They’re making their requests from their prison cells
By Laura Dulce Romero
El Espectador, July 28, 2019
(Translated by Eunice Gibson, CSN Volunteer Translator)
Fourteen years after the Peace and Justice Law, some of the ex-paramilitaries who didn’t take advantage of that law are requesting passage into the Special Jurisdiction for Peace (JEP). Even though this tribunal has closed its doors to them, it also made clear that there is an exception for those who financed paramilitary groups. They believe that the armed conflict cannot be concluded without those people.
Fabio César Mejía Correa, who during the war was known as Jhonatan, was a paramilitary commander in the Cacique Pipintá Front. Now he has been found guilty of homicide, forced disappearance, and criminal conspiracy. He did not take part in Justice and Peace, the system of transitional justice created by Statute 975 of 2000 that provided for the demobilization of the United Self-Defense Forces of Colombia (AUC), because his Front refused to lay down its weapons. He was captured in 2007 and now, sentenced to more than 20 years, Mejía knocked on the doors of the Special Jurisdiction for Peace (JEP).
Mejía is part of a group of former members of the AUC who did not take advantage of Justice and Peace, and also refused Statute 1424 of 2010 which, Álvaro Villarraga explains, confers the benefit of conditional liberty to former members whose crimes were not serious, but only if they commit to contributing to the clarification of the truth about the whole paramilitary phenomenon.
Villarraga recounts that there are many different kinds of cases in this universe. There are those who were murdered; the ex-paramilitary commanders who were extradited, like Carlos Mario Jiménez Naranjo, better known as Macaco, who arrived back in the country a week ago; those who continued to commit serious crimes, such as Salvatore Mancuso, and those who didn’t agree with the process and never demobilized, like Mejía. Now a number of them are in prisons and in recent months have expressed their intention to tell the truth and submit to the JEP.
When Mejía requested admission to this system, created after the Peace Agreement between the government and the FARC guerrillas, he argued that his condition as an ex-paramilitary, as an actor in the armed conflict, gave him the right to be admitted and to tell his truth, which he has not told up to now. He insisted that he had not confessed his deeds to the Justice and Peace because that system “does not recognize the relevance of the victims sufficiently.”
The Definition of Legal Situations Branch agreed to review his case in April of 2018. At that time, the Inspector General argued that Mejía did not meet the requisites, because the “there is no place for paramilitaries in the JEP, least of all those that fought in the Cacique Pipintá Front”, a group that took no part in the demobilization of the AUC and subsequently were labeled a criminal gang.
The Justices agreed with the Inspector General and rejected Mejía’s request. Not only did they reiterate that paramilitaries cannot receive different treatment in this new model of justice, but also that, according to the regulations under Justice and Peace, being a former member of the AUC who did not demobilize, his appropriate judge will be in the ordinary legal system.
Mejía decided to appeal the decision, so his entrance into JEP proceedings is in the hands of the Appellate Section. For months, the Justices have been reviewing is case, and on June 11 of this year, they decided that under Order 199 of 2019, they agree with the Definition of Legal Situations Branch: Mejía cannot be admitted to JEP proceedings.
However, the order had some peculiarities. Not only does it offer a broader explanation of why the paramilitaries do not fit JEP requirements, it also leaves an asterisk, or, as they call it, an exception to the rule excluding paramilitary groups.” It might open a window for the retired former members of the Self-Defense Forces.
In the first place, the Court affirms that the paramilitaries cannot be subject to the JEP, because the JEP does not have jurisdiction over that group, since that “was the will of the parties who signed the Final Agreement” between the FARC and the national government. Only the military, former guerrillas, and civilians who choose it may enter. There is no regulation that would empower the JEP to admit them. That is what is known as the personal jurisdiction of this legal system.
In the second place, and this point was something new, they emphasize that their jurisdiction is used up on the systems that are of a rebellious nature, such as the guerrillas. Accordingly, the paramilitaries cannot fit into that category because their purpose was never to “overthrow the existing constitutional order”.
Finally, in the view of the Justices, neither can they apply to the paramilitaries the principle of favorability, which requires the search for the solution most appropriate for the person being judged when there is a conflict of laws. The reason: The Justice and Peace Law and the JEP “are not part of the same legal scheme; nor can they be considered really equivalent,” in spite of the fact that they were both created for the transition to peace.
In spite of all this analysis, and the fact that Mejía has gone as far as he can and has no possibility of entering the JEP process, the Justices in the Appellate Section included a paragraph to mention an exception to the rule. The JEP has always said that there can be a broader interpretation of the jurisdiction of this tribunal in cases where the interest of the victims in obtaining the truth is primary. And that is the exception in this case.
They made clear that, in view of the fact that the paramilitaries have already had a legal procedure in which they could tell the truth and receive benefits for that, the only way they could enter the JEP would be in the role of third-party financers or collaborators, considering that there were many different roles in their organization. “The paramilitaries were able to act as third parties at any time before or after their armed activities and, for that reason, they could appear before the JEP in an exceptional situation,” according to the Order.
And if the retired AUC were to enter the JEP, the Order warns, they would only have to take responsibility for their acts of financing or collaborating with actors in the armed conflict. That means that the other criminal acts that they committed as fighters, such as homicides, massacres, forced disappearances and criminal conspiracies, would have to be resolved in another jurisdiction.
Finally, they made clear that the truth they tell about their crimes of collaboration will have to be immediate, exhaustive, detailed and relevant for the JEP, “which must be more than the truth they have already told in the ordinary justice system,” To corroborate this point, there will have to be a test of the truth, “that will determine if these people do or do not have the ability to reveal additional information.”
