MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE by Orlando Vaca Melo

MOVEMENT OF VICTIMS AND HUMAN RIGHTS MOVEMENT OF COLOMBIA

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

[March 6, 2013]

With the support of: ASFADDES ASOCIACIÓN COLOMBIANA DE ESTUDIANTES UNIVERSITARIOS - ACEU CONSULTORIA PARA LOS DERECHOS HUMANOS Y EL DESPLAZAMIENTO ASOCIACIÓN NACIONAL DE AYUDA SOLIDARIA ANDAS ASOFADELO ASOCOACIÓN ESPERANZA Y PAZ ASOCIACIÓN PARA LA INVESTIGACIÓN Y ACCIÓN SOCIAL NOMADESC CAMPAÑA PERMANENTE “PROHIBIDO OLVIDAR” CIVIPAZ VILLAVICENCIO CAPÍTULO SANTANDER DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO NARIÑO DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO ATLÁNTICO DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO SUR DE BOLÍVAR DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO ANTIOQUIA DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO NORTE DE SANTANDER DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO MAGDALENA MEDIO DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO TOLIMA DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO HUILA DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO META DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO BOGOTÁ DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO CALDAS DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO VALLE DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO CAUCA DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO RISARALDA DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO SUCRE DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO BOYACÁ CASANARE DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO CAQUETÁ DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTULO SUR DEL CESAR DEL MOVIMIENTO NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO CAPÍTILO ESTADO ESPAÑOL DEL MOVIMIENTO COORDINACIÓN COLOMBIA EUROPA ESTADOS UNIDOS CCEEU COLECTIVO DE ABOGADOS JOSÉ ALVEAR RESTREPO COMITÉ PERMANENTE PARA LA DEFENSA DE LOS DERECHOS HUMANOS CPDH COMISIÓN INTERECLESIAL DE JUSTIICA Y PAZ CORPORACIÓN YURUPARÍ CORPORACIÓN JURÍDICA LIBERTAD CORPORACIÓN SEMBRAR CORPORACIÓN CLARETIANA NORMAN PÉREZ BELLO EQUIPO COLOMBIANO DE INVESTIGACIONES ANTROPOLÓGICO FORENSES ECIAF NACIONAL DE VÍCTIMAS DE CRÍMENES DE ESTADO FUNDACIÓN NICOLÁS NEIRA FUNDACIÓN COMITÉ DE SOLIDARIDAD CON LOS PRESOS POLÍTICOS FCSPP FUNDACIÓN PARA EL DESARROLLO Y LA PAZ FUNDEPAZ FUNDACIÓN MUNDOS POSIBLES FUNDACIÓN NIDIA ERIKA BAUTISTA FAMILIARES COLOMBIA FUNDACIÓN PROYECTO VIDA HIJOS E HIJAS POR LA MEMORIA Y CONTRA LA IMPUNIDAD H.I.J.O.S HIJOS E HIJAS POR LA IDENTIDAD Y LA JUSTICIA CONTRA EL OLVIDO Y EL SILENCIO PROVIVIENDA META

The contents of this document are the sole responsibility of the organizations who subscribe. No compromises or represent the position or views of the organizations suppor ter s.

Contents I INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II JUSTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1- International legal background . . . . . . . . . . . . . . . . . . 9 2 - Propositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 III TRUTH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1 - International Legal Background . . . . . . . . . . . . . . . . 21 2 - Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 IV REPARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1 - International legal background . . . . . . . . . . . . . . . . 31 2 - Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 V GUARANTEES OF NON RECURRENCE . . . . . . . . . . . . . . . 39 1 - International legal background . . . . . . . . . . . . . . . . 39 2 - Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

I - Introduction The internal armed conflict present in Colombia for over half a century has left thousands of State crime victims. During the validity of the Security Act at the end of the 1970s, over 5.000 persons, in Bogota alone, were detained and tortured by the military and according to a report by the Ministry of Defence, over 60.000 persons were detained by the military during the first year of the Turbay Ayala administration (1978-1979). Between 1965 and 1986, 42 decrees were issued empowering the military courts to try civilians amidst unfair trials for those prosecuted. From the early 1980s, the ‘dirty war’ erupted with greater force in Colombian life: involuntary disappearances and extrajudicial executions committed by the military and other State security forces soared sharply and a blood and fire territorial control strategy from the paramilitary groups began. Between 1988 and September of 1990, 313 massacres were perpetrated, of which 287 were committed by the Military together with paramilitary groups. In the 1990s, significantly more people were murdered each year in Colombia by state agents than those extrajudicially executed in Chile during the 17-year dictatorship of General Augusto Pinochet. Amnesty International has estimated that in Colombia, between 1986 and late 1993, 20.000 people have been killed for political reasons, most of them at the hands of the Armed Forces and their allied paramilitary groupsi. In the last decade, President Alvaro Uribe Velez’s administration promoted the practice of extrajudicial executions misnamed ‘false positives’ from within the top government and the Military, so much so that the Colombian office of the United Nations High Commissioner for Human Rights estimated in 2012 that i

Violencia política en Colombia: Mito y Realidad, Amnesty International, EDAI Editions, AI Index: AMR 23/01/94/s, Spain, 1994, p. 7.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

“the Attorney General’s office has accumulated complaints, including those relating to 4716 victims of killings allegedly committed by members of the security forces, many of which correspond to the type of executions known as false positives”ii. During the first two years of the presidential period of Alvaro Uribe Vélez, there were more than 5,000 registered arbitrary arrests, practiced on a massive scale. The victims of internal displacement, the result of military strategy and paramilitary territory control and land dispossession, are more than 6 million. During the first decade of 2000, the expansion of paramilitarism -with its string of massacres, rapes, murders, forced disappearances, internal displacement and land dispossession- occurred under the auspice of the Military as well as the complicity of the economic elites and regional policies. This consolidated true local states of Autodefensas (Self Defense Forces), as has been recognized by former paramilitary heads. The vast majority of State crime victims have been peasants, settlers of popular sectors, indigenous and Afro-Colombian communities, members of civil society organizations, trade unionists, human rights advocates, journalists and political opponents. Social movements, trade unions and opposition political parties –such as Unión Patriótica (Patriotic Union) – have been exterminated by the Military and their paramilitary groups. Between 2002 and 2005, over 800 trade unionists were murdered. The Military’s doctrines and manuals, which are at the root of the large number of crimes committed, are still in force. Paramilitary groups have not been effectively demobilized and persist in their criminal actions against the population. Impunity for human rights violations, crimes against humanity, genocide and war crimes committed by the State Forces and paramilitary groups have been a historical constant in Colombia, which has been reinforced by the constitutional reform to expand the jurisdiction of the military justice system. ii

Informe de la Alta Comisionada de las Naciones Unidas para los Derechos Humanos sobre la situación de los derechos humanos en Colombia, A/HRC/22/17. January 7, 2013, paragraph 75.

