Special forces soldiers march in a military parade. Fernando Vergara / AP/Press Association Images. All rights reserved.
Colombia is currently
setting up a new, innovative and unique
system of justice for its
transition, based on two precepts: first, the enforcement of a constitutional
framework (a legal-political framework for peace),
and second, the dialogue with the main armed group, the Revolutionary Armed
Forces of Colombia – People's Army (FARC), outside the existing law
of the country (negotiating table horizontality).
Bearing in mind the first precept
and out of due respect for the Constitution
and the Law, the Colombian government
has argued from the outset that the
armed forces will not be subject to negotiation in Havana. And so it has been,
and has been ratified by the two Army Generals sitting
at the table as plenipotentiary negotiators. In fact, the
recent agreement on justice in Havana had a unilateral component,
for the ministers of justice and defense signed a document, in the parade field of
the José María Córdova Military School of Cadets in
Bogotá, containing the government’s
commitment to "circumstantial justice" for state agents – that is, including members of
the security forces.
The symbolism
of the act carried out at the military school is strategic for the institutional and collective memory of the armed forces in the last fifty-two years. The
more so, because it took place on the
day of the promotion to major general of the current commander of the Colombian Army,
charged with the task of undertaking the greatest
transformation of the force that has
been instrumental in the war, and
will undoubtedly be crucial as well in the building of peace. This transformation is not due to immediate contributing factors,
but is rather the result of a specific policy
that stems from 2006, when the strategic directives for the engagement guidelines for the armed forces, the Comprehensive Policy on Human Rights and International Humanitarian Law,
and the professional organization of operational legal advisers, began to be developed.
There
are many challenges regarding the security sector and the security
system – depending on whether you follow the UN or
the OECD position on military transitions – which have to do with the understanding
and the scale of the institutional reforms in the Ministry of Defense, the military
and the police. Here we shall try to address five of these challenges, namely:
1. Understanding the difference between the performance of the Colombian Armed
Forces and that of the armed forces in other countries where there have been
expressions of structural violence as a result of authoritarianism or civil war;
2. Understanding the processes of institutional transformation and their evolution,
and balancing them with the recommendations from the Commission on Clarifying
the Truth; 3. Understanding from international experiences the failures in
military and police transitions and their effects on security; 4. Analysing the
international standards in non-repetition guarantees that may be applicable to
the military and police transition in Colombia; 5. Redefining the roles, the functions
and the mission of the armed forces and the police in a complex multi-criminality
context.
1.
Creating an
educational strategy on violence in
Colombia, the role of the armed forces, and the difference with other experiences in overcoming the past
The
case of Colombian violence differs from that in the Southern Cone, Central
America, Eastern Europe, Africa and Asia, in situations which led to political
transitions towards democracy, whether by overcoming authoritarian regimes or
overcoming civil war in the classical sense. While the Colombian experience
does not differ in terms of the gravity of many of the facts, it does differ
significantly as regards the components that have defended the state, the
different governments, and even some members of the international community.
Colombia
is a country with respectable, century-old institutions, a functioning
democracy, and recognition of the armed forces by the people, both in urban and
in rural areas. This is what key polls (Gallup, 2015) and serious studies by
the University of the Andes and the Barometer of the Americas (Barometer, 2015)
indicate. However, many sectors consider that the Colombian case fits within international
and regional experience, which generates the strategic challenge of having to
demonstrate at all levels and places that it is just not so.
In
these days of celebration of the fifteenth anniversary of the Plan Colombia, we
are precisely reminded of the enormous difficulty to convince the US Congress
at the time that the Colombian case was not the same as those occurring
elsewhere in the continent at times of democratic breakdown, and how this feat
was achieved. A stronger pedagogy is needed to show the world why transition in
Colombia is unique, why transition standards that have been adequate in other
latitudes cannot be applied to the Colombian Armed Forces, and why these military
and police forces have had a strategic propitiating role in ending the armed
conflict.
2. The transformation of the security and defense sectors and the recommendations of a Truth Commission
Perhaps
one of the strongest challenges Colombia will have to face in the coming years
will be the evaluation of all the changes that have been occurring in the armed
forces, mostly in the last decade, regarding extrajudicial truth with a high historical
memory content – that is, the victims’
narratives delivered in a Truth Commission. If comparative experience is
transposed without contextualization, or if international law transplants are
taken in with eyes shut, we may come against many a problem in assuming the
role of the security forces during the different stages of the armed conflict.
