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Colombian Constitutional Law - Leading Cases by Cepeda Espinosa, Manuel José; Landau, David (20th April 2017)

Part Two Rights, 7 The Rights of Victims and Transitional Justice

From: Colombian Constitutional Law: Leading Cases

Manuel José Cepeda Espinosa, David Landau

(p. 213) The Rights of Victims and Transitional Justice

The long-lasting and tragic civil conflict in Colombia has produced much suffering and many victims. As noted in the case on internally displaced persons excerpted in the previous chapter, millions of Colombians were forced from their homes because of the conflict. Furthermore, a large number of Colombians have suffered a range of other human rights abuses—such as murder, rape, destruction of property, and forced recruitment of minors to bear arms—related to the internal armed conflict. Historically, the state has not always been effective in protecting the rights of victims and in repairing violations of those rights; indeed, it has also committed violations in its actions related to the conflict.

Since its inception, the Court has held that victims have a range of rights, including the right to know the truth about what happened to them, to seek justice for the acts taken against them, and to have the perpetrator or the state make reparations for those acts. As Section A shows, these principles have been developed in the ordinary criminal context, where the Court has insisted that victims have the right to participate and seek reparations against criminals who have wronged them. But in the Colombian context, their most significant manifestation has been related to the internal armed conflict.

A particularly challenging context where these questions have arisen is in efforts to demobilize and make peace with the actors involved in the conflict. Sections B and C each consider legal efforts along these lines, first with paramilitary groups since 2005 and second with guerrilla groups since 2012. Peace is stated in Article 22 of the Constitution as both “a right and a duty,” and was perhaps the overriding goal of the Constituent Assembly of 1991. Thus, efforts to end the conflict by demobilizing armed actors are consistent with the constitutional vision. But the Court has insisted that these efforts must be considered in light of the rights of victims to learn the truth of what has happened to them, seek justice for those events, and receive reparations for their losses. Thus, while maintaining a flexible (p. 214) vision consistent with a transitional justice regime, the Court has insisted on limits on the kinds of concessions that the state can make in return for peace.1

This area has been marked by the engagement between domestic and international law, particularly through the constitutional block doctrine explored in Section C of Chapter 2. Under this doctrine, codified in Article 93 of the Constitution, international treaties related to human rights either form part of the constitutional order directly or are used as criteria of interpretation for Colombian constitutional law. Colombia is party to a large number of international instruments that are relevant to the rights of victims, including the Geneva Conventions and Additional Protocols, the Inter-American Convention on Human Rights, and the Rome Statute of the International Criminal Court. The Court has thus frequently relied on these texts and on the bodies charged with interpreting them such as the Inter-American Court of Human Rights, which have had a significant influence on the law in this area. Key limits imposed by the Court, such as a prohibition on amnesty for the most serious crimes found in humanitarian law and human rights law, are based on international norms.2

That said, the relationship between the Constitutional Court and international law is more complex than one of simple incorporation or absorption. In the process of implementing international norms, the Court has translated and adapted them in light of the particularities of the Colombian context. In effect, the involvement of the Colombian Court in the peace process has contributed to a dialogue about how international norms and values must be interpreted in light of the pressing needs of Colombian society. The Court’s vision has been fairly flexible in allowing special measures in pursuit of peace, but it has insisted on core protections for victims and prevention of regimes that would allow impunity for the most serious crimes.

In a broader sense, the Court’s jurisprudence contributed to changes in political and public discourse. The traditional marginalization of victims has given way to an environment in which their rights have been recognized, if not always realized, by the state. The most tangible realizations of these changes are the Law of Victims and the Restitution of Land (passed in 2011 and excerpted in Section B) and the norms implementing the peace process with guerilla groups since 2012 (examined in Section C).

A.  The Rights of Victims during Criminal Processes

Decision C-228 of 2002 (per Justices Manuel José Cepeda Espinosa and Eduardo Montealegre Lynett)

[In a unanimous decision, the Court protected victims’ rights to truth, justice, and reparations by striking down some of the articles of the Code of Criminal Procedure. The relevant provisions limited the rights of a victim within a criminal proceeding to requesting only an economic indemnity for damages caused, and in addition limited (p. 215) the access of the victim to the criminal proceedings in multiple ways. For example, the provisions required that victims participate only through counsel, and only once a formal criminal investigation of a defendant had been opened.3 The Court decided that the rights of the victim, in addition to the right to reparations for any damages caused, also encompassed rights to truth and to justice. In addition, it ordered certain measures that would make it easier for the victim to participate in the criminal proceedings: it allowed victims to participate along with their lawyers, and allowed them to participate before a formal investigation has been opened.]

The right of victims to participate in the criminal process is related to respect for human dignity. Considering Article 1 of the Constitution, which states that “Colombia is a social state of law founded on respect for human dignity,” victims and those wronged by a punishable act can demand from others treatment in accordance with their human condition. The victims’ … dignity would be greatly violated by punishable acts if the only protection offered to them were the possibility of obtaining purely economic reparations. The principle of human dignity does not allow either the human being or the rights and legal goods protected by criminal law to be reduced to an economic analysis of their value. The acknowledgement of an [economic] indemnity for damage caused by a crime is one of the solutions that the lawmaker has chosen because of the difficulty of achieving a complete recovery of the rights and legal goods affected by a crime. But this is not the only alternative, nor is it the only one that fully protects each person’s intrinsic value. On the contrary, the principle of dignity does not allow the protection of the victims of a crime to be exclusively of an economic nature…. It demands from the authorities that legal instruments be developed by the lawmaker to achieve the effective enjoyment of each victim’s rights, and that these be geared towards their integral reestablishment. That is only possible if the victims of a crime are given, at a minimum, guarantees regarding their rights to know the truth, to obtain justice, and to receive full reparations for any damage that has been suffered.

[The Court also referred to victims’ rights in international law. It underlined the growing tendency toward the acknowledgment and expansion of those rights, and it concluded that the victims have three relevant rights under international human rights law:]

  1. 1.  The right to truth; that is, the possibility to know what happened…. This right is particularly important in the face of grave violations of human rights.

  2. 2.  The right to have justice applied in the concrete case; that is, the right not to have impunity.

  3. 3.  The right to reparations for the damage caused, which can be achieved by means of economic compensation, the traditional way in which the victim of a crime has been indemnified.

(p. 216) There must be real damage, concrete and specific … that legitimizes the participation of the victim … in the criminal process…, and this must be analyzed by judicial authorities in each particular case. Once the status of a person as a victim has been demonstrated … that person may become the civil party, and may assert his claim exclusively in order to obtain justice and search for the truth, putting aside any economic objective, if the victim so desires. Moreover, even once economically indemnified, if victims have an interest in truth and justice, they can continue within the process in their condition as a civil party…. [V]ictims cannot be required to file a suit to obtain economic reparations.

[The Court next stated that the requirement that the victim intervene in the criminal process only through legal counsel did not restrict or violate the victim’s rights; on the contrary, it was aimed at ensuring the effective enjoyment of the rights to truth, justice, and reparation. Nonetheless, the Court clarified:] [T]his does not mean that the existence of technical arguments can prevent the exercise of a material defense directly by the victim, nor can the requirement of being represented by counsel become an obstacle to guaranteeing the victim’s rights…. [B]oth the victims and their counsel may ask that evidence be submitted; both have the right to be informed of every procedural act adopted by the competent authority during the criminal process, as well as to contest all those procedural acts that may affect their rights to truth, justice and reparation.

The victim and their counsel constitute a sole party: the civil party. Their intervention in the process must be subjected to the principle of equality. Consequently, the victim can directly file [motions] and can ask that evidence be submitted.

[On the other hand, the Court declared unconstitutional a requirement that victims only participate in the criminal process after the authorities had adopted a resolution to formally open an investigation of a criminal defendant:] [T]he rights to truth, justice and economic reparation depend on the possibility that, before this stage, the civil party be permitted to actively intervene, submitting evidence, cooperating with judicial authorities, and knowing and questioning the decisions made before the formal opening of the investigation, especially the decision through which it is formally decided not to open an investigation.

