Colombian peace talks advance, but raise difficult justice issues

Last week, I had the honor of addressing the assembled Colombian judiciary on how comparative experiences can help inform the difficult choices the country will need to make in order to finalize a peace deal with the armed insurgents (FARC and ELN) and bring an end to over 50 years of armed conflict.  As part of the meeting, the chief government negotiator in the talks now being held in Havana, Cuba, outlined the points of agreement and difficulties to date.  The process has raised difficult debates over how to take advantage of the best opportunity for peace in a generation while meeting the country’s international legal obligations, in a world where blanket amnesty is no longer an option.

Unlike earlier peace initiatives – and unlike the deals negotiated in Central America more than a decade ago – the current talks focus almost exclusively with ending the war, leaving political and social reforms to later discussion.  There is one major exception:  an agreement on rural development, based on a shared understanding between the parties that structural inequalities in the countryside are fueling the conflict, and that while the urban middle class has increased and agribusiness is flourishing, small farmers have suffered.  The agreement creates a Rural Land Bank, tax incentives for small farmer development, land surveying and titling, better access to credit and technical assistance, and improved government services in rural areas.  Whether any of this will make enough of a difference in the face of simultaneous widespread African palm and export agro expansion remains to be seen.

Its success may also depend on how well the country’s ambitious land restitution scheme ends up working.  Colombia has up to five million forcibly displaced people. In its first six months, newly appointed restitution judges have issued 270 decisions, most of them in favor of people forced off their land by armed groups.  While impressive, this is only a small part of the cases of forced dispossession.  To complicate matters, judges are finding that land was often taken by force more than once during the course of the conflict, leading to multiple claims and contestation by different groups of victims.  The security situation in parts of the country has also impeded implementation of these early decisions, as litigants and judges are threatened and some community leaders have been killed.

The rest of the peace negotiating agenda includes political participation, demobilization, relation to narcotrafficking, victims, transitional justice and the form of citizen approval of whatever deal is reached.  Transitional justice is proving one of the more difficult – and interesting – aspects of the discussion.  There is little talk of amnesty, and a broad understanding that neither the Inter-American Court of Human Rights nor the International Criminal Court (Colombia is a state party, and the Prosecutor has had a preliminary investigation open since 2004) would countenance an amnesty or pardon that included war crimes or crimes against humanity.  At the same time, there are an estimated 10,000 fighters, many of whom have played a role in kidnappings, extortion or military operations.  The Colombian state has neither the ability nor the resources to investigate, much less prosecute them all.

It also has some experience with creating alternative justice procedures, gained in the demobilization of right-wing paramilitary groups starting in 2005.  The Justice and Peace Law 975 promised conditional suspension after a hearing of the normal sentences for murder and other serious crimes, to be replaced by an alternative 5-8 year sentence.  In exchange, the applicant committed to demobilize, give an unsworn public statement detailing his crimes, and turn over any lands or other property stolen as a result of paramilitary activities.   Unfortunately, after years in operation and 4000 demobilization applications, the Law as of 2012 had yielded less than 20 convictions and little asset recovery, in part due to the difficulty of investigating the statements.  There is a widespread sense among judges that the judiciary would get equally swamped were the insurgents included in a similar process.

Arguing that it was needed for peace talks, the government earlier this year passed, and the Constitutional Court approved, a constitutional amendment, known as the Framework Law of Peace.  It allows the Chief Prosecutor to determine criteria to prioritize and select cases for prosecution that involve those most responsible for international crimes.  It also, more controversially, allows for conditions under which sentences can be suspended, alternative sanctions or special modalities of serving the sentence imposed, and some cases not prosecuted at all.  After a challenge, the Constitutional Court upheld the law, reading it, however, as requiring investigation of all grave violations, if not necessarily punishment of all those involved.

 

The FARC have until now rejected the Framework Law because it was unilaterally decreed.  Nonetheless, there seems to be agreement that the shape of a deal will require some form of conditional pardon or suspended sentence for the rank and file, many of whom were recruited as child soldiers.  There also seems to be broad agreement on a Truth Commission that would examine all the actors in the extended conflict, including the state and economically powerful forces.  The big question remains whether some form of conditional suspended or reduced sentence for the top leaders can be crafted in a way that passes muster.  What is clear is how far the region has come since the last wave of post-conflict or post-dictatorship transitions in terms of agreement on the primacy of the obligations towards victims and the rejection of blanket amnesties.