For the victims movement and the human rights movement, no negotiations to overcome the internal armed conflict can lay the foundations for sustainable peace unless resolutely facing the crimes committed by the Military, security corps and paramilitary groups, unless the State does not recognize and condemn these crimes, unless the administration of justice is not purged and unless legal and institutional reforms are carried out to ensure that these crimes are not committed again. A negotiation that fails to address and solve these problems will only ensure, at most, the deactivation of one of the parties in the conflict but it will not lay the foundations for a lasting and sustainable peace, as yearned by the Colombian people. The victims movement and human rights movement welcomes the progress in the peace talks, but stresses that no political solution to the armed conflict in order to build lasting peace can be based on: impunity for serious human rights violations, crimes against humanity, genocide and war crimes; denial to victims, their families and society of their rights to justice, truth and reparations, the disregard for the basic principles of the State of law, and the permanence of the doctrines , policies, structures and practices that are at the origin of the commission of these crimes. As noted by the Secretary General of the United Nations in his 1999 report to the General Assembly, it is essential to bring to justice the perpetrators of grave human rights violations and international crimes in order to discourage further offenses and strengthen hopes for peace: “any appearance of impunity could become a real obstacle to finding a peaceful solution through negotiation”iii. The secretary general has also indicated that, in peace processes, the victim’s right to truth, justice and reparation should be fully respectediv. Even during transition processes or whilst overcoming an internal armed conflict, the Colombian State has obligations under Customary iii Informe del Secretario General preparado en cumplimiento de las resoluciones del Consejo de Seguridad 1160(1998), 1199(1998) y 1203(1998), United Nations document S/1999/99 of January 29, 1999, paragraph 32 (original English, free translation). iv See among others, Secretary General Press Release SG/SM/9400 of July 1, 2004, and the report “The rule of law and transitional justice in conflict and post-conflict societies”, United Nations document S/2004/16.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

International Law (law of nations), treatiesv and other international instrumentsvi concerning: • The repression of human rights violations, crimes against humanity, genocide and war crimes. • Effectively guaranteeing the -individual and collective- right of the victims and their families to justice, truth and reparation. • Guarantees of non-recurrence, including institutional reforms.

The International Covenant on Civil and Political Rights, ratified by Act No. 74 of 1968, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified in 1985, the Convention on the Elimination of All Forms of Discrimination against women, ratified in 1980, the International Convention on the Elimination of All Forms of Racial Discrimination, ratified in 1967, the Convention on the Rights of the Child, ratified in 1990, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, ratified in 2000, Convention No. 182 on the worst forms of Child Labour, ratified in 2005, the American Convention on Human Rights, ratified by Law No. 16, 1972 Inter-American Convention to Prevent and punish Torture, ratified on April 12, 2005, InterAmerican Convention on Forced Disappearance of Persons, ratified on January 19, 1999, the International Convention for the Prevention, Punishment and Eradication of Violence against women, ratified by Law No. 248 of 1995, the Convention on the Prevention and Punishment of the Crime of Genocide, ratified in 1959, the Common Article 3 of the Geneva Conventions of 1949, ratified in 1961, the Additional Protocol to the Geneva Conventions of 12 August 1949 on the protection of Victims of International Armed conflicts (Protocol II), ratified by Law No.171 of 1994 and the Rome Statute of the International Criminal Court ratified 2002. vi Resolution 95 (I) of 11 December, 1946, the General Assembly of the United Nations, confirming principles of international law as the principles contained in the Charter and Judgment of the Nuremberg Tribunal, resolution 96 (I) of December 11, 1946, the General Assembly of the United Nations, stating that “genocide is a crime under international law” Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes or of crimes against humanity, adopted by Resolution 3074 (XXVII) of December 3, 1973 of the General Assembly of the United Nations and the principles of international law recognized by the Charter and Judgment of the Nuremberg Tribunal, adopted in 1950 by International Law Commission of the United Nations (UN Document A/CN.4/368 of 13 April 1983), the Draft Code of Crimes against the Peace and Security of Mankind, adopted in 1996 by the International Law Commission of the United Nations, United Nations documents, Supplement No.10 (A/51/10), the Declaration on the Protection of Women and Children in Emergency and Armed Conflict, proclaimed by the General Assembly of the United Nations in its resolution 3318 (XXIX) of 14 December 1974, the Declaration on the Elimination of Violence against Women, proclaimed by the General Assembly of the United Nations on 20 December 1993, a Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations in its resolution 3452 (XXX) of 9 December 1975, the Declaration on the Protection of All Persons from Enforced Disappearance, the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, The Principles and Guidelines on the right of victims of gross violations of international human rights standards and serious violations of international humanitarian law to a Remedy and Reparation, adopted by Resolution 60/147 of the General Assembly of the United Nations on December 16, 2005, and the updated Set of Principles for the Protection and Promotion of human rights through action to combat impunity (UN Document E/CN.4/2005/102/Add.11).

It is a universally recognized and a general principle of international law that States should fulfill in good faith the international treaties and the obligations that arise from them, as well as the obligations of the State under Customary International Law (pacta sunt servanda principle). This general principle of international law has the corollary that the authorities of a country cannot argue obstacles of domestic law to evade their international and constitutional norms, legislative or regulatory, or that the decisions of national courts cannot be cited for not executing international obligations or for modifying their compliance. This general principle of the law of nationsvii has been enshrined in Articles 26 and 27 of the Vienna Convention on the Law of Treaties, which the Republic of Colombia is a party. In terms of human rights and crimes under International Law, this principle has been reiterated by the international human rights jurisprudenceviii.

vii Permanent Court of International Justice, Advisory Opinion of February 4, 1932,, Traitement des nationaux polonais et autres persones d’origine ou de langue polonaise dans le territoire de Dantzig, in Recueil des arrêts et ordonnances, Série A/B, N° 44; Permanent Court of International Justice, Advisory Opinion of July 31, 1930, Question des communautés grecobulgares, Recueil des arrêts et ordonnances, Série A, N° 17; Permanent Court of International Justice, Advisory Opinion of April 26, 1988, Obligation d’arbitrage; Judgment of November 28, 1958, Application de la Convention de 1909 pour régler la tutelle des mineurs (Pays Bas/ Suéde); International Court of Justice, Judgment of April 6, 1955, Notteböhm (2e. Phase) (Lichtenstein/Guatemala); Laudo arbitral S.A Bunch, Montijo(Colombia c. Estados Unidos de América), July 26, 1875; Permanent Court of International Justice, Judgment No. 7, May 25, 1923, Haute Silésie polonaise, en Recueil des arrêts et ordonnances, série A, N° 7; and Sentence N° 13, Usine de Chorzow (Allemange / Pologne), of September 13, 1928, en Recueil des arrêts et ordonnances, série A, N° 17. viii See among others: Inter-American Court of Human Rights, Caso Loyaza Tamayo, Sentencia de reparaciones, November 27, 1998, paragraph 168, Advisory Opinion OC-13/93, of Julio 16, 1993, “Certain Attributes of the Inter-American Commission on Human Rights (Articles 41, 42, 44, 46, 47, 50 and 51 of the American Convention on Human Rights), and International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention (Arts. 1 and 2 American Convention on Human Rights), Advisory Opinion OC-14/94 of 9 December 1994, Series A No. 14, paragraph 35, and Human Rights Committee of the United Nations (UN Document CCPR / C/79 / Add.67, paragraph 10).