Note on the Rights of Crime Victims: The Court’s doctrine on the rights of victims within the criminal process has been further developed in several subsequent decisions. For example, in Decision C-004 of 2003 (per Justice Eduardo Montealegre Lynett), the Court examined an article of the old Code of Criminal Procedure that allowed for the revision of criminal sentences on the following grounds: “after the sentence is issued, new facts or evidence arise, not known at the time of the decision, that establish the innocence of the condemned….” The Court declared this provision conditionally constitutional, under the understanding that it also cover some cases, involving international human rights law or international humanitarian law, in which new evidence would show that a previously acquitted or lightly-sentenced defendant actually had a higher degree of guilt. “[R]evision is also permitted in cases when the investigation has been precluded, procedures have ceased, (p. 217) or a decision has absolved the accused, as long as the crime has to do with violations of human rights or grave infractions of international humanitarian law, or as long as there was a decision from an international instance of supervision and control of human rights, formally accepted by our country, recognizing the existence of a new fact or evidence, not known before the criminal decision was adopted. Likewise, … revision … is allowed … in processes for the violation of human rights or grave infractions of international humanitarian law, even if there are no new facts … if an international judicial decision, or a decision from an international body [charged with] supervision and control of human rights … finds an evident non-fulfillment of the obligation of the Colombian state to seriously and impartially investigate the aforementioned violations.” Thus, the Court allowed for investigations to be reopened and defendants retried in circumstances involving violations of international human rights law or grave breaches of international humanitarian law, in order to protect the rights of victims of these crimes.

In Decision C-979 of 2005 (per Justice Jaime Córdoba Triviño) the Court examined an article of the new Code of Criminal Procedure that explicitly allowed revised sentences in cases involving violations of international human rights law or grave breaches of international humanitarian law, but only in case of judicial decisions returning a verdict of innocence. The Court declared the limitation of revision only to verdicts of innocence to be unconstitutional. Thus, it allowed for revision in other circumstances as well, such as where light sentences are given for very serious crimes.

The Court has limited the rights of crime victims in some circumstances, particularly in order to preserve essential characteristics of the new adversarial justice system that was created by the 1991 Constitution.4 The 1991 Constitution moved Colombia away from the inquisitorial criminal system that it has traditionally possessed (and where the judge plays the leading role in the criminal process), and toward an adversarial system more like the American system, where lawyers for each side act as the protagonists. In Decision C-209 of 2007 (per Justice Manuel José Cepeda Espinosa), the Court held that at the trial stage only the prosecutor could be allowed to introduce the theory of the case and to exercise other faculties, such as examination and cross-examination of witnesses, in order to preserve equality between the defendant and the state.

B.  The Rights of Victims during Internal Armed Conflict

In Colombia, the rights of victims are particularly salient with respect to the country’s long-running and deeply violent internal civil conflict. Peace in this conflict has been achieved in a series of stages, beginning with negotiation with right-wing paramilitary groups. During the administration of President Alvaro Uribe (2002–2010), right-wing paramilitary groups (p. 218) entered into a negotiation and demobilization process with the government by handing in their weapons. This demobilization process occurred in a context where the military, during the administration of President Alvaro Uribe, was perceived as successful in fighting left-wing guerrilla groups within the framework of a presidential policy called “democratic security.”

When the conditions for demobilization had already been agreed in the midst of great national controversy, Congress (at the initiative of the government), adopted Act 975 of 2005, the Peace and Justice Act, which laid out special criminal provisions for the demobilized paramilitary groups, and eventually for some members of guerrilla groups as well. The law granted members of illegal armed organizations benefits under the criminal law in exchange for their demobilization and collaboration with the criminal system, but it did not demand their full confession for crimes committed, nor did it set any conditions requiring full reparations for these crimes. The main benefit was the establishment of a low punishment of between five and eight years for all crimes committed, including massacres and other atrocities, to any member of an illegal armed group who adhered to and was judged for any crime under the Peace and Justice Act.

Many citizens challenged this controversial law in front of the Court, and various NGOs, civil society organizations, and government agencies participated in the judicial process. These actors generally argued that the treatment given to paramilitaries violated both the Colombian constitution and international human rights law and international humanitarian law incorporated into the constitutional block.

The Court upheld the basic concept of the law, which provided a sharp reduction in sentences for demobilized paramilitaries, even if they had committed serious atrocities. The Court held that this system advanced the cause of peace in Colombia, which was a core value and impetus behind the 1991 Constitution. However, it also carefully examined the specific provisions of the Act in light of the right of victims to truth, justice, and reparations, and struck down significant parts of the law as a result.

Decision C-370 of 2006 (per Justices Manuel José Cepeda Espinosa, Jaime Córdoba Triviño, Rodrigo Escobar Gil, Marco Gerardo Monroy Cabra, Álvaro Tafur Galvis, and Clara Inés Vargas Hernández)

[The Court started with a general analysis of the scope of the right to peace as well as the right of victims to truth, justice, and reparation, based on international law and on the previous decisions of the Constitutional Court. The Court established that these rights and values were both important under the Colombian Constitution, and thus that they needed to be balanced against one another. Thus, the Court analyzed the concept of transitional justice in international law; it referred to binding treaties for Colombia and their relevance regarding the rights to peace, truth, justice, and reparation; it summarized the Inter-American Court’s decisions regarding the standards on justice, non-repetition of crimes, truth, and reparation for the victims of grave violations of international human rights law and international humanitarian law; it discussed the United Nation’s Updated Set of principles for the Protection and (p. 219) Promotion of Human Rights through Action to Combat Impunity;5 it summarized reports from the Inter-American Commission on Human Rights; and it summarized its own decisions on the rights of victims.]

[In the Court’s judgment, the above concepts and decisions] emphasize the constitutional and international importance of peace, justice, and the rights of victims.] [They highlight] that the tension between these rights is manifest in a distinct way depending on diverse factors, among which, in this case, are the adoption of legislative and judicial instruments to foster the transition towards peace within a democratic context….

Above all, it is worthwhile to pinpoint that the legislator has the competence to identify the dimensions within which that tension is expressed and to define the formulas to overcome it, exercising the attributions clearly granted by the Constitution…. It is the constitutional justice’s competence to identify the limits on this power and to have them respected, without sacrificing any of the constitutional elements that are in tension, and without substituting for the legislature, which is exercising its own powers.

The Congress approved [the law] as an instrument to bring peace to the country; that is, as a means to overcome the internal armed conflict that has been affecting Colombia for several decades…. The value of peace has several manifestations in the 1991 Constitution, as was pointed out earlier. [I]it is worthwhile to highlight that peace is a right at the same time that it is a duty. To achieve the constitutional value of peace, Congress enacted in the Law diverse formulas which, in general terms, imply a reform to criminal procedures affecting the principle of justice—understood both as an objective value and also as one of the rights of the victims of violations of human rights. Thus, certain benefits under criminal law, and a special procedure before certain specific authorities, are established so that illegal armed groups will demobilize and reintegrate into civil life….

The method of balancing (or proportionality) is appropriate to resolve the problems in this case, as it is not possible to materialize fully and simultaneously all of the different rights at play, that is, justice, peace, and victims’ rights. The achievement of a stable and lasting peace that pulls the country out of the conflict through the demobilization of illegal armed groups can permit certain restrictions on the objective value of justice and the correlative right of the victims to justice …; the historical experience of different countries that have overcome internal armed conflict has shown this….

But peace does not justify everything. The value of peace cannot be granted an absolute reach, since it is also necessary to guarantee the materialization of the essential contents of the principle of justice and of the rights of the victims to justice … in spite of the legitimate limitations imposed on these rights in order to end the armed conflict….

(p. 220) [I]t was the legislator himself who, by opting to limit the value and right to justice to achieve peace, set the essential terms of the scale in which the balancing must be carried out…. Balancing must be carried out, consequently, taking into account the different ways in which the norms of the Act being contested affect justice and the other constitutional values and rights in need of protection, that is, peace, the right to truth, the right to reparation, and the right to non-repetition of crimes violating human rights. It is worthwhile to mention that the novel problem proposed by Law 975/05 is how much weight should be given to the value of peace. This is a complex issue, not only because of its novelty, but also because of the enormous transcendence that peace was given by the 1991 Constitution.

It is pertinent to highlight that justice (like peace) has great constitutional importance…. This does not imply that justice can, in its turn, be raised up to the category of an absolute right to such an extent that peace is sacrificed, or its materialization is prevented.

[By] examining the means designed by the legislator to reach the legitimate ends that he pretends to achieve, the Court will analyze whether they are the adequate means to reach those ends, and whether those means constitute a limitation on rights that is disproportionate….

