Colombia’s Special Jurisdiction for Peace Bends the Law to Dub Paramilitaries as State Officials: The Time For Critique is Now

[Santiago Vargas Niño, LL.M. is an independent legal consultant and lecturer in international protection of human rights at Los Andes University in Bogotá D.C., Colombia. He previously worked as a legal officer of the Special Jurisdiction for Peace. He also served as an intern, legal assistant, assistant legal officer, and legal consultant of the Office of the Prosecutor of the International Criminal Court. The views expressed in this article are strictly personal and do not necessarily reflect those of the institutions with which Santiago has been affiliated.]

[A Spanish version of this article, published on Agenda Estado de Derecho, is available here.]

Introduction

On 21 July 2022, the Appeals Chamber (“Chamber”) of Colombia’s Special Jurisdiction for Peace (“JEP”, for its acronym in Spanish) extended its personal jurisdiction to include former paramilitary commanders who were “functionally and materially incorporated into the armed forces.” It did so to give Rodrigo Tovar Pupo, also known as Jorge 40, one final opportunity to appear before the JEP instead of serving the prison term of 40 years to which he was recently sentenced.

The Chamber’s decision marks a departure from the JEP’s legal framework that excluded members of paramilitary groups from its jurisdiction. This post will refer to the JEP’s personal jurisdiction, summarise the Chamber’s key arguments to extend it to a paramilitary commander like Jorge 40, and argue that it distorted the law to achieve its desired outcome. This worrying finding should lead to more robust oversight of the JEP.

The JEP’s Personal Jurisdiction

The 2016 Peace Agreement granted the JEP jurisdiction over four categories of individuals: (i) members or collaborators of the Revolutionary Armed Forces of Colombia – Popular Army (“FARC-EP”, for its acronym in Spanish), (ii) members of the Colombian armed forces (“CAF”) or police, (iii) unarmed state officials (“USOs”), and (iv) civilians who financed or cooperated with paramilitaries. The JEP’s personal jurisdiction was reiterated in interim articles 5, 16, and 17 of the Constitution, as modified by Constitutional Act 01 of 2017. While the original design attributed binding jurisdiction over all the aforementioned categories to the JEP, the Constitutional Court held that only FARC-EP members or collaborators, on the one hand, and members of the CAF or police, on the other, were bound to appear before the JEP. Meanwhile, USOs and civilians would only do so voluntarily. Article 63 of Act 1957 of 2019 adopted this revised version of the JEP’s personal jurisdiction.

It was clear that former paramilitary fighters were not subject to the jurisdiction of the JEP. In fact, the Chamber repeatedly held this stance because they did not meet the requirements enshrined in the 2016 Peace Agreement: they were not rebels, they had not signed a final peace agreement, and they had already been subject to proceedings under the controversial 2005 “Justice and Peace Act”, which granted them reduced terms of imprisonment in exchange for their contributions to truth, justice, reparation, and non-recurrence. The Chamber, however, materially reversed this precedent without a clear legal basis.

The Chamber’s Re-writing of the Law

In decision TP-SA 1187 of 21 July 2022, the Chamber held that paramilitary commanders – such as Jorge 40 – could be seen as “functionally and materially integrated into the [CAF]” (paras. 144 – 171). Under this interpretation, paramilitaries would fall within the JEP’s personal jurisdiction.

This was only possible thanks to the Chamber’s gratuitous opinion that the JEP’s legal framework “adopted a wider and more comprehensive notion [of membership to the CAF] with the idea of apprehending the complexity of the war and guaranteeing the uncovering of the whole truth” (para. 146). This sleight of hand allowed the Chamber to ignore the domestic legal regime establishing who may be considered an officer of the CAF.

In “functional” terms, the Chamber held that, through a series of administrative and legislative measures – including Executive Order 3398 of 1965, Act 48 of 1968, and Executive Order 356 of 1994 – the state promoted a counterinsurgency strategy that facilitated the “outsourcing” of security and defence duties to paramilitaries. Thus, in the Chamber’s opinion, they had “exercised functions entrusted to the army and the police,” and committed crimes in that context (para. 155).

The Chamber further held that certain paramilitary commanders formed alliances with CAF officers to conduct security, social control, and counterinsurgency tasks (para. 152). They also supposedly performed two key roles: (i) acting as hinges between their militias and the CAF, and (ii) planning and providing the means for the commission of crimes along with the CAF (para. 164). Consequently, they were “materially” incorporated into the CAF despite lacking legal appointment (para. 152).

Attribution Matters

The Chamber’s decision resulted from its confusion of forms of attribution of state responsibility with membership to the state. Indeed, at the core of the Chamber’s ill-advised position lies the idea that the state was, at least, partially responsible for the paramilitaries’ crimes. However, the Chamber failed to explain why in its decision. In a couple of footnotes (para. 148), the Chamber merely held that international humanitarian law (“IHL”) permits the incorporation of auxiliary forces into the military and that international tribunals have developed different tests “to determine whether certain private groups – some of a paramilitary nature – act under the state’s command and are, therefore, its organs.”

The Chamber’s approach reveals a flawed understanding of the law. Firstly, article 4 of the III Geneva Convention may allow for the incorporation of auxiliary units into the military in international armed conflicts, but this does not mean that any auxiliary unit may be considered a party to a non-international armed conflict ipso facto, as the Chamber suggested. Instead, they – along with the army – would have to engage in protracted armed violence against organised armed groups (“OAGs”) for the rules enshrined in Common Article 3 or Additional Protocol II to cover them. Secondly, the conduct of OAGs acting at the will or in the absence of state authority may give rise to state responsibility under articles 8 or 9 of the Articles on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”), but it does not render them state organs, or state officials, as per article 4.

