Currently, what are the existing delays in the enforcement of the Amnesty Law for the FARC guerrillas?
Enrique Santiago: Except for honorable exceptions, the judges and prosecutors are not applying amnesties or approving conditional freedoms contemplated in the Amnesty Law, which has been in force for more than 40 days. The arguments put forward in many judicial decisions are surprising, such as: That it is unknown whether the amnesties will return to rebellion in the future or not; That the Special Jurisdiction for Peace (JEP Spanish acronym) does not yet exist; That the Attorney General's Office has not issued a memo indicating to prosecutors how to comply with the law; That the Government has not given indications…
In a State governed by the Rule of Law, neither instruction from the executive branch, nor a memo from the Attorney General is required in order for the judicial branch to enforce a law.
In fact, those interested can apply for amnesty, but the law also allows for judges and prosecutors to actively enforce it, something that only two enforcement judges in Ibagué and Cali have done u to this day. The non enforcement of an Amnesty Law in the termination of an armed conflict is something unprecedented, and also confirms that only a new jurisdiction for peace will be able to apply justice after the end of the conflict.
How can this affect this decommissioning of weapons process?
E.S: Without the enforcement of the amnesty and without the release of members or presumed FARC collaborators who have such a right under the Final Agreement’s terms, it is irresponsible to demand the abandonment of arms. The FARC are showing a commitment to the peace process that is more explicit and effective than the demonstrated by several State institutions. I suppose that both the Attorney General's Office and the courts are aware that the non-enforcement of the amnesty causes great discontent among the imprisoned guerrillas and all the guerrillas in general. This generates mistrust because it calls into question the Government’s will to comply and therefore encourages dissent within the FARC. In my opinion, there are political sectors interested in making the peace agreement fail through this manner.
Where will the prisoners released through amnesty go?
E.S: Anyone who receives an amnesty has the right to go anywhere because they are returned to freedom. However, in practice, the vast majority of amnestied have nowhere to go; weather it’s because their only home has been the guerrilla camps or because paramilitarism currently freely moves throughout many of the country’s regions making it highly risky to go to back home or to relatives or friends. Different solidarity networks are working in the reception of the amnestied in the decent and safe places.
In which point is the Amnesty applied to the guerrillas who are at the Transitional Local Zones for Normalization?
E.S: The amnesty applies once each guerrilla has left his or her weapon and initiated the transit to the civilian life when signing the act of commitment with the fulfillment of the Peace Agreement.
The Attorney General, Néstor Humberto Martínez, says that FARC members are committing ongoing crimes such as retention and money laundering. Is there a limbo in these cases?
E.S: There is no legal limbo. And if there were, the Agreement states that Colombian judges who are part of the Special Jurisdiction for Peace are the competent to decide on any situation, not the Attorney General's Office. What happens is that the Attorney General’s Office is formulating proposals in an extemporaneous manner, and all with the same purpose: to transfer the competence of the Special Jurisdiction for Peace on specific conducts to the ordinary justice system.
This infringes the basic principles of Law, of the Peace Agreement and of what was built over the past years in Havana. It appears that the Attorney General intends to renegotiate the Agreement. A peace agreement that ends a 50 year old armed conflict requires hundreds of compromises and divestitures on both sides; the result is a delicate balance. The prosecutor should not act as if the negotiation phase of the Peace Process was still open.
When and how will the FARC hand over its goods and money?
E.S: The regularization of the economic resources of the FARC is expressly noted and detailed in the Final Agreement. This process will be carried out in a joint manner with the Government and will conclude before the end of the decommissioning of weapons process.
In this regard, the Public Prosecutor's Office makes affirmations that confuse public opinion. It makes it look like the FARC is seeking to remain outside the law and carrying out illicit activities. This is a false and untoward message that is being spread and is incompatible with peace-building and reconciliation.
It’s interesting how the Attorney General draws so much attention on past crimes that are competence of the Special Jurisdiction for Peace and that occurred during a war that has ended, and yet so few results regarding today's crimes that are within the Attorney General’s competence and that represent a serious threat to the hard built Peace in Havana.
So far, the Attorney General’s Office has failed to produce effective results on the assassinations of nearly 20 human rights defenders in the 40 days running since the beginning of the year, or regarding the 70 human rights defenders assassinated last year. There has not been any arrest to any of the uniformed paramilitaries who are occupying the territories in which the FARC has left. I think the Attorney General’s Office has a lot of confusion when it comes to setting its priorities.