The fundamental charge against [the law] is that it constitutes a system of impunity, whose main effect is to grant a benefit under the criminal law so that those who have committed grave crimes, within the framework of the internal armed conflict, can be exonerated from a meaningful part of the punishment that would ordinarily be imposed on them for committing such crimes, without meeting the conditions set by international humanitarian law and human rights law for such measures to be valid….

To issue a basic opinion on this charge, it is necessary to refer to the concept of the “alternative punishment.” In essence, this is a benefit that consists of the suspension of the ordinary applicable punishment established by the general rules of the Criminal Code, so that instead of the regular punishment the condemned person receives a lesser alternative punishment, which is a minimum of five years and a maximum of eight years.

After a verdict of guilty, first, the regular punishment is set; and, second, that punishment is replaced … by an alternative punishment of five to eight years in prison…. Under the theory … adopted in [the Act], the regular punishment does not disappear—it is imposed by the verdict. But the convicted person who meets the requirements set by the Act benefits from a lower alternative punishment which must also be imposed in the verdict. This alternative punishment is the one that the convicted person must effectively fulfill in prison.

This configuration of the alternative punishment, as a measure geared towards the achievement of peace, is in agreement with the Constitution. [I]t does not imply a disproportionate burden on the value of justice, which is preserved by imposing the original regular punishment within the limits set in the Criminal Code, in proportion to the crime for which the person has been condemned, and which must be (p. 221) carried out if the sentenced person does not meet the commitments under which he or she was granted the benefit of suspension of the regular punishment….

However, the Court considers that some [articles] of the Act deserve special consideration since they contain measures that, although aimed at the achievement of peace, could place a disproportionate burden on [the rights of victims to truth, justice, and reparations].

Article 3 conditions the suspension of the execution of the regular penalty … on the “collaboration with justice” [of the accused]. This demand is formulated in such generic terms, stripped of specific content, that it does not satisfy the right of the victims to the full enjoyment of their rights to truth, justice, reparation and non-repetition…. Consequently, the Court will declare that Article 3 is constitutional only on the condition that it be read under the understanding that “collaboration with justice” must be conducive towards the effective achievement of the rights of the victims to truth, reparation and non-repetition.

[The Court specified these requirements elsewhere in its decision—for example, it required that there be a “full and complete confession” in court by the accused. In another part of the decision, the Court examined provisions of the Act in light of the right of victims to truth.]

[We must ask] whether the norms questioned, aimed at the reintegration to civilian life of persons who have committed grave crimes, are the adequate procedural mechanisms to satisfy the right of victims of violations of human rights … so that (1) the crime is acknowledged by the state and is investigated within a reasonable period of time; (2) the responsible parties are known; and (3) the causes and the circumstances … of the crime are fully established. In addition, the Court asks whether such legal mechanisms will adequately serve in the reconstruction of macro-criminal phenomena [involving paramilitary organizations] and in the investigation of such crimes, including those that mankind as a whole has viewed as having the gravest characteristics.

For the Court, the Act being questioned does not clearly establish necessary and sufficient judicial mechanisms so that the macro-criminal phenomenon being studied can be resolved. Nor does it set judicial mechanisms that ensure that the truth will be known regarding the crimes committed by the members of specific groups that are demobilizing.

In the first place, the mechanisms designed by the Act do not in effect promote the full revelation of the truth. These mechanisms do not assign a consequence to lies or to the concealment of grave facts that the state has been unable to clarify, nor do they foster the complete and certain revelation of the truth regarding the crimes committed by members of such specific groups….

As to any new crimes [by a defendant] that may be revealed by the state’s investigations rather than from collaboration of the accused, the benefits of the law will still be applied [to him] so long as it is demonstrated that its omission from the confession was unintentional…. [Further,] it is the state’s duty to provide evidence showing that the omission was intentional. If it is not possible to provide such evidence, and (p. 222) the person accepts the new charges, he or she will have the right, once again, to the benefits granted in [the Act]. So, the person responsible for crimes committed … as a member of such groups before demobilization who, at that time, did not confess, will probably still benefit from the alternative punishment according to the Act.

Taking into consideration the concept of accumulation of alternative punishments set by the Act, the new verdict—for crimes that could be massacres, forced displacement, or massive kidnappings—would not comprise an effective prison penalty. In fact, since the law establishes that … the total penalty [for all crimes] cannot exceed the eight-year maximum penalty stated by the Act under any circumstances, it might well happen that the person has already fulfilled this maximum penalty [before being sentenced for newly discovered crimes]. Therefore, in spite of the fact that the person can be the subject of a new alternative penalty, he would not be obliged to go to jail for even a single day, since the effective penalty cannot go beyond eight years.

This description clearly shows that the Act does not design a system of effective incentives that fosters the full and complete revelation of the truth…. However, the full and complete collaboration of the perpetrators is an indispensable measure to satisfy the right of the victims to truth, and to society’s interest in the reconstruction of historical memory.

In the face of the type of crimes the questioned Act refers to, only the complete identification of the chain of crimes committed by each one of these specific armed groups allows us to know the true dimension of what occurred, to identify the victims, to give them redress, and to adopt serious and sustainable measures for non-repetition….

[The Court thus held that the benefits provided to the criminal by the law should be repealed whenever a judge finds that the criminal has hidden additional crimes linked to paramilitary activities that were excluded from the initial confession.6 The Court also dealt with several challenges based on the victims’ right to justice. For example, it studied a provision of the law that allowed for the “possibility of counting as part of the punishment imposed the time that the sentenced person spent in the so-called demobilized zone,” rather than in jail. Demobilized zones were areas set up by the state where paramilitaries could go in order to discuss demobilizing with representatives of the state. Petitioners argued that this provision violated the victims’ right to justice by allowing criminals to count as part of their sentence time that was not actually spent in jail.]

[I]n order to facilitate talks, negotiations, and agreements within the framework of the demobilization processes of illegal organized armed groups, the National Government has created, after an agreement with spokespersons for such groups, the (p. 223) so-called temporary location or demobilized zones in specific spaces of the national territory. It is important to highlight that to enter these zones is a voluntary act by the members of the illegal armed groups. In some cases this has immediate legal effects, i.e. the suspension of arrest warrants against some representatives of those groups, in order to facilitate negotiations.

The Court notes that the questioned article … assimilates serving a sentence for a punishment imposed to the circumstance of [the criminal’s] being located in a demobilized zone, in spite of the fact that there has not been any requirement from the state that these persons go to such a place. In this sense, staying in a demobilized zone for a long time is not a penalty, as it is not a coercive imposition on the demobilized paramilitary carrying with it the restriction of fundamental rights.

[The Court thus struck down the article of the law allowing time spent in those zones to count as part of the criminal penalty. It also held a related article, possibly allowing demilitarized paramilitaries to serve their sentences in “special places of reclusion” outside of the normal rules and regulations of the prison system, conditionally constitutional only on the grounds that the normal regulations of prisons apply to those places. The Court held that this condition was necessary to protect the “dignity” of victims and to ensure that the paramilitaries were not treated with “impunity.” Finally, the Court considered challenges based on the victims’ rights to reparations.]

The complainants consider that [the sections at issue] violate the right to reparations of victims since they state that only properties acquired illegally can constitute the source for the payment of indemnities.

The Court wonders whether the right to integral reparation guarantees that, even in transitional justice processes, those individuals responsible for crimes must redress with their own property the damage caused by their criminal activities.

[A] series of constitutional weaknesses are identified [in the law], which the Court cannot pass up or fail to identify. First, … there does not seem to be a constitutional reason that allows us to make an exception to the general principle that whoever causes illegal damage is obliged to redress it…. Second, even if it were accepted that the state can carry out such a transfer of responsibility, the truth is that it is not authorized to forgive—either in a criminal or a civil manner—those who have committed atrocious crimes of massive or systemic violence. To completely exempt from civil responsibility the person who caused damage is equivalent to an integral amnesty from due responsibility. Finally, it appears constitutionally disproportionate to renounce claims against the property of those responsible for the damage, at least in those cases where it can be proven that the responsible individuals have great fortunes while those who have suffered damage are facing painful conditions of poverty and homelessness….

