On the morning of April 2, 31 former military officials got up early to meet at the Chisacá lagoon, nestled high in the Andes, 20 kilometres from Bogotá. In front of a group of victims from Usme and Ciudad Bolivar, two of the poorest neighbourhoods in Colombia’s capital, they took the first symbolic steps of a task they will be carrying over several months and, for some of them, years.
Gabriel de Jesús Rincón, a retired Army colonel charged with war crimes and crimes against humanity by the Colombian transitional justice system, squatted down and held up a small metre-high sapling. Next to him, retired Major Gustavo Soto Bracamonte, also accused of war crimes and crimes against humanity, shovelled soil into the hole where it will now grow. Together they planted a specimen of black sage, a native tree with corrugated, fragrant leaves, but also the germ of an ecological restoration project with which they seek to redeem themselves for their responsibility in hundreds of murders. "This is a fundamental step to be able to look in the face of those to whom we caused the great pain of not being able to see their relatives and loved ones again," said Rincón.
A pilot project for the “restorative system”
Since mid-March, the two of them and 44 other former military officials who took part in the extrajudicial execution of at least 6,402 civilians then falsely passed off as guerrillas killed in combat – a criminal phenomenon known by Colombians with the euphemism of 'false positives' – have been working to restore the high mountain forests surrounding Bogota. They are doing so as part of the first pilot project with which the Special Jurisdiction for Peace (JEP), the judicial arm of the transitional justice system stemming from the 2016 peace deal with the former Revolutionary Armed Forces of Colombia (FARC), finally began to outline the penalties that those who committed atrocities during a half-century armed conflict in Colombia will receive.
With the unveiling of what it termed the “restorative system,” the JEP is making progress – six years after opening its doors and three years since its first indictment – towards clarifying up one of its biggest unknowns: what will its 'special' or 'alternative' sanctions be like, in seeking a middle ground between the traditional punitive approach of prison and the possibility of achieving peace? For now, however, the special tribunal is placing almost all its emphasis on the reparative character that these sanctions must have, according to the peace agreement, but almost nothing on the retributive component that they must also fulfil.
Restoring the forest as redress
"What do we want with this project? To restore your good name through these restoration tasks," said Colonel Rincón, who was second in command of the 15th Mobile Brigade that committed 120 extrajudicial executions, 24 forced disappearances and one assassination attempt in the Catatumbo region. His colleague, Major Soto Bracamonte, was a member of the 16th Brigade in Casanare that killed 303 people. Both were charged as most responsible in what the JEP called “entrenched criminal apparatuses” within military units.
Working with them are ten others who have also been charged and have informed the JEP of their decision to own up to their responsibility, provide truth and redress victims, unavoidable conditions to qualify for a special sanction. The remaining 34 have are not indictees: some may be charged in the coming months, while the rest will probably be considered non-determinant participants in these crimes. They’re all considered in “early compliance with sanctions”.
Their redress tasks involve planting native myrtle, garrocho or elder trees, maintaining sapling nurseries and controlling invasive plants like the thorny common gorse, native to Western Europe and widespread in the Colombian mountains. They’re doing so on land owned by Bogotá's state-owned water company, with technical support from the city's Botanical Garden and the environmental NGO Fundación Natura. Their ultimate goal is to help these degraded lands recover their ecological function within the strategic corridor linking the Chingaza and Sumapaz paramos, true water factories that supply more than ten million people (at a time when, ironically, Bogotá has begun to ration water use due to a prolonged drought).
A new path for perpetrators to redress victims
Rincón's example was taken up by Justice Roberto Vidal, the third JEP chairman in its six years of operations, when he compared the special sanctions of transitional justice with the effort to recover an ecosystem and the environmental services it provides. "Biologists understand very well that restoring the environment is a delicate and complex, long-term process, in which soil and plants have to be remade. It isn’t only a material problem, but one of rebuilding man's relationship with nature," he said.
Similarly, Vidal argued, the JEP seeks to ensure that its work and sanctions rebuild relationships between victims, perpetrators and local communities. "Until now we have worked in this country with criminal trials and prison sentences, isolating perpetrators from society. With these projects we’re treading a new path, in which those responsible can work to redress victims and, among all, seek reconciliation," he said. Another indictee, retired General Henry Torres Escalante, echoed this idea and promised that "second chances for offenders are much more beneficial to victims because they minimize the risk of re-victimization”.
In addition to the Usme forest initiative, there are two other "exploratory restorative projects" concerted with victims. In the Pacific region of Nariño, where the JEP indicted 15 former FARC regional commanders, former rebels of that group will rebuild a spiritual house and its access road in the Tortugaña Telembí reservation, site of an emblematic massacre against the Awá indigenous people. In Antioquia's Urabá, site of one of the three original JEP macro-cases that after five years of investigation have yet to see an indictment, 18 former guerrillas and military officials will work together on a landmine risk education initiative. In the coming months, projects in infrastructure, education and the search for missing persons may also emerge.
Questions unanswered
While the unveiling of the pilot projects advances a task that has been pending for six years, it still has a noteworthy gap: by concentrating on the restorative facet of its special sanctions, the special court is omitting the other.