Is there any legal reason for the delay in the withdrawal of minors by the FARC?
E.S: There is no delay regarding the deadlines for the withdrawal of minors from FARC camps, the agreed has been complied on that issue. There have been delays in the execution of the program, in creating the conditions to carry out the itineraries of reception of the minors. If there are no places prepared to host the children, obviously they cannot leave the camps. It is not contemplated within the agreements reached on withdrawal of minors for these to be abandoned, or even imprisoned as it has been happening. It is urgent for the government to end the situation of at least 11 minors held in juvenile criminal institutions, accused or convicted of belonging to the FARC who have not been granted an amnesty as of today. In any case, FARC's youth outing program continues. Agreements on this subject have never been broken.
There is a great controversy as to whether the Special Jurisdiction for Peace violates Article 28 of the Rome Statute. What do you think about that?
E.S: In the Final Agreement signed on November 24, different regulations of responsibility for chain of command were subscribed, regarding rebels and civilians on one hand, and for the police force on the other. Criticism from specialized or international circles on the regulation of chain of command responsibility has exclusively pointed to the model applied to public forces.
In my opinion, an attempt is made to cause responsibility for chain of command to fall exclusively on already convicted officials and sub officials, which excludes or makes it difficult to determine the responsibility of other superior officials. It seems like an erroneous option that can have many difficulties when applied in the Special Jurisdiction for Peace. Above all, it seems to me a very clumsy proposition, because it places the Senior Officers of the Military Forces in the spotlight of the International Criminal Court. I would have never recommended a solution of such characteristics to anyone that I assess.
Are substantive aspects of the Special Jurisdiction for Peace being changed in Congress?
E.S: There is a clear attempt to do so in terms of tightening the applicable laws to guerrillas and at the same time to favor those sectors accustomed to living in impunity. Various proposals have been made by the Attorney General’s Office to limit the Special Jurisdiction of Peace regarding its competence over third party civilians, or at least to prevent their submission to the Special Jurisdiction for Peace, for example, when pretending to make it so that judicial procedures within the Special Jurisdiction for Peace to obligatorily be supported by evidence obtained outside that jurisdiction when it comes to third party civilians, that is to say for the evidence to come from the Colombian judicial system itself, which has allowed structural impunity for certain sectors.
[Certain Congress members] have also proposed for civilian cases to be reserved procedures, supposedly to safeguard the right to privacy and reputation, as if State agents or guerrillas did not have the same rights. It is clear that the absolute secrecy of procedures is incompatible with a system that is built on the offer of truth and acknowledgment of responsibilities. What kind of truth cannot be publicly made?
In any case, the unilateral and substantial alteration of the provisions of the Final Agreement would constitute a serious breach by the State of what was agreed upon. Despite this, the FARC have been accepting different proposals for adjustments to the Special Jurisdiction for Peace when these are for the improvement of the peace agreement and have a high social and institutional consensus.
The shielding of the Agreements was designed through several international mechanisms. Are they being applied?
E.S: According to the Agreement, after the deposit of the text in Switzerland, two instruments of international law must be applied: a unilateral declaration by the State to the international community announcing its commitment to comply with the agreement and the request to the United Nations Security Council to incorporate the full text of the Final Agreement into an official document of that Council. As of today, neither has been carried out, despite the fact that the implementation of the Agreement has begun and the FARC has entered into the Transitional Local Zones for Normalization in order to proceed to the decommissioning of weapons process.
Time is passing by and it gives the impression that all the necessary laws will not be able to go through the fast track legislative procedure...
E.S: There are delays in implementation and these are because the enemies of peace, who are still many and powerful, strive from all the institutions in which they have presence to make the Final Agreement inapplicable and to return to war. There is panic for the truth to be known. Colombia is at a historic crossroads. An opportunity for peace, development and modernization like this only appears once every century. It would be good for society to be alert regarding the difficulties and to bring the implementation process under control.
Aren’t these difficulties normal at first?
E.S: The normal start-up difficulties –which have also occurred- are not the problem. A prominent section of the political class and economic groups work tirelessly to wreck the Peace Agreement and any possibility of peace other than a "peace of the cemeteries". I assure you that what I would most like right now is to be deeply mistaken about the above statement.