Colombia: Justice, Education and Reconciliation
18 November 2018
According to the press, at the end of October something unusual took place in Colombia, for the first time, Uribe met with members of the FARC along with Iván Cepeda from the Polo and Gustavo Petro from Colombia Humana, amongst others. The purpose of the meeting was to discuss Uribe’s proposals for changes to the Special Jurisdiction for Peace (JEP) including a special chamber to try the military. Meanwhile outside the ignoble corridors of Congress students and lecturers protested against the abysmal budget for education and were fighting for the future of public education in Colombia. But for some, the meeting was a milestone in the history of the country. Luís Fernando Velasco from the Liberal Party described thus:
… the most important aspect of this legislative act is that for the first time ever we gathered together the political forces to try and reach an agreement. The Democratic Centre sat down, the FARC, the Polo, the Liberals, Radical Change, all of them and some registered a negative vote.(1)Uribe came to the meeting with a clear proposal, unblock the work of the First Commission of the Senate and to reach an agreement on changes to the JEP outside of the commission. According to the press, an historic agreement was reached to try members of the military, responsible for serious crimes, within the framework of the JEP. But the military were already covered by the JEP and some had already appeared before the organism. What was really proposed was a change in how to proceed against the military. Uribe’s proposal for a special chamber did not prosper, but something almost better for the military was agreed to.
Fourteen new judges will be nominated to participate in the trials of the military. These judges will be chosen by such dubious state bodies as the Procurator General, the Supreme Council of the Judiciary and the Interinstitutional Commission of the Judicial Branch i.e. three corrupt bodies are going to choose the judges. Though not everyone saw it that way. Once again the Liberal senator declared that “These 14 judges are going to strengthen the JEP. There is no special chamber for the military.”(2) There is no need for a special chamber as they have 14 friends that are going to monitor the cases taken against them, they are going to try and change the debate in the chambers and if they don’t get their way, these 14 judges can issue a dissenting opinion and thus it will be for the history books that the military were mistreated by the JEP and moreover it will be judges from the JEP who say so. What type of justice and memory will be offered to the victims? However, this agreement was the result of a consensus that may facilitate future consensus on peace related or other issues, or so we were told.
Nothing could be further from the truth. The meeting did not show some new willingness on Uribe’s part regarding the peace accord nor any new willingness to achieve fundamental agreements on other issues. Those who know his work in Congress say that Uribe is known to meet with anyone in order to push forward projects and proposals he is interested in. I do not know whether this is true or not, but neither he nor the state have shown any new willingness with the changes to the JEP and the irrefutable proof is the current situation with the university strike and the refusal of the government to meet the students. Petro, FARC and company lent themselves to publicity stunt in name of peace and the institutions and they ended up giving Uribe what he wanted. The special chamber for the military was never going to be a runner and now they have a de facto special chamber. And of that new openness and nice atmosphere, what is there for the students? Are Uribe and the other government parties will to meet the opposition outside of the commissions of Congress to reach an agreement on the financing of third level education? The answer is no.
The government’s defenders ask why the students and teachers did not complain before. It is a good question, as they are correct in saying that the crisis in the educational budget is not the result of the first 100 days of Uribe III (lets be honest, Duque is just the official president, the real president is Uribe). The crisis has been a long time coming, since the 90s, through the first two Uribe governments and the two administrations of Santos. Why didn’t they make their inconformity known before? The truth is there were protests and demonstrations but nothing like the size and determination of the current protest. During the Santos government many trade union leaders and politicians kept quiet, whoever criticised the government was accused of being a hawk and an enemy of peace. Neither Petro nor anyone convened, nor even proposed convening strikes and protests in this electoral year as they all put themselves forward as the heirs to Santos’ legacy and it wouldn’t go down well to say his legacy is this sad reality. This doesn’t mean that Petro and the Polo did not have proposals on education and other issues, but under no circumstances were they going to propose a struggle against the government that sunk higher education into the financial hole it is in, an issue that was barely dealt with in the Havana Accord, where they limited themselves to vague commitments to extender the poor service to rural areas, education for peace i.e. propaganda programmes of indoctrination in favour of the accord itself and some projects for demobilised guerrillas, but with touching the underlying issue of the educational system nor questioning how it is financed.