Further, the Court must define whether … the regulations that establish that demobilized individuals must hand in their property “if they have them,” “when they have them available,” or “if feasible,” facilitate fraud because the demobilized individuals can exclude themselves from any obligation to make reparations by stating (p. 224) that they do not have properties or that they cannot dispose of properties that they do not own, in detriment to the rights of the victims to reparation.

In the same way that victims and society are required to accept a path towards legality of those who have committed extremely grave crimes and cruelty, it is only to be expected that the beneficiaries of this law act in good faith to return the properties to those who were dispossessed of them, and to economically compensate them for the damage caused due to their illegal actions….

The clauses specifically questioned can be interpreted in such a way that the demobilized individual is not required to make any effort at all to uncover the businesses that have allowed him to hide his property or to locate illegal properties that are clearly identified, but are not presently in his possession….

[The Court thus declared the relevant provisions unconstitutional. Finally, an important part of the decision of the Court dealt with charges in relation to budgetary limitations applicable to the Fund for the Reparation of Victims. Most paramilitary members are poor individuals recruited by chiefs that were or became very rich. The Act established that public money, put into the Fund, would be a major source of reparations. But the Act fixed limitations on the sources to establish the Fund. Complainants particularly attacked a provision establishing that the Fund would pay out judicially-ordered indemnities “within the limits authorized by the national budget.”]

The complainants consider that the limitation of the … payment of the indemnities to the budgetary limit set in the national general budget is a violation of the rights of the victims to reparations, since it is equivalent to subjecting the state’s obligation to pay such reparations on the availability of sufficient resources to do so.

In the Court’s view, this limitation is disproportionate and becomes an excessive burden on the rights of victims to reparations. Once it has been ordered, as the result of a judicial process carried out according to the law’s formalities, that a person who has been the victim of the violation of her or his human rights has the right to receive a determinate sum of money as an indemnity, this right in his or her favor cannot be subject to later modifications, much less when derived from the availability of resources in the national general budget….

Additionally, the duty to pay reparations rests with the individual responsible for the crime that caused the damage, so the national general budget is not the only source of funds to finance payment of indemnities that have been judicially decreed…. The expression “within the limits authorized by the National Budget” … will be declared unconstitutional.

[As to the responsibility of the paramilitary group to provide an indemnity], the Court is quite clear that if the benefits set by the act are for a specific group or for its members as the result of their belonging to the group, the latter must have correlative responsibilities to pay indemnification, even aside from the determination of criminal responsibilities. This responsibility of any member of the group exists as long as the damage to the victim has been proven and the relationship of causation of the damage with the specific group’s activities is established….

(p. 225) [Three justices dissented. Justices Jaime Araujo Renteria and Humberto Sierra Porto argued that the law should be entirely struck down because it was passed through improper legislative procedures. Justice Alfredo Beltrán Sierra dissented on substantive grounds, arguing that the entire system of “alternative punishments” should have been declared unconstitutional as a disproportionate limitation on the rights of victims.]

Note on the Creation of a Discourse on Victims of Internal Armed Conflicts: The Law of Peace and Justice incentivized a large number of paramilitary actors to lay down their arms. However, it has been criticized for the slow pace in which investigations have been carried out and the low number of judicial decisions issued. Prosecutions are reliant on ordinary mechanisms of justice that are arguably insufficient for such large-scale crimes. Moreover, critics have claimed that some paramilitary groups only partially demobilized, and have not stopped carrying out illegal activities.7

In many of its decisions, including the ones on the Law of Peace and Justice and on internally displaced persons (included in the last chapter), the Constitutional Court has prioritized victims of the internal armed conflict and insisted that they were entitled to respect for certain rights, such as human dignity, truth, justice, and reparations. One effect of these decisions, over time, was to change the public and political discourse. In effect, the Court played a key role in framing those affected by the conflict as victims entitled to respect for a series of fundamental rights under domestic and international law.

In 2011, at the urging of the new president Juan Manuel Santos, Congress passed the “Law of Victims and the Restitution of Land,” reflecting this changed national discourse. The law defines the concept of a victim of the armed conflict, and lays out a set of rights for those who have been harmed, displaced, or otherwise seriously affected by it. It makes extensive use of international human rights law, international humanitarian law, and the jurisprudence of the Constitutional Court in defining those rights. Article 4, for example, includes the following language as the basic principle behind the law:

The fundamental basis of the rights to truth, justice, and reparations is respect for the integrity and honor of victims. Victims will be treated with consideration and respect, they will participate in the decisions that affect them so that they can obtain necessary information and assistance, and they will obtain effective protection for their rights….

The State commits to advance, with priority, actions aimed at strengthening the autonomy of victims so that the measures of attention, assistance, and reparations included in the present law will contribute to restoring them as citizens in full exercise of their rights and duties.

(p. 226) The law includes an extensive set of provisions giving the victims of armed conflict rights to safely participate in judicial proceedings, to humanitarian aid and other assistance with a range of benefits including health and education, to non-repetition of rights violations, and to reparations. It also contains principles protecting internally displaced persons and creating detailed special administrative and legal procedures for the restitution of land. Many of these provisions codified the existing jurisprudence of the Constitutional Court.

Many challenges to the law have involved its limitations on scope. For example, in Decision C-250 of 2012 (per Justice Humberto Antonio Sierra Porto), the Court upheld a scheme of temporal limitations whereby only those people affected by the armed conflict since 1985 would be considered “victims” for purposes of the law, and only those affected since 1991 could request legal restitution of lands that they might have lost in the conflict. The Court was deferential to the limits placed in the law by the legislature: “We cannot forget that laws of transitional justice have temporal limits precisely because they make reference to the transition from one historical period to another; these limits therefore are an intrinsic characteristic of these laws, which always require exercises of legislative judgment.”

In Decision C-253A of 2012 (per Justice Gabriel Eduardo Mendoza Martelo), the Court upheld various other provisions of the law, including one that stated that members of illegal armed groups could not be considered victims under the law, and another that excluded victims of “common crime” from its ambit. And finally in Decision C-781 of 2012 (per Justice María Victoria Calle Correa), the Court upheld a provision limiting the benefits in the law to victims of violations of international humanitarian law or grave breaches of international human rights law “that occurred by reason of the internal armed conflict.” The Court held however that this phrase had to be understood “in a broad sense.”

In designing policies for victims, a particularly problematic issue has been reparations. In Decision SU-254 of 2013 (per Justice Luis Ernesto Vargas Silva), the Court developed a basic framework for the rights of victims of the armed conflict to reparations, especially internally displaced persons, based on the Constitution and the Law of Victims and its implementing regulations. In this decision, the Court established, for example, that the tutela could be used to protect this right because of the conditions of extreme vulnerability in which IDPs who were victims of the internal armed conflict found themselves. It also found that claimants inscribed in the national registry of IDPs were entitled to a presumption of truthfulness. Unless the state were able to overcome this presumption, the Court ordered it to pay the amount of restitution set in the relevant implementing regulations, and held that this amount must be independent of other economic support, such as housing subsidies or economic aid, that had previously been paid by the state. The Court thus clarified the law in an area where internally displaced persons had previously been denied a right to reparations by courts and administrative agencies based on a number of different grounds.

C.  The Peace Process with Guerrilla Groups

In 2011, President Juan Manuel Santos announced that he would seek peace talks to end Colombia’s long-running civil conflict by making peace with the country’s guerrilla groups. This approach was a sharp departure from his predecessor, President Alvaro Uribe Vélez, (p. 227) who had pursued a “democratic security” approach and instead took a military-centered one against guerrilla groups such as the FARC.

One of the first steps in the peace process was the construction of a Legal Framework for Peace, a legal approach based on a transitional justice framework. Given constitutional constraints (including those stemming from the Court’s own incorporation of international law), the Santos administration pursued a set of constitutional amendments. The constitutional amendments added new “temporary” provisions to the Constitution, including the following key article:

Temporary Article 66. Instruments of transitional justice … will have as their overriding purpose facilitating the end of the internal armed conflict and the achievement of a stable and lasting peace, with guarantees of non-repetition and of security for all Colombians; and they will guarantee to the highest level possible the rights of victims to truth, justice, and reparations. A statutory law may authorize, through the framework of a peace agreement, differential treatment which will be given to the distinct illegal armed groups that have been part of the internal armed conflict and also to state agents….

A statutory law will establish instruments of transitional justice of a judicial and non-judicial character that will seek to guarantee the state’s duties of investigation and sanction. In any case, mechanisms of an extrajudicial character will be applied for the purpose of clarifying the truth….