 

The question of how any agreement is ratified by the population is also contentious, with the government proposing an up-or-down referendum and the insurgents leaning towards a constitutional convention.  The idea is that civil society, which has been largely excluded from the talks, would weigh in at that point.  It is unfortunate that, for example, there are no female negotiators on either side (although there are key female advisors), so women’s groups will only be able to raise concerns late in the day.  There is also a determined effort on the part of the right, led by former president Alvaro Uribe, to scuttle the talks and insist on a military victory. Nonetheless, the talks present the best chance in years to finally put an end to Latin America’s longest-running conflict.

Read On! Special Issue of International Journal of Transitional Justice

The Current IssueThe latest issue of the International Journal of Transitional Justice (IJTJ) considers the links between transitional justice and international criminal justice.  From my introductory editorial:

This special issue considers the key, and often fraught, relationship between transitional justice (TJ) and ICJ. It’s not just that ‘The Hague’ now holds a key position at the center of discussions around how to deal with international crimes like genocide, crimes against humanity or war crimes, it’s also that this centrality, which has privileged the creation of an international institutional machinery, has affected other forms of justice. Depending on who’s talking, the effect has been to take over, make more effective, coexist with or render opaque these other forms. We explore these multiple views, and what the consequences are in particular places and for particular groups.

One way to conceive of both fields is as a series of antimonies. These antimonies or oppositions, not susceptible to final resolution, oscillate like a series of pendulum swings, each movement causing a critique and countermovement that affects both TJ and ICJ. It’s not a question of ‘peace versus justice’ but of a deeper level of fundamental questions. As questions of law, these antimonies recall Martti Koskenniemi’s description of international law as an indeterminate set of movements bouncing from moralist utopia to realpolitik apology.  Something similar happens here: the emphasis shifts, the pendulum swings back, the search for a middle ground continues, but the fundamental logic is binary, the critique of each movement endlessly producing its opposite. Thus, there is no possibility of final resolution of the tensions – or synergies – of the two fields.  The articles in this issue speak to the various points on this pendulum swing.

The journal contains a range of methodological and disciplinary viewpoints, ranging from theoretical discussions of the relationship between transitional and international criminal justice and of deterrence, to explorations of how the institutions of international justice, especially the ICC, have affected discourses and practices on the ground, including in the Bemba case, in Lebanon, and with respect to the participation of victims at the ICC.  Of particular interest to intlawgrrls might be Louise Chappell’s exploration of the operation of complementarity through the lens of gender. She considers the ICC’s preliminary investigations process, focusing on crimes of sexual violence against women in Colombia and Guinea.

Happy reading!

Brazil Protests Tie Present Grievances to Legacies of Dictatorship

As up to two million people took to the streets of Brazil’s cities last week, protesting a range of issues, I was struck by a comment at the end of one of the news reports.  The reporter quoted a protester as saying that “we never dealt with the end of the dictatorship and the legacy of authoritarianism, that’s why it’s so important that we’re waking up and taking to the streets.”

Indeed, Brazil is only now starting to deal with the legacy of its military dictatorship, which lasted until 1985.  Compared to other Latin American countries, there were few deaths, but large numbers of people were imprisoned, forced into exile, or lost their jobs as a result of their political activism.  Moreover, patterns of lack of accountability of police and military forces date from that era, and have never been changed.   The military, in particular, closed ranks to ensure that no officials were ever brought to justice.  In part as a result, police brutality is rampant, and the automatic response of security forces to social unrest is repression.  This is the connection between present and past that a new generation of Brazilians has recognized.

I was in Brazil last month for a discussion of measures to deal with the authoritarian past 25 years after the approval of a new, democratic constitution.  What was striking was the number of young people who have taken up the issue, even though they weren’t born at the time the military left power.  They see the connection to current corruption and abuse of power clearly.