Of course, there is something new about Uribe III and that is that his puppet Duque proposed spending a billion dollars on new missiles they need in case Trump decides that Colombia invades Venezuela (No mistake about it! If Colombia invades Venezuela that decision will be made in Washington and then Uribe and Duque will be informed of it). But I still have the question as to why Uribe does not convene private meetings with the Left to discuss these issues. The answer is simple, he only convenes those type of meetings when he thinks the Left and other forces are willing to bow down to him. He has no need to negotiate the issue of education, unlike the changes to the JEP, it does not require constitutional changes. So the students keep marching in the midst of the “historic milestones” of meetings between the FARC, Petro, Cepeda and Uribe.
The changes proposed are worrying even within the limited efficiency and questionable usefulness of the JEP as such. The FARC stated that the agreement puts an end to the independence and impartiality of the JEP and the judges will be “chosen by the state bodies that have been part of the state’s institutional framework during the armed conflict, i.e. the state’s own institutions will choose the new magistrates that will try the members of the state’s institutional framework that have cases to answer in the context of the conflict”(3) and they stated that they may end up appealing to the ICC.(4)
They are right, they are state bodies, one of the parts in the conflict and those nominated will be friends of the military and chosen for the friendship with the military. Aside from the publicly announced criteria for choosing the 14 judges, such as knowledge of international law etc. the most important criteria will be their closeness to the military, at least in ideological terms, if it is the case that they don’t meet them at cocktail parties at the military and police officers clubs. It is hardly surprising in country where they Anti-Corruption Prosecutor is in jail for corruption and the Chief Prosecutor has assets hidden in Madrid and is in the middle of the Odebrecht scandal that involves politicians and businessmen from various countries in Latin America. Now the friends of the military will try the military. The Cosa Nostra becomes thug and judge.
However, the criticisms that we can make of the treatment the military will receive are not new, nor are they limited to Colombia, as the International Criminal Court has made statements on it and many of the criticisms were made a long time ago and time has proven them right. In February 2016, a group of social organisations, human rights defenders and trade unions published a document titled An Ambiguous and Disappointing Accord – a Roadmap for Impunity for State Crimes. The title couldn’t be clearer, the Justice Accord is an agreement on impunity, everything else are just practicalities. Uribe’s big problem with that accord is how to guarantee that impunity. According to the document
… it is assumed in advance or there is a presumption that the state’s actions are legitimate and this bolsters the idea that the problem that has stained the state is not one of its institutions, mechanisms or agreed upon doctrines that have safeguarded and sustain the interests of an establishment that has contravened its own norms and international law, but rather that state crimes ‘as such do not exist and one can only speak of cases of infractions committed by individuals, by some ‘rotten apples’ who had misunderstood the mission they were charged with’.(5)A lot of water has flowed under the bridge since then, but once it is accepted that state violence is a question of individuals, then you have to defend those individuals. The purpose of Uribe’s meeting with Petro, Cepeda and the FARC was that and now the military, a few days after the agreement announced that using public funds they are going to set up
… a legal defence Command comprised of 246 lawyers to attend to the more than 2,000 soldiers that have signed up to the JEP having committed crimes in the context of the armed conflict.
The unit will also defend those military officers facing trial for crimes in the ordinary justice system.(6)All that remains is to see how many former human rights lawyers go on to work with this military lawyers buffet, it may be more lucrative than working for the National Electoral Council or other state body where many of them now work.
It is all set up, judges nominated by the assassins and lawyers paid by their superior officers so as they don’t inform on them, as good mafiosos they look after each other, “do your time and I will look after you later and I will cover your legal costs.” The issue of chain of command responsibility is not a minor issue. The vice-prosecutor of the ICC in a recent visit to the country spoke about the new changes to the JEP
… he pointed out that the ICC prosecutor, Fatou Bensouda, is concerned about some of the aspects of the procedural rules of the JEP that were passed by Congress. She is referring to the provisions of Article 11 of that norm: ‘which excludes the following aims from the investigations relating to the actions allegedly committed by members of the armed forces: disclose the criminal plan, lay out the structural framework of the criminal organisation, support networks and the nature of the attack and macro criminal patterns. (Bold in the original).(7)In other words, she is worried that the soldiers will not have to explain anything about their superiors, the criminal organisation etc. It is the omerta law of the Italian mafia come to life in the JEP. Poor Italian mafia, they never imagined a country where the legislation respected and incorporated the omerta! In the JEP we will not have the whole truth, not even a limited judicial truth.