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

II - Justice 1- International legal background The international law obliges States to investigate the serious human rights violations, crimes against humanity, genocide and war crimes, as well as to prosecute and punish by general jurisdiction courts, the authors and other participants in these crimes. These obligations are expressly enshrined in numerous human rights treatiesix and other international instrumentsx. While it is true that some treaties do not contain explicit provisions on these obligationsxi, international jurisprudence has concluded that, under the duty of guarantee (deber de garantía) enshrined in human rights treaties, as well as the general principles of law, these treaties impose a duty to investigate, prosecute and punish the perpetrators and other participants in crimes under international lawxii. However ix Thus, it is worth mentioning: Articles 4, 5 and 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Articles 3, 4, 5, 6 and 7 of the International Convention for the Protection of All Persons from enforced disappearances; articles 3 and 4 of the International Convention on the Elimination of All Forms of Racial discrimination, Article 2 of the Convention on the Elimination of all Forms of Discrimination against Women, Article 4 of the Optional Protocol to the Convention on the rights of the Child on the involvement of children in armed conflict; Transnational; articles IV, V and VI of the Convention on the Prevention and Punishment of the Crime of Genocide; articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture , Article 7 of the Convention on the Prevention, Punishment and Eradication of Violence against Women, and articles I and IV of the Convention on Forced Disappearance of Persons. x Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes or crimes against humanity, the Declaration on the Protection of All Persons from Enforced Disappearance, the Principles on the Effective Prevention and investigation of Extra-legal, Arbitrary and Summary Executions, the Code of Conduct for Law enforcement Officials, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. xi This is the case of the International Covenant on Civil and Political Rights and the InterAmerican Convention on Human Rights. xii See inter alia, Human Rights Committee, General Comment No. 31, Naturaleza de la obligación jurídica general impuesta a los Estados Partes en el Pacto; Opinion of October 27, 1995, Communication No. 563/1993, Case Nydia Erika Bautista c. Colombia; Opinion of July 29, 1997, Comunicación No. 612/1995, Caso José Vicente y Amado Villafañe Chaparro, Luis Napoleón Torres Crespo, Angel María Torres Arroyo y Antonio Hugues Chaparro Torres c. Colombia. Comité against Torture, General Comment No. 2, Aplicación del artículo 2 por los Estados Partes, and the Decision on communications Nos. 1/1988, 2/1988 y 3/1988 (Argentina), of November 23, 1989, paragraph 7. American Court of Human Rights: Case Velásquez Rodríguez c. Honduras,

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

these obligations also have their foundations in Customary International Law and have been reiterated by the Security Councilxiii and General Assemblyxiv of the United Nations. These obligations also exist for the State regarding criminal acts committed by individuals or groups of people, particularly when such acts constitute crimes under international lawxv. The obligation to investigate crimes under International Law and to prosecute and punish the perpetrators and other participants in these crimes is a binding obligation of International Law (jus cogens)xvi. This has specific consequences: 1. The State cannot renounce to investigate and prosecute those responsible for gross human rights violations, crimes against humanity, genocide or war crimes. The international human rights jurisprudence has considered unrenounceable the obligation to investigate these crimes and prosecute the perpetrators and participantsxvii. 2. Gross human rights violations, crimes against humanity, genocide and war crimes are not subject to amnesties, pardons or similar measures that prevent these crimes from being Sentence of July 21, 1989, Series C No. 7; Caso Godínez Cruz c. Honduras, Sentence of July 21, 1989, Serie C No. 8; Case Caballero Delgado y Santana c. Colombia, Sentence of December 8, 1995, Serie C No. 22; Case El Amparo c. Venezuela, Sentence of September 14, 1996, Serie C No. 28; Case Castillo Páez c. Perú, Sentence of November 3, 1997, Serie C No. 34; Caso Suárez Rosero c. Ecuador, Sentence November 12, 1997, Serie C No. 35; and Case Nicholas Blake c. Guatemala, Sentence of January 24, 1998, Serie C No. 36. xiii Resolution on la cuestión de Haití, S/RES/1529 (2004), February 29, 2004, paragraph 7; Resolution on the situación en Costa de Marfil, S/RES/1479 May 13, 2003, paragraph 8. xiv Resolution 57/228 December 18, 2002, on the procesos contra el Khmer Rouge and A/ RES/57/190, December 18, 2002, paragraph 11. xv See inter alia, Human Rights Committee, General Comment No. 31, Naturaleza de la obligación jurídica general impuesta a los Estados Partes en el Pacto, paragraph 8 ; Committee against Torture, General Comment No. 2, Aplicación del artículo 2 por los Estados Partes; Inter-American Court of Human Rights: Caso Velásquez Rodríguez c. Honduras, Sentence of July 29, 1988, Series C No. 4, Serie C No. 4; Caso de la Masacre de Mapiripán c. Colombia, Sentence of September 15, 2005, Serie C No. 134; Caso de la Masacre de Pueblo Bello c. Colombia, Sentence of January 31, 2006, Serie C No. 140. xvi Inter-American Court of Human Rights: Caso Goiburú y otros Vs. Paraguay, Sentence of September 22, 2006, Serie C No. 153, paragraph 84; Caso Chitay Nech y otros Vs. Guatemala, Sentence of May 25, 2010, Serie C No. 212, paragraph 86; Caso Ibsen Cárdenas e Ibsen Peña Vs. Bolivia, Sentence of September 1, 2010, Serie C No. 217, paragraph 61; Caso Gelman Vs. Uruguay, Sentence of February 24, 2011, Serie C No. 221, paragraph 75; and Caso Gomes Lund y otros (Guerrilha do Araguaia) Vs. Brasil, Sentence of November 24, 2010, Serie C No. 219, paragraph 105. xvii Inter-American Commission on Human Rights, Segundo Informe sobre la Situación de los Derechos Humanos en Perú , OEA/Ser.L/V/II.106, Doc. 59 rev., June 2, 2000, paragraph 230.

investigated or that exonerate authors and other participants in these crimes from criminal responsibility. This has been repeatedly stated by the Inter-American Human Rights Commissionxviii and Courtxix, the Human Rights Committeexx, the Committee against Torturexxi, the United Nations Security Councilxxii, the Secretary General of the United Nationsxxiii, the United Nations High Commissioner for Human Rightsxxiv, the

xviii Report No. 36/96, Case 10.843 (Chile), October 15, 1996, paragraph 50. See also: Report No. 34/96, Case 11,228, 11,229, 11,231 and 11,282 (Chile), October 15, 1996, paragraph 50, Report No. 25/98, Case 11.505, 11 532, 11 541, 11 546, 11 549, 11 569 , 11,572, 11,573, 11,583, 11,585, 11,595, 11,652, 11,657, 11,675 and 11,705 (Chile), April 7, 1998, paragraph 42; Report No. 136/99, Case 10,488 Ellacuría SJ y otros (El Salvador), December 22, 1999, paragraph 200, Report No. 1/99, Caso 10.480 Lucio Parada y otros (El Salvador), January 27, 1999, paragraph 107, Report No. 26/92, if 10,287 masacre de las Hojas (el Salvador), September 24, 1992, paragraph 6, xix Sentence of March 14, 2001, Caso Barrios Altos (Chumbipuma Aguirre y otros vs. Perú); Sentence of February 27, 2002. Caso Trujillo Oroza (Reparaciones); and Sentence of August 29, 2002, Caso del Caracazo c. Venezuela (Reparaciones); case Caso Almonacid Arellano y otros c. Chile, Sentence of September 26, 2006, Serie C No. 154. xx General Comment No. 31 on Nature of the General Legal Obligation Imposed on States Parties to the Covenant, General Comment No. 20 (44) on article 7, and observations of the Human Rights Committee to Argentina (CCPR/C/79 / Add.46; A/50/40, paragraph 144 and CCPR/CO/70/ARG, paragraph 9), Lebanon (CCPR/C/79/Add78, paragraph 12), Niger (CCPR/C/79/Add.17 , on April 29, 1993, paragraph 7), Peru (CCPR/CO/70/PER, paragraph 9), Senegal (CCPR/C/79/Add.10, of December 28, 1992, paragraph 5), Republic Congo (CCPR/C/79/Add.118, of March 27, 2000, paragraph 12), Republic of Croatia (CCPR/CO/71/ HRV, paragraph 11), Uruguay (CCPR/C/79/Add. 19 paragraphs 7 and 11; CCPR/C/79/Add.90) and Yemen (United Nations document A/50/40, paragraphs 242-265). xxi General Comment No. 2, Implementation of article 2 by State Parties, paragraph 5 onwards, decision of November 23, 1989. Communications No. 1/1988, 2/1988 and 3/1988, Argentina, paragraph 9; observations of the Committee against Torture: Azerbaijan”, paragraphs 68 and 69; Conclusions and recommendations of the Committee against Torture: Peru”, dated November 15, 1999, paragraph 59, United Nations document A/55/44, “Observations of the Committee against Torture: Kyrgyzstan”, paragraphs 74 and 75, United Nations document A/55/44 of November 17, 1999, and “Observations of the Committee against Torture: Senegal” United Nations document A/51/44 of 9 July 1996, paragraph 102-119. xxii Resolutions of the Security Council of the United Nations We S/RES/1529 (2004), February 29 2004, S/RES/1479 of May 132003, S/RES/1464 (2003) of February 4, 2003 and S/RES/1464 (2003) of February 4, 2003. xxiii Seventh Report of the Secretary General of the United Nations Observation Mission in Sierra Leone, UN document S/1999/836, of July 30, 1999, paragraph 7; Report on the establishment of a Special Court for Sierra Leone’s Secretary General of the United Nations, UN document S/2000/915, para. 22, and Report of the Secretary General prepared pursuant to the Security Council resolutions 1160 (1998), 1199 (1998) and 1203 (1998), UN document S/1999/99 of January 29, 1999, paragraph 32. xxiv Report of the High Commissioner for Human Rights, submitted in accordance with resolution 2000/24 of the Human Rights Commission - Situation of human rights in Sierra Leone, United Nations document E/CN.4/2001/35, February 1, 2001, paragraph 6.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