A law must create a Truth and Reconciliation Commission and define its objectives, composition, attributions, and functions. The mandate of the Commission can include the formulation of recommendations for the instruments of transitional justice, including the application of selection criteria.

Prioritization and selection criteria are inherent in instruments of transitional justice. The General Prosecutor of the Nation will determine prioritization criteria for the exercise of criminal action. Without prejudice to the general duty of the state to investigate and sanction grave violations of human rights and international humanitarian law, … the Congress of the Republic … may through a statutory law: determine selection criteria that will permit the concentration of resources of criminal investigation on the top-level actors responsible for all the crimes constituting crimes against humanity, genocide, or war crimes committed in a systematic manner; establish the cases, requisites, and conditions in which punishments may be suspended, establish the cases in which extrajudicial sanctions, alternative punishments, or special modes of executing or complying with punishments may be applied; and authorize the conditional renunciation of criminal justice in all of the non-selected cases….

In all cases, special criminal treatment through the application of constitutional instruments … will be subject to compliance with conditions like the surrender of arms, recognition of responsibility, contribution to the clarification of truth and integral reparations for victims, the liberation of the kidnapped, and the disassociation of children illegally recruited and under the power of illegal armed groups.

(p. 228) The Legal Framework for Peace dealing with guerrilla groups makes an interesting comparison with the 2005 Law of Peace and Justice dealing mostly with paramilitaries. Both regimes allow reduced punishments for demobilized actors who comply with certain conditions. The Legal Framework envisions a fuller set of responsibilities for truth and reconciliation by these actors, along the lines suggested by the Constitutional Court’s decision on the Law of Peace and Justice. However, the Legal Framework also implies that for many members of these groups who are not “top-level” actors who committed certain grave crimes under international law, the total renunciation of criminal punishment, and not just reduced sentences, may be appropriate. This selective approach was justified by Congress and the administration based on resource constraints stemming from the massive size of the conflict, on trade-offs with other goals such as the pursuit of truth, and on the need for incentives to end the conflict. In this sense, the drafters may have reacted in part to the slow pace and inadequate resources that have hindered enforcement of the Law of Peace and Justice.

In many countries, the incorporation of the Legal Framework for Peace in a constitutional amendment would effectively immunize that Framework from judicial review, at least of a non-procedural type. In Colombia, however, the substitution of the constitution doctrine (discussed in detail in Chapter 11, Section C below) allowed petitioners to challenge the constitutional amendment on the grounds that it conflicted so significantly with core principles of the existing text as to constitute a substitution, rather than an amendment. The case below was the most significant such challenge to the Legal Framework for Peace. As it sometimes does with cases of significance, the Court held a public audience at which a number of governmental and nongovernmental parties discussed the constitutionality of the reforms. In an unusual move, President Santos attended the hearing and personally argued in favor of the constitutionality of the law. He told the Court that “we are confronting a real possibility, in my opinion the best in our history, to put an end to the internal armed conflict.”

Decision C-579 of 2013 (per Justice Jorge Ignacio Pretelt Chaljub)

[In this case, the petitioners challenged some of the language in temporary constitutional Article 66. In particular, they challenged the italicized language in the provision giving Congress the power to “determine selection criteria that will permit the concentration of resources of criminal investigation on the top-level actors responsible for all the crimes having the connotation of crimes against humanity, genocide, or war crimes committed in a systematic manner; … and authorize the conditional renunciation of criminal justice in all of the non-selected cases.”8 They argued that these pieces of the amendment disregarded the constraints of international humanitarian law and international human rights law, which are incorporated into the constitution through the constitutional block. Furthermore, they argued (p. 229) that these provisions disregarded those provisions to such a degree as to constitute a “substitution of the constitution,” rather than an amendment of it. In effect, the petitioners argued that those parts of temporary constitutional Article 66 constituted an unconstitutional constitutional amendment. In a seven-to-two decision, the Court disagreed and held temporary constitutional Article 66 to be constitutional.]

[The Court first reiterated its long-standing doctrine on the substitution of the constitution doctrine. These tests are explored in detail in Chapter 10, Section C, and thus they will not be reproduced here. The Court then explored the concept of transitional justice and its meaning in international law:]

Transitional justice is constituted by a group of processes of profound social and political transformations in which it is necessary to utilize a great variety of mechanisms to resolve the problems derived from past abuses on a grand scale, with the purpose of having responsible parties account for their acts, thus serving justice and reconciliation. Those mechanisms may be judicial or non-judicial [and] they have distinct levels of international participation….

[T]he Constitutional Court has defined transitional justice as “a legal institution … applied to societies to confront the consequences of massive violations and generalized or systematic abuses of human rights suffered in a conflict, through a constructive period of peace, respect, reconciliation and consolidation of democracy, which creates a situation of exception from the normal application of criminal institutions.”9

Transitional justice looks to resolve the strong tensions that are presented between justice and peace, including the legal imperatives of the satisfaction of the rights of victims and the necessity of achieving an end to hostilities. For this reason it is necessary to follow a delicate balance between ending hostilities and preventing the return of violence (negative peace) and consolidating peace through structural reforms and inclusive politics (positive peace). For this purpose it is necessary to develop some special objectives:

Recognition of victims, who are not only affected by these crimes, but also by the lack of effectiveness of their rights. In this sense, victims must achieve through the process the reestablishment of their rights to truth, justice, and reparations….

Reestablishment of public confidence through the reaffirmation of the relevance of the norms that the perpetrators violated….

Reconciliation, which implies the overcoming of violent social divisions, referring both to the successful achievement of the rule of law as well as to the creation and recovery of a level of social trust, of solidarity fomenting a democratic political culture that permits people to overcome their horrendous experiences of loss, violence, injustice, pain, and hatred, so that they feel newly capable of coexisting with each other. In this sense, processes of transitional justice must look both forward and backward with the goal of realizing an adjustment of accounts about the past but also of permitting reconciliation with the future….

(p. 230) The strengthening of democracy through the promotion of the participation of everyone, restoring a democratic political culture and a basic level of solidarity and social trust to convince citizens to participate in political institutions for reasons distinct from personal gain….

Transitional justice implies the articulation of a series of measures, judicial or non-judicial, and can involve the trial of persons, compensation, the search for truth, institutional reform, the investigation of facts, removal from one’s post or combinations of all of these, as the Security Council of the United Nations has recognized….

While it is true that the understanding of justice by a part of the population is commonly linked with punishment, the complexity of processes of transitional justice and the necessity of responding to massive violations means that one cannot concentrate exclusively on criminal measures. Thus, criminal justice is only one of the mechanisms of transitional justice that should be applied together with measures of truth, reparations, and non-repetition in order to satisfy the rights of victims.

In any case, we must recognize that criminal processes suffer from multiple obstacles: (i) in politics, the central problem is the resistance of leaders to be questioned criminally; (ii) legally, in some cases solid evidence and material witnesses … are missing; (iii) materially, the requirements of cost and immense effort needed to open criminal processes in the number demanded by the massive atrocities committed in the war….

Based on the foregoing, the application of criminal law in processes of transitional justice has special characteristics that can imply a more benign punitive treatment than the ordinary one, whether through the imposition of comparatively low penalties, the adoption of measures that—without extinguishing criminal responsibility—make conditional liberty possible, or at least a more rapid reduction in the imposed penalty….

In this sense, the Court has signaled that the duty to judge and condemn those responsible for crimes to adequate and proportional sentences can only be subject to exception during processes of transitional justice, in which violations of human rights are fully investigated, the minimum rights of victims to truth and integral reparations are reestablished, and measures are taken to avoid repetition….

[The Court then undertook a lengthy review of the characteristics of transitional justice projects found around the world, as well as the history of emergency powers in Colombia dating back to the nineteenth century, before turning to the question of whether the transitional justice regime is a substitution of the Constitution.]

The [provision at issue] consecrates a criminal justice system of transitional justice, but before studying it concretely we will analyze whether transitional justice per se constitutes a substitution of the Constitution.

Transitional justice seeks to resolve the strong tensions that are presented between justice and peace, between the legal imperatives of satisfaction of the rights of victims and the needs of achieving a cessation in hostilities[. I]t thus looks to comply with three criteria, the importance of which are recognized within our constitution: reconciliation, recognition of the rights of victims and the strengthening of the (p. 231) social state of law and democracy. Far from substituting the fundamental pillar of the guarantee of human rights, transitional justice develops it in situations of massive violations of human rights, in which the utilization of ordinary mechanisms can be an obstacle to their safeguarding….