Last year, after the Inter-American Court told Brazil to change its amnesty law to allow prosecutions for crimes against humanity (case is here) , but the Supreme Court declined to do so, President Dilma Roussef created a Truth Commission to look into what had happened.  The Commission, with part-time commissioners and a range of viewpoints, has taken a long time to get itself organized, and will probably need an extension to complete its work.  However, it spawned an interesting process of fragmentation:  impatient with the slow pace of hearings, states, cities and even universities have created their own Truth Commissions to look into what happened in their area.  They are holding hearings, commemorating victims, celebrating resistance to the military, and compiling information that they will both use locally and feed into the national process.   Their efforts combine with those of two other bodies:  a Commission on Amnesty, described here, that continues to hold sessions around the country where those who suffered economic harm as a result of the dictatorships’ policies can receive recognition and some compensation, and a Commission on Political Deaths and Disappearances.  In addition, some prosecutors are looking into cases of forced disappearance, which, as continuing crimes, extend beyond the dates of the amnesty law.

It’s not possible to draw a straight causal line between the increased attention to the period of authoritarianism, and resistance to it, and what is happening in the streets  today.  But the renewed discussion of how people resisted the dictatorship, and what happened to them because of it, is no doubt one factor among many leading to today’s “wake-up.”

Rios Montt convicted of genocide and war crimes; 80 year sentence

A few minutes ago the First High Impact Trial Court read the sentence:

former head of state Efrain Rios Montt guilty of genocide and war crimes under Guatemalan law and sentenced to 80 years in prison.  As I write this the public and the judges are still in the courtroom, waiting for the police to take the 86-year old defendant off to prison.  His military intelligence chief, Jose Mauricio Rodriguez Sanchez, was acquitted.  The defendants were on trial for crimes committed in the northern Quiche area of Guatemala against the Ixil Maya people during 1982-83, the height of Guatemala’s 30-year long armed conflict.  This is the first time that a former head of state has been convicted of genocide in a national court.

It has been a long road; the complaint against Rios Montt was filed in 2001.  Years of legal maneuvering, Congressional immunity, slow accretion of evidence from exhumations and documents, and a long, convoluted and still confused set of procedural motions have made this sentence even more unusual.  Guatemala’s legal system rarely finds powerful defendants of any sort guilty, and lawyers are used to defending the powerful by tying the system up in knots, delaying, and creating and then exploiting appealable issues.  That was what they tried here, but it didn’t work.  The three-judge panel of Yassmin Barrios, Pablo Xitumul and Patricia Bustamante insisted on hearing almost 100 eyewitnesses from the Ixil maya region, and some 50 experts ranging from ballistics and exhumations to statistics, culture, forced displacement, sexual violence, mental and psychological harm, racism, and more. See earlier post here. The trial was delayed several times due to defense maneuvers, but the judges pushed ahead in the face of them.  Given the fear of legal maneuvers overwhelming the trial, and given the precarious security situation for the judges, lawyers and witnesses, the judges drove the proceedings tirelessly, every day, all day.

The oral sentence (a more elaborate written sentence will be read next Friday) relied heavily on the expert testimonies to confirm that the army high command decided that all those living in the countryside in the area were the “internal enemy” and therefore had to be eliminated in order to stop them from supporting the insurgency.  The judges quoted extensively from witness and expert testimony about the savagery of the army attacks, which went far beyond military necessity and reflected, they said, the underlying history of racism described by experts.  The massacres involved killing, mental and physical harm, creating unbearable conditions of life, and transferring children of the group; they were the partial destruction of an ethnic group.  They found that that Rios Montt, as Commander-in-Chief, had to have known about the massacres, had the ability to stop them, and did nothing.  They also found him to have attacked civilian populations.

Much of the credit for today’s verdict goes to the team of lawyers who have worked on the case for years, representing the victims, and to the Attorney General, Claudia Paz y Paz.  Ms. Paz y Paz will receive a human rights prize from the Center for Justice and Accountability at an event in San Francisco on May 14, information here.  She will speak via skype to an event at the headquarters of the American Society of International Law in Washington DC, also on May 14, information here.

There is still a road ahead — the verdict will be appealed, and many side-issues are still outstanding.  But for tonight, there is a celebration, I’m told, in the town center in Nebaj, heart of the ixil region.

Gender plays key role in Guatemala trial

I’ve been sitting in a courtroom in Guatemala City for the last two days watching the trial of former head of state and retired General Efrain Rios Montt and his head of military intelligence, Jose Mauricio Rodriguez.  The two are on trial for genocide and war crimes, the first time a former head of state has been tried in a national court for these crimes.   In addition to its importance for Guatemala’s debate over its history, and for advancing international criminal justice in national courts, the trial has been notable for its attention to gender-related crimes and for the participation of women.

