Landmark Legal Victory for the Peace Community

By Susana Pimiento

Rebuilding Trust
 The 2013 New Year came with some good news of hope for justice. On January 18, the Colombian Constitutional Courtpublished a decision that incorporated conditions that the peace community of San José de Apartadó has long articulated as necessary for re-establishing dialogue and overcoming its eight-year-old rupture with the Colombian government.
We urge readers to contact Colombian President Juan Manuel Santos to press him to comply with the ruling.

The Rupture

Until February 2005, the San Jose de Apartadó Peace Community and the Colombian government had been negotiating implementation of the protective measuresafforded to the Peace Community by the Inter American Human Rights Court since 2000. The protective measures,subsequently reaffirmed by the Colombian Constitutional Court, had to be consulted with the Peace Community. Among them was the installation of a police post near – but outside of – the center of San Jose de Apartadó. Luis Eduardo Guerra was the peace community’s spokesperson.

In February 2005, Army and paramilitary soldiers committed the massacre that took the lives of eight people, including Luis Eduardo Guerra and three children. This was a breaking point in the peace community’s trust in the Colombian state. The Colombian army’s role in the massacre immediately evident to the Peace Community. A few days after the massacre, President Uribe publicly accused the Peace Community of having ties with the leftist FARC guerrillas and, by-passing the required consensus for protective measures, unilaterally installed a police and military base inside the town center of San Jose de Apartadó.

The Peace Community was then forced to displace from the town of San José de Apartadó and broke formal contact with the Colombian government. The break extended to the Colombian judicial system: there had been hundreds of crimes against the Peace Community prior to the massacre, for which no one had been held accountable. Witnesses who had come forward to denounce the crimes had been threatened, and in some cases killed. If that wasn’t bad enough, there were several cases of baseless prosecution against Peace Community members, leaders, and supporters.

Colombian Constitutional Court: The Exception

In 2007, the Constitutional Court, through a discretionary review of a writ of protection, tackled the question of justice for the crimes against the Peace Community. At issue was a request submitted through a petition, similar to the Freedom of Information Act, by Jesuit priest Javier Giraldo on behalf of the Peace Community. The petition asked the Defense Ministry to disclose the names of officers involved in a series of military operations in which the rights of the peace community had been violated, so that the Peace Community could document the grievances and, eventually seek recourse in international courts. Arguing privacy concerns, the Army consistently refused to release the names of the officers.

In its 2007 ruling, the Court made a detailed inventory of crimes against the Peace Community to determine whether justice had been served. It listed 150 killings, 14 forced disappearances, 91 arbitrary detentions, 55 cases of torture, 92 cases of threats, 17 forced displacements, 48 cases of theft, and 20 cases of indiscriminate bombing. The magnitude of aggressions led the Court to conclude that “the Peace Community members have been the subject of continuous persecution and harassment,” that the community needed to be protected, and that those responsible for the crimes must be held accountable.

The court also addressed the Peace Community’s rupture with the Colombian state. Indeed, the court found the crimes were in almost 100% impunity, and found that the Peace community’s refusal to cooperate with the judicial system, by filing formal complaints and giving depositions, was a reasonable response. Furthermore, the Court issued a series of orders to “protect the Peace Community’s rights to access to justice, truth and reparations and to rebuild trust with the agencies charged with their protection.”

By 2012, the Constitutional Court became concerned that the plan it laid out on its 2007 ruling was not yielding positive results. It noted obstacles both “in terms of concrete results from criminal investigations and procedures against those responsible for human rights violations against the Peace Community, and also in the actions to rebuild trust between the Peace Community and the authorities charged with the protecting and guaranteeing their rights.” That led the Court to hold a technical hearing in March, with the ministers of Defense, Justice, and Interior, the Attorney General and the Ombudsman. The Court gave clear instructions that if those high officials choose to send a representative to the hearing (instead of coming in person), that representative would not be allowed to intervene. The Court sent a detailed questionnaire in advance. At the hearing, the Court asked questions about compliance with the 2007 ruling. Each official was given ten minutes to speak and each comment was followed by ten minutes of response by the Peace Community. A summary of the arguments can be found in A164/12.

