. The Human Rights Unit of the Office of the Prosecutor is the central government agency handling cases where human rights violations are alleged, but public information regarding their caseload and activities is scarce. Impeding access to justice even further are reports that victims’ families and human rights defenders have been subject to threats and intimidation for pursuing their cases. Colombia was the third country in the world to introduce a witness protection programme (after Italy and the U.S.),21 but despite this innovation prosecutions for torture remain minimal.

Nonetheless, the Justice and Peace Law and its precursors have had an impact insofar as 32,000 AUC members have demobilized, though the vast majority of these have benefited from de facto amnesty and only 3 leaders have been convicted for serious crimes.22 Around 160,000 victims have registered under the law, but their ability to receive reparations was initially limited.23 In a laudable effort to better address the issue of compensation, the

16 Inter-American Commission on Human Rights, ‘Context: Origin and Characteristics of the Internal Armed Conflict in Colombia’ <http://www.cidh.oas.org/countryrep/Colombia04eng/chapter3.htm> accessed 3 February 2012.17 ibid.18 ibid.19 ibid.20 Committee Against Torture, ‘Concluding Observations: Colombia’ (CAT/C/COL/CO/4) < http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/420/33/PDF/G1042033.pdf?OpenElement> accessed 27 January 2012.21 UN Counter Terrorism Committee report (2005) < http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/401/32/PDF/N0640132.pdf?OpenElement> accessed 27 January 2012.22 United States Department of State Office of the Coordinator for Counterterrorism, ‘Country Reports on Terrorism: Western Hemisphere Overview’ (18 August 2010) <http://www.state.gov/s/ct/rls/crt/2010/170259.htm> accessed 24 November 2011.23 ibid.

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Colombian Congress passed the Victims’ and Land Restitution Act in May 2011, which aims ‘to ensure [victims’] right to truth, justice and reconciliation’,24 though it remains to be seen whether this will be successful in the long term.

While the challenges of de-escalating an armed conflict are not to be dismissed, the framework in place in the form of the Justice and Peace Law has been criticized for creating a ‘system of impunity’25 for war crimes and human rights violations, including torture. This runs counter to Colombia’s treaty and customary international law obligations as well as Colombia’s constitution, which makes fundamental rights which are protected by treaty, such as the right to be free from torture and inhuman treatment, enforceable as a matter of domestic law.

2. International Obligations

The international community has recognized that the Colombian Constitution is ‘one of the world’s most comprehensive in recognition of rights’.26 This is complemented by the Colombian practice of being early signatories to almost all of the core human rights and humanitarian law treaties. Thus, Colombia is a party to the International Convention on Civil and Political Rights (ICCPR) and both its Optional Protocols as well as the Convention Against Torture (CAT), but it is not a party to the Optional Protocol to CAT. Colombia is party to the four Geneva Conventions and the two Additional Protocols, which are especially relevant now that President Juan Manual Santos has finally recognized that Colombia is engaged in an armed conflict.27 It has signed the Rome Statute accepting jurisdiction of the International Criminal Court, but in so doing it availed itself of a special provision under Article 12428 to declare ‘that it does not accept the jurisdiction of the Court with respect to [war crimes] when a crime is alleged to have been committed by Colombian nationals or on Colombian territory’ for a period of seven years from the entry into force for Colombia, which occurred in 2009.29

Colombia is a member of the Organization of American States and as such is a party to the American Convention on Human Rights and the Inter-American Convention to Prevent and Punish Torture. The Office of the High Commissioner for Human Rights has maintained offices in Colombia since 1997.

3. Legal Analysis

24Embajada de la República de Colombia Reino Unido, ‘Attention, Comprehensive Reparation and Land Restitution for Victims of Human Rights Violations and Infractions of International Humanitarian Law in Colombia <http://www.colombianembassy.co.uk/images/stories/publications/Colombian_Victims_and_Land_Restitution_Act_-_Brief__June_2011_.pdf> accessed 27 January 2012.25 Sentencia C-370/06, Corte Constitucional de Colombia (2006).26 UN-HABITAT, ‘Law, Land Tenure and Gender Review: Colombia’ (2005) 29 <http://www.unhabitat.org/pmss/getPage.asp?page=bookView&book=2132> accessed 11 December 2011.27 ‘A concession to reality,’ The Economist (24 May 2011) <http://www.economist.com/blogs/americasview/2011/05/armed_conflict_colombia> accessed 13 November 2011.28 Rome Statute of the International Criminal Court <http://untreaty.un.org/cod/icc/statute/romefra.htm> accessed 27 January 2012.29 Colombia, Reservation to the Rome Statute of the International Criminal Court <http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en> accessed 27 January 2012.