[After conducting a review of the state of international law on the rights of victims, the Court concluded that] in all of the pronouncements of international bodies, we can affirm that non-judicial and administrative mechanisms implemented by states in contexts of transitional justice are legitimate measures that can be adopted without triggering the international responsibility of the state. However, it is clear that these alternative mechanisms, like truth commissions, are complementary instruments to the judicial system and must function under many of the conditions essential for the judicialization of violations of human rights, such as independence, impartiality, effectiveness, reasonable time, and transparency. Additionally, the function of these alternative mechanisms must be aimed at clarifying the truth of the facts that produced violations of human rights and giving adequate reparations to victims; therefore, the active participation of those victims, and of society in general, is necessary….

[The Court then turned to the specific question of whether the constitutional amendment at issue substituted what it called the “fundamental pillar” of the Constitution—“the promise of the Social and Democratic State to respect, protect, and guarantee the rights of society and of victims, from which is derived: (i) the obligation to investigate, judge, and in turn sanction (ii) grave violations of human rights and (iii) international humanitarian law.”]

  1. (i)  The obligation to investigate, judge, and in turn sanction, implies the realization of all possible efforts to investigate, judge, and sanction grave violations of human rights and of international humanitarian law. In this sense, the investigation must be serious, impartial, effective, occur in a reasonable time, include the participation of victims, and punishment must be proportional and effective.

  2. (ii)  The grave violations of human rights recognized by the international community especially include the following: (a) extrajudicial executions, (b) forced disappearances, (c) torture, (d) genocide, (e) the establishment or maintenance of people in a state of slavery, servitude or forced work, (f) arbitrary and prolonged detention, (g) forced displacement, (h) sexual violence against women, and (i) forced recruitment of minors.

  3. (iii)  The crimes that constitute … grave violations of international humanitarian law at the international level are: crimes against humanity, war crimes, and genocide….

[The Court conducted a detailed review of domestic and international legal sources from which it derived these definitions.]

[C]onstitutional jurisprudence has developed balancing as a resolution mechanism for conflicts that involve a collision between constitutional rights, principles, and values…. Balancing as a resolution mechanism for the collision of constitutional (p. 232) rights involves the unavoidable necessity of guaranteeing the unity of the constitutional text….

The case under study involves a conflict between those constitutional values that oblige the state to persecute and sanction conduct that has generated violations of human rights, and the necessity of guaranteeing the effective enjoyment of peace as an optimization mandate….

[T]he employment of mechanisms of transitional justice can create tensions from the point of view of the realization of [constitutional ends.] Some of those tensions are: (i) the anticipation of the justice of tomorrow can be an obstacle to the peace of today because retribution may contribute to the prolongation of the conflict; (ii) the justice of today can be an obstacle to the peace of tomorrow, since the imposition of severe penalties can limit the possibilities of negotiated exits and the construction of the truth; (iii) the search for the truth can be an obstacle to justice if the names of the perpetrators are published without due process; (iv) the truth can be an obstacle to justice if the symbolic measures of rehabilitation and excuse serve as a substitute for reparations; (v) the truth can be an obstacle to peace if the search for the identity of the perpetrators is not accompanied by sanctions; (vi) transitional justice will be an obstacle to distributive justice if the triumph requires conditions of extreme scarcity.

Thus, mechanisms of transitional justice generate constant collisions between the obligations of the state, including those derived from the duty of guaranteeing rights.

Those collisions require balancing. The duty of states is to design transitional models that do not ignore the minimum content of each duty and that contain a just balance of the principles in conflict….

[I]t is possible to carry out balancing between the investigation, judgment, and sanction for grave violations of human rights and international humanitarian law and the other consequences of the obligations at issue:

The establishment of mechanisms that permit rapid judicial protection in case of a threat sometimes requires a special strategy of investigation and judgment, since the case by case investigation of violations of human rights can end in a generalized situation of impunity…. [T]he possibility of centering the investigation on a series of crimes committed by the most responsible and applying special measures to the less responsible stems from the factual impossibility of having a strategy of investigation that will proceed judicially against all suspects during a transitional justice process….

The effectiveness of the rights of victims to obtain adequate reparations may imply a procedural strategy outside of a criminal process, through administrative mechanisms that will be more effective.

Assurance of the full and free exercise of human rights may mean that in order to guarantee rights like the right to the truth, special forms of investigation and criminal benefits will be applied in return for the revelation of facts. Additionally, in order to assure that there is no unjustified discrimination, one can establish legal mechanisms of prioritization, because if this does not occur the determination of which cases will be heard first will depend in practice on the discretion of the legal authorities.

(p. 233) Mechanisms of transitional justice require a precise balancing between these ends, through which limitations may be authorized in some cases….

[The constitutional reform at issue] is not designed to treat some acts with impunity, but instead to replace the strategy of investigating violations “case by case,” which makes it very difficult to guarantee the right to justice of victims of massive violations of human rights, with the construction of macroprocesses in which there is a massive participation of all the victims and which is not structured by chance, but by investigations based on context and on an analysis of the structures of organized crime….

[T]his strategy consists in the construction of macro-processes that respond to a series of common elements determined by factors related to the gravity and representativeness of the crime such as the place, time, manner of commission, the victims or social groups affected, the perpetrators, the scale of commission, or available evidence, which should be determined by a statutory law.

Focusing effort on the criminal investigation of international crimes like crimes against humanity, war crimes, and genocide does not substitute the constitution, because it complies with the standards of the constitutional block for events that terminate armed conflict.

[The recognized constitutional norms] imply a duty to investigate, judge, and sanction grave violations of human rights and international humanitarian law. However, in cases of internal armed conflict one must take into account Article 6.5 of Additional Protocol II of the Geneva Conventions, which permits the application of generalized amnesties….10

This norm changes the context of the obligation to investigate and in turn sanction grave violations of human rights and international humanitarian law, since it concentrates on a series of specific crimes. In this sense … there is an untouchable limit to [this duty], since crimes against humanity, genocide, and war crimes must be investigated….

[The Court considered the phrase focusing judicial resources on “top-level” actors.] [I]f [the state] focuses only on the top-level actors and not on other authors of these crimes, the fundamental pillar [to investigate, judge, and punish grave violations of human rights and international humanitarian law] is limited but not substituted, for the following reasons:

First, the concentration of responsibility on top-level actors does not imply that some crimes against humanity, genocide, and war crimes will not be investigated, but rather that with respect to all of these only the top actors will be punished.

Second, in [the reform under study] the inclusion of the expression “top-level actors” has an additional legitimate end, directly related to the necessity of clarifying the structures of macro-criminality that lie behind each crime, by dedicating effort and resources to attend to present crime, dissuade future crime, and strengthen the social state of law….

(p. 234) In this sense, the possibility of limiting (but not substituting) the fundamental pillar by investigating only top-level actors is based on a balancing with another consequence, … which is the obligation to prevent conduct that might put human rights at risk in the future…. [T]he potential for revealing structures of macro-criminality by trying top-level actors may aid in breaking up criminal organizations and revealing the chief violators of human rights….

[The Court also studied the phrase allowing conditional renunciation of criminal liability in a range of cases.] While some cases involving conditional renunciation of criminal liability may limit the fundamental pillar, this limitation does not substitute the constitution for the following reasons:

First, the text itself … establishes some strict limits, including the impossibility of renouncing criminal prosecution for crimes against humanity, genocide, or war crimes committed in a systematic manner, as regards high-level actors….

On the other hand, we must point out that the expression “conditional renunciation” has a very important consequence—if the actor does not comply with the requisites set out in the statutory law, which at a minimum should include … surrender of arms, recognition of responsibility, contribution to the clarification of truth and the integral reparation of victims, liberation of the kidnapped, and the freeing of [child soldiers], renunciation of prosecution can be immediately revoked and the state will recover all of its power to investigate, judge, and sanction those responsible for all crimes committed using the framework of ordinary justice….

Finally, the limitation of the fundamental pillar is justified as a balancing between the obligation to investigate, judge, and sanction grave violations of rights and the duty to prevent the violation of rights…. This treatment fully guarantees the purposes of criminal law, which as the Court has noted are focused on prevention and not on retribution….