Considering
the fact that our transitional justice has been adopting judicial and
extrajudicial truth criteria when applying restorative and retributive justice and
flexible punitive sanctions, it is clear that the non-repetition guarantee macro
strategic scenario will be extrajudicial. Great care will be needed to assess
the changes in the security and defense sectors, along with the recommendations
of the Truth Commission.
3.
Comparative experience shows significant failures
in the administration of justice for military and police transition in the regional context
The
2014 Compared Defense Atlas of the Latin American Security and Defense Network
(RESDAL), shows that 94% of the military forces in the region are used against
traditional and new threats to public safety which were traditionally assumed
by the police. In addition to this, 76% of the countries in the region also use
their army, air force and navy to fight drug trafficking. The Northern Triangle
(Guatemala, Honduras, El Salvador) is the most violent sub-region in the world,
with Honduras ranking first in the world’s murder rate.
Today,
many of these countries and slowly some others in the Southern Cone too, such
as Argentina, are progressively militarising again their societies, only three
decades after recovering democracy. Colombia, together with the demobilization
of the paramilitaries and the emergence of criminal gangs, by the end of the
last decade has seen a decline in the perception of public safety and an increase
in phenomena that affect the daily lives of citizens. In the light of
international experience, could radicalization in some security and defense
sector transitions be the cause of the current phenomenon of rampant crime?
This is a question that is also a challenge for the nation to respond. I
personally believe it is.
4. Are international standards in no-repetition guarantees to be transplanted in
Colombia?
Another
unique challenge for Colombia as a nation is to understand whether the
international legal principles (soft law) for fighting impunity, conceived in
other contexts, can be transplanted to Colombia, particularly in relation to
military and police reform. Issues such as depuration, the disappearance of special
branches (such as military intelligence), the reform of principles of policy
and study programs, have to be examined and analyzed very closely, as they could
possibly be counterproductive.
For Colombia
is the state in the region that has done the most in training soldiers and
police in Human Rights and International Humanitarian Law, according to the
Ministry of Defense data for November 2014, and is in the lead in operational
law, as the American System of Human Rights has recognised. The degradation ensuing
from the war and the existence of elements such as the drug-trafficking
financing, the seizure of the state, human trafficking, and trafficking in
animal species, among others, cannot lead us to make decisions that could
affect security in the post-conflict stage in the medium and the long term. We
believe that there are no standards, in general, that can be transplanted to
Colombia in this field. The issue, however, is worth studying further.
5. Roles, missions and functions
One
of the most interesting challenges in the post, agreement- consolidation stage
will be how to define the role, the mission and functions of the armed forces
and the police. The bottom line here is when to carry out the separation of the
National Police from the Ministry of Defense and how to foster a civilian
vision that has not been able to consolidate due to the armed conflict and to the
existence of many militarised elements in the police force. In this sense, the
real challenge here is not whether the armed forces of the police should be
separated – which is something that has caused some difficulties in the past as
far as the missions, roles and functions are concerned, but has also certainly
determined the operational strategic triumph over the insurgency -, but when.
The issue is when, and how, and any error in this could entail many problems
international experience warns us against, particularly when a global rethinking
of the role of the armed forces in democracy is under way, in the face of security
threats never imagined before.
As can be seen,
there are too many challenges and too many edges in them to treat them properly
in such a brief space. The truth is that there are
no magic formulas to solve the problems of structural violence derived from the
war in Colombia, where the armed forces have been essential in generating a
space for negotiation and for the likely ending of the armed conflict. At the
same time, the Colombian Armed Forces have had to face violent phenomena that
the Colombian population has deemed much more serious than the armed conflict
itself, as evidenced by studies carried out by Forensic Medicine (2015) and the
Judicial Investigation Department of the National Police (Dijin) through its
crime report published annually since the 1960s.
To a
casual observer, even to a trained researcher lacking experience in the field,
the Colombian case is similar (in terms of violence indicators) to other cases
in the region that originated international standards for fighting impunity.
Yet the naked truth is that the Colombian case breaks all previous patterns and
will surely become a model for overcoming non-international armed conflicts in
the 21st century which cannot, in all cases, be categorized as civil wars.