Colombia: FARC Pact Risks Impunity for 'False-Positives'

The justice agreement between the Colombian government and Revolutionary Armed Forces of Colombia (FARC) could allow members of the armed forces responsible for the systematic execution of civilians to escape justice, Human Rights Watch said today in a new analysis of the agreement.

Between 2002 and 2008, army brigades across Colombia systematically executed as many as 3,000 civilians to make it appear they were killing more rebel fighters in combat in what are known as "false-positive" cases. Under the justice agreement announced with FARC, a newly created Special Jurisdiction for Peace would handle most - if not all - false-positive killings. Provisions in the agreement allow authorities to waive some criminal prosecutions. Other provisions could be interpreted to narrow the scope of commanders' responsibility for crimes committed by their subordinates. People the Special Jurisdiction convicts could avoid spending any time in prison, and those already convicted by the ordinary justice system could be released.

"The agreement is a checkmate against justice," said Jose Miguel Vivanco, Americas director at Human Rights Watch. "The web of loopholes and ambiguities in the agreement could guarantee that many of those responsible for false-positive killings, ranging from low-ranking soldiers to generals, will escape justice."

The government has announced that the Special Jurisdiction for Peace will have "exclusive jurisdiction" to handle crimes committed by the armed forces that were "directly or indirectly related" to the armed conflict. Colombian case-law makes it likely that many, if not all, of the investigations of false-positive cases carried out by Colombia's Attorney General's Office will be transferred to the Special Jurisdiction.

Those responsible for false-positive killings - especially among the lower and middle ranks - could fully escape justice under a provision of the terms announced by the government for state agents that allows a newly created judicial panel to take measures such as suspending sentences or waiving the prosecution of cases involving members of the armed forces who did not have a "major responsibility" for atrocities.

Military commanders, for their part, could benefit from a definition of command responsibility that could be interpreted in a manner inconsistent with international law. Unlike the established definition of command responsibility under international law, the definition in the agreement could require authorities to prove commanders actually knew of human rights crimes by their subordinates, and proving that they had reason to know of, and should have known of those crimes, would not be sufficient.

Members of the armed forces convicted by the Special Jurisdiction face sentences of from two to eight years if they confess their crimes. While the government has yet to fully define the sanctions for state agents, it has announced that these would be very similar to those for FARC members. FARC guerrillas who confess promptly and fully to atrocities will be exempt not only from prison or jail, but also from any "equivalent" form of detention. Instead, they would be required to carry out "restorative and reparative" projects while subject to minimal "restraints on rights and liberties."

The more than 600 people already convicted for false-positive killings by the ordinary justice system would also benefit from these provisions, potentially allowing dozens to be released.

The Office of the Prosecutor of the International Criminal Court (ICC) is closely monitoring false-positive proceedings in Colombia. It could open an investigation if it determines that national authorities are unwilling or unable to genuinely investigate and prosecute cases that would otherwise be within the court's jurisdiction.

In a report released on March 17, 2016, the Inter-American Commission on Human Rights stressed that investigations of false-positive killings should be "initiate[ed], develop[ed], and conclud[ed]" in the "regular criminal jurisdiction," and noted that "selectivity" provisions that allow authorities to waive the investigation of grave human rights abuses are inconsistent with regional human rights standards.

"The Colombian government has repeatedly stressed that the agreement will safeguard members of the armed forces from new prosecutions, but that is nothing but a hollow promise," Vivanco said. "If these terms are not fixed, it is very likely that new rulings on false positive cases will be subject to international scrutiny, including by the ICC."