[The reform] also authorizes conditional suspended sentences, non-judicial sanctions, alternative punishments, or special methods for the execution of punishment….

[E]ach one of these consequences is applied to distinct events: a totally suspended sentence is applied to non-selected cases; therefore, if the conditional suspension is not total, it can be applied to selected cases; non-judicial sanctions will be applied as a consequence of non-judicial mechanisms, alternative punishments are punishments that will replace those that would ordinarily be applied and special methods for the execution of punishment can be applied if a sentence is imposed either in selected or non-selected cases.

In this sense, a totally suspended sentence cannot be used for selected cases; in other words, for those condemned as top-level actors for crimes against humanity, genocide, or war crimes committed in a systematic manner, but to other responsible parties….

[A]lternative punishments and special mechanisms for carrying out punishments, as either ordinary mechanisms or as part of transitional justice, are fully accepted by the international community and have also been studied by this Court; (p. 235) they do not violate any constitutional norm, and thus less still can they be considered a substitution of the constitution. These mechanisms are founded in the need to make justice compatible with reconciliation and the non-repetition of conduct in a system that is focused on the preventative goals of punishment more than on retribution….

Although a correct reading of the [reform] permits us to conclude that it does not substitute the Constitution, this Court considers it necessary to fix a series of parameters in its interpretation to avoid it becoming an instrument for impunity or for ignoring the rights of victims.

The state must demand the termination of the armed conflict with respect to each demobilized group in the case of collective demobilization and the surrender of arms and non-commission of new crimes in that of individual demobilization, as a condition for the application of the Legal Framework for Peace….

[I]f the armed conflict continues, measures of transitional justice and the balancing carried out lose all their meaning….

[T]he termination of the armed conflict does not arrive with the simple surrender of arms, because it is also necessary to completely dismantle the organization and especially its forms of illegal financing, such as: drug trafficking, kidnapping, and extortion. Thus, among the guarantees of non-repetition, armed groups must eliminate all illegal activities supporting the conflict….

[A]ll victims must receive at minimum the following guarantees: (i) transparency in the process of selection and prioritization, (ii) an investigation that is serious, impartial, effective, and carried out in a reasonable time and with their participation, (iii) the existence of a recourse to challenge decisions on selection and prioritization, (iv) specialized assistance, (v) the right to truth, which in the event of a case not being prioritized should be guaranteed through non-criminal judicial means and non-judicial means, (vi) the right to reparations, and (vii) the right to know where to find the rest of their family members.

As has already been explained, [the constitutional reform] is justified as a balancing between reconciliation and justice, and therefore it is necessary for armed groups not only to commit to ending the conflict, but also to contribute to the satisfaction of the rights of victims….

Thus, for the criteria of selection and prioritization to proceed, the state must demand that the illegal armed group make a real and effective contribution to the clarification of the truth and reparation of victims, the liberation of all kidnapped and the disassociation of all children found in their power….

The actors in the armed conflict should guarantee that they will clarify the truth about the violations of human rights that have occurred in this context, since this will contribute to personal and historical memory. The state should guarantee, for its part, effective resources to initiate investigations that are aimed at establishing the truth about the facts and based on those, take reparation measures responding to the gravity of the harm….

[The Court thus declared the amendment at issue conditionally constitutional in the terms laid out in the decision. There were three concurring opinions, joined (p. 236) by five of the justices constituting the majority. These justices, although sharing the general approach of the majority opinion, argued that new questions would be raised when Congress passed its statutory law implementing the amendment, and that the majority opinion treated questions that it did not need to resolve and that were not raised in the complaint.]

[Justice Mauricio González Cuervo wrote a dissenting opinion. In his view, the provisions surpassed the acceptable limits of political discretion because they infringed on the “minimum obligation” of states, under international law, to investigate and punish “grave violations of human rights, crimes against humanity, genocide, and war crimes.” As he stated: “Respect for this international imperative leaves open a broad margin for the flourishing of transitional justice solutions, but without sacrificing that minimum obligation, in such a manner that … it is proper to declare the constitutionality of mechanisms for the prioritization of the exercise of criminal action, the prosecution of ‘top-level actors,’ suspended sentences, and the renunciation of criminal responsibility for non-selected cases, but only for conduct distinct from grave violations of human rights, crimes against humanity, genocide, and war crimes. The boundary drawn by the constitutional block, the imperative international order, the jurisprudence of the Inter-American Court of Human Rights and especially, the jurisprudence of this Constitutional Court establishes … that transitional justice measures will only be legitimate, valid, and constitutional when they comply with the following conditions: (i) that they do not authorize the renunciation of investigation, judgment, and criminal sanction to those responsible under any rank for grave violations of human rights and international humanitarian law … and, (ii) that they will not permit the application of a completely and unconditionally suspended sentence, for those cases of grave violations of human rights and international humanitarian law.”]

Note on the Judicialization of the Peace Process in Colombia: Decision C-579 of 2013 was far from the end of the Court’s involvement in the peace process. Indeed, the entire Colombian peace process has been marked by its interaction between political negotiation and legal and constitutional institutions.

In Decision C-577 of 2014 (per Justice Martha Victoria Sáchica), the Court heard additional challenges to the Legal Framework for Peace, again on the grounds that the relevant constitutional amendments constituted a substitution of the constitution. In this decision, the Court heard a challenge to a different part of the Framework that regulated the potential political participation of demobilized guerrillas. In particular, the amendment allowed Congress to define which crimes were “connected to political crime”;11 those seen as “connected to political crime” would allow the convicted to participate in politics (p. 237) (i.e., vote or be elected to office) once any punishment had been served because normal restrictions on the participation of convicted criminals would not apply. The Framework gave Congress broad discretion in this respect, subject only to the restriction that those convicted of “crimes against humanity and genocide committed in a systematic manner … will not be able to participate in politics or be elected.” The petitioner argued that this limitation on congressional discretion to allow members of illegal armed groups to participate in politics was too narrow to be consistent with international law and the limitations on political participation found in the existing constitutional text.

The Court rejected this demand. Although the petitioner argued that the Constitution contained a fundamental principle requiring that political participation be exercised within a context of respect for human dignity and the protection of human rights, the Court held that this was not the proper framing of the fundamental principle at issue in light of a historical and holistic reading of the text. Instead, it stated that the fundamental principle at issue was “the democratic participatory framework”: “political participation as a basic … principle of the Colombian constitutional regime is essential to the conformation, exercise, and control of power in a democratic state…. Its limits cannot be based on punishments imposed for the commission of political crimes or those connected to political crimes.” In other words, the fundamental constitutional principle was political participation, not its limitation.

In proceeding to examine whether the amendment at issue substituted that principle, the Court emphasized that political participation was a separate issue from the political process, and any rights of political participation would only “begin from the point at which the criminal component ends.” Further, rights of political participation would be contingent with full cooperation with all aspects of the peace process in the terms laid out in Decision C-579 of 2013. Understood this way, the Court held that the provision at issue in fact developed the fundamental principle at issue rather than substituting it, because it sought to prevent those convicted of political crimes from being excluded from politics. The Court also held that Congress had a broad “margin of appreciation” in defining political crimes, “which permits it to adapt its regulation to the specific necessities that may arise in processes that in pursuit of objectives like peace, require the adoption of frameworks of transitional justice, in which reconciliation always plays a central role.”

The Court made a sharp distinction between criminal processes and political participation, holding that the latter was much less regulated in Colombian and international law: “participation in politics—or its prohibition—by convicted criminals … is not an aspect of criminal justice through which one looks to guarantee the rights of victims to truth, justice, or reparations…. [T]he duty to offer protection to victims of armed conflict does not oblige the constitutional reformer to exclude from spaces of political participation those responsible for war crimes, transnational crimes, acts of terrorism, or drug trafficking…. [F]or this Court, participation in politics by those who have been selected and condemned … does not per se affect any of the rights that must be guaranteed to victims of the armed conflict. Thus, the duty to investigate, judge, and sanction grave violations of fundamental rights does not impose on the constitutional reformer the obligation to restrict participation of those who are authors of those violations.”