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A. Constitución Política de Colombia 1991

Chapter VI of the Colombian Constitution contemplates three types of states of emergency: estado de emergencia, estado de conmoción interior, and estado de Guerra exterior.30 The estado de emergencia may be declared by the President where there is a ‘disturbance or threat of disturbance of the economic, social, or ecological order of the state’, and may last for 30 days at a time with extensions permitted up to a total of 90 days per year.31 The estado de conmoción interior may be declared by the President where there is a ‘serious breach of the peace that constitutes an immediate threat to institutional stability, state security, or the peaceful coexistence of its citizens and which cannot be dealt with through the ordinary exercise of police powers’.32 This ‘state of internal disturbance’ is declared for 90 days which may be renewed once upon approval by the Senate, and under no circumstances are citizens subjected to investigation or judgment by the military justice system.33 The estado de Guerra exterior applies in cases of foreign wars, and there is no precise time limit to its invocation.34

Pursuant to any of these exceptional states of government, the government will have only such powers as are strictly necessary to avert the causes of the disturbance and stop the spread of its effects; to this end, the President may issue declarations only which refer to matters directly and specifically related to the crisis.35 Human rights and fundamental liberties may not be suspended, international humanitarian law will apply, and any methods adopted by the government to deal with the emergency must be proportional.36 Article 93 of the Constitution states that international treaties and conventions which prohibit limitation of

30 Red de Información Jurídica (RIJ), ‘Derechos Humanos, Caraterísticas de los estados de excepción’ <http://190.41.250.173/rij/> accessed 12 November 2011; Constitución Política de Colombia (1991) <http://web.presidencia.gov.co/constitucion/index.pdf> accessed 12 November 2011.31 Constitución Política de Colombia (1991) Artículo 215, <http://web.presidencia.gov.co/constitucion/index.pdf> accessed 12 November 2011. ‘Cuando sobrevengan hechos distintos de los previstos en los artículos 212 y 213 que perturben o amenacen perturbar en forma grave e inminente el orden económico, social y ecológico del país, o que constituyan grave calamidad pública, podrá el Presidente, con la firma de todos los ministros, declarar el Estado de Emergencia por períodos hasta de treinta días en cada caso, que sumados no podrán exceder de noventa días en el año calendario.’32 Ibid. at Artículo 213. ‘. En caso de grave perturbación del orden público que atente de manera inminente contra la estabilidad institucional, la seguridad del Estado, o la convivencia ciudadana, y que no pueda ser conjurada mediante el uso de las atribuciones ordinarias de las autoridades de Policía, el Presidente de la República, con la firma de todos los ministros, podrá declarar el Estado de Conmoción Interior, en toda la República o parte de ella, por término no mayor de noventa días, prorrogable hasta por dos períodos iguales, el segundo de los cuales requiere concepto previo y favorable del Senado de la República.’33 ibid. ‘En ningún caso los civiles podrán ser investigados o juzgados por la justiciapenal militar.’34 ibid Artículo 212.35 ibid Artículo 213, 214. ‘Mediante tal declaración, el Gobierno tendrá las facultades estrictamente necesarias para conjurar las causas de la perturbación e impedir la extensiónde sus efectos.’ ‘Los decretos legislativos llevarán la firma del Presidente de la República ytodos sus ministros y solamente podrán referirse a materias que tengan relación directa y específica con la situación que hubiere determinado la declaratoria del Estado de Excepción.36 Ibid Artículo 214(2). ‘No podrán suspenderse los derechos humanos ni las libertades fundamentales. En todo caso se respetarán las reglas del derecho internacional humanitario. Una ley estatutaria regulará las facultades del Gobierno durante los estados de excepción y establecerá los controles judiciales y las garantías para proteger los derechos, de conformidad con los tratados internacionales. Las medidas que se adopten deberán ser proporcionales a la gravedad de los hechos.’