The rest of 2012 went by, and after studying the responses, the Court issued the ruling that includes a road map for generating conditions to rebuild confidence. The road map included basically all the conditions that the Peace Community said were needed to reestablish dialogue with the Colombian state.

Reaffirming the Peace Community’s neutrality

The Court ordered the Minister of Interior to coordinate a formal retraction by the Colombian Government of the accusations made against the Peace Community and its accompaniers and to design a procedure to avoid repetition of stigmatization.

This point might seem superfluous for those not familiar with the consequences of being labeled  a combatant or collaborator with an armed group in the context of the armed conflict. In these circumstances, such accusations turn civilians into military targets, seriously impacting their security. The peace community and the Interior Minister have already started preparations for that retraction to be delivered by President Santos before both chambers of Congress, in a solemn session, akin to the request for forgiveness for the 1994 killing of leftist Senator Manuel Cepeda.

Breaking the cycle of impunity: For years, the Peace Community requested an independent commission to examine the reasons behind the failure of the judicial system towards the peace community, sensing that the structural inefficiencies of Colombian judicial system were not the origin. Such an inquiry would not only help to advance key criminal investigations; it would also help in holding public officials accountable for their role in obstructing justice.

In June 2011, thanks to grassroots support, members of the U.S. Congress endorsed the peace community’s request through a “Dear Colleague” letter addressed to Colombian Vice-President Angelino Garzón. The Constitutional Court addressed this request by mandating the creation of a justice evaluation commission, which is to include several Colombian agencies, the peace community, and three advisers of its choosing. Furthermore, the court gave the commission a six-month deadline to report back to the court.

The Court also ordered the creation of a “house of justice” where the peace community may file complaints about future violations. Additionally, the court ordered the Attorney General’s office to issue a set of procedures for receiving and dealing with the complaints, taking into account the findings of the justice evaluation commission.

Real Protective Measures

The court addressed the peace community’s security concerns, returning to the implementation of the protective measures granted to the community since 2000. It mandated an inter-agency effort to produce, in the next three months, “a plan for collective prevention and protection that contributes to protecting the peace community’s life, integrity, security and freedom,” and through a consensual process, to identify a mechanism for adopting adequate protective measures that “don’t increase the risk for the community, its members and accompaniers.” Padre Javier Giraldo indicated in the technical hearing that any type of protection would necessarily include addressing the current threats from persistent the paramilitary presence in the community’s settlements.

Humanitarian Zones and Limits on the Armed Forces’ Powers

The Peace Community has for several years requested the Inter-American Court to recognize humanitarian zones – that is, designated buildings in each of the settlements where community members can take refuge during combat. The Colombian armed forces and government have refused to recognize humanitarian zones, under the erroneous argument that, under international humanitarian law, such areas of refuge could only be established to protect combatants, in the context of peace negotiations.

The Court rejected the Army’s argument, and instead reaffirmed the principles in international humanitarian law of distinction and military necessity, for the protection of the peace community as civilian noncombatants, and ordered the recognition of humanitarian zones, referencing a 1998 decision on the Pavarandó Afro-Colombian community. Thus, the court, in practice is setting clear limits on the armed forces’ power to wage war, setting an important precedent beyond San Jose de Apartadó for the protection of civilians in armed conflicts.

It is not clear to what degree the Colombian state will comply with the Constitutional Court ruling. But even if it doesn’t, the recognition of the injustice of the peace community’s plight is a great victory. It also makes easier the work of groups like the Fellowship of Reconciliation, who provide protective accompaniment and must explain again and again to members of Congress and diplomats the importance of supporting the peace community’s courageous stance for peace.