International Criminal Tribunal for the Former Yugoslaviaxxv and the Special Court for Sierra Leonxxvi, among others. This fundamental rule of international law has also been codified in various international instrumentsxxvii. By systematizing the development of international law on this matter, the Secretary General of the United Nations in his “Report on the regime of law and transitional justice in societies suffering or that have suffered from conflicts” concluded that “the agreements supported by the United Nations cannot promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights, ever”xxviii. Furthermore, the United Nations Security Council has adopted several resolutions which remind States that those responsible for gross human rights violations and crimes under International Law must be brought to justice, judged and punishedxxix. In some cases, amnesties and other similar measures granted to those responsible for grave human rights as well as International Humanitarian Law violations have been tried to be justified in Article 6 Paragraph 5 of the II Additional Protocol of the Geneva Conventions of 1949, which establishes the possibility to grant a broad amnesty to the cessation of hostilities to “the persons who have taken part in the armed conflict or who are deprived of their liberty, interned or detained for reasons related to the armed conflict”. However, these amnesties cannot cover war crimes and International Humanitarian Law violations -such xxv Sentence of December 10, 1998, caso el Fiscal c. Anto Furundzija, File No. IT-95-17/1-T 10 paragraph 155. xxvi Special Court for Sierra Leone: Sentence on preliminary objections, on May 25, 2004, Asunto Procurador c. Moinina Fofana, Caso No. SCSL-2004-14-AR72(e), operative paragraph 3, and Sentence of March 3, 2004, Prosecutor v Morris Kallon and Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E). xxvii The Declaration and Programme of Action adopted by the World Conference on Human Rights, held in Vienna under the auspices of the United Nations in June 1993 (World Conference on Human Rights - Declaration and Programme of Action, June 1993, United Nations document DPI/1394-48164-October 1993 - / F, Section II, paragraph 60, p. 65), the Principles on the Effective prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 19); the Declaration on the Protection of all Persons from enforced Disappearance (Article 18), the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (Principle 22) and the Statute of the Special Court for Sierra Leone (Article 10). xxviii S/2004/616, of July 20, 2004, paragraph 10. xxix Resolution on la cuestión de Haití, S/RES/1529 (2004), February 29, 2004, paragraph 7; Resolution on la situación en Costa de Marfil, S/RES/1479 May 13, 2003, paragraph 8.

as arbitrary killings, torture and enforced disappearances- as has been stated by the International Committee of the Red Cross (ICRC)xxx, the United Nations Human Rights Committeexxxi the Inter-American Commission on Human Rightsxxxii, the International Criminal Tribunal for the former Yugoslaviaxxxiii, the Special Court for Sierra Leonexxxiv and the United Nations Security Councilxxxv. It goes without saying that this restrictive interpretation of the scope of Article 6 Paragraph 5 of Protocol II, was claimed by several States, such as the USSR, during the adoption of the treatyxxxvi. The ICRC has concluded that it is a norm of Customary International Humanitarian Law, applicable to both international and internal armed conflicts, and is defined as follows: Norm 159. When hostilities have ceased, the authorities in power will strive to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, except to those suspected or accused of having committed war crimes or sentenced for themxxxvii.

3. The nonpolitical nature of the grave human rights violations, crimes against humanity, genocide and war crimes. Under International Law, both conventional and customary, grave human rights violations, crimes against humanity, genocide and war crimes do not qualify as political crimes, even if their authors xxx

Letter of the International Committee of the Red Cross, addressed to the Prosecutor of the Criminal Tribunal for the former Yugoslavia in 1995. The International Committee of the Red Cross reiterated this interpretation in another communication dated April 15, 1997. xxxi United Nations Document CCPR/C/79/Add.78, paragraph 12 and “Concluding observations of the Human Rights Committee: Republic of Croatia “, dated April 4, 2001, United Nations document, CCPR/CO/71/HRV, paragraph 11. xxxii Case No. 11138, Nazario de Jesús Gracias (El Salvador), in Informe sobre la Situación de los Derechos Humanos en EL Salvador, document OEA/Ser.L/V/II.85, Doc. 28 rev. February 11, 1994; and Report No. 1/99, Case 10.480, Lucio Parada Cea y otros (El Salvador), January 27, 1999, paragraph 115. xxxiii Sentence of December 10, 1998, case el Fiscal c. Anto Furundzija, File No. IT-95-17/1-T 10. xxxiv Sentence on preliminary objections, on May 25, 2004, Asunto Procurador c. Moinina Fofana, Case No. SCSL-2004-14-AR72(e); and Sentence of March 3, 2004, Prosecutor v Morris Kallon and Brima Bazzy Kamara, Case No. SCSL-2004-15-AR72(E). xxxv See for example, Resolutions Nos. 1120 (Croatia) and 1315 (Sierra Leone). xxxvi See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, Ed. CICR. xxxvii Ibídem.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

have had political or ideological motives for committing such acts. The consequences prescribed by International Law for political crimes are not applicable to such crimes, especially on grounds of non-extradition and asylum as well as on those of amnesties and pardons. In addition to Customary International Law, several international instruments expressly prohibit, for the purposes of extradition, to regard grave human rights violations, crimes against humanity and war crimes as a political offensexxxviii. Furthermore, International Law prescribes that suspects or perpetrators of such crimes cannot benefit from the institutes of asylum and refugexxxix. This regulation of International Law and the application of the principles of universal jurisdiction and aut dedere aut judicare (obligation to prosecute or extradite) which are applicable to repress these crimes, confirm the State’s obligation to not treat grave human rights violations, crimes against humanity and war crimes as political crimes. 4. The principle of criminal responsibility of the hierarchical superior –civil or military– for crimes committed by their subordinates. The principle of criminal responsibility of the hierarchical superior is a principle long held in International Law for crimes against humanity, war crimes and grave human rights violations, which constitute internationally illicit acts and is a norm of Customary international Law. It is enshrined in numerous international