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human rights during states of emergency shall take precedence, and that the rights and duties enshrined in the Constitution shall be interpreted in conformity with Colombia’s international human rights obligations.37

On June 2 1994, the Colombian Congress adopted Ley 137 further elaborating on the states of exception outlined in the Constitution.38 The stated objective of the law is to ‘regulate the powers afforded the Government during states of exception’ and to ‘establish limits on the exercise of exceptional powers by the Government’ during such times ‘in conformity with international treaties’.39 Much of the language of Ley 137 is nearly identical to that contained in the Constitution, and as such it represents strong reinforcement of the limits on government power during an emergency.

Article 4 of the ICCPR requires States Party to the Convention to limit imposition of a state of emergency to times that ‘threaten the life of the nation’.40 During such times, ICCPR permits derogation from certain norms, but not others, such as the prohibition on torture or the ban on ex post facto application of criminal laws.41 According to the plain language of the Colombian Constitution and Ley 137, these requirements are met, if not exceeded, by the statement that ‘neither human rights nor fundamental liberties may be suspended’ in an emergency under Article 214(2) of the Constitution.

B. Acts of Terrorism under the Penal Code

The Colombian Penal Code contains two distinct definitions of terrorist crimes. Article 144 of the Criminal Code defines an act of terrorism as ‘doing or ordering, as a result of or in furtherance of an armed conflict, indiscriminate or excessive attacks or subjecting the civilian population to attacks, reprisals, act or threats of violence with the principal purpose of terrorizing them’.42 This definition is situated within Title II of the Penal Code, which deals explicitly with international humanitarian law. Article 343 defines an act of terrorism as ‘provoking or maintaining a state of anxiety or terror in the population or a sector thereof, by acts which endanger life, physical integrity or personal liberty or that of buildings, means of communication, transport, process or waterways or motorways, making use of means capable of wreaking havoc’.43 This definition is contained within Title XII on crimes against public

37 ibid Artículo 93.38 Ley 173 de 1994 ‘Por la cual se reglamentan los Estados de Excepción en Colombia’ <http://www.secretariasenado.gov.co/senado/basedoc/ley/1994/ley_0137_1994.html> accessed 28 January 2012.39 ibid.40 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).41 ibid.42 Ley 599 de 2000 ‘Por la cual se expide el Código Penal’ <http://190.41.250.173/rij/bases/legisla/colombia/col-1.HTM> accessed 28 January 2012; ‘El que, con ocasión y en desarrollo de conflicto armado, realice u ordene llevar a cabo ataques indiscriminados o excesivos o haga objeto a la población civil de ataques, represalias, actos o amenazas de violencia cuya finalidad principal sea aterrorizarla’.43 ibid. ‘El que provoque o mantenga en estado de zozobra o terror a la población o a un sector de ella, mediante actos que pongan en peligro la vida, la integridad física o la libertad de las personas o las edificaciones o medios de comunicación, transporte, procesamiento o conducción de fluidos o fuerzas motrices, valiéndose de medios capaces de causar estragos’.

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security. Terrorist crimes are subject to augmented penalties of up to an additional one-third of the original penalty.

The Special Rapporteur on promotion and protection of human rights and fundamental freedoms while countering terrorism has stated that ‘[t]he adoption of overly broad definitions of terrorism…carries the potential for deliberate misuse of the term.’44 He has outlined a model definition for anti-terrorism legislation to best conform with Security Council Resolution 1566.45 First, the proscribed acts must involve hostage-taking or be committed against members of the general population or portions thereof with intent to cause death or serious bodily injury, or the acts must actually involve lethal or serious physical violence.46 Second, the acts must be committed for purposes of terrorizing the population or pressuring the government or an international organization.47 Third, the acts must correspond to a definition of serious crime in domestic law enacted in order to comply with international counter-terrorism measures, or to ‘all elements of a serious crime defined by national law.’48

On the plain text of the laws, the two definitions of terrorism contained in the Colombian Penal Code fail to meet the third prong of the Special Rapporteur’s test because the clauses use the general terms ‘acts’ and ‘attacks’ rather than specifying in more detail the actus reus of the crime. Statistics as to how and in what circumstances these crimes have been charged could not be located at time of writing, but they would help to illuminate whether the crime of terrorist acts is being applied indiscriminately or discriminatorily as part of the government’s strategy in confronting the armed conflict.