Paramilitaries Did Not Perform State Functions

In the Bosnia v. Serbia case, the International Court of Justice (“ICJ”) acknowledged that states are responsible for the conduct of OAGs that were acting either upon their instructions “in respect of each operation in which the alleged violations occurred” (para. 400) or under their effective control. To satisfy the latter test, which the ICJ established in its landmark Nicaragua v. United States decision, the state must command “the actions and omission as if it had a remote control for a television or as if it pulled the strings of a marionette.”

The Chamber, nonetheless, failed to prove that paramilitaries followed the state’s instructions to the letter or that they acted under its effective control. Instead, it merely cited judgments of the Inter-American Court of Human Rights (“IACtHR”) that held Colombia responsible for specific instances of collaboration with paramilitaries or failure to prevent them from committing serious crimes (e.g. Case of Vereda La Esperanza v. Colombia, para. 68 and Case of Isaza Uribe and Others v. Colombia, para. 45).

The Chamber ignored that the IACtHR had repeatedly acknowledged the state’s incremental adoption of legislation to curb paramilitary expansion since the late 1980s (e.g. Case of the 19 Merchants v. Colombia, paras. 118 et seq., Case of the Mapiripán Massacre v. Colombia, paras. 96.3 et seq., and Case of the Ituango Massacres v. Colombia, paras. 125.5 et seq.). This would indicate, contrary to the Chamber’s opinion, that paramilitaries were not performing legitimate state functions and were therefore criminalised.

Furthermore, except for the Case of the Rochela Massacre v. Colombia (para. 102), the IACtHR did not consider that paramilitaries were acting as state agents.

The Rochela Massacre case concerned the killing of a law enforcement commission that was investigating the disappearance of nineteen merchants in the Magdalena Medio region in 1989. This crime was committed by paramilitaries funded by landowners and drug traffickers and acting in coordination with local military authorities. In line with the findings of the Truth Commission (pp. 247 et seq.), the Rochela Massacre case indicates that paramilitaries, while legally sanctioned at their inception and enjoying the support of radical factions within the CAF, did not exercise elements of governmental authority. Rather, they fostered the interests of local elites – both legal and criminal – even at the expense of officers of the law. They were armies for hire that committed all sorts of atrocities under the pretence of counterinsurgency. To argue that they were “functionally” integrated into the state is a distortion of reality aimed squarely at allowing certain paramilitary commanders to appear before the JEP. 

Paramilitaries Were Independent From the CAF

The commentary to article 9 ARSIWA lays out three conditions to attribute state responsibility for the acts of private individuals or groups, including OAGs: “first, the conduct must effectively relate to the exercise of elements of the governmental authority, secondly, the conduct must have been carried out in the absence or default of the official authorities, and thirdly, the circumstances must have been such as to call for the exercise of those elements of authority.”

The Chamber held that paramilitaries operated in areas where “the [CAF] could not or would not act, thus creating a deficit in the state’s protection duties” that led them to fight rebels “claiming that this followed a sort of self-defence against unbridled criminality, especially in areas without institutional presence.” (para. 154) Even though this assumption could theoretically indicate that the second or third conditions for the application of article 9 were met, this was not really the case. Bearing in mind that paramilitaries were created under legal instruments adopted by the state and that they conducted operations with the CAF’s acquiescence or cooperation, they never acted in the state’s absence.

Moreover, the Chamber found that paramilitary actions were conducted in “bad faith, which presupposes behaving with criminal intent, but [sic] with full awareness of unlawfulness and the ensuing destruction of lives and communities.” (para. 150) Hence, as indicated above, paramilitaries never exercised de facto governmental authority. They were nothing but criminals.

If paramilitary commanders were “materially” incorporated into the CAF, this would mean they were subordinated to its chain of command. The Chamber, however, held that they maintained an ample margin of autonomy and only occasionally aligned themselves with the CAF (para. 156). Rather than demonstrating a “material” link between paramilitary commanders and the CAF, this would indicate that they were responsible for an independent armed actor, which sometimes participated in criminal conspiracies involving the state.

Paramilitaries Were Not State Organs or Officials

The Chamber failed to even establish a sound basis for the attribution of state responsibility under articles 8 and 9 ARSIWA. Yet, it strikingly equated paramilitary commanders to proper state organs for the purpose of extending the personal jurisdiction of the JEP. This contravenes article 4(2) ARSIWA, which limits state membership to “any person or entity which has that status in accordance with the internal law of the State.” Hence, as Kolb explains, “internal law defines what is an organ or agent (de jure); and international law takes this state of affairs as a given to which it attaches legal consequences for its own purposes.” Moreover, it negates articles 216 through 222 of the Constitution as well as the career regimes of the CAF and police, which establish strict conditions for the incorporation of officers into the security apparatus.

The foregoing makes it clear that the Chamber misread the law to arrive at the untenable conclusion that paramilitary commanders were state officials. Not only did it ignore the fact that international law only bestows that character upon legally constituted state authorities, but it went as far as replacing the domestic law governing recruitment into the CAF with an arbitrary application of the rules of state responsibility to transmute non-state actors into state organs.

Concluding Remarks

The Peace Agreement, the Constitution and its implementing legislation do not give jurisdiction over paramilitaries to the JEP. Thus, if the Chamber had any indication that they committed crimes along with the CAF, it should have sought avenues to attribute them to CAF officials, for instance through indirect (co)perpetration or joint criminal enterprise. Instead, it extended its personal reach without a clear basis in the law. The Chamber’s decision sets a dangerous precedent of judicial arbitrariness. Consequently, it should motivate civil society and academia, in Colombia and abroad, to overcome the initial allure caused by the JEP and begin studying and, where need be, critiquing its decisions.