EL ESPECTADOR, January 29, 2021
(Translated by Eunice Gibson, CSN Volunteer Translator)
Here we will explain why the Senators from the Commons Party, Pablo Catatumbo and Carlos Antonio Lozada, are protected, for now, in spite of the accusations that the JEP has made against them for crimes against humanity.
The most important news that has come from the Special Jurisdiction For Peace (JEP) in its three years of existence has been, up to now, the formal complaint against eight former members of the FARC Secretariat. The complaint charges them with having committed the war crime of taking hostages, and with crimes against humanity, such as serious deprivations of liberty, tortures, and forced disappearances. Even though there is still no firm decision that defines the legal destination of the former commanders, what is certain is that the victims and the politicians are requesting that Pablo Catatumbo and Julián Gallo (Carlos Antonio Lozada), two of the eight members of the accused Secretariat, give up their seats in the Senate.
Colombia 2020 consulted several experts in transitional justice and sources inside the JEP. They believed that, for now, both seats in the Senate and the post of Rodrigo Londoño (Timochenko) as President of the Commons Party, are protected, because this is just the beginning of a legal process. It will be some time before the sanctions or penalties that the former commanders of the FARC will suffer for the crimes they committed during the war will be determined.
That’s to say, just as any public officials under an ongoing investigation, they may remain in their positions as long as no defined sentence or penalty requires the contrary.
However, the case of the former combatants of the FARC with the JEP is different from what we are familiar with in the ordinary justice system, as besides being based on the Constitution, the system is based on the Peace Agreement signed in Havana (Cuba) in 2016. Juan Carlos Henao, a former negotiator for the Peace and the current President of Externado University, explains that “the essence of what was agreed was that, precisely, the FARC exchanged arms for politics so that, for now, it’s not possible to limit their political activity in the Congress or in the Party.”
Sources inside the JEP explained that in order to make that decision, right now, it would be necessary to change the Peace Agreement and make changes in the Constitution, something that will not happen, keeping in mind that this group of former FARC commanders has not re-offended and has complied with what was agreed in Havana. “To disqualify them politically right now, we would not only have to change the Constitution, but also the Legislative Act 01 (the document that incorporated the Peace Agreement into the Constitution), the Statutory Law creating the JEP, convince the Constitutional Court that it was wrong, and at the same time, tell the United Nations Security Council that it was wrong to support the peace process,” stated the former negotiator, Henao.
It should be emphasized that one of the fundamental points of the Peace Agreement was political participation. It stipulates that the creation of a political party for the former combatants (present Commons Party) must be guaranteed, and that, during two electoral periods (2018 – 2026), the former guerrillas have the right to five seats in the Senate and five more in the Chamber of Representatives. Under the commitment that they would have political guarantees, they laid down their arms.
“We can’t make any transformation because the seats were the product of the Peace Agreement. So even if they have committed crimes against humanity, in Havana it was agreed in points two and three, that they would have the opportunity to participate in politics. That will only change if they decide in the next period to offer up their seat for a vote. But by the JEP, nothing can be done,” said an official of the court, who requested that his name not be published.
Nonetheless, it’s important to make clear that in the future the former FARC might possibly lose their political benefits in the Congress. Yesid Reyes, an attorney and another of the former negotiators of the Peace Agreement, stated that “theoretically, there are possibilities that they could lose the seat at some time, but for now the process is only half complete, barely in the phase of filing charges, and it’s only when they issue a decision that the subject can be discussed.”
Just as in any legal proceeding, those decisions are the final determinations that define the future of the person investigated. And this is no exception. It will only be when the JEP issues its decision on the former FARC Secretariat that it could modify their political future.
“It’s important to remember that the Final Peace Agreement foresaw that while there had not yet been any penalty, the parties from the FARC who appear before the JEP would be able to participate in politics and hold elected office,” clarified another source in the JEP.
But here it’s necessary to make another clarification. Unlike the procedures in the Attorney General’s Office, in the JEP, those who admit responsibility for committing serious crimes against humanity, like kidnapping in this case, and provide the complete truth, are not necessarily sentenced to prison. For example, if Carlos Antonio Lozada, currently a Senator, admits right away that he is responsible in the cases of kidnapping and other crimes charged by the JEP, and if he promises to tell the truth (as verified) to the victims and to the country, he could receive a special penalty, which does not signify impunity.
On this point we have to stop and explain which are the penalties that can be imposed by the Special Jurisdiction for Peace. There are three: special penalties, the alternative penalties, and the ordinary penalties. They will be applied to the former FARC combatants, members of the Armed Forces, and to civilian third parties that submit to the JEP.
The special penalties: Those who admit their responsibility for the crimes that the JEP has charged, tell the complete truth to the victims of the armed conflict, and commit to making reparations for them, will receive other “punishments”, different from prison but which also deprive them of liberty. They might be working at jobs in the countryside, working with communities, building schools, even teaching about peace, and any kind of reparation that the victims establish. In addition, these penalties can be carried out in locations where they have been requested.
The time that such a penalty will last will be between five and eight years. There will be cases with two to five years for those who did not take a determining part in the events.
The people who are carrying out the special penalties will always be policed. For that, the Peace Agreement created a system of monitoring and verification, which will be in the charge of the United Nations. In the case of third parties and members of the Armed Forces, the government will carry out that role.
The alternative penalties: Those who refuse to accept their responsibility for the crimes that the JEP has investigated, but before arriving at the stage of a contested proceeding, they change their minds and decide to admit their crimes and provide complete truth, will receive an alternative penalty from five to eight years. That penalty will be served in prison.
The ordinary penalties: Those who do not admit their responsibility for the crimes they are accused of will be transferred to the Unit for Investigation and Accusation (UIA), which is the prosecution unit for the JEP. Next there will be hearings, contested proceedings, in which they will have to provide evidence to prove their innocence. If the JEP finds them guilty, they will receive sentences between 15 and 20 years, which they will have to serve in prison.
Thus the loss of a seat for the current members of Congress, Pablo Catatumbo and Carlos Antonio Lozada, will depend on the kind of penalty they receive. Article 31 of the JEP’s Statutory Law provides that the alternative penalties and the ordinary penalties, which contemplate prison sentences, are incompatible with carrying out the functions of elective office.
In the case of the special penalties, the Justices of the JEP will continue to evaluate how to make the mobility limitations compatible with the work done by former guerrillas in the Congress, in case they are doing their part. In fact, an alternative came out at the end of August when the District and the National Government issued their Development Plans with a Territorial Focus (PDET) in Bogotá and Soacha. Through Councilor Emilio Archila, the government insisted that the former combatants must serve their penalties in places where there was the most violence, and that they work with the PDET’s. That could be in the capital, but up to now the JEP has not made any statement on this issue.