C. Military Penal Code

Colombia’s Military Penal Code provides for jurisdiction in the military courts over crimes ‘related to acts of military service’.49 It specifically isolates torture as a crime that is ‘unrelated’ to military service,50 thus rendering it prosecutable only in civilian courts under the ordinary Penal Code. Indeed, all human rights violations are considered to be unrelated to

44 UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin - Ten areas of best practices in countering terrorism’ (22 December 2010) A/HRC/16/51 para 26 <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/98/PDF/G1017898.pdf?OpenElement > accessed 21 October 2011.45 UNSC Res 1566 (8 October 2004) S/RES/1566.46 UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin - Ten areas of best practices in countering terrorism’ (22 December 2010) UN Doc A/HRC/16/51 para 26 <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/98/PDF/G1017898.pdf?OpenElement > accessed 21 October 2011.47 ibid.48 UN Human Rights Council, ‘Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism: Mission to Peru’ (15 December 2010) UN Doc A/HRC/16/51/Add.3 12 <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/177/86/PDF/G1017786.pdf?OpenElement>accessed 8 November 2011.49 Ley 1407 de 2010 ‘Por la cual se expide el Código Penal Militar’ <http://www.secretariasenado.gov.co/senado/basedoc/ley/2010/ley_1407_2010.html#1> accessed 3 February 2012.50 ibid.; ‘No obstante lo dispuesto en el artículo anterior, en ningún caso podrán considerarse como relacionados con el servicio los delitos de tortura, el genocidio y la desaparición forzada, entendidos en los términos definidos en convenios y tratados internacionales ratificados por Colombia.’

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military service, but in practice they were not always handed over to the civilian justice system as per proper procedure.51

A recent proposal by the government would change the system so that ‘all abusive acts by members of the military are presumed to be related to service and [would] thus be dealt with by tribunals’.52 This proposed change has been criticized by Human Rights Watch because the military justice system is ‘fundamentally inhibited… from independently and impartially administering justice for cases of human rights violations’.53 Part of this inhibition is evidenced by Article 35 of the Military Penal Code, which isolates four situations in which persons are not culpable: when the action occurs 1) by unavoidable accident or force majeure, 2) under duress or coercion from another, 3) with the false and insurmountable conviction that the act or omission was lawful, and 4) with false and insurmountable conviction that if the actor did not take part in the action or omission, s/he would be in breach of one of the necessary requirements of his legal duties.54 This Article gives military defendants plenty of room to argue for lack of culpability despite having committed a crime, fostering a climate of impunity. When read in conjunction with the amnesty scheme outlined in the following sections, it appears that Colombia has not addressed the issue of accountability for torture and other war crimes and human rights violations to the level required by its Constitution and its international treaty and customary obligations.

D. Law No. 418, Law No. 782, and Decree No. 128

Law No. 418 was promulgated in 1997, granting amnesty to demobilizing fighters in the form of refrainment from criminal investigations, prosecutions, and convictions.55 When Álvaro Uribe was elected President in 2002, the AUC offered to agree to a ceasefire, to which the government responded by extending Law No. 418 by enacting of Law No. 782, which was in turn amended by Decree 128 in January 2003.56 Decree 128 added the possibility of receiving social benefits in addition to the criminal amnesties.57 This entire framework was extended once again by Law No. 1421 in 2010.58

51 United States Department of State Human Rights Report: Colombia <http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154499.htm> accessed 27 January 2012.52 Colombia Reports, ‘Colombia rejects HRW criticism on military justice reform ‘ (24 January 2012) <http://colombiareports.com/colombia-news/news/21736-colombia-rejects-hrw-criticism-on-military-justice.html> accessed 27 January 2011.53 ibid.54 <http://www.secretariasenado.gov.co/senado/basedoc/ley/1999/ley_0522_1999.html> accessed 28 January 2012; ‘No es culpable: 1. Quien realice la acción u omisión por caso fortuito o fuerza mayor. 2. Quien obre bajo insuperable coacción ajena. 3. Quien realice el hecho con la convicción errada e invencible de que su acción u omisión es lícita. Si el error proviene de culpa, el hecho será punible cuando la ley lo hubiere previsto como culposo. 4. Quien obre con la convicción errada e invencible de que no concurren en la acción u omisión alguna de las exigencias necesarias para que el hecho corresponda a su descripción legal. Cuando dicho error recaiga sobre circunstancia de agravación, ésta no se tendrá en cuenta.’55 Ley 418 de 1997, <http://www.cnrr.org.co/interior_otros/pdf/ley_418_97.pdf> accessed 11 December 2011; see also Center for Justice and Accountability, ‘Colombia: The Justice and Peace Law’ <http://www.cja.org/article.php?id=863> accessed 11 December 2011.56 Center for Justice and Accountability, ‘Colombia: The Justice and Peace Law’ <http://www.cja.org/article.php?id=863> accessed 11 December 2011.57 ibid.; Decreto 129 de 2003 <http://www.ejercito.mil.co/?idcategoria=237897> accessed 11 December 2011.58 Ley 1421 de 2010 <http://www.secretariasenado.gov.co/senado/basedoc/ley/2010/ley_1421_2010.html accessed 11 December 2010.