xxxviii See among others: Article V of the Convention on Forced Disappearance of Persons, Article VII of the Convention on the Prevention and Punishment of the Crime of Genocide, Article 13 of the International Convention for the Protection of All Persons from Enforced Disappearance; and Article 8 of the United Nations Convention on Crimes against Internationally Protected Persons. xxxix See among others: Article 1 (f) of the Convention relating to the Status of Refugees; Principle 7 of the Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes, or crimes against humanity, Article 15 of the Declaration on the Protection of All Persons from Enforced Disappearance, Article 1 (2) of the Declaration on Territorial Asylum, Article 1 (5) of the Convention of the Organization of African Unity laying governing the Specific Aspects of refugee Problems in Africa, and Conclusion No. 17 (XXXI) “Problems of extradition affecting refugees”, adopted by the Executive Committee of the High Commissioner for Refugees (1980). See Inter-American Commission on Human Rights, Recommendation “Asylum and International Crimes” of October 20, 2000 (OEA/Ser./L/V/II.111, doc. 20 rev. Apr. 16, 2001).

instrumentsxl and has been widely reiterated by international jurisprudence, from the cases against high ranking officials of the Axis forces (fuerzas del Eje) and subsequently by the International Criminal Tribunals for the former Yugoslaviaxli and Rwandaxlii, the Special Court for Sierra Leonexliii and the International Criminal Courtxliv. The General Assemblyxlv and the former Commission on Human Rights of the United Nationsxlvi have also reaffirmed this principle. As has been clearly stated by the International Criminal Court, “the fact that a head has failed to punish crimes in the past tends to increase the risk of committing new crimes”xlvii. The International xl The International Convention for the Protection of All Persons from Forced Disappearance (Article 6) Draft Code of Crimes against the Peace and Security of Mankind of the International Law Commission of the United Nations, Additional Protocol to the Geneva Conventions, Conventions of 12 August 1949 relating to the protection of victims of international armed conflicts (art. 86); Statute of the International Criminal Tribunal for Rwanda (art. 6); Statute of the International Criminal Tribunal for the former Yugoslavia (art. 7), the Rome Statute of the International Criminal Court (art. 28); Statute of the Special Court for Sierra Leone (art. 6), Regulation No. 2000/15 of 6 June 2000 on the establishment of expert groups Exclusive Jurisdiction on Serious Crimes of the Transitional Administration of the United Nations in East Timor (art. 16); Statute of the Special Tribunal for Lebanon (art. 3); Principles on the effective Prevention and investigation of Extra-legal, Arbitrary and Summary Executions (Principle 19) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Principle 24) and Updated Set of Principles for the protection and Promotion of the human rights through action to combat impunity (Principle 27). xli See, among others, the International Criminal Tribunal for the former Yugoslavia: Sentence of November 16, 1998 and Sentence of 20 July 2000, Case No. IT-96-21-T, The Prosecutor v. Zoran Delalic and others (“Celibici Camp”), Sentence of 3 March 2000, Case No. IT-9514-T, The Prosecutor v. Blaskic (“Lasva Valley”), Sentence of February 26, 2001, Case No. IT-95-14/2, The Prosecutor v. Dario Kordic and Mario Cerkez (“Lasva Valley”), Sentence of October 23, 2001, The Prosecutor v. Zoran Kupreskic and others, Case No. IT-95-16-A; Statements March 30, 2004 and July 20, 2005, Case No. IT-02-61-S, The Prosecutor v. Miroslav Deronjic, Sentence of 21 June 2001, Case No. IT-96-23-T & IT-96-23/1-T, The Prosecutor v. Kunarac and Kovac, Sentence of 21 June 1999, Case No. IT-95-14/1, The Prosecutor v. Zlatko Aleksovski, and Sentence of 15 March 2006, Case No. IT-01-47-T, The Prosecutor v. Enver Hadzihasanovic and Amir Kubura. xlii See among others, International Criminal Tribunal for Rwanda: Sentence of September, 1998, Case No. ICTR-96-4-T, The Prosecutor v. Jean Paul Akayesu; Sentence of June 7, 2001, Case No. ICTR-95-1A-T, The Prosecutor v. Ignace Bagilishema; Sentence of September 4, 1998, Case No. ICTR-97-23-S, The Prosecutor v. Jean Kambanda ; and Sentences of May 21, 1999 and June 1, 2001, Case No. ICTR-95-1-A, The Prosecutor v. Kayishema and Ruzindana. xliii See, among others, the Special Court for Sierra Leone: Sentence of May 28, 2008, Case No. SCSL-04-14-A, The Prosecutor v. Fofana and Kondewa, and Sentence of February 22, 2008, Case No. No. SCSL-04-16-T, The Prosecutor v. Brima, Kamara, and Kanu. xliv International Criminal Court, Preliminary Chamber II, Decision of June 15, 2009, The Prosecutor v. Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08. xlv See for example, resolutions Nos. 48/143, 50/192, 51/115 y 49/205. xlvi See for example, resolution No. 1994/77. xlvii International Criminal Court, Preliminary Chamber II, Decision of June 15, 2009, The Prosecutor v. Jean Pierre Bemba Gombo, Case No. ICC-01/05-01/08, paragraph 424 (French original, free translation).

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Committee of the Red Cross (ICRC) concluded that this principle is a customary international norm, applicable to both international and internal armed conflictsxlviii. The ICRC has defined this principle with the following formula: Norm 153. Chiefs and other senior officials are criminally responsible for war crimes committed by their subordinates if they knew, or should have known, that they were about to commit or were committing such crimes and did not take all reasonable steps within their power to prevent these crimes from being committed or, if already been committed, to punish those responsiblexlix.

While some human rights treaties do not incorporate this clause explicitly and the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” has no express provision on this issue, the United Nations Committee against Torture has considered that, in light of the obligation to prosecute and punish those responsible for the crime of torture contained in the Convention: “Hierarchy superiors, including public officials, cannot escape the culpability or evade criminal responsibility for acts of torture or illtreatment committed by their subordinates if they knew or should have known that such unacceptable conduct was occurring or likely to occur and failed to take reasonable steps to prevent it”l.

