Shoshana Levy joins JiC for this post on the Special Jurisdiction for Peace and the ongoing struggle to achieve justice and accountability for mass atrocities committed in Colombia. Shoshana is a lawyer in International Criminal Law and International Humanitarian law, expert on the Colombian conflict and its transition to peace. The opinions expressed in this article are solely her own.

Special Jurisdiction for Peace President Patricia Linares and Attorney General Néstor Humberto Martínez. (Photo: Revista Semana)

Back in October of 2016, then-Colombian President Juan Manuel Santos asked the people of Colombia to vote in a referendum on the Peace Agreement that he had arduously negotiated for five years in Havana with the armed guerrilla FARC-EP. Santos may have not expected that this referendum would launch a divisive electoral campaign, one that would cause a deep fracture in Colombian society between supporters and opponents to the peace deal. This tense and polarised social context foresaw the difficulties in concretely applying the agreement, particularly one of its most contentious provisions: the Special Jurisdiction for Peace (SJP).

Officially set up in March 2018, the SJP is comprised of a 38 judges court whose mandate is to investigate and prosecute perpetrators of crimes committed “because of and in the context the armed conflict in Colombia”. Its temporal jurisdiction covers crimes committed since the beginning of the conflict until 1 December 2016, the date of the final ratification of the Peace Agreement. Onlythose most responsible for serious crimes under the Rome Statute and international conventions ratified by Colombia will be prosecuted; political crimes are covered by an amnesty law. The SJP is a court negotiated bilaterally between the FARC and Colombian government and it will hand down lighter sentences to those who confess their crimes and become involved in reparatory activities for victims.

Tensions around the SJP’s work peaked only a few weeks after its entry into function, when Jesus Santrich, one of the highest FARC representatives in Havana and who had been appointed as a congressman in March 2018, was arrested in Bogota on charges of exporting cocaine to the United States. The alleged crime was allegedly committed in January 2017 – after the signature of the Peace Agreement – meaning the crime was outside the SJP´s jurisdiction and could not be covered by the amnesty law. Denying his implication in any criminal activities after his demobilization, Jesus Santrich went on hunger strike. The SJP, which had been specially designed to hear former FARC combatants such as Jesus Santrich, requested access to evidence purportedly incriminating the congressman in order to ascertain whether it had jurisdiction over the case.

A legal controversy thus arose over the question of which court had la compétence de la compétence, i.e.the authority to decide whether the SJP has jurisdiction over cases such as this Santrich’s. In other words: could the SJP claim access to the case and decide for itself whether it had jurisdiction over it?

In June 2018, the Constitutional Court decided that the SJP, as an exceptional tribunal, has jurisdiction to decide upon its jurisdiction and that the General Attorney had to handover Santrich’s file to the SJP.Despite this clear decision, General Attorney Nestor Humberto Martinez refused to release Santrich. Various legal arguments have been proffered to defend this position, among which is the fact that an extradition procedure to the United States had already been launched.

The Santrich case revealed in broad daylight the strong rivalry between ordinary justice and the SJP. Tensions have only been exacerbated since then. In September, the General Attorney issued a press release claiming that there were strong links between members of the SJP and former FARC combatants. Warning that he had uncovered “unspeakable facts” on the matter, the General Attorney summoned the SJP Executive Secretary and members of her staff for questioning. A few weeks later, the jurisdictional rivalry reached another level when a police search was ordered at the SJP premises in order to extract information from a case on illegal confinement by FARC. Yet another dispute arose in October, this time about the jurisdiction over FARC assets that had not been handed over by FARC during their demobilization.

This antagonism between the ordinary jurisdiction and the SJP is symptomatic of the divide in Colombian society, one which permeates all State institutions: while some commend its existence and its crucial role in the transition, a prevalent view among the public is that the SJP is biased toward FARC and hence unwilling to hand down fair sentences for military.

Based on the prejudice that this tribunal lacks impartiality and legitimacy to hear cases involving soldiers’ criminal responsibility, political parties opposed to the Peace agreement introduced a draft bill attempting to create a special panel at the SJP that would be uniquely competent for the Colombia military. This proposal was rejected by Congress as it unjustifiably created a differential treatment between military and former FARC combatants. On 31 October however, an agreement was reached between various political parties over the inclusion of 14 judges to the SJP. In contrast to the current judges, who had been appointed by a selection board composed of renowned actors such as representatives of the United Nations General Secretary and of the International Centre for Transitional Justice, these 14 new judges would be selected by a board only composed of State entities. This designation mode is supposed to guarantee the new judges’loyalty to State officials and to ensure that they understand the Colombian military. The bill passed the first step of parliamentary ratification and is currently being reviewed by the Parliament.

This bill is deeply problematic. It openly questions the impartiality of the SJP’s current judges and the legitimacy of the Selection Board that appointed them. Inevitably, it hinders the SJP’s work and is weakens the already fragile confidence of Colombian citizens have in this institution.

The international community – including the International Criminal Court Deputy Prosecutor – is echoing those concerns as ongoing and unresolved issues are undermining peace efforts. The fact that Santrich remains in jail revealed the lack of legal certainty over former combatants’ situation, and provided a solid argument for FARC leaders to flee and renounce to their political mandate. These issues are not purely legal. They lay at the heart of the transition process and have already had concrete implications on the ground. Clarifying the articulation between ordinary and transitory judiciary institutions is thus critical.

In particular, a central question has to be answered: what will be the fate of perpetrators of crimes falling under the ICC jurisdiction, who cannot be covered by amnesties but who won’t be prosecuted by the SPJ as a result of its selective prosecution strategy? The SJP only has a 20-year life span and will not be able to fully investigate all perpetrators of the 52-year long conflict. Most probably, the General Attorney will claim jurisdiction over those mid-level commanders set apart by the SJP. They will therefore be tried by ordinary justice without benefiting from alternative sanctions framed by the Peace Agreement, creating inequality of treatment between war criminals.

The Special Jurisdiction for Peace must focus on providing clear solutions for these critical jurisdictional issues. By doing so, it will create legal certainty for both soldiers and former FARC combatants as well as rebuild its own credibility on the Colombian scene. Until those questions are resolved, a very concrete threat will continue to weigh over the arduously won and already fragile peace.