 

The chief judge, Jasmin Barrios, has kept a tight rein on the courtroom.  She heads a three-judge panel, where one of the other judges is also a woman.  Although all the lawyers except one are male, the legal strategy of the prosecution – and the decision to bring the case to trial – was that of Chief Prosecutor Claudia Paz y Paz, who we have blogged about here.   On Friday, the expert witnesses for the prosecution included Nieves Gomez, a psychologist and expert in trauma who discussed the psycho-social effects of the army’s genocidal campaign in the northern Ixil area, and Paloma Soria, a lawyer with Women’s Link Worldwide who presented her report about the evolution of international law on gender-based crimes.  On Monday, one of the last witnesses for the prosecution, Professor Liz Oglesby, testified movingly about the forced displacement and persecution of survivors, and the effects on the communities of the campaign of massacres, persecution and control in “reception centers” and “model villages” run by the military.   Professor Beatriz Manz of UC Berkeley had earlier talked about her research in the area, focusing on forced displacement.  Her photos of her visit to the Ixil area in 1983 are available here.

 

Crimes of sexual violence, including rape and sexual slavery, have been front and center in this trial, which started on March 19 and will end this week.  On April 3rd, the courtroom was riveted as 12 women and 1 man from the area recounted details of multiple rapes, torture, sexual slavery and being forced to watch their children being raped and killed (summaries of the testimony are available at riosmontt-trial.org.)   The judge instructed the press not to transmit the testimony via internet (it is being live streamed here) or to publish the names or photos of the witnesses.  Most of the women testified with their faces covered by colorful shawls; many of the indigenous women in the audience, in solidarity, covered their own faces during the testimony.   This is the first time these events, and the prevalence of sexual violence as part of a strategy of destroying and controlling the population, have been openly discussed in the country.  In many cases, women had not even told their own family for fear of stigma; in others, the women had been ostracized by their communities.

 

The trial has moved at a fast clip, in part due to security concerns.  It has created a lively debate in the country’s press, including a special insert into Sunday’s newspaper claiming that the trial is a conspiracy of the Catholic church with the governments of Nordic countries and the left.  This is a country where such allegations have to be taken seriously as threats:  former military officers still wield a lot of power.  One holds the presidency.

The trial should be over this week, with a final (oral) verdict later in the week, and a written sentence to follow.  I’ll write a follow-up on the legal strategies and arguments later in the week.  Stay tuned.

Guatemala atrocities trial starts

On March 19, over 30 years after the beginning of the worst massacres, rapes, and persecution in the recent history of Guatemala, a trial beginning today in Guatemala City aims to hold a former head of state and a former head of military intelligence responsible for the crimes. The charges against former General and ex-head of state Efrain Rios Montt and former G-2 commander Jose Mauricio Rodriguez
Sanchez include genocide against the Mayan Ixil people of Guatemala’s northern mountains, as reported in Sunday’s New York Times.

This is the first time genocide, as defined in both international law and the Guatemalan penal code, has been charged against a former head of state in a national court. Additional charges include violations of international humanitarian law (characterized in Guatemala’s penal code as crimes against duties to humanity) and destruction of property. The trial will pay special attention to crimes of sexual violence; the Prosecutors’ Office, led by Chief Prosecutor Claudia Paz y Paz, has commissioned experts especially on the issue.

The prosecution and victims’ groups are planning to present over 120 eyewitnesses and 60 experts on various aspects of the case. The genocide charges are based on the indiscriminate nature of the attacks against the members of this ethnic group, who had long been considered unruly and “untamable.” That reputation, combined with deep-seated racism and discrimination on the part of the officer corps and the perception that the entire area supported an anti-government insurgency, led to the razing of villages, massacres, mass rapes, targeting of old people and local cultural leaders, destruction of foodstuffs and animals, and persecution of the survivors as they fled through the jungle. Rios Montt has said that he was not aware of the crimes and had nothing to do with them.

So far, the U.S. ambassador has not said whether he will attend the trial, although there are calls from many groups in the US and Guatemala for US authorities to show their support, especially in the face of threats to the judges and lawyers. Trial observers will be present for the proceedings. Their reports can be followed daily on http://www.riosmontt-trial.org or on Twitter at @RiosMonttTrial.