Thursday, August 7, 2014

Court Backs Colombia’s Transitional Justice Law

Yesterday, the day before he assumes office for his second term, Colombian President Juan Manuel Santos won a significant political victory. The Legal Framework for Peace, a transitional justice law that the president supported in 2012 as a necessary step towards ending the conflict, was upheld by a Constitutional Court ruling.

While Reuters claims that the ruling “throws into doubt agreements reached between the government and leaders of the Revolutionary Armed Forces of Colombia (FARC),” this is inaccurate. The law was passed even before formal talks began, and negotiations have continued even as the Constitutional Court has upheld it in the past.

The Legal Framework for Peace allows demobilized members of armed groups to hold political office, and authorizes officials to selectively prioritize the investigation and prosecution of crimes committed by guerrillas, with the exception of crimes against humanity. Last year the Colombian Commission of Jurists challenged the measure on the basis that selective prosecution amounted to the government waiving its constitutional mandate to investigate abuses, but this argument was shot down by the Constitutional Court. In its August 2013 ruling the court upheld provisions that allow armed actors to serve alternative sentences for some crimes, but found that these groups must first comply with certain guidelines, including turning in weapons, releasing minors among their ranks and locating the bodies of their victims.

Yesterday’s ruling came in response to another, separate challenge to the law, this time presented by Uribista and former deputy Defense Minister Rafael Guarin. As El Espectador reports, Guarin sought to further restrict the conditions under which demobilized guerrillas could eventually run for office. This was rejected by a 6-3 court decision.

Even despite these two rulings, however, the issue of the FARC’s participation in democratic politics is far from set in stone. As La Silla Vacia notes, the Legal Framework for Peace requires Congress to pass secondary laws defining two key issues. The first of these is the criteria which the public prosecutor’s office should use to determine which rebel crimes to pursue for investigation. The court provided some guidelines for this in last year’s decision, but lawmakers will have fill in the specifics. While Santos’ coalition holds a majority in both houses, the vocal opposition led by former President Alvaro Uribe will make this no easy task.

The second issue is defining what exactly constitutes a “political crime,” or rather, which offenses rebels can commit (beyond crimes against humanity) while remaining eligible to hold office. This effectively means that lawmakers will have to make some tough decisions about the political nature of the FARC’s armed activities. As La Silla asks, “If a soldier is detained in combat, is this different than if he was taken while unarmed? Or if a politician is kidnapped, is this different than if his child was taken instead? ”

A separate question involves the extent of criminal liability of the FARC’s leadership figures. Under the principle of command responsibility, the majority of the FARC Secretariat could be held accountable for crimes against humanity. As Semana magazine reports, a strict interpretation of the Legal Framework for Peace would allow just two of the FARC negotiators currently in Havana to hold office:  Rodrigo Granda and Jesus Santrich.

News Briefs
  • On August 11, a new penal code will go into effect in Ecuador which includes a new range of sentences for drug crimes corresponding with the quantities involved, from two months to simple possession of certain substances to 13 years for large-scale trafficking. In an interview published by El Comercio yesterday, Public Defender Ernesto Pazmiño claimed that, because the reforms will apply retroactively, they could allow as many as 2,000 people imprisoned for drug offenses to be released for having already served their sentences under the new guidelines.
  • Spain’s El Pais reports this morning on the fact that so far, none of the three methods of accessing marijuana legally that are detailed under Uruguay’s law -- home cultivation, commercial sales or joint cultivation by “membership clubs” -- have so far been authorized in the South American country. Uruguayan paper El Pais, meanwhile, reports that the site chosen for commercial production is adjacent to a maximum security prison, and will count on a security detail of some 50 federal police.
  • Late last night the Mexican Senate approved a package of energy reforms that will effectively end the country’s longstanding government monopoly over the oil and electricity sectors. As El Universal reports, the 21 laws were passed by senators of the ruling PRI party as well as from the PAN and Green Party, while the center-left PRD and PT opposed the reforms. The laws will now move to the desk of President Enrique Peña Nieto, who has made energy reform a core focus of his presidency.
  • In response to the recent Associated Press story on USAID operations in Cuba, a Costa Rican human rights organization founder identified by the AP as a USAID contractor paid to identify and recruit opposition youth leaders on the island has criticized the AP’s coverage. In a statement published on his group FundaOGI’s website on Monday, Fernando Murillo said the AP had “manipulated information in order to make it look like FundaOGI had instructions to set up cultural and artistic activities in an undercover way for destabilizing ends, which is totally false.” However, the Tico Times reports that after profiling Murillo’s statement it received a response from the AP linking to supporting documents which show he was included in instructions regarding covert communication while in Cuba, proving he “knew full well he was engaging in activity that was intended to help bring social and political change to Cuba.”
  • Today’s New York Times features an op-ed by Daniel Lansberg-Rodriguez, a former columnist at Venezuelan newspaper El Universal who was dismissed from the paper last week. Lansberg-Rodriquez describes the paper’s recent sale to a mysterious  Spanish company as a form of “stealth censorship” that is becoming increasingly common under the administration of President Nicolas Maduro, pointing to similar approaches to the Globovision and Cadena Capriles media companies.
  • In a column for The Guardian, author Greg Palast argues that Argentina’s conflict with so-called “vulture funds” could be put to a swift end by U.S. President Barack Obama, if he just claimed that the case against Argentina was interfering with his authority to conduct foreign policy.
  • The Wall Street Journal profiles the work of the Grandmothers of the Plaza de Mayo following Monday’s announcement that the biological grandson of the group’s leader, Estela Barnes de Carlotto, had been found. Meanwhile, BBC Mundo reports that the news has sparked a so-called “Guido Effect” (after the birth name of de Carlotto’s grandson), with the number of both adopted individuals and potential relatives requesting to take DNA tests or receive information about those disappeared has surged in recent days.