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The relevant provisions are as follows. Article 5 of Law 418, as modified by Article 19 of Law 728, states that the government can grant a pardon to Colombian nationals who have been sentenced for political crimes, upon demonstration of a desire to reintegrate into civilian life.59 In addition to granting pardons, the government may suspend on-going proceedings against persons who confess.60 Such a pardon or suspension of proceedings will not be granted to those who have committed atrocities including terrorism, kidnapping, genocide, and homicide outside of combat.61 However, it is unclear from the face of the law what specific crimes constitute ‘political crimes’ nor how ‘terrorism’ is defined for purposes of exemption from pardon. From the plain language of the law, it appears that persons who have committed torture may be eligible for a pardon.

Decree 128 added to this framework by providing a guarantee of human rights for demobilizing fighters.62 Chapter III outlines the preliminary benefits granted to demobilizing fighters, such as documents, health benefits, protection and security.63 The irony in this system is that the law explicitly protects the human rights of persons who may have themselves committed war crimes and who may be granted amnesty for their acts, thus denying the same protection for their victims.

The prohibition against torture is a non-derogable norm of international law, and no extenuating circumstances may be invoked to justify it.64 Torture has long been prohibited under international humanitarian law, beginning with the Hague Conventions of 1899 and 190765 and continuing with Common Article 3 to the Geneva Conventions66 and their

59 Ley 418 de 1997 Artículo 5 <http://www.cnrr.org.co/interior_otros/pdf/ley_418_97.pdf> accessed 11 December 2011. ‘El gobierno nacional podrá conceder, en cada caso particular, el beneficio de in-dulto a los nacionales que hubieren sido condenados mediante sentencia ejecutoriada, por hechos constitutivos de delito político cuando a su juicio, el grupo armado organizado al margen de la ley con el que se adelante un proceso de paz, del cual forme parte el solicitante, haya demostrado su voluntad de reincorporarse a la vida civil. También se podrá conceder dicho beneficio a los nacionales que, individualmente y por decisión voluntaria, abandonen sus actividades como miembros de los grupos armados organizados al margen de la ley y así lo soliciten, y hayan además demostrado, a criterio del gobierno nacional, su voluntad de reincorporarse a la vida civil.’ 60 ibid Artículo 6. ‘Se podrán conceder también, según proceda, de acuerdo con el estado del respectivo proceso penal, la cesación de procedimiento, la resolución de preclusión de la instrucción o la resolución inhibitoria, a quienes confiesen y hayan sido o fueren denunciados o procesados por hechos constitutivos de los delitos a que se refiere este título y no hayan sido aún condenados mediante sentencia ejecutoriada.’ 61 ibid Artículo 5. ‘No se aplicará lo dispuesto en este título a quienes realicen conductas constitutivas de actos atroces de ferocidad o barbarie, terrorismo, secuestro, genocidio, homicidio cometido fuera de combate o colocando a la víctima en estado de indefensión.’ 62Decreto 129 de 2003 <http://www.ejercito.mil.co/?idcategoria=237897> accessed 11 December 2011.63 ibid.64 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).65 Convention with Respect to the Laws and Customs of War on Land Article 4 (29 July 1899) 32 Stat 1803, reprinted in 1 AmJInt’lL 129 (Supp 1907); Convention Respecting the Laws and Customs of War on Land Article 4 (18 October 1907) 36 Stat 2277, reprinted in 2 AmJInt’lL 90 (Supp 1908).66 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Article 3 (12 August 1949) 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Article 3 (12 August 1949) 75 UNTS 85; Geneva Convention Relative to the Treatment of Prisoners of War Article 3 (12 August 1949) 75 UNTS 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War Article 3 (12 August 1949) 75 UNTS 287.

