By Felipe Morales Sierra, EL ESPECTADOR, April 20, 2021
(Translated by Eunice Gibson, CSN Volunteer Translator)
With 276 former FARC combatants murdered and hundreds more with no effort to protect them, the high Court is studying three civil rights actions that request a declaration that these events are part of the precarious implementation of what was agreed in Havana.
With three civil rights actions being studied by the Constitutional Court, the Court could decide to declare a tremendous violation of the Peace Agreement signed with the former guerrillas of the FARC—today the Commons Party. The civil rights complaints have to do with the security and protection of the former combatants of the guerrilla group, because up to now, 276 of them have been murdered (as the Chief Justice of the JEP, Eduardo Cifuentes, complained two days ago) and there continue to be obstacles to furnishing them with basic guarantees, such as security details. In the case documents seen by EL ESPECTADOR, it’s clear that the Court is studying whether to declare a state of unconstitutional conditions regarding the Agreement. The government opposes that.
The Court has held that a state of unconstitutional conditions (ECI in Spanish) exists when there is “massive and generalized violation of various constitutional rights, which affect a significant number of people”. The high Court has declared such massive violations of fundamental rights in areas that have turned into “hot potatoes”; they are so complicated that they end up being the responsibility of a handful of agencies and, at the same time, of none at all. It has declared ECI, for example around the incarceration crisis, the pension system, or the humanitarian situation in La Guajira. But this would be the first declaration that touches the Peace Agreement directly.
Justice Cristina Pardo—one of the more conservative Justices—has the case, and she is still in a very preliminary stage. “The Branch will have to determine, keeping in mind the circumstances set forth by the plaintiffs in their complaints, and the evidence alleged in the file, whether that supports a conclusion that it is necessary to declare a state of unconstitutional conditions,” she states in an order that this paper has seen. The parties were only notified this week that 27 orders have been issued. All of them are trying to gather information related to the conditions of the former combatants, the procedure for reincorporation, and the actions taken against the armed groups that are murdering them.
These civil rights actions were selected and joined after an application that lawyers from the Commons Party filed. In the application, they claimed that there is a systematic violation of the right to life of those signers of the Agreement—a matter in which organizations like the United Nations have expressed concern—and there is no jurisprudence relating to reincorporation. Their first letter included 11 civil rights actions that the former FARC had filed, from different parts of the country, against the National Protection Unit (UNP), the Interior Ministry, the Attorney General’s Office, the Inspector General’s Office, and several other agencies. Out of those actions, the Constitutional Court chose to study three: two from Nariño and one from Guaviare.
Even though they had different fact situations, the three civil rights actions had similarities: former combatants located in areas where there are armed actors, and where they had requested protection by the UNP. The agency had studied the risk, but in two of the cases, they did not even assign a security detail, and in the third, covering reincorporated former guerrillas in Tumaco (Nariño Province), they did assign bodyguards and armored vehicles, but with fewer people and vehicles than even the UNP itself had concluded to be necessary. Even though the judges that reviewed the civil rights action at the trial and initial appeal levels, had found in favor of the former combatants, and ordered a greater effort by the authorities, there seemed to be a cop-out. In one response, for example, the UNP said that the pandemic made it difficult to furnish enough bodyguards.
“When they assigned security details to us, it was because we filed civil rights actions, constitutionally guaranteed petitions, and motions for contempt. Sometimes they complied, but only in part,” a former FARC combatant from the Province of Nariño told this newspaper. He had been a plaintiff in the civil rights actions that the Court is now studying. Besides that, he said that the security details are not a complete solution. “We have to go ahead with reincorporation, but outside all these things are going on. There is a social problem and that is where the risk comes from: there is poverty, illegal businesses.”
The Court concluded in this week’s order that there are several matters that have to be clarified in the case. One of them has to do with “the extent of the implementation of the reincorporation component in the Peace Agreement, and the impact of the possible noncompliance—in particular, the guarantee of safety–, in the protection of the fundamental rights to life, to bodily integrity, to the safety and peace of the former combatants who signed the Agreement.” Already all of the government’s agencies that have appeared in the lawsuit have asked the Court not to declare an ECI, even though they have not made any reference of substance to the former combatants’ complaints.
The President’s Office, in a joint response with the High Commissioner for Peace and the Stabilization Council, said that, “matters related to the guarantees of security are the direct concern of that office, because there is an agency in charge of that function, the National Protection Unit,” as reported by the Court. The UNP, for its part, stated that, “answering for all of the events that are alleged in the complaint could mean an abuse of our authority.” And the Interior Ministry said that it had carried out its functions. This week Justice Pardo referred the lawsuit to the Defense Ministry, to the Armed Forces, and the Police, which have not yet responded.
The answer from the Attorney General’s Office was signed by Deputy Attorney General Martha Mancera, who at the same time is functioning as Director of the Special Investigation Unit—the position of head of that unit is not filled at this time. That’s the agency created by the Agreement to investigate crimes against former combatants and to dismantle the paramilitary structures. According to the report from the Court, that high official said that the events that are the subject of the civil rights actions, such as the presence of armed groups and the more than 270 murders of former guerrillas, are part of ongoing criminal investigations and that, to obtain what is requested in the complaints, the plaintiffs ought to “use existing legal procedures.”
But Justice Pardo’s questions to these agencies, as well as to the Inspector General’s Office, the Planning Department, and the Guarantees Commission that’s created in the Agreement, among others, look as if the agencies are seen as washing their hands of the situation, and that won’t do. The Court asked about compliance with objectives in the implementation, about protocols that ought to be in place by now, about the funding of the UNP, about how many of the murders of former FARC combatants have been solved, with charges filed. She would also like to know how the Programs for Development With A Territorial Focus (PDET) are going, and how often the Police and the Prosecutors pay attention to the early alerts that are issued by the Public Defender’s Office.
“We realize that the problem is structural, and the solution doesn’t depend on one single agency,” said a lawyer from the legal team that represents the former FARC, who asked that his name not be used. And he added, “Protection doesn’t depend on cars and bodyguards from the UNP or the Police. It’s structural. The order recognizes that: it’s the comprehensiveness that’s implied in implementation of the Agreement.” Besides that, he recounted how they had asked the high Court recently to arrange a public hearing and that the Justices go out to the areas where the former combatants are living. There is still a long way to go, but they have confidence that this lawsuit can define a different direction for the implementation of the peace.