5. Due obedience is not applicable as grounds for exemption from criminal responsibility or justification for acts constituting serious human rights violations, crimes against humanity, genocide and war crimes. This principle has long been enshrined and has been reiterated by international instruments and international jurisprudenceli, regarding war crimes, crimes against humanity and xlviii CICR, The International Humanitarian Law, Volume No. 1 Rules, Ed ICRC, 2007, p. 632 et seq.. xlix Ibíd., p. 632. l Committee against Torture, General Comment No. 2 “Implementation of article 2 by States Parties”, paragraph 26, in United Nations document CAT/C/GC/2 of January 24, 2008. li See among others: Human Rights Committee, Observación General No. 31 sobre el artículo 2 del Pacto, La índole de la obligación jurídica general impuesta a los Estados partes en el Pacto; Inter-American Court of Human Rights, Sentence of March 14, 2001, Caso de Barrios Altos (Chumbipuma Aguirre y otros c. Perú); International Law Commission of the United Nations, Report of the International Law Commission on the work of its 48th session- May 6 to July 6, 1996, Document Supplement No. 10 (A/51/10), commentary to article 12 of the Draft Códe, p. 71 et seq.

grave human rights violationslii. No order or instruction issued by any public authority, whether civil, military or otherwise, may be invoked to justify the commission of a crime under International Law. The fact that the perpetrator of the crime were acting under orders of his Government or of a superior does not relieve him of criminal responsibility, but may be considered cause for reduction of sentence. 6. The fact that the person who committed an act which constitutes a crime under International Law acted as Head of State, Head of Government, a member of a Government or parliament, an elected representative, government official or other official function does not in any way relieve the person of criminal responsibility and shall not constitute a basis for a reduction of sentence or a mitigating circumstance. This principle has long been enshrined and has been reiterated by international instrumentsliii lii

liii

See among others: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (Article 2 (3)), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 6), the Declaration on the Protection of All Persons from Enforced Disappearance (Article 6), the Code of Conduct for Law Enforcement Officials (Article 5), the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 19), the Updated Set of Principles for the protection and promotion of human rights through action to combat impunity (top 27), the Inter-American Convention to Prevent and Punish Torture (Article 4), the Inter-American Convention on Forced Disappearance of Persons (Article VIII), Principles of International Law Recognized in the Statute and in the sentences of the Nuremberg Tribunal, adopted by the International Law Commission of the United Nations in 1950, (Principle IV) Resolution 95 (I) of 1946 General Assembly of the United Nations, the Statute of the International Criminal Tribunal for the Former Yugoslavia (Article 7.4), the Statute of the International Criminal Tribunal for Rwanda (Article 6.4) and the Rome Statute of the International Criminal Court (Article 33). See among others: Statute of the International Military Tribunal at Nuremberg (Article 7), Principles of International Law Recognized in the Statute and in the sentences of the Nuremberg Tribunal, adopted by the International Law Commission of the United Nations in 1950 (Principles I and III), Resolution 95 (I), 1946 General Assembly of the United Nations, the Statute of the International Criminal Tribunal for the Former Yugoslavia (Article 7.2), the Statute of the International Criminal Tribunal for Rwanda (Article 6.2 ), the Rome Statute of the International Criminal Court (Article 27), the Statute of the Special Court for Sierra Leone (Article 6.2) the Declaration on the Protection of All Persons from Enforced Disappearance (Article 16), the Updated set of Principles for the protection and promotion of human rights through action to combat impunity (top 27, c) and the InterAmerican Convention on Forced Disappearance of Persons (Article IX). Ver entre otros: Estatuto del Tribunal Militar Internacional de Nuremberg (artículo 7); Principios de Derecho Internacional reconocidos por el Estatuto y por las sentencias del Tribunal de Nuremberg, adoptados por la Comisión de Derecho Internacional de las Naciones Unidas en 1950, (Principios I y III); Resolución 95 (I) de 1946 de la Asamblea General de las Naciones Unidas; el Estatuto del Tribunal Penal Internacional para la ex Yugoslavia (artículo 7,2), el Estatuto del Tribunal Penal Internacional para Ruanda (artículo 6,2); el Estatuto de Roma de la Corte Penal Internacional (artículo 27); el Estatuto del Tribunal Especial para Sierra Leona (artículo 6,2) la Declaración sobre la protección de

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

and international jurisprudence. The fact that the individual acted as Head of State or State authority does not exempt him from criminal responsibility. “Crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can (sic.) the provisions of International Law be enforced”, stated the Nuremberg Tribunal in its rulingliv. Individual criminal responsibility applies “without exception to any individual from the government hierarchy or military chain of command that contributes to the commission of a crime of this nature [against humanity]”lv. 7. National criminal law can be applied retroactively to events that at the time they were committed were already crimes under International Law, without this meaning a violation of the principles of legality of offenses (nullum crimen sine lege) and non-retroactivity of criminal law. This principle is widely enshrined in various international treaties and instrumentslvi and has been reaffirmed by the international human rights jurisprudencelvii. It has also been reaffirmed by the International Criminal Tribunal for the Former Yugoslavialviii and the todas las personas contra la desaparición forzada (artículo 16); el Conjunto de principios actualizado para la protección y la promoción de los derechos humanos mediante la lucha contra la impunidad (principio 27,c); y la Convención Interamericana sobre la Desaparición Forzada de Personas (artículo IX). liv Nazi Conspiracy and Aggression: Opinion and Judgment, U.S.A. Government Printing Office, 1947, p. 223, cited in the Report of the International Law Commission on the work of its 48th session- May 6 to July 6, 1996, Document Supplement No. 10 (A/51/10), p. 31. lv International Law Commission, Report of the International Law Commission on the work of its 48th session- May 6 to July 6, 1996, Document Supplement No. 10 (A/51/10), p. 34. lvi Principles of International Law Recognized in the Statute and in the sentences of the Nuremberg Tribunal, adopted by the International Law Commission of the United Nations in 1950 (Principles I and II), the Draft Code of Crimes against the Peace and Security of Mankind (Article 1, paragraph 2), the Universal Declaration of Human Rights (Article11.2), the International Covenant on Civil and Political Rights (Article 15), the Inter-American Convention on Human rights (Article 9) and the Additional Protocol to the Geneva Conventions of August 12, 1949 on the protection of victims of non-international armed conflicts, Protocol II (Article 6.2, c). lvii Human Rights Committee, Views of July 31, 2003, case Klaus Dieter Baumgarten c. Germany, Communication No. 960/2000; Inter- American Court of Human Rights, Case Almonacid Arellano y otros c. Chile, Sentence of September 26, 2006, Serie C No. 154 and Case Gelman Vs. Uruguay, Sentence of February 24, 2011, Serie C No. 221, paragraph 254; European Court of Human Rights, inadmissibility decision of 17 January 2006, Case Kolk y Kislyiy c. Estonia, Communication Nos. 23052/04 y 24018/04 and Sentence of May 17, 2010, Case Kononov c. Letonia, Communication No. 36376/04. lviii TPIY Hall of 1st Instance, Decision of November 12 2002, The Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case No. IT-01-47-PT; Hall of 1st Instance, Decision of September 14, 2005, The Prosecutor v. Rahim Ademi and Mirko Norac, Case No. IT-04-78-PT.

Special Tribunal for Lebanonlix. The International Committee of the Red Cross (ICRC) has stated that the Protocol II formula includes International Law and that such acts cannot “be committed with impunity in violation of International Law based on the fact that such acts or omissions (sic.) were not repressed by national legislation, when committed”lx. Likewise, in its study on Customary International Humanitarian Law, the ICRC has established the Norm101, which provides that no one “can be tried or punished for an act or omission which did not constitute an offense under national or international law at the time it was committed”lxi. 8. Alleged perpetrators and other participants in grave human rights violations, crimes against humanity, genocide and war crimes should be tried by the ordinary criminal jurisdiction and not by military tribunals. The international human rights jurisprudence has repeatedly declared that the military criminal jurisdictions are not competent to prosecute persons allegedly responsible for grave human rights violations, crimes against humanity and genocide nor grave breaches of International humanitarian law -war crimescommitted against civilians or combatants hors de combatlxii. Several international instruments reiterate this crucial principlelxiii.