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Additional Protocols I and II,67 to which Colombia is a party. The government acknowledges the existence of the armed conflict and the applicability of international humanitarian law (IHL).68 Notwithstanding the applicability of IHL, Article 12 of the Convention Against Torture (CAT) states that ‘[e]ach State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.’69 The use of amnesties, while sometimes vaunted as a positive measure of transitional justice, is not justified for the crime of torture. Indeed, ‘it is now generally accepted that amnesties cannot be applied where treaties obligate states to prosecute’.70 The CAT is one such treaty, stating in Article 4(1) that ‘[e]ach State Party shall ensure that all acts of torture are offences under its criminal law….’71 While demobilization may be a government priority, impunity for gross human rights abuses is an unacceptable outcome. Torture should not be a crime for which a pardon is available under Law 418, as this is in direct contravention of Colombia’s CAT obligations.

E. Justice and Peace Law

The Justice and Peace Law, signed into law by President Uribe in 2005, ‘complements but does not supersede’ the framework outlined above.72 Its stated purpose is similar to those of the laws above: to facilitate the peace process and the individual or collective reintegration of members of armed groups into civilian life.73 It also speaks of the victims’ rights to truth, justice and reparation.74

Article 2 states that the provisions of the law must be interpreted in light of both constitutional norms and international treaties ratified by Colombia.75 It also states that the reinsertion of persons who have been pardoned under the above laws shall continue to be guided by those laws accordingly; in this way it does not supersede the previously existing regime, but allows those pardons to stand. However, Article 25 states that persons granted a pardon under the above framework may still be investigated for later crimes committed after they have agreed to demobilization, providing a potential check against total impunity.76

67 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (8 June 1977) 1125 UNTS 3; Protocol Additional to the Geneva Convention of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (8 June 1977) 1125 UNTS 609.68 ‘A concession to reality,’ The Economist (24 May 2011) <http://www.economist.com/blogs/americasview/2011/05/armed_conflict_colombia> accessed 13 November 2011.69 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).70 Lisa LaPlante, ‘Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes’ 49 Virginia Journal of International Law 915, 941.71 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).72 Center for Justice and Accountability, ‘Colombia: The Justice and Peace Law’ <http://www.cja.org/article.php?id=863> accessed 11 December 2011.73 Ley 975 de 2005, ‘Justice and Peace Law’ <http://www.secretariasenado.gov.co/senado/basedoc/ley/2005/ley_0975_2005.html> accessed 11 December 2011.74 ibid.75 ibid. at Artículo 2.76 ibid. at Artículo 25.

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Article 6 provides the right to justice as follows: ‘the State has the duty to carry out an effective investigation for purposes of identifying, capturing and punishing persons responsible for crimes committed by members of armed groups’, thus assuring the victims access to effective remedies to redress their injuries. This mirrors the language of Article 12 of CAT, which states that ‘[e]ach State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation’ of acts of torture (based on reasonable grounds), as well as Article 14, which states that ‘[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation’.77

In the case of Gustavo Gallón Giraldo y Otros v Colombia, the Constitutional Court ruled on the constitutionality of the Justice and Peace Law.78 The petitioners challenged the law on the basis that it constituted a ‘system of impunity.’79 Although minor modifications were made, the Court upheld the law generally.80 It interpreted the provision allowing for reduced sentences of five to eight years to apply only to fighters who made ‘full and truthful confessions’, and changed a provision to provide better incentives for ex-paramilitaries to tell the whole truth.81 Whereas before the court challenge, the penalty upon discovery of a crime omitted from a fighter’s confession was rolled into any existing reduced penalty under the Justice and Peace Law, after the court’s ruling such discovery triggers ordinary criminal investigation and its full range of penalties. The Court also clarified the participation of victims in response to petitioners’ arguments that the plain text of the law could be interpreted to restrict certain family members and others from having full access to the process.82 These changes have been acknowledged as improving the demobilization framework, although concerns about impunity remain.

4. Laws in Practice

Though the states of exception laid out in the constitution have been invoked in response to acts of armed groups, it does not appear to be a common government policy. The estado de conmoción interior was invoked by President Uribe shortly after his election in 2002, when FARC launched a mortar attack on the presidential palace, killing 19 people in a nearby slum.83 Prior to this invocation, it had been used only five times since the promulgation of the Constitution in 1991.84 Thus the lofty statements enshrining the protection of fundamental rights in an emergency are rendered aspirational as long as the government chooses to manage the conflict by ordinary means.

