Friday, September 17, 2010

Peace or justice?

On 16 September 2010 the Bogota High Court issued a 26-page ruling in which it considers that the crimes committed by the M-19 guerrillas during the November 1985 occupation of the Supreme Court building constitute crimes against humanity, on the grounds that the occupation was an attack on defenseless civilians. As a crime against humanity, there is no statute of limitations for prosecution.

The M-19 was pardoned in the late 1980s as part of the group's demobilization. It became a left-leaning political party that was influential in Colombian politics, although a number of its high profile members were subsequently threatened or murdered. The party is now effectively defunct, although some of its former members remain active in Colombia's political scene.

The issue at the surface of this recent court ruling is one of justice versus peace. Amnesties and pardons do not serve the interests of justice and preventing impunity, but they do serve to ensure peace, which is sometimes the overriding concern of a society, particularly if those being pardoned have made full confessions of their crimes. In that case the interest of truth will be served, even if justice is not done.

The underlying issue here, and the one that is most disturbing in the current political context, is that of legal security or juridical security, which refers to whether a law or decree that has passed will remain stable or whether it can be overturned. In this case the government had to pass legislation to grant the M-19 guerrilla group pardon or amnesty.

The same debate has been raised concerning the validity and effectiveness of the justice and peace law through which paramilitary leaders have received reduced sentences for committing their crimes, as part of the demobilization process. A similar legal mechanism has been proposed to enable guerrilla groups like the FARC and the ELN to demobilize. How is the government going to encourage these groups to demobilize if there is no guarantee that the deals that the groups make to avoid prosecution or serve reduced sentences will not be upheld in court?

Effectively fighting the illegal armed groups in Colombia requires a carrot and stick approach. The Uribe government was very effective in unrelentingly combating the guerrillas and restoring public security in much of the country. At the same time it offered incentives to rank and file guerrillas to desert and demobilize, and thereby qualify for relocation, education, and aid. It appeared that the Santos government intended to continue to implement this policy.

The court's ruling throws a monkey wrench into the works. Who would be willing to confess crimes and demobilize, knowing that the deal for pardon could be overturned?

The fact that investigations have revealed that a number of the deaths attributed to the M-19 during the occupation of the Supreme Court were actually the result of the military operation to retake control of the courthouse is another issue that also merits further examination.

The Bogota High Court's decision goes against the interests of peace in Colombia, and peace should be the country's prevailing priority. For legal security and for peace in Colombia, the pardon should stand.

Pictures of individuals who went missing during the operation to retake control of the courthouse.

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