Justice | 1/14/2009 12:00:00 AM
The price of freedom
The Colombian government’s announcement that they will free guerrillas who hand over hostages has set off a debate over impunity and the moral relativity of justice in the country.
Rueda’s case, which took place only a week ago, is an example of the type of situations that the government wants to resolve with a new decree, by taking articles from several laws, would give immense legal benefits to guerrillas who hand over hostages.
Rewards are not enough, though. The guerrillas - especially the mid and high-level leaders – know that although they could earn millions by handing over hostages, they could end up in prison. That is what sadly happened to the famous “Rojas,” the guerrilla who killed and cut off the hand of the commander “Iván Ríos,” who because of his criminal record and indeed for killing “Ríos” is in prison and faced with very complicated legal situation. The same question was also raised in the case of the guerilla “Isaza,” who despite his praiseworthy deeds of fleeing with and protecting Óscar Tulio Lizcano, he had judicial processes underway, which were finally shelved.
What the government is seeking, according to what High Commissioner for Peace Luis Carlos Restrepo has publicly said, is that on the one side that the guerrillas can be included in the Justice and Peace Law, thanks to an article that says that such a law not only applies to negotiation processes but also to humanitarian exchanges. The government had already issued a decree months ago which presumed that there was a humanitarian agreement between a guerrilla and the government when the former handed over his hostage.
But the Justice and Peace Law is insufficient, because in any case, whoever benefits from it must spend a minimum sentence of four years in prison. It is very difficult to offer an insurgent who takes risks such as escaping in the jungle just to end up serving time. That is why the government wants to also use the Law of Public Order, which would suspend punishment in the case of peace processes.
This legal stretch has an objective: freedom for those guerrillas, if it is they who have guaranteed the freedom of the hostages. Behind these legal maneuvers, the political message is that there will be no humanitarian exchange, and that the government believes it can obtain more liberations on a one by one basis even though it must twist the law. In fact, Restrepo’s announcements seem to be the official answer to the FARC’s announcement that they will soon unilaterally free six hostages.
Although the decree still is not public, the mere announcement by the government set off alarms among analysts and human rights defenders. Nobody questions the good faith and the pragmatism with which the government is acting, but some sectors are worried about the consequences that a decree of this nature could have.
In principle, the government has sent a confusing message by lumping together a guerrilla like Rueda, who perhaps does not have in her criminal record other crimes against humanity and who the very minister of defense called a “victim” of the FARC and “Mono Jojoy,” who is known to be responsible for some of the worst atrocities against the civilian population in the country and who according to official pronouncements could also receive those same benefits.
A security policy, such as one that provides incentives for desertion, no matter how important or effective as it could be, cannot become license for impunity of war crimes and crimes against humanity. With the Justice and Peace Law the institutions and society have made a great effort to ensure minimal standards of justice, truth and reparation. Dismissing those standards would be a slap towards the victims.
But if ethically and politically the government has difficulties so that its proposal will be accepted, there are many more obstacles in the legal realm. On the one hand, the Justice and Peace Law covers crimes committed until July 2005. Therefore, kidnappings committed in the last three and a half years are not covered by this law. Neither is it very clear whether the pardons included in the Law of Public Order can be applied, which authorizes those pardons only in the context of peace processes.
“It would appear difficult to avoid some minimum punishment involving incarceration. But at the same time I do not think that Colombia will be subjected to international law given the context of liberation of hostages,” says the expert of international humanitarian law Rafael Nieto Loaiza.
International precedents do exist of laws that benefit guerrilla deserters. In the 1970s, Italy made one with the Red Brigades, and later with the mafia, shortening prison terms for those who informed on their superiors. They were known as pentiti or the remorseful. Although it had relative success as a security policy, the abuses committed by them, their repetition of offenses and ensuing revenges led to the abolishment of the policy.
In 1992, Alberto Fujimori also issued a decree in Peru valid for two years in order to authorize benefits to deserters. In two years there were 6,000 reformed Túpac Amaru Revolutionary Movement (MRTA) and of the Shining Path (Sendero Luminoso) who surrendered, among those including the man who informed on Abimael Guzman, the Shining Path head. Fujimori directly managed this benefits program because the Congress and the justice department were under his control.
The great risk that Colombia has is that the military objectives lead to a back-handed change in the laws. Only just two weeks ago the government announced that it would include the FARC prisoners in the Justice and Peace Law, recurring to an exotic interpretation of this law that was made for peace processes and not for indulgences.
Currently the objective is to seek freedom for the guerrillas who turn themselves in specifically in kidnapping cases. Months ago the government also sought how to offer legal incentives to the mid-level commanders who desert their organizations (even without hostages). If it is true that many of them, like “Karina” have preferred to turn themselves in, accepting the conditions of the Justice and Peace Law and spending some time in prison, those are exceptional cases. For “Karina” - and others like her - prison was the best option, because she was defeated and surrounded. But many FARC leaders who could desert don’t do so out of fear of spending the rest of their lives in prison.
The danger is that based on decrees, the government is opening up a path for impunity, first with the imprisoned guerrillas, with the argument of obtaining the liberation of hostages, and finally with the objective of destroying the FARC. It is the old dilemma between the desperate search for security and citizen tranquility, the due course of justice and ethical and moral imperatives.
In any case, the experience shows that such exceptional decrees like the one that the government is producing can only be managed for a short time, with very precise objectives and beneficiaries. Otherwise, it could become a double-edged sword that results in diminishing the state of law and political morality of a society. Will that be the price that Colombia will have to pay for the liberation of the hostages?