77 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT).78 Sentencia C-370/06, Corte Constitucional de Colombia (2006).79 ibid Sección III para 1.2.1.80 ibid.; see Center for Justice and Accountability, ‘Colombia: The Justice and Peace Law’ <http://www.cja.org/article.php?id=863> accessed 11 December 2011.81 Human Rights Watch, ‘Colombia, breaking the grip?’ 24-25 <http://www.hrw.org/reports/2008/10/16/breaking-grip-0> accessed 12 December 2011.82 ibid 27.83 ‘Colombia’s Conflicts: State of Commotion: A crackdown against terror,’ The Economist (15 August 2002) <http://www.economist.com/node/1283985> accessed 12 December 2011.84 ibid.

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A. Safeguards from Torture

According to the human rights report of the U.S. Department of State, certain safeguards from torture are present in the Colombian penal system. Prisoners were allowed ‘access to legal representatives and the ability to submit complaints to judicial authorities and request investigations of inhumane conditions’.85 Further, the report noted that ‘persons detained must be brought before a judge within 36 hours to determine the validity of the detention’, and that ‘[f]ormal charges must then be brought within 30 days, and a trial must start within 90 days of the initial detention’,86 although the report does not mention whether these rules were being followed in practice. The report also lamented the lack of records of prisoners and the failure on the part of detaining authorities to follow proper notification procedures. This failure presents a risk of torture in that prisoners who are unaccounted for may be beyond the reach of independent monitoring bodies and subject to inhumane treatment, prolonged incommunicado detention, or denial of medical care.

B. Monitoring Mechanisms

Reliable statistics on incidents of torture and other ill-treatment, whether at the hands of state forces or guerrilla groups, are notoriously difficult to locate. Colombia has a special Presidential Programme on Human Rights and International Humanitarian Law, but their efforts appear to be limited to coordination between different government sectors in pursuit of policy objectives, serving more of the role of a think-tank than a monitoring mechanism. This includes an Observatory Working Group, whose premier function is ‘to generate statistical information in a systematic, trustworthy and permanent manner as well as to produce analytical documents that contribute to the creation of public policy and visibility of existing problems related to human rights and international humanitarian law.’87 According to the Observatory, from January through October 2011 there were 249 disappearance cases, 451 ‘terrorist acts’, 1314 ‘subversive’ fighters demobilized, 1743 ‘subversive’ fighters captured, and 3266 members of criminal gangs captured.88 These statistics appear to be aggregated from other sources including the National Police and the Ministry of Defense as well as radio stations and newspapers. There is no information available as to what becomes of the captured, what is being done to follow up on the disappearances, or how ‘terrorist act’ is defined.

The Presidential Programme also contains a working group on Awareness and Prevention, one function of which is to receive and follow up on complaints of human rights violations. At the time of writing no information could be found to reflect whether this function is in fact being carried out by this body. The Human Rights and Humanitarian Law Unit of the Office of the Prosecutor appears to be the main body handling prosecution of these cases, but it is unclear what the relationship between these two agencies is. The Office of the Inspector General investigates allegations of human rights violations by state security

85 United States Department of State, ‘Human Rights Report: Colombia’ <http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154499.htm> accessed 27 January 2012.86 ibid.87 Programa Presidencial para la protección y vigilancia de los Derechos Humanos y el Derecho Internacional Humanitario <http://www.derechoshumanos.gov.co/Programa/Paginas/AreasFuncionesEquipo.aspx> accessed 27 January 2012.88 Programa Presidencial para la protección y vigilancia de los Derechos Humanos y el Derecho Internacional Humanitario <http://www.derechoshumanos.gov.co/Observatorio/Paginas/Observatorio.aspx> accessed 27 January 2012.

