1) Peace Talks
At the time of publication of Watchlist’s report, no peace talks between the government and guerrilla groups were formally known to the public. Watchlist stressed that the Colombian Government prioritize issues related to the protection of children into any future peace negotiations and peace accords. In the Fall of 2012, peace negotiations between the Colombian government and the FARC were formally launched. According to the joint framework agreement signed in September 2012, the talks are open-ended and will cover five points: rural development; guarantees for the exercise of political opposition and citizen participation; the end of armed conflict; drug trafficking; and the rights of the victims of the conflict. National child rights activists have called on the Government to ensure that child protection issues be specifically addressed under the heading “victims of the conflict”. They have also underlined that the separation and reintegration of children associated with the FARC must be done through a formal and transparent process, to ensure that all benefit from adequate support, with particular attention should be paid to the formal release of children under the age of 15 (See COALICO Press Release, 12 February 2013). Recruitment below the age of 15 is a war crime and commanders may be tempted to divert these children from the formal demobilization process in order to avert criminal prosecution before national courts or the ICC.
2) Child Protection Response at regional level
Watchlist’s report highlighted that protection strategies for children in Colombia largely assume an urban environment, and that the needs of rural communities in remote areas are neglected, even though they are the main targets of attacks by armed groups. Regional Development Plans for Putumayo and Norte Santander, developed over Spring and Summer 2012, include references to UN Security Council Resolution 1612. The practical effect of this measure is that it prioritizes the protection of children affected by the armed conflict in regional budget allocations, and that it subjects this matter to internal oversight and scrutiny. Indeed, local authorities are held accountable for commitments outlined in Regional Development Plans by the Office of the Inspector General of Colombia (Procuradoria). This entity receives progress reports from local administrations and can take a wide range of measures in response, including recommendations, inquiries and even punitive measures, such as demotions.
No One to Trust highlighted that impunity remains a core problem and challenge in Colombia, despite a relatively robust legal framework. Fear of stigmatization or retaliation prevents many survivors and witnesses of rape and sexual violence from reporting the violence or seeking assistance, in particular when the perpetrators are members of the State’s security forces, as illustrated by the Arauca case. In September 2012, two years after the crimes were committed and despite numerous set-backs in the prosecution of this case, sub-lieutenant Raul Munoz Linares was convicted for the rape and murder of three minors and sentenced to 60 years of imprisonment – the maximum punishment allowed by Colombian law.
In November 2012, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) released its first interim report, since it opened its preliminary examination on Colombia. Since 2006, the ICC has been closely following investigations and proceedings in Colombia against paramilitary leaders, politicians, guerrilla leaders and military personnel for alleged crimes that could fall under the jurisdiction of the Court. . Watchlist’s report No One to Trust is cited in articles 145, 147 and 151 of the ICC interim report under the section entitled ‘Alleged war crimes committed by non-State Actors’, which focuses on the conscription of child soldiers, tactics used by armed groups to recruit child soldiers and cases of sexual violence against young girls. The report notes the slow pace of criminal proceedings for serious crimes in Colombia, but considers that this does not necessarily indicate a lack of willingness or ability on the part of Colombian judicial authorities to carry out such prosecutions. Among the focus areas of further examination by the OTP are the “Legal Framework for Peace” (see below), new illegal armed groups and proceedings relating to sexual crimes.
Additionally, on 14 June 2012 the Colombian Senate approved the ‘Legal Framework for Peace’ [click here for full text in Spanish], a temporary constitutional amendment that outlines principles of transitional justice to be followed in the event of a peace process with guerilla groups. It allows the Colombian Congress to establish selection criteria to prioritize criminal prosecution of those “most responsible” for war crimes, crimes against humanity and genocide, and to allow for non-judicial/alternative sentences, suspension of sentences and for the conditional stay of prosecution for all other cases. It also stipulates that any such special treatment is contingent on admission of responsibility, contribution to the establishment of the truth, full victim reparation, laydown of arms and release by the concerned group of all hostages and children recruited. Transitional justice measures would be applicable to both members of the armed forces and of guerrilla groups. Hailed by transitional justice activists, the law still faced some criticism both in country and internationally for potentially allowing numerous perpetrators to be exempted from criminal prosecution. It remains to be seen how the Colombian Congress would approach the prioritization of criminal prosecutions, should it be in a position to pass a law putting the ‘Legal Framework for Peace’ into practice.
4) Paramilitary Successor Groups
No One to Trust drew attention to violations perpetrated by post-demobilization or “successor paramilitary groups”. The Colombian Government opposes their classification as paramilitary groups and refers to them as bandas criminales (BACRIM) or criminal gangs. They are not recognized by the Government as a party to the conflict. Because of this categorization, children associated with paramilitary successor groups are not entitled to the same protection and reparation awarded to children associated with FARC and ELN under the Victims Law (Law 1448 of 2011). Watchlist recommended to the Government of Colombia that the victims of these paramilitary successor groups be given the same legal treatment as victims of ‘traditional groups.’ Since the release of the report, there have been small yet important steps taken to address the issue. Public discourse about paramilitary successor groups in Colombia has progressed slightly, as demonstrated by a letter from the Colombian Ombudsman to the Minister of Defence in November 2012 [click here to read the letter in Spanish]. The Ombudsman argues that the BACRIMs should be classified as illegal armed groups so that they can be factored into the Ministry of Defense’s strategies, rather than being treated as a law enforcement matter. Also, the ICC (OTP) confirms that it continues to analyze whether so called ‘successor paramilitary groups’ could qualify as organized armed groups that are parties to the armed conflict or would satisfy the requirements of organizational policy for the purpose of crimes against humanity. (See ICC Interim Report on the situation in Colombia, November 2012, para.7).