The situation is even more complicated if the context that produces this acceptance of responsibility is considered, as, in a so religious and non-critical society, unfounded speeches can lead to imposing delirious versions and apparent truths over the causes and consequences of the internal armed conflict.
On one side, there is the Government that does not have a clear peace policy and contrary to several serious aspects of the Peace Agreement signed in 2016 with the Revolutionary Armed Forces of Colombia-People’s Army (FARC, for its Spanish acronym) especially, concerning the Special Justice for Peace Court (JEP, for its Spanish acronym). Recall that at the beginning of the administration of President Iván Duque he acknowledged that the Constitutional Court of Colombia had fulfilled their mandate declaring the JEP Statutory Act as enforceable, although used his power to object to this act for reasons of inconvenience in six aspects, one of which was the competence between public entities and servants, including the Office of the Attorney General 1.
This, in the opinion of the Government, was inconvenient for the impunity that could be produced and also affected the interests of the victims as the judicial proceedings the Office of the Attorney General was to be abstained from taking action were not precisely determined, additionally producing waste of “valuable experienced and capable investigative resources” 2.
In this sense, the governing political party –the Centro Democrático– has been reiterative not only over the idea that the Peace Agreement is illegitimate, but that the JEP is biased and tailor-made and in function to the interests of the former terrorist group. What is more serious is that it has, unknowing the JEP’s internal processes and procedures, made a lot of people think that truth is only on the side of FARC and they will be set free with a slap of the hand.
Several members of this party have gone further saying that by using JEP to their favor, FARC is just looking to cover-up the true instigators of the killing of the conservative leader.
In regards to the Office of the Attorney General, President Duque praised the progress of the investigation into the killing of Gómez Hurtado, and “requested” the JEP to not allow “the obstruction of justice behind this slaying”3, hinting that they were looking to obstruct justice to cover the real instigators of the assassination. If we add the unawareness of the President and members of the Government over more than one ruling of the Higher Courts in regards to other matters, such as social protests, we are at risk of breaking the balance of power. It is inadequate for a President to send these kinds of messages in a democracy, as it biases the task of institutions such as the Office of the Attorney General and well as the JEP.
With the argument that Gómez was a radical opposer to the Government at the time of his killing, some have said former Ernesto Samper and his Minister of the Interior, Horacio Serpa, were the minds behind the crime. However, this hypothesis loses force if we take into account that Samper appointed three very close allies of Gomez as Ministers. This speech, without proof, has undermined the work of the JEP, which has just begun in this regard.
We must recall that the Ley de Justicia y Paz Court had the first transitional justice experience in Colombia after the agreement with the United Self-Defense Forces of Colombia (AUC, for its Spanish acronym) and produced the first important results only after 10 years of enforcing the Ley de Justicia y Paz (Peace and Justice Act).
Another element of this scenario that makes applying justice in Colombia more complex is impunity. Since the slaying of political leader Jorge Eliécer Gaitán, then the killing of the leader of the Unión Patriótica, and the assassination of several presidential candidates such as Jaime Pardo Leal, Luis Carlos Galán, and Carlos Pizarro, up to the recent killings of former FARC members and social leaders, the Colombian justice has not been capable of solving any of these crimes.
Although for 25 years several hypotheses over the slaying of Álvaro Gómez Hurtado were explored, none of them provided convincing results and the Attorney General had already thrown out the responsibility of FARC-EP. From here, where are the valuable investigative resources, the experience, and the capacities the president is referring to? Why in 25 years justice has not been able to find the responsible parties?
The issue of knowing, discovering, or building the truth has different answers according to the place the facts and actions are judged. Only in the case of religion is truth built unilaterally and no controversy is admitted. Science may aspire to build reasonable and persuasive arguments, but never a definitive truth. In law, there are at least two types of truths: real truth–linked to the concept of memory where the narration and the manner how it is built plays a central role–and legal or procedural truth, where a judge compares two or more contradicting speeches and establishes, based on evidence, the responsibilities of the facts.
The greatest issue is when reality and procedural truth are incompatible, in other words when the story contradicts or cannot be corroborated and this is precisely the scenario and challenge that transitional justice must face in Colombia. For the tranquility of the victims, transitional justice has evolved significantly in this sense. If in the proceedings of Justicia y Paz, truth and investigation terminated in the behaviors confessed by the indicted, in JEP the versions of the incriminated will be compared with the versions of the victims, and inclusively they (the victims) may participate in defining the punishment that could be imposed.
Read more: How false are false positives? (in Spanish).
Different to the ordinary proceedings that begin with the presumption of innocence and where the prosecutor–the Attorney General needs to investigate and prove the guiltiness of the charged; in the transitional justice and specifically JEP, the presumption at the beginning is different, i.e. the implicated assume their responsibility in regards to the facts that are a matter of investigation. But that doesn’t end there, as the Peace Agreement in article 23 of Act 1448 of 2011 says, “the victims, their next of kin and society as a whole, have the imprescriptible right to know the truth concerning the reasons and circumstances of the violations of article 3 of the current law and in case of death or disappearance, to know the fate of the victim and the clarification of where they are.”
In this sense, the truth in JEP is clarified in a rigorous dialogue process and it is not enough that the responsible parties accept their responsibility, but they also need to provide the truth comprehensively of the conditions of how, when, and where, as the reasons that led to the facts. This also needs to be verified by JEP in a process, where different from Ley de Justicia y Paz, the contribution of the victims and human rights advocates play a fundamental role. Later the penalties will come and will be established according to the conditionality regime where the victims may also participate not only to verify compliance but also in determining the type of penalty imposed according to the abovementioned conditionality regime.
Due to the previous, it is not logical to say that JEP will provide impunity to the slaying of Álvaro Gómez Hurtado, but on the contrary, for the first time in 25 years, there is relevant information on the matter and pursuant with the JEP proceedings, it needs to clarify the matter completely by establishing the responsible parties and the patterns of criminality that were behind the assassination.
1 Part J or article 79, on JEP competences, says, “public organs and servers that continue the former investigations may only carry out these acts according to the procedure, refraining from providing rulings, impose incarceration measure, order arrest orders or comply with the previously ordered, involving people whose behavior is the competence of JEP”.
2 Se Presidential speech of March 10, 2019, at https://www.youtube.com/watch?v=QQ3LStDXH4M
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