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forces, and in 2010 it referred all its cases to the Human Rights Unit of the Office of the Prosecutor.89

C. Investigations and Prosecutions

The implications of the demobilization framework established by the JPL and its predecessors is best seen in light of the volume of crimes committed during the armed conflict. One effect that is immediately apparent is the low likelihood of prosecutions for human rights abuses committed by government forces, which account for a majority of cases. According to a coalition of domestic NGOs, 932 persons were tortured during the conflict between 2002 and 2007; over 90% of those cases were alleged to have been committed by state forces.90 During the same period, 1,477 people were ‘disappeared’.91 Of the 13,634 total non-combatant fatal victims of the armed conflict during that period, over 75% died at the hands of state actors.92 Accountability for these crimes is ‘almost nonexistent’.93 It has been reported that of the nearly 32,000 paramilitaries who have demobilized, more than 90% of them benefited from the amnesty scheme set up by Laws 418, 782 and Decree 128.94

The Foreign Relations Ministry has stated that in April 2010 it had 1244 active cases involving disappearances attributed to state actors, implicating 3676 members of security forces.95 These cases are handled by the Human Rights and Humanitarian Law Unit of the Office of the Prosecutor, but there have been precious few convictions. Of the more than 1400 disappearance cases initially reported to that unit, 40 guilty verdicts had been rendered as of April 2010.96 The most recently available information regarding torture cases indicates that a conviction was entered in only one case in 2010, despite 16 documented incidents of government security forces involvement in torture.97 Three additional torture charges were laid against members of the armed forces in 2010, and seven cases were opened against demobilized paramilitary fighters.98 This is but a small fraction of the cases reported, and the lack of an organized system makes obtaining additional data on investigations and prosecutions for torture and other crimes very challenging.89 United States Department of State, ‘Human Rights Report: Colombia’ <http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154499.htm> accessed 27 January 2012.90 Colombian Commission of Jurists et al, ‘Submission to the Working Group on the Universal Periodic Review of Colombia’ (July 2008) <http://www.upr-info.org/IMG/pdf/NGOs-_Submission_UPR_on_Colombia.pdf> accessed 12 December 2011. 91 ibid.92 ibid.93 Human Rights Watch, ‘Submission to the Working Group on the Universal Period Review of Colombia’ (July 2008) <http://lib.ohchr.org/HRBodies/UPR/Documents/Session3/CO/HRW_COL_UPR_S3_2008_HumanRightsWatch_uprsubmission.pdf> accessed 12 December 2011.94 Colombian Commission of Jurists et al, ‘Submission to the Working Group on the Universal Periodic Review of Colombia’ (July 2008) <http://www.upr-info.org/IMG/pdf/NGOs-_Submission_UPR_on_Colombia.pdf> accessed 12 December 2011. 95 Note of the Foreign Relations Ministry of the Republic of Colombia DIDHD/ No. 21398/0386 (15 April 2010)96 US Office on Colombia, ‘Human Rights During the Juan Manual Santos Administration’s First Year in Office’ <http://www.usofficeoncolombia.org/uploads/application-pdf/SantosFirstYearinOfficeEnglish2011.pdf> accessed 27 January 2012.97 United States Department of State, ‘Human Rights Report: Colombia’ <http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154499.htm> accessed 27 January 2012.98 ibid.

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5. Conclusion

The Colombian government has claimed to be ‘obsessive about respecting human rights’,99 but the ratio of crimes reported to crimes investigated or punished during the armed conflict exposes the fallacy of such a statement. The Colombian Constitution and Law 137 of 1994 place great emphasis on the protection of human rights during a state of emergency, but in reality the state of emergency is not invoked as a means of handling the on-going armed conflict, thus rendering their protections merely theoretical. Similarly, the Presidential Programme on Human Rights and International Humanitarian Law, while maintaining a high public relations profile, appears to have little impact on addressing violations on the ground. The Human Rights Unit of the Office of the Prosecutor struggles under its caseload and fails to make a public record to bring transparency to the government’s efforts at addressing the human rights crisis in Colombia. The amnesty scheme in place through Laws 418, 782, Decree 128 and the Justice and Peace Law deny victims their right to redress as well as evading the government’s responsibility to investigate and punish treaty crimes, including torture.

The image that Colombia thus projects to the international community about its human rights campaign is a false front for the reality of government complicity in criminal activity and on-going impunity resulting from the heavy reliance on amnesty as a means of addressing serious crimes. A dichotomy exists between the strong human rights protections enshrined in the Colombian constitution and the apparent tolerance for criminal activity on the part of state actors in the armed conflict. The value set espoused by the framework explained above places a priority on peace at the expense of justice for victims. While the political nature of the conflict and the difficulties inherent in effecting a de-escalation policy are recognized as important, achieving these goals should not ignore the important right of the victims to justice and truth.

99 ‘Colombia’s Conflicts: State of Commotion: A crackdown against terror,’ The Economist (15 August 2002) <http://www.economist.com/node/1283985> accessed 12 December 2011.

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