The peace deal signed with FARC devised an innovative formula that has not been tested anywhere else, resulting in a two-track system that mixes two types of penalties: punishment and reparations. When perpetrators acknowledge responsibility, they are eligible for a 5-to-8-year sanction in a non-prison setting. Otherwise, they go to an adversarial trial and face sentences of up to 20 years in prison. This first track, while not involving prison, implies "effective restrictions on freedoms and rights", including clear timetables, residence in specific locations (military units for soldiers and areas not larger than the 20-hectare reincorporation camps where former FARC members stayed), commuting permits and a verification mechanism led by the UN mission in Colombia.
However, many details remain a mystery. What kind of non-prison settings will they be? Will the remaining 100 or so people charged so far perform similar restorative work? Will the UN mission verify all those sanctioned or, as it pointed out in 2022, only "general compliance trends and specific individual cases"? Will those who entered politics, including two current congressmen who have been indicted, be forced to leave their public posts once they are convicted or will they be able to continue serving them? Will any time be deducted from before their sanctions? This last question is one of the most sensitive because, although the agreement allows this as long as they were redressing victims and had their freedom effectively restricted, there is currently no system to control who has complied and who hasn’t, and the majority of former rebels are no longer staying in reincorporation camps but roam freely throughout the country. In the environmental project near Bogota, participants have schedules and are transported to the forest where they work, but the JEP hasn’t said what conditions of effective restriction of liberty they are following.
Pressure from FARC
The JEP's reluctance to define the sanctions regime could be related to the resistance that the idea still generates among many of its participants. On February 7, the seven members of the FARC's former leadership – known as its secretariat – sent a public letter to President Gustavo Petro criticizing that, in their opinion, the JEP was bent on "moving away from the spirit and letter of the agreement" and that its interpretations were heading towards "a punitive legal terrain".
Among their complaints are the slow pace of granting amnesties and waiving criminal prosecution for former low-ranking rebels, the "endless opening of macro-cases", the indictment of former mid-level commanders, and the fact that they may face multiple charges (as happened to Senator Pablo Catatumbo, who was charged twice for kidnapping and for the regional case of Nariño). In their view, this "undermines the legal security" of former combatants and weakens their confidence in transitional justice, making it easier for many to take up arms again. This last statement proved highly controversial and was interpreted as a threat.
In a second letter two weeks later, this time addressed to the former rebel signatories of the agreement, the former FARC top brass toned down their warning and called any decision to return to war “wrong”. But they doubled down on their criticism of the JEP’s alleged "derailment" and in particular against sanctions, including the "non-recognition of the periods of deprivation of liberty" or "disrespect for restorative sanctions".
A litmus test of political and public legitimacy
The long-term social legitimacy of the Colombian transitional model could depend on the fulfilment of the retributive component. On the one hand, it’s been a contentious point in politics. Taking advantage of the ambiguity on sanctions and the reality that former FARC commanders might not set foot in jail, political sectors opposed to the peace agreement portrayed this novel approach to accountability as impunity. When 50.2% of Colombians rejected the original text in the 2016 plebiscite, they managed in the subsequent renegotiation to get the final text to better sketch the retributive aspect. Two of those political leaders, Iván Duque and Marta Lucía Ramírez, won the next presidential elections in 2018, but then let their four years in office pass with almost no insistence on defining the pending issues.
In practice, the Duque government chose to obstruct the JEP and then ignore it, instead of realizing that although the court is the State institution that sets the sanctions it depends on the national government to establish the restriction areas and who guards them (aspects that anyhow require a budget and months of planning). Only until June 2022 did it publish a public policy document, where it outlined some generalities, but a month and a half before the change of government it turned out to be too little and too late.
On another hand, a survey conducted by political scientist Sandra Botero of Rosario University when the JEP was beginning suggested that Colombians’ assessment of transitional justice varied according to its punishments. Botero asked 1663 people nationwide in 2018 about the hypothetical punishment of fictional character Carlos Soto, with two variations: some were told he was a former rebel and others a soldier, some that he received a prison sentence and others a house arrest with humanitarian demining work. The survey showed that among ordinary citizens, support for restorative sanctions was 0.26 points lower than the punitive one, on a scale of 1 to 6. There was no difference between the soldier and the rebel.
Five years and four JEP indictments later, Juan Carlos Rodríguez Raga of Los Andes University took up the same character and conducted a similar experiment. He asked a single question to 1,503 persons in 2023, about a soldier guilty of homicide receiving house arrest and demining. Again, the punitive approach took precedence: half of respondents rated it negatively and a third positively, with the remainder indifferent. "We know that transitional justice is judged by its results and operates in a context of polarisation, that restoration is very complex and that punitive populism is easy to sell. This is why it’s essential and urgent to carry out educational work on sanctions for the general public," says Botero, who just published the book Peace and public opinion in Colombia on the subject.
The ICC warning
Not only Colombians have warned the JEP about this. International Criminal Court prosecutor Karim Khan stated in the 'cooperation agreement' with which he closed his office’s preliminary investigation into Colombia in late 2021 that he could reverse his decision if there were "any significant change in circumstances." Among the scenarios he warned about is "the enforcement of effective and proportionate penal sanctions of a retributive and restorative nature".
It is a decision that will ultimately fall on the 20 justices of the JEP’s second instance section, bound to issue rulings based on the ten indictments already presented by their colleagues in the Acknowledgment Chamber. The first three, one on kidnappings by FARC and two on extrajudicial executions by the military, have been on their desks for over two years. The answer to these dilemmas which might appear to be merely legal discussions, as well as the effectiveness of perpetrators' work restoring the forest in Usme, ultimately have political ramifications that could affect the legitimacy of the Colombian transitional model.
