Sebastián Escobar on the Special Jurisdiction for Peace and victims' participation

in our logic as activists, we hold a much more absolutist position on how justice can be done

Sebastián Escobar is a lawyer and member of Colectivo de Abogados “José Alvear Restrepo” (CAJAR), a human rights NGO in Colombia.

Interview conducted by Ludmila Cartier (promo 2019)


1. How could we define the extent of victims’ participation in the proceedings of the SJP and what are their rights?

I do not believe that the victims participation framework has been fully defined yet. The Special Jurisdiction for Peace remains a sui generis procedure which has just begun to take shape. Ever since the implementation of the SJP’s normative phase began, we have been strongly advocating at the National Congress – and afterwards at the Constitutional Court – in order to ensure the broadest possible participation of victims. So far, we have managed that the National Congress include a provision in the SJP Statutory law which provided that victims could participate according to the rights and standards enshrined in international law. From that moment onwards, we fought for the highest standards of participation.

This is in theory however, because in practice there has been a lot of debate on participation. We had, for example, a first hearing against the army official Mario Montoya Uribe, who was commander between 2006 and 2008. The large majority of victims had not been notified on participation for this hearing. Due to the context of macro criminality and the hundreds of victims, there was a debate again on their participation and whether they should be informed about the hearing. We took a maximalist stance and argued that all victims should be called. And now this decision on the extent of victims’ participation is in the Appeals Section of the SJP where they will also decide on the rules for communication with the victims.

Another debate we began to have has to do with participation in the voluntary statements. The SJP – and in this case I talk about the case 003 [false positives] because this is the one we have worked on the most – already began to gather some voluntary statements. If we look at the procedural law of the SJP, this means that we are at a sort of first investigation phase. They maintain that victims are not included in this phase and that they can only make their observations once the criminal prosecutions are over. We argued strongly at the Chamber that it would be much more efficient if victims were directly included in the hearings and conducted the interrogations or observations within the framework of these hearings.

We first pointed out that the precedent of transitional justice we had in Colombia – the Justice and Peace law – allowed precisely this. There was a mechanism which permitted both the prosecutor and the defendants – in this case the paramilitaries – to gather in a Chamber and, in another separate room, there were all the victims. It was also a context of macro criminality but victims could participate in and observe the interrogations. They were also able to interrogate from the other hearing room. But we are worried that this will not be the case anymore and that the voluntary statements will only be shared afterwards. We also believe this is a wrong interpretation of the dialogical principle contained in the law and the Legislative Act (the norms which developed the system and the SJP). I have the impression that for them, dialogical implies a lack of controversy, especially since they interpret it as the opposite of the adversarial principle. But we interpret the dialogical principle as the possibility of having a real dialogue between the perpetrators and the victims. A dialogue which will ultimately establish the truth from both actors’ points of view. This discussion is still ongoing, however. They told us that their main concern was that it could lead to the revictimization of victims. We believe this is an excessive paternalism that should not be the position of the judiciary. The victim is the person that should decide whether there will be a situation of revictimization in front of the perpetrator, not the judge.

And yet, we used to have a continental tradition of criminal law in Colombia until 2004, in which participation of victims as civil parties was relatively broad. But then, the accusatory criminal system placed the centre of the debate between the Defence and the Prosecutor, and victims were excluded from participation. There is an intent from the Colombian Constitutional Court to weigh these principles but, in the end, the adversarial principle and the accusatory criminal system remained very central.

There are two types of proceedings at the SJP. There is the dialogical proceeding in which the defendant recognises his or her responsibility. But when there is no recognition of truth nor responsibility, there will be a proper adversarial trial. We also have concerns in this case, since victims’ participation is much more limited within the accusatory and adversarial proceedings compared to the normative and procedural precedents of Colombia.

In the SJP system, victim’s participation is more or less the same as in the ordinary justice system. But we consider once again that it should have been different in the framework of transitional justice.

2. A year after the creation of the SJP, what are the main demands of the victims of state agents, in particular in the context of false positives?

I have had many concerns for different reasons. First, the context: there has been so many attacks from political factions here against the SJP. We also had the referendum and witnessed the rejection of the peace accord which resulted in renegotiations over many aspects of the agreement, particularly affecting the SJP. It is as if the jurisdiction was born with a crisis of public legitimacy. And the way the SJP responded to this crisis, in my view, actually gave a lot of power to the same sectors which attacked it. As a result, many critics of the SJP believe the jurisdiction is a place of impunity, particularly for FARC members. The public opinion is convinced that judges at the SJP are all leftist who do not understand the functioning of the military forces and who will only condemn these militaries.

And what has the SJP done in light of this legitimacy crisis? It shaped its discourse in saying that there will be no impunity towards the FARC and that members of the armed forces will get judicial benefits. It has reinforced the idea that it is a jurisdiction to judge the FARC and not to judge the crimes of the State. And this is something we find very worrying.

3. So in order to respond to criticism, an imbalance was created between the treatment of the FARC and that of the members of the military. Do you believe this is an ongoing trend?

This is a trend that continues and that is very difficult to fight. Besides, there are people involved in those cases who are still part of the armed forces and even hold high-ranking positions. It reinforces the idea that committing crimes is not an obstacle for advancing in the military career, but it also generates dangerous situations for the victims, the organizations and also for the investigations. Because if someone is a commander in the army, one can imagine that this person has an interest in hiding those crimes. Human Rights Watch just published a report today questioning the appointment of nine members of the military, among them Martínez Espinel, who is the commander of the national army. We are preparing a report as well on one of the appointees. But even though we believe that many difficulties exist in this context, the public discourse and the legal issues, we have always been supporting the SJP and its work, and we will continue to do so.

4. There is usually much more “impunity” in the framework of transitional justice. How will victims experience this in your opinion?

It will be very frustrating. I understand the question from a theoretical point of view but, in our logic as activists, we hold a much more absolutist position on how justice can be done. This is also our role, to advocate for greater justice.

We are working in such a way that the victims we represent retain participation in the cases that were selected. We have prepared ourselves so that victims would be recognised and could participate and be part of the cases that the jurisdiction will open. We also promote for the opening of new cases.

5. It is an interesting trend to see the public opinion focusing mostly on the FARC whereas it seems that there is much more impunity towards the state agents.

We will try to balance this issue which I believe is important. And this is part of the discussions we need to keep having with the SJP. We are also at a disadvantage because public opinion is largely focused on blaming the FARC. But we believe that the transformative character of transitional justice and the SJP could lead to a recognition of state criminality. Our concern is that there are people involved in cases that are still part of the military today, with all the consequences that this entails. New human rights violations are likely to happen.

In general, there is a lot of frustration. The SJP promotes a type of justice based on incentives that were given in anticipation. This means that all of those members of the military are free but have not yet contributed to the truth. And this is very difficult to explain to a victim. “The soldier who killed your son is free”. “Ah but why is he free?”. “Because he participated in the SJP”. “And did he tell the truth?”. “No”.

The usual reasoning behind transitional justice is that we lower our demands on impunity for a greater contribution to the truth. But they haven’t contributed in any way to the truth. And the more responsible they are, the commanders, the less they will accept to be held accountable.