(Washington, DC, August 25, 2016) – The agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on August 24, 2016, to end their 52-year conflict is an unprecedented opportunity to curtail abuses in the country, Human Rights Watch said today. But it includes a serious defect that risks its unraveling: a flawed victims’ agreement reached in December 2015, that could guarantee impunity for those responsible for human rights abuses and war crimes.
Peace talks with guerrillas, which began in October 2012, involved partial agreements on five points in the agenda in addition to ending the conflict. They include political participation, victims’ rights, and drug policy. The government will hold a national plebiscite to approve the agreement in the coming weeks.
“FARC’s commitment to demobilize and disarm should end a tragic and bloody chapter of Colombian history and help bring relief after years of violence and abuse,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But the negotiating parties seriously undermined this opportunity for a sustainable and just peace with a so-called victims’ agreement that fails to fulfill the rights of those who suffered some of the worst atrocities.”
Since its formation in the mid-1960s, the FARC, Colombia’s largest guerrilla insurgency, has been responsible for systematic abuses against civilians. The guerrillas have killed and abducted civilians, taken hostages, carried out disappearances, engaged in widespread sexual violence, used child soldiers, conducted grossly unfair trials, forcibly displaced civilians, and subjected captured combatants to cruel and inhuman treatment.
As it stands, the victims’ agreement ensures that those most responsible for these atrocities will escape genuine justice by allowing people who confess their crimes to avoid any remotely serious form of punishment.
Under the agreement, FARC guerillas who confess could avoid prison time or any “equivalent” form of detention. Instead, they would be subject to sanctions amounting to modest and short “restrictions on rights and liberties” while being required to carry out projects to assist victims of the conflict. The numerous ambiguities and loopholes in the agreement could allow confessed criminals to be released from any such restrictions before their sentences are completed and to avoid any consequences if they fail to comply with the sanctions against them.
Similar sanctions would be applicable to members of the armed forces, probably including many of those alleged to be responsible for the systematic execution of thousands of civilians to boost the military’s count for enemy casualties – known as “false-positive” cases – by army brigades across Colombia between 2002 and 2008.
“Allowing confessed and convicted war criminals to be ‘punished’ by no more than orders for community service is grotesquely insufficient,” Vivanco said. “The international community should not turn a blind eye to this façade of justice in the name of peace.”
Other troubling features of the justice agreement include a definition of “command responsibility” that could be interpreted in a manner inconsistent with international law to allow military commanders within the Colombian armed forces and the FARC to avoid responsibility for crimes carried out by their subordinates. Unlike the definition established in international law, the agreement could require proof that commanders actually knew of human rights crimes committed by their troops, rather than merely had reason to know of them.
“If the Colombian government is serious about ensuring a sustainable peace and respecting victims’ rights to justice, it should use the implementing legislation to fix the serious flaws in the victims’ agreement,” Vivanco said. “For starters, it should amend the agreement to ensure that commanders are held responsible for crimes committed by their troops and to fix ambiguities that may allow inadequate sanctions for confessed criminals.”