lix lx lxi lxii

lxiii

Special Tribunal for Lebanon, Appeals Chamber. Decision concerning the applicable law of February 16, 2011. Case STL- I I-OI/I. Commentary to Article 6 of Protocol II: ICRC, Protocole additionnel (II) aux Conventions de Genève du 12 août 1949 relatif à la protection des victimes des conflits armés non internationaux (Protocole II), 8 juin 1977 - Commentaires, párrafo 4607 (French original, free translation). Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, ICRC Ed, p. 422. See inter alia: Inter-American Commission On Human Rights (Report on Terrorism and Human Rights, a document of the Organization of American States OEA/Ser.L/V/ll.116, Doc 5 rev. 1 corr., On October 22, 2002, paragraph 231) and Inter-American Court of Human Rights (Caso de la Masacre de la Rochela Vs. Colombia, Sentence of May 11, 2007, Serie C No. 163; Caso Almonacid Arellano y otros Vs. Chile, Sentence of September 26, 2006, Serie C No. 154; Caso Palamara Iribarne Vs. Chile, Sentence of November 22, 2005, Serie C No. 135; Caso 19 Comerciantes Vs. Colombia, Sentence of July 5, 2004, Serie C No. 109; Caso La Cantuta Vs. Perú, Serie C No. 162, Sentence of November 29, 2006; Caso de la Masacre de Pueblo Bello Vs. Colombia, Serie C No. 140, Sentence of January 31, 2006, and Sentence of August 16, 2000, Caso Durand y Ugarte Vs. Perú, Serie C No. 68. Article IX of the Inter-American Convention on Forced Disappearance of Persons, Article 16 of the Declaration on the Protection of All Persons from Enforced Disappearance; Principles 22 and 29 of the Updated Set of Principles for the protection and promotion of human rights through the fight against impunity (United Nations document E/CN.4/2005/102/Add.1 of February 8, 2005) and Principles 8 and 9 of the Draft Principles on the Administration of justice through military tribunals (United Nations document E/CN.4/2006/58 of 13 January 2006).

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The Inter-American Court of Human Rights has repeatedly held that the military criminal jurisdiction is not competent to judge grave human rights violations -such as extrajudicial killings and forced disappearances- committed by military personnel, since the natural judge (juez natural) that must hear these crimes is the Ordinary Justice Systemlxiv. Likewise, the Court also reiterated that: The military criminal jurisdiction must have a restrictive and exceptional reach, given that you should only try military men for committing crimes or offenses that by their very nature attempt against legally protected goods (bienes jurídicos) of military order. In this sense, when military justice takes competency over a matter that should be heard by the ordinary justice system, the right to natural justice is compromised. This guarantee of due process should be examined according to the object and purpose of the American Convention, which is the effective protection of the human person. For these reasons and due to the nature of the crime and the legally protected goods, the military criminal jurisdiction is not the competent jurisdiction to investigate and, if appropriate, prosecute and punish the perpetrators of human rights violationslxv.

See among other rulings: Caso de la Masacre de la Rochela Vs. Colombia, Sentence of May 11, 2007, Serie C No. 163; Caso Almonacid Arellano y otros Vs. Chile, Sentence of September 26, 2006, Serie C No. 154; Caso Palamara Iribarne Vs. Chile, Sentence of November 22, 2005, Serie C No. 135; Caso 19 Comerciantes Vs. Colombia, Sentence of July 5, 2004, Serie C No. 109; Caso La Cantuta Vs. Perú, Serie C No. 162, Sentence of November 29, 2006; Caso de la Masacre de Pueblo Bello Vs. Colombia, Serie C No. 140, Sentence of January 31, 2006, and Sentence of August 16, 2000, Caso Durand y Ugarte Vs. Perú, Serie C No. 68 . lxv Caso de la Masacre de la Rochela Vs. Colombia, Sentence of May 11, 2007, Serie C No. 163, paragraph 200. lxiv

The international jurisprudence, both from the United Nationslxvi as well as the Inter-Americanlxvii, is completely unanimous in this regard. War crimes are crimes against International Law (delicti iuris gentium) and do not constitute military crimes. War crimes threaten legal goods protected by International Law and international public order. Hence, its repression is subject See Human Rights Committee: Observations and recommendations of the Human Rights Committee: Egypt, United Nations document CCPR/C/79/Add.23, on August 9, 1993, paragraph 9. Observations and recommendations of the Human Rights Committee: Chile, CCPR/C/79/Add.104, on March 30, 1999, paragraph 9; Observations and recommendations of the Human Rights Committee: Poland, CCPR/C/79/Add 110, of July 29, 1999, paragraph 21; Cameroon CCPR/C/79/Add.116 of November 4, 1999, paragraph 21; Morocco, A/47/40, of 23 October 1991, paragraph 57; Syria CCPR/CO/71/SYR, paragraph 17; Kuwait, CCPR/ CO/69/KWT, paragraph 10; Russian Federation, CCPR/C/79/Add.54, of July 29, 1995, paragraph 25, Slovakia, CCPR/C/79/Add.79, paragraph 20, and Uzbekistan, CCPR/CO/71/ UZB, of April 26, 2001, paragraph 15; Colombia, CCPR/C/79/Add.2, of September 25, 1992, paragraphs 5 and 6 and CCPR/C/79/Add.76, of May 5, 1997, paragraph 34; Peru, CCPR/C/79/Add.8, of September 25, 1992, paragraph 8; Venezuela, CCPR/C/79/Add.13, of December 28, 1992, paragraphs 7 and 10; Croatia, CCPR/C/79/Add.15 - A/48/40, of 28 December 1992, paragraph 362; Brazil CCPR/C/79/Add.66 of 24 July 19996, paragraph 10; Lebanon CCPR/C/79/Add.78, of1 April 1997, paragraph 14; Dominican Republic , CCPR/ CO/71/DOM paragraph 9, of April 26, 2001, paragraph 10; Guatemala, CCPR/CO/72/GTM, of August 27, 2001, paragraph 10. See Committee against Torture, Concluding Observations of the Committee against Torture: Cameroon, United Nations document CAT/C/CR/31/6, to February 11, 2004, paragraph 11; Concluding observations of the Committee against Torture: Peru (United Nations documents: A/50/44, of 26 July 1995, A/55/44de paras.62-73 and 15 November 1999, paragraphs. 59 and 62), Jordan (United Nations document A/50/44 United Nations, July 26, 1995, and CAT/C/JOR/CO/2 paras.159-182, of May 25, 2010), Chile (United Nations documents: A/50 / 44 of 26 July 1995, paragraphs.52-61; CAT/C/CR/32/5, to June 14, 2004, paragraph 7, and CAT/C/CHL/CO/5 of 14 May 2009, paragraph 14) Russian Federation (United Nations document CAT/C/RUS/CO/4, on February 6, 2007, paragraph 24), and Turkey (UN Document CAT / C / TUR/CO/3, on January 20, 2011, paragraph 5). lxvii See Inter-American Commission on Human Rights: Second Report on the human rights situation in Peru, document of the Organization of American States OEA/Ser.L/V/II.106, doc. 59 rev., On June 2, 2000, Chapter II “Administration of justice and rule of law”, paragraph 155, Annual Report of the Inter-American Commission on Human Rights: 1986-1987, OEA/ Ser.L/V/II.71, Doc 9 rev. 1, Chapter IV (b) Annual Report of the Inter-American Commission on Human Rights: 1992-1993, OEA/Ser.L/V/II.83, Doc 14, Chapter V, Annual Report of the Inter-American Commission on Human Rights: 1993, OEA/Ser.L/V/II.85, Doc 8 rev., Chapter V, Annual Report of the Inter-American Commission on Human Rights: 1997, OEA/Ser.L/V/II.98, Doc 6, Chapter VII, Annual Report of the Inter-American Commission on Human Rights: 1998; OEA/Ser.L/V/II.102, Doc 6, Rev., Chapter VII, Report on the situation of human rights in Brazil, September 29, 1997, OEA/Ser.L/V/II.97, Second Report on the human rights situation in Colombia, OEA/Ser.L/V/II.84, Doc 39 rev, October 14 1993, Third Report on the human rights situation in Colombia, OEA/Ser.L/V/II.102, Doc 9 Rev. 1, February 26, 1999, Report on the situation of human rights in Chile, OEA / Ser .L/V/II.66, doc. 17 rev.1, of September 9, 1985, Report on the situation of human rights in Ecuador, OEA/Ser.L/V/II.96, Doc 10 Rev. 1, Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.61 Doc 47, Third Report on the situation of Human Rights in Paraguay, OEA/Ser./L/VII.110, 2001, Second Report on the situation of human rights in Peru , OEA/Ser.L/V/II.106, Doc 59 rev., on June 2, 2000, and Report on Terrorism and Human Rights, a document of the Organization of American States OAS / Ser.L / V / ll 116, Doc 5 rev. 1 corr., On October 22, 2002, paragraph 231.