A CONTINUING ARGUMENT
For the Mejía case and others, like the petition from ex-paramilitary chieftain Carlos Mario Jiménez, known as Macaco, to enter into this legal system as a financer or promoter of the AUC, having been deported by the United States to Colombia, after being senteced to 33 years in prison for drug trafficking (he was confined for 11 years), the debate is still on the table. Several former members of the AUC are arguing from their prison cells that, without them the JEP cannot be a tribunal that concludes the armed conflict, as it has been determined to be since its creation.
Several experts in transitional justice agree with that position. In fact, the Havana Accords had total ancillary jurisdiction over all events related to the conflict, whether directly or indirectly. And that included all of the actors in the war: the guerrillas, the military, and the paramilitaries.
If it indeed was clear that a person could not be in two systems of transitional justice at the same time, at that time it was thought that the paramilitaries could have renounced Peace and Justice and turn to the JEP to continue their proceedings. At that same time, according to experts, there was also discussion of the necessity of making it obligatory for civilians to submit to the JEP. In the Justice and Peace process, nothing was done with the 15,000 copies that were compelled regarding those who financed the conflict. The idea was that the JEP, and the FARC insisted on this, would be the opportunity to approach the political and financial dimension of the paramilitary structures that had not been investigated or revealed.
But when the Final Agreement was expressed in the statutes and discussed with the people who voted “no” in the referendum, there were changes in the original text and the Complete System of Truth, Justice, Reparation, and No Repetition was weakened significantly. In spite of that, for the expert, the discussion cannot put this aside, least of all when hearing from all of the voices of the war was the whole spirit of the peace process.
Beyond the spirit, we return to some of the arguments made by the Justices in deciding to close the door to the paramilitaries. For example, they note that in Legislative Document 001, the backbone of the JEP, when it refers to persons who might be able to submit to this system, it speaks in general of armed groups: “It does not say there that they have to be in rebellion. Neither does it require that they be part of the Peace Agreement. If one goes by that definition, you can argue that the AUC had their own peace process, established by the Justice and Peace Law.”
Even though they assure that right now they cannot make structural changes, in part because the JEP could collapse if all of the Justice and Peace cases were to be added to their caseload, it is important that the Justices do not exclude other cases. Their truth continues to be indispensable, not only regarding the financing, but also because of the serious violations of human rights.
Claudia Arenas, a lawyer who represents a number of paramilitaries from the Centaur Bloc, agrees. She believes that not considering this amounts to ignoring the paramilitary phenomenon, which was supported by the military, by financers, and by politicians. Arenas notes that from now on the JEP will have to confront the dilemma of allowing or not allowing the former members of this organization, especially now when those who were extradited are starting to return. They have some very important truths to reveal, truths that up to now have not been revealed in the Peace and Justice process. Not doing that, she says, would deny the victims’ rights to know the truth about what went on in these paramilitary groups.
Edwar Cobos, the former commander of the Montes María Bloc of the AUC, doesn’t disregard the idea that the two jurisdictions could be joined: “This is the only country that is resolving a conflict by means of two different systems of transitional justice and, furthermore, the two have some similarities. Or are you going to tell me that the JEP was not based on the Justice and Peace model? To have two legal systems is one more of the big problems that Colombia is committing.”
It’s evident that he’s annoyed by statements made by Patricia Linares, President of the JEP who, according to Cobos, has dedicated herself to speaking ill of the Justice and Peace system, when that jurisdiction was the first test of transitional justice in the country. “She says that nobody told the truth there. I can tell her that we have confessed to 57,833 acts, that 5,314 mass graves have been found, and 211,233 victims have been prioritized. We have told the truth. But if they insist that the JEP is the tribunal for telling the truth, then how can they exclude the self-defense forces?” says the former paramilitary chieftain.
Cobos won’t stop repeating that closing the door to the AUC is a serious exclusion of one of the actors in the conflict, and that if they had not demobilized 14 years ago, probably the Havana Peace Agreement would not have been possible. He warns that there is a profound contradiction in the talk about building peace in Colombia, because they are demanding the truth, but there are people being excluded when the time comes to tell it: “Here it looks as if the conflict was between angels and devils, and as if we already know who are the angels and that we were the devils.” But beyond that, the truth is that the entry into the JEP will depend on how relevant, exhaustive and detailed the truth will be, so that patterns of the armed conflict can be understood and, most important, the victims’ rights can be respected.
OTHER FORMER MEMBERS OF THE AUC HAVE ASKED FOR ADMISSION TO THE JEP
Among the ex-paramilitaries who have petitioned for admission to the JEP in exchange for telling truths that have not yet been revealed is the former paramilitary chieftain, Salvatore Mancuso, who right now is in prison in the United States. He stated his intention to submit to the JEP in August 2018, arguing that he would provide new information about businesses and civilians that supported the paramilitaries and who have not yet been accused. At this time the JEP’s Chamber for the Recognition of Truth is studying his petition.
Héctor Germán Buitrago, better known as Martín Llanos, former commander of the Campesino Self-Defense Forces of Casanare, is in the same situation. He requested entry to the JEP in 2017, but he has not received an answer either. On the other hand, among the cases where the JEP gave a resounding “NO” to such petitions was Duván Hurtado Henao, demobilized from the José Luis Zuluaga Front of the Campesino Self-Defense Forces of Magdalena Medio, who was not admitted either to Justice and Peace or to the JEP.