(p. 238) Beginning in 2012, the Santos administration undertook peace talks in Havana with by far the largest guerrilla group active in the country, the FARC. These talks took several years and were quite difficult. However, on June 23, 2016, the FARC and the government announced the definitive end of hostilities and that they were finalizing a peace agreement. Although this does not end all internal civil conflict in the country, because the FARC is not the only active guerrilla groups, it represents a historic step toward its termination as FARC has been active as a guerrilla group for almost 60 years.

The agreement contained provisions on a number of different issues, including the regulation of the demobilization process, the suppression of the successors to paramilitary groups, and reparations for victims, and on access to rural land and development for rural areas. The peace agreement contemplated the FARC entering politics as a party: it required temporary measures to give members of the FARC representation in Congress and created special electoral districts for areas especially affected by the conflict.

Most important for our discussion here, it contained provisions governing transitional justice. These provisions shared the basic approach of the Legal Framework for Peace, even though they differ in some respects. Transitional justice measures would be taken through the establishment of a special court system charged, among other tasks, with the punishment of grave human rights violations and grave infractions to international humanitarian law related to the conflict. A list of these conducts include crimes under the jurisdiction of the International Criminal Court. The National Tribunal for Peace that heads this jurisdiction would be composed of domestic justices, but a minority of foreign ad hoc justices may participate in special circumstances. Crimes linked to the crime of rebellion would be subject to amnesty through full participation in the peace process. However, members of guerrilla groups and the military who have committed crimes against humanity, grave war crimes, genocide, and grave violations of human rights including torture, extrajudicial execution, disappearances, forced displacement, sexual violence, the taking of hostages, and recruitment of minors would not be eligible for amnesty. The special jurisdiction for peace instead should try these crimes and may impose sanctions of up to 20 years in prison. However, if those responsible admit their responsibility early on, tell the whole truth about those events, and otherwise fulfill the conditions established in the peace agreement, they would receive punishments of between five and eight years involving “effective restrictions on liberty”12 plus the obligation to do works and activities aimed at making reparations.

A 2015 statutory law allows for the holding of a plebiscite to approve or disapprove the peace agreement. The Constitutional Court upheld the law in Decision C-379 of 2016 (per Justice Luis Ernesto Vargas Silva), which was issued in July 2016, but placed some conditions on it. The plebiscite would be considered approved if the yes votes exceed 13 percent (p. 239) of registered voters and the yes votes exceed the no votes. The law also requires that the peace agreement be made widely available through a number of means at least 30 days before the vote, but the Court considered this too undetermined and required that the final peace agreement be published at the time the president submits to Congress a request to call a plebiscite. Further, the law states that the plebiscite would be “binding for constitutional and legal development” and on all institutions of state, but the Court held that the plebiscite could only bind the president. The Court also included a condition holding that if the plebiscite approved the agreement, it would not be automatically incorporated into the Constitution or legal order. As this book was going to press, the plebiscite was held on October 2, 2016, and narrowly failed to approve the peace agreement. However, the cease-fire held and a new agreement was reached in November 2016.

In 2016, Congress also approved a set of temporary constitutional amendments intended to provide legal certainty and political stability to the peace agreements with the FARC. These temporary amendments establish special legislative procedures for rapid congressional approval of the peace agreement itself, as well as during a six-month period for laws and constitutional amendments needed to implement and develop it. They also give the president broad authority to issue decrees with the force of law on topics designed to implement the agreement, also for a six-month period. Finally, the amendments state that the peace agreement constitutes a “special agreement” under Common Article 3 of the Geneva Conventions13, and that after being approved by Congress through the special fast track procedure and reviewed by the Constitutional Court, it will immediately become “part of the constitutional block in a strict sense, in order to be taken into account during its period of implementation as a parameter of interpretation and reference for development and validity of the norms and laws of implementation and development of the final agreement.” The amendment thus aims to give the peace agreement constitutional status. Of course, the Constitutional Court may soon need to interpret and apply these provisions, in considering challenges both to these temporary constitutional amendments and to any relevant implementing legislation or decrees. Surprisingly, the guerrillas that had rebelled against the established regime for half a century accepted that legal certainty could only be attained after the Constitutional Court exercised its powers of judicial review over the final peace agreement, previously incorporated in a statute approved by Congress after the will of the people was expressed in the plebiscite.

In comparative terms, the Colombian peace process has been strikingly judicialized at the domestic level: the Constitutional Court has played a pivotal role during its framing and negotiations. In contrast, in some other processes around the world, these issues have been left to the political process and/or been monitored by international actors, (p. 240) institutions, and tribunals.14 The heavy involvement of the domestic judiciary in a delicate political process raises potential risks both for the success of the process and for the Court’s broader project aimed at incorporating international norms into domestic law. However, it has also given the Court an opportunity to emphasize the rights of victims and to remind negotiators that the process is shaped by both international and domestic legal constraints that are designed to protect their rights. At the same time, it has potentially contributed to a dialogue between various domestic and international actors as to how flexible the relevant international standards are and how those standards can best be adapted to the Colombian context.

Footnotes:

1.  The seminal work on the concept is Ruti G. Teitel, Transitional Justice (2000).

2.  For an analysis of the emerging international norms governing peace-making processes, see Christine Bell, On the Law of Peace (2008).

3.  In Latin American and other civil law contexts, a long and quasi-formal process of interaction among prosecutors, judges, and police often precedes the decision on whether to open a formal investigation of criminal defendants.

4.  Many Latin American jurisdictions have switched from an inquisitorial to an adversarial system of criminal justice since the 1990s. See Máximo Langer, Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery, 55 Am. J. Comp. L. 617 (2007).

5.  Commission on Human Rights, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, E/CN.4/2005/102/Add.1 (Feb. 8, 2005).

6.  The Court also heard another challenge to a provision of the law based on the right to truth. A provision conditioned the benefits of the law on the criminal’s helping authorities to free any persons whom they have kidnapped. However, the law did not require paramilitaries to reveal the location of individuals who were victims of “forced disappearances” (and who presumably had been killed). The Court held that this exclusion was unconstitutional; actors would need to give information about these disappearances as well in order to receive the lighter sentences given under the law.

7.  See, e.g., La ley de Justicia y Paz al banquillo, Semana, Apr. 3, 2014, available at http://www.semana.com/nacion/articulo/justicia-paz-balance-de-ocho-anos/379367-3.

8.  The petitioners also challenged the phrase “in a systematic manner” in the language above. The Court held that this language only modified “war crimes” and did not substitute the constitution because under international humanitarian law, war crimes could only be committed in a systematic and not an isolated manner. In other words, according to the Court the phrase at issue should be read as confirming, and not modifying, the international definition of a war crime.

9.  The Court was quoting Decision C-771 of 2011 (per Justice Nilson Pinilla Pinilla).

10.  Article 6.5 of Optional Protocol II reads as follows: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

11.  The constitutional text at several points disallows convicted criminals from serving in elected or appointed posts. Article 179 for example disallows anyone sentenced to prison from serving in Congress, with the exception of those convicted of political crimes; Article 232 does the same with respect to justices on the high courts. Further, Article 35 prohibits extradition for political crimes.

12.  For some of the complex legal issues raised by the design of this transitional justice scheme, see Nicolás Carrillo-Santarelli, An Assessment of the Colombian-FARC “Peace Jurisdiction” Agreement, EJIL-Talk!, Sept. 25, 2015, available at http://www.ejiltalk.org/an-assessment-of-the-colombian-farc-peace-jurisdiction-agreement/; Claret Vargas, The Peace Agreement in Colombia Matters, and It Could Set an Example for Entrenched Conflicts Elsewhere, Feb. 9, 2016, available at https://dejusticiablog.com/2016/02/09/the-peace-agreement-in-colombia-matters-and-it-could-set-an-example-for-entrenched-conflicts-elsewhere/.

13.  Common Article 3, found in all four Geneva conventions, endeavors to set out minimal rules for all conflicts “not of an international character” where the full conventions do not automatically apply. These minimal guarantees include prohibitions, against “[p]ersons taking no active part in the hostilities,” on violence, hostage-taking, outrages upon personal dignity, and the passing of sentences without prior judicial proceedings, as well as guarantees of care for the “wounded and sick.” The provision also states in relevant part that: “The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.”

14.  In Africa, for example, international organizations and tribunals such as the International Criminal Court have been more directly involved. See, e.g., Adam Branch, Displacing Human Rights: War and Intervention in Northern Uganda (2011) (critiquing the role of the ICC and other international actors during the Ugandan peace process).