Of course, the Polo did not vote in favour of the changes, but Petro did. But the Polo’s refusal is not well intended. They believe that the accord signed that they supported is substantially different now following the modifications of the JEP agreed to with Uribe. This is not the case, it is different, but only in details. The Havana Accord always sought impunity for the military, it doesn’t matter whether the FARC and Cepeda were conscious of this or not, as they were not aware of many things and various statements about the document, attributing content and paragraphs to it that were not in it show that they hadn’t even read it properly.(8) For his part, Senator Alexander López dropped the following gem on the changes stating that “it is a torpedo and a way of bringing us down the road to the destruction of the peace accord and a transitional justice that was bringing us towards reconciliation.”(9)
Part of this senator’s social base is in Cauca, the department most affected by the murder of social leaders and he still believes that we are on the road to reconciliation. I would have preferred him to give his support to the changes proposed by Uribe, it would at least be in coherence with his support for the peace process as such and the Havana Accord. That accord was always going to give and guarantee impunity for the military and the state they served with their murders. Everything is else is just finalising details. But to talk of reconciliation when the We are defenders programme reported 87 threats against social leaders in July-September 2018 trimester and 32 murders, an increase compared to the 18 murders in the same time period in 2017.(10) It is not just absurd, it is so stupid it is Trumpian, it is beyond satire. Of all the aggressions committed in that trimester, 59.3% were at the hands of paramilitaries, that some peaceniks tell us no longer exist, and 4.7% at the hands of the so-called Public Forces, that some, including the FARC say are now allies of peace and the people. The author was unknown in 34.4% cases and just 1.6% were at the hands of the guerrillas. But we are doing well, on the road to reconciliation.
Meanwhile the students continue
marching and protesting and Cepeda and Petro don’t even dare ask Uribe
for a meeting to unblock the issue and discuss it whilst Duque plays them
a song, as he can hardly play with a ball in the offices of Congress.(11)
(1) El Espectador (01/11/2018) No habrá sala especial, pero sí más magistrados en la JEP www.elespectador.com
(3) El Heraldo (01/01/2018) De entrar en vigencia cambios de la JEP, pediremos a la CPI que intervenga: Farc www.elheraldo.co
(4) It is worth pointing out that various African countries, amongst them South Africa, are considering withdrawing from the ICC. This body is the judicial branch of imperialism, it has not dared pursue the powerful nor western interests, although there is a preliminary investigation against Britain and Iraq, a case that will end up sentencing lower ranks. All of those sentenced have been Africans. Something similar has happened with the case of the Special Court for Sierra Leone, where they are able to try Africans but there are findings against Belgians and other nationalities involved in the international trade in diamonds, nor is there the slightest intention to do so. The international bodies will not give us the whole truth, as the whole truth is that in this war the Europeans and North Americans took part as did their multinationals and we have lived under state terrorism that met with the approval of those foreign powers.
(5) Sinaltrainal et al. (2016) Ambiguo y decepcionante acuerdo -Itinerario para la impunidad de crímenes de Estado. Page 10
(6) El Heraldo (09/11/2018) Crean comando élite de abogados para militares en la JEP www.elheraldo.co
(7) El Espectador (01/11/2018) Vicefiscal de la CPI ve con preocupación ajustes a la JEP http://colombia2020.elespectador.com
(8) See Ó Loingsigh, G. (2017) Implementing the Accord: A draft bill. https://www.academia.edu/34142901/Implementing_the_Peace_Accord_A_draft_bill
(9) El Espectador (03/11/2018) Uribe y Petro ¿Cuál fue el acuerdo sobre militares en la JEP? www.elespectador.com
(10) See http://somosdefensores.org for statistics on violence against human rights defenders and social leaders. Some documentation on the site is also available in English.
(11) Duque has been ridiculed
for being a president who shows off his prowess with a football and the
guitar and meeting stars whilst Uribe gets on with the real work. Note
for non Colombian readers.