They would come in as financers. Experts call for thinking about the rights of the victims.
El Tiempo, January 24, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
Two former paramilitary bosses are close to being accepted by the Special Jurisdiction for Peace (JEP), a legal system that was not created to judge them, but rather to judge the former FARC combatants and the members of the Armed Forces who had committed crimes as part of the war. They are Salvatore Mancuso, who was already freed by Justicia y Paz (Justice and Peace), and Rodrigo Tovar Pupo, alias Jorge 40, who, on the contrary, was excluded from the system created in 2005 for the demobilization of the “paras”, because he didn’t carry out his obligations.
Both Mancuso and Tovar were rejected as ex-combatants, because the JEP has been clear in stating that that is not part of its jurisdiction, but in both cases, it has left the door open to receiving them as civilian third parties who acted to collaborate with or finance the armed groups.
One of the reasons for refusing to accept them as ex-paramilitaries is, as is reasonable, that they had access to their own version of transitional justice, the Justice and Peace Law. The JEP has been very clear on that. But it also, in several decisions, has considered that it is obligated to study this issue case by case.
Because of that, in the words of Director Kenneth Burbano of the Constitutional Observatory at the Free University, the door “will be partly open”.
“The first thing needed is that they provide the truth, the real truth, concretely and seriously. They can’t go to the JEP with abstract versions or with irrelevant information,” says Burbano.
In fact, in the case of Mancuso, the Justices of the JEP asked him to amplify his offer of the truth, considering that his initial offer was insufficient. In any case, his appearance will be limited to crimes committed between 1989 and 1996, the period in which, as he claims, he was just a financer and no longer had any part in the paramilitary structures.
In addition to the role he played in the war, the JEP has to consider if acceptance of an ex-paramilitary “is more favorable to the rights of the victims than not accepting him,” says Gustavo Gallón, Director of the Colombian Lawyers Committee (CCJ in Spanish). And in any case, he adds, if they offer to reveal more than what they already revealed in the Peace and Justice process, “ the question that the judges will have to answer is ‘Why didn’t they reveal it before, when it was their obligation?’ ”
For Gallón, “if there is a record that they were excluded from Justice and Peace, don’t they have a lot of nerve to come to the JEP?” And this question applies clearly to the case of “Jorge 40”. According to the JEP, “Sr. Rodrigo Tovar Pupo had the opportunity, in his status as an ex-paramilitary, to submit to Justice and Peace ( . . . ), but he was rejected by that process because he failed to tell the truth that he was obligated to tell.”
Because of that, continues the analysis by the Definition of Legal Situations Branch: “The JEP is not a subsidiary of Justice and Peace, and it is not a new scenario of transitional justice that can by used as an opportunistic strategy to evade the procedures and sanctions of the ordinary justice system.”
Gallón says that “where you can tell that the principal intent is to obtain penal benefits, the JEP is going to refuse them, but to the extent that there is a well-founded expectation that victims’ rights may be enhanced, it will be inclined to receive them.”
And Burbano added to that: “If the attempt is to dodge or diminish their sentences or their responsibility for their paramilitary activities, they can’t be accepted.”
Within the process lies the fact that apparently, before he became a paramilitary, “Jorge 40” was their sponsor or patron between 1996 and 1998, a period and an activity that might well be part of the JEP’s jurisdiction. According to Tovar, he was the “ideologue, proponent, and component of the Self-Defense project,” in which he became the second in command of the Northern Bloc.
To arrive at being accepted as third parties, they will have to have the same status that the three “parapoliticos” (politicians who supported the paramilitaries) who have already been accepted by the JEP and that opened up this chapter: David Char, Álvaro Ashton and—also accepted last week as part of the “robed robbery”[1]—Musa Besaile. While “Jorge 40” served his sentence for drug trafficking in Pennsylvania, in the United States, Mancuso served his in a prison in Atlanta.
THE LEGAL PATH THAT LED TO WHERE THE JEP LANDED
In October 2018 the Appellate Section—the last step in the Peace Tribunal—rejected the submission of an ex-paramilitary from the Magdalena Medio known as Duván Hurtado Henao.
“There might well be exceptional circumstances that could justify a broader interpretation of the JEP’s jurisdiction, in events where the higher interest of the victims, especially in obtaining the truth, would demand it,” the Section stated clearly at that time.
Later, The Section decided the submission of Jorge Iván Correa, “Morocho”, in January 2019. Even though he was rejected, it made reference to the fact that the Peace Agreement gave the JEP jurisdiction over “actions that financed or collaborated with the paramilitary groups.”
The Section cited the government’s position in the Havana negotiations in November 2015, where they maintained that the Justice and Peace Law was not intended to combat that phenomenon, but rather was aimed at the direct combatants. “Because of that, it makes sense that the JEP can tackle the issue,” the government delegation argued.
That legislative development was thought to include civilian third parties such as business owners and public officials who were not part of the Armed Forces. But the JEP also considered the decision in 2012 by the Constitutional Court when it held that “the Colombian armed conflict is a social phenomenon of a complex and multicausal character, with a variety of actors.”
One of the defining characteristics of this complexity is the definite presence of situations in which a civilian third party, initially apart from the conflict, slowly changes roles and, because of his actions, is involved in responsibility in various forms throughout the extended confrontation,” stated the Appellate Section.
Thus they contemplated that a person could be a financer and a collaborator and later have turned into a full-blown paramilitary combatant.
They also based it on Article 28 of the statute creating the JEP, which deals with the duty of the government to guarantee that there will be no repetition of specific practices such as the “creation, promotion, support, and tolerance of civilian armed groups organized for illegal ends of any kind.”
The Section concluded with the possibility that the JEP “could learn of the conduct related to the financing, promotion, urging or collaborating with these groups by charging those who commenced their involvement marginally or fully with civilian third parties and later mutated into being unquestionably members. That would be a way of advancing not only the right to the truth ( . . . ), but also the guarantee that there would be no repetition of an activity that has been the instrument for the perpetration of international crimes.”
There it was made clear that the person who aspires to an appearance before the JEP is responsible for demonstrating his changes from the role of collaborator or financer to a “full-blown member of the paramilitary group.”
Subsequently, these considerations were broadened in another decision of the Appellate Section in June of 2019, when it rejected the submission of Fabio César Mejía Correa, a former Commander of the Cacique Pipintá Bloc, because he did not demobilize from the AUC in 2005 at all.
In that case, it was established that the prior paramilitaries could appear before the JEP, “if, and only if, before or after they bore arms, they acted as third party financers or collaborators.”
Besides that, in order to be accepted, they can only be tried there for the crimes they committed as a civilian third party, and under no circumstances for the crimes that they had committed as combatants. The crimes they had committed as combatants, were and are under the jurisdiction of Justice and Peace Law and the ordinary criminal justice system.
For the JEP these decisions are based on “the most realistic
understanding of the conflict, but also on the imperative to satisfy the superior
interest of the victims and, particularly, the guarantee of their rights to the
truth and to no repetition.
[1] “Robed robbery” is a translation of the “cartel de la toga”, a scandal in which one or more high court justices extracted bribes for favorable judicial decisions.