Professor Méndez participated this month in the International Conference Truth, Trials and Memory. An Accounting of Transitional Justice in El Salvador and Guatemala at the University of Minnesota. After his panel on “Truth-seeking Lessons from the Guatemala Experience”, he shared more insights with Michael Soto (UMN Graduate Student, Sociology).
After more than half a century of armed conflict, Colombia is poised to transition to peace. In 2016 a peace agreement was signed with the largest rebel group, the FARC, and there are currently negotiations with the second largest group the ELN. One component of Colombia’s transitional justice program is the Special Jurisdiction for Peace, which is charged with investigating and prosecuting human rights violations. Below, is the third part of their exchange on the peace process in Colombia.
What are the broader opportunities and challenges in Colombia?
We’re at a very early stage in the process of Colombia. We have a good blueprint. Good in the sense in that it is clear. Whether you agree whether there should be reduced sentences or not that is a different question and I am not giving an opinion on that because I have been given a task to perform and if I say anything beyond that it could raise a problem of a conflict of interest.
So, I don’t have an opinion on that, except to say that this is a process that to a great extent tries to achieve this confluence of peace and justice. And this idea that peace and justice should nurture each other in a formula that is complex and very complicated, but that is worth giving it a chance. I think the appointment process is a key question there because if we can instill confidence in the population that we have done a really good job of selecting the best Colombians to do this, those that enjoy the greatest confidence from the populace, those that have experience, and can not be mistrusted for anything they did in the past. Then I think this system has a chance.
But it is early, and who knows at the end of the process. It is legitimate to say, let’s wait to the end of the process to see whether it is a process that leads to justice or impunity.
In the meantime, it is leading to peace and that is important.
I would like to ask you about the Special Jurisdiction for Peace in Colombia, a body that will exercise judicial functions and is part of The Integral System of Truth, Justice, Reparation and Non-Repetition. You were one of five people selected to appoint the 51 magistrates. Can you tell us about this experience?
I am a member of the Selection Committee that the peace process agreed to have two Colombians and three non-Colombians in charge of the search and eventual appointment of all members of the different units of the Special Jurisdiction for Peace. There is an appellate side and a lower court side. Those are 51 magistrates, 38 between the two of them plus 13 substitutes.
And then the Truth Commission is 11 members. And then there are the three units that are a single person. One is the unit of Missing Persons, the unit of Accusation and Investigation, the sort of the prosecutor’s job before the Special Tribunals, and the last one is the chief of a unit of Dismantling Criminal Organizations. There we are going to appoint three persons to a terna is what they call it but it is the Public Prosecutor of Colombia that will appoint because that office will be part of the Prosecutor’s Office.
And then there are 14 foreign jurists that will act as amicus curiae at the disposal of the Special Jurisdiction for Peace. We have opened searches for all these positions, we have made it transparent, open, and told everybody on how to apply. We had to create a technological platform to do this, we have a small team that is very diligent and hardworking. And we have been able to keep to our calendar of decisions. We have already appointed the 51 magistrates and the chief of the Office of Missing Persons and the chief of the Unit of Accusations and Investigations. And all of them are about to start working, because congress needs to pass some legislation, but the President has appointed all of them.
Our next steps are the Truth Commission, and the terna that I mentioned and the foreign jurists. So we will be done in December. So what this Special Jurisdiction of Peace is supposed to do, the peace accord has several aspects, one an amnesty for the crimes of rebellion and sedition. So if people are accused of fighting, they get amnesty.
For the crimes that are excluded from the amnesty, meaning war crimes, crimes against humanity. For those, there is a special treatment, which includes reduction of sentences. But the special treatment is conditioned on being truthful on everything they did. So there has to be a special jurisdiction to organize those processes by which you are accused of these crimes, you come forward, you confess, you get the benefit. If you are not truthful you go to the regular accusations and you can get up to 20 years in prison. I should say that the reduced sentences are to be spent in some form of restrictions of liberty but not in jail.
All of that has to be monitored and ordered by a Special Jurisdiction. You could say, “Why not the regular courts?” Well, the parties to the peace process decided that they wanted a special jurisdiction. Now, the special jurisdictions are independent and impartial justice if they were individual judges. And their decisions are not reviewable by the regular courts but they are ultimately reviewable by the Constitutional Court. So, there is judicial control over everything they will be doing. But otherwise they are independent from the regular judiciary and it is a transitory jurisdiction. It is expected to live on for about ten years, with a possible extension to about 15 years. At the end of that they should have disposed of all the cases.
Juan E. Méndez, a native of Argentina, is a Professor of Human Rights Law in Residence at the American University – Washington College of Law, where he is Faculty Director of the Anti-Torture Initiative. In February 2017, he was named a member of the Selection Committee to appoint magistrates of the Special Jurisdiction for Peace and members of the Truth Commission set up as part of the Colombian Peace Accords. He has previously held positions as UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, an advisor on crime prevention to the Prosecutor, International Criminal Court, Co-Chair of the Human Rights Institute of the International Bar Association, President of the International Center for Transitional Justice, and the Special Advisor to UN Secretary General Kofi Annan on the Prevention of Genocide.
Michael Soto is a PhD student in Sociology and fellow at the Interdisciplinary Center for the Study of Globalization Change (ICGC). His dissertation research is on the transition to peace in Colombia, with a focus on reintegration and reconciliation processes.