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Communiqués published by the Peace Delegation, the Central High Command and the National Secretariat of the FARC-EP
Thursday, 16 November 2017 15:18

FARC Political Council on Constitutional Court Sentence

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With the enactment of the sentence C-17 of 2017 the Constitutional Court has declared the Legislative Act 001 of 2017 that creates the Integral System of Truth, Justice, Reparation and Non-Repetition;

tenuous hope in a scenario of great difficulties in the process due to governmental noncompliance of commitments in all orders and the contumacy of congressmen and other institutional actors determined to tear apart the JEP, peace, reparation to the victims of conflict and participation policy, the latter, contrary to what was decided by the Court.

We welcome the concept of enforceability stated by the Constitutional Court, but we must say that there are aspects of it that generate adverse consequences for peace:

1. It dismembers the concept of JEP negotiated in Havana, conceived for all the actors of the conflict. Strictly speaking, it remained a justice conceived exclusively for the FARC.

2. All the effort to build a regime with its own autonomy was buried. The solution of tutela remedies against rulings remained in the hands of the Constitutional Court. The solution of conflicts of jurisdiction remains the hands of ordinary justice; the same applies to the disciplinary regime of JEP magistrates. Contrary to the agreement, the participation of foreigners in the deliberations of the chambers and courts is prevented.

3. The regime of impunity was stimulated. The charters were extended to all constitutionally gauged. The civil State agents were exonerated: ministers, congressmen, prosecutors, attorneys, governors, constituting a privileged caste of untouchables. And what to say about the third parties, who are also exonerated, and should be happy.

4. The idea of establishing the JEP was not only to enable the transit of the guerrillas to civil life and contribute to the political solution of the conflict. It was also to overcome the regime of impunity that derives from ordinary justice. By removing the civilians and agents of the State, as already stated, impunity is preserved, and the victims are despised. This does not contribute at all to the clarification of the truth.

5. Political participation is enabled in general terms, which is positive, but at the same time a conditionality regime is established that only applies to ex-guerrillas. It breaks the symmetry and at the same time leaves doors open to easily lose the benefits.

6. Although it does not refer explicitly to the issue of extradition, it is pointed out that non-compliance with any of the requirements of the conditionality regime entails "the loss of special treatments, benefits, waivers, rights and guarantees, as the case may be." We must wait and see what the ruling says.

While waiting to learn in the coming weeks the full text of the Court Sentence, and respecting the impartial and balanced resolutions of the courts of law in a state of law, we want to make public our concern for the pronouncements of the Sentence declaring that some of the contents of the Integral System are unenforceable. We understand that said declaration of unenforceability alters contents agreed between the parties, and therefore would be contrary, both to the general principle of mandatory compliance with the agreements, and to the constitutional norm approved by the AL 002 of 2017, already declared fully enforceable by the Constitutional court.
This norm obliges all the authorities and institutions of the State to faithfully fulfill the content of the peace agreements; also in its normative implementation.

Many of the sections declared unenforceable violate the autonomy of the Special Jurisdiction for Peace with respect to ordinary Colombian Justice. We must not forget that the Final Agreement was reached on the premise that ordinary justice had acted with partiality and bias during the conflict, becoming in certain moments another tool of war and impunity of the executive power.
For example, the flagrant breach of the amnesty law by judicial authorities, which has prevented the release of all members of the FARC after more than 10 months of validity. Due to the premeditated disfigurement of the political crime, 75% of the guerrillas were taken prisoner, and common crimes were imputed to them.

The declaration of unenforceability of the rules that allow the jurisdiction of the JEP to extend to civilian or non-combatant state agents with serious responsibilities in the commission of international crimes, contributes to maintaining the situation of structural impunity that has existed during the conflict when it came to these sectors; impunity well known to the international community and highlighted in all its periodic reports on Colombia by the Office of the Prosecutor of the International Criminal Court.

One of the axes of the Final Agreement is the need to end any situation of impunity, the only way to fully guarantee the rights of the victims, which as all of Colombia knows, have not been sufficiently guaranteed during the conflict, neither by the Attorney General's Office nor by the Fiscalia Office, nor by any another institution.
There they are as it shows the 15,000 certified copies about paramilitarism and responsibilities of civilians derived from the jurisdiction of Justice and Peace that have never been processed by the Colombian justice.

Related to the above, we reiterate that we consider worrying the interpretation that the sentence seems to give of the Final Agreement and the objective of the JEP, as if it had been agreed only to deal with the actions of the combatants in the conflict and especially with regard to the conduct of the guerrillas.

We are concerned that the conditionalities described in the Communiqué are exclusively with respect to the insurgents, obviating the fact that the Integral System was created to examine the responsibilities of all the actors in the conflict. It seems to us inconvenient that among the conditionalities there are some that refer to amnesty crimes and therefore not serious, and others are avoided regarding serious international crimes committed by paramilitary groups and the public force.

Indeed the Final Agreement provides conditionalities to enjoy the benefits of the agreed system, but in no state of law the breach of the conditions of a legal system makes no one lose their rights. This possibility can not be outlined in the statement of the sentence.

The prohibition of extradition, as it was in the Final Agreement, is a right and not a benefit; and modifying, limiting or nullifying that prohibition would constitute a flagrant and very serious breach of the agreement, especially when the Colombian constitution or international treaties do not establish any extradition obligation for any person.

The Colombian Constitution establishes a clear division of powers between the legislative power, which has to make laws, and the judicial one, to which corresponds elaborating jurisprudence.
If this jurisprudence establishes that the final agreement contravenes constitutional norms, there is no doubt that it is the obligation of the State, in order to comply with the agreement, to modify the constitutional norms that collide with the Final Agreement, in that which does not contravene the international treaties and agreements in matters of Human Rights and International Humanitarian Law.

We respectfully request the Constitutional Court to keep in mind that the Final Agreement was reached with the primary purpose of ending the conflict and the impunity derived from the action of any actor, and that the justice system agreed upon or its conditionalities cannot reach exclusively one of the many actors of the conflict, but all; should they have dressed in uniform or not, as established by international law.

We ask to respect the content of what was agreed in Havana.
As things stand, this peace process can only be saved by the massive mobilization of the people in the streets.
National Political Council (FARC)

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