lxvi

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to certain rules -universal jurisdiction, limitations, obligation to extradite, no amnesty, among others- that are not predicated for military offenses. War crimes primarily seek to protect legal goods of the international legal order, as stated by the International Criminal Tribunal for the Former Yugoslavialxviii and the General Assembly of the United Nationslxix. The Inter-American Commission on Human Rights has also stated that: [The] war crimes constitute an extremely serious offense against human dignity and a flagrant denial of the fundamental principles enshrined in the Charters of the Organization of American States and the United Nations [...] the trial of such crimes contributes (sic.) significantly to strengthening the protection of human rights and, even more significantly, to the consolidation of the rule of law and fundamental freedoms of the human person within the global communitylxx.

War crimes seek to protect international legal goods such as the “laws and customs of war”, applicable both in international armed conflict as well as in armed conflicts that are not of an international character. Similarly International Humanitarian Law and International Criminal Law, by prohibiting and criminalizing a series of acts in armed conflict as war crimes, equally seek to protect essential legal goods inherent to human rights which cannot be suspended even in times of war, for example, the right not to be arbitrarily deprived of ones life or to not be tortured or subjected to inhuman lxviii International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Sentence of January 14, 2000, Prosecutor v. Vlatko Kupreškic and others, Case IT-95-16-T, paragraph 702. lxix Resolution 2583 (XXIV) “Question of the punishment of war criminals and of persons who have committed crimes against humanity”, adopted by the General Assembly of the United Nations on December 15, 1969, Resolution 3 (I) “Extradition and punishment of war criminals”of February 13, 1946, Resolution 95 (I) “Affirmation of the principles of International Law recognized in the Charter of the Nuremberg Tribunal”of December 11, 1946, Resolution 170 (II) “Extradition of war criminals and traitors”of October 31, 1947, Resolution 2338 (XXII) “Question of the punishment of war criminals and of persons who have committed crimes against humanity” of December 18, 1967, Resolution 2391 (XXIII) “Convention on the Non-Applicability of war crimes and crimes of humanity” of November 25, 1968, Resolution 2712 (XXV) “Question of the punishment of war criminals and of persons who have committed crimes against humanity” of December 14, 1970, Resolution 2840 (XXVI) “Question of the punishment of war criminals and of persons who have committed crimes against humanity “of December 18, 1971, Resolution 3020 (XXVII) “Prevention crime and the fight against crime” of December 18, 1972 lxx Resolution No. 1/03 “on the prosecution of international crimes” October 24, 2003.

treatmentlxxi. Thus, the arbitrary and intentional homicide of a civilian or a combatant put out of action is, first and foremost, a violation of the right to not be arbitrarily deprived of life, which is an essential legal good of common law and not a military law. . The grave human rights violations, crimes against humanity, genocide and war crimes and political offenses -including common offenses committed for political reasons- share some characteristics, in particular the fact that the authors of both illegal acts may have political motivations. However, grave human rights violations, crimes against humanity, genocide and war crimes and political offenses are two distinct categories of unlawful criminal act and are subject to different rules, especially in terms of extradition, asylum and amnestylxxii. Although the International Law does not provide a definition of political offense, it recognizes the concept of political crime -in particular in the field of extradition, the right to asylum, amnesties and sentences- and the international jurisprudence often refers to itlxxiii. The Inter-American Commission on Human Rights describes certain crimes as political, regardless of whether they have been classified as political offenses under national criminal legislation, provided that they present certain features of what constitutes a political offenselxxiv. In International Law, See for example, Article 8 of the Rome Statute of the International Criminal Court, Article 4 of the Statute of the International Criminal Tribunal for Rwanda, Articles 2 and 3 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, Articles 3 and 4 of the Statute of the Tribunal for Sierra Leone, Article 3 common to the Geneva Conventions of 12 August 1949, and Article 130 of the Geneva Convention relative to the Treatment of prisoners of War, Article 147 of the Geneva Convention relative to the protection of civilian Persons in time of War, Article 85 of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I). lxxii The notion of â&#x20AC;&#x2DC;political offenseâ&#x20AC;&#x2122; is mentioned also in various international instruments in connection with the penalties. Thus, the American Convention on Human Rights prohibits the death penalty for political crimes and common crimes related to political offenses (art. 4.4) lxxiii See for example, Concluding Observations of the Committee on Human Rights: Syrian Arab Republic, from April 24, 2001, CCPR/CO/71/SYR; Committee against Torture, Concluding Observations and Recommendations on China, June 26 1993, A/48/44, paragraphs 387429; Commission on Human Rights, Report on the Situation of Human Rights in the Republic of Cuba, OAS document OEA/Ser.L/V/II.4 doc. 2 March 20, 1962, Annual Report of the Inter-American Human Rights -1997, OAS document OEA/Ser.L/V/II.98, Doc 6, February 17, 1998, Annual Report American Commission on Human Rights -2000, OAS document OEA/Ser./L/V/II.111 doc. 20 rev., On April 16, 2001: e Report No. 49/01, Case 11.826 (Leroy Lamey), 11.843 (Kevin Mikoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) c. Jamaica, on April 4, 2001. lxxiv See, for example, the Report on the Situation of Human Rights in the Republic of Cuba, OEA/Ser.L/V/II.4 OAS document, doc. 2, March 20, 1962, and the Annual Report of the lxxi

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

the rules applicable to political offenses, on the one hand, and grave human rights violations, crimes against humanity, genocide and war crimes, on the other, are different. It is a general norm of International Law that a person should not be extradited for political crimes. Several treaties explicitly recognize this normlxxv or in connection with the principle of non-refoulementlxxvi. Unlawful acts such as crimes against humanitylxxvii, war crimeslxxviii, genocidelxxix and forced disappearanceslxxx, even if they were committed for political reasons, are not considered political crimes for the purpose of extradition. The notion of political crime is also closely related to refuge and the right to asylum. Several international instrumentslxxxi recognize the right of asylum for the commission of acts that constitute political crimes. In contrast, the various international instruments, in particular those relating to the rights of refugeeslxxxii, the right to asylum and its subsequent protection cannot be granted Inter-American Commission on Human Rights - 1997, OAS document OEA/Ser.L/V/II.98, doc. 6, February 17, 1998: Report No. 49/01 of 4 April 2001, Case Nos. 11.826 (Leroy Lamaey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) c. Jamaica, paragraphs 131 and 137. In his study of the amnesty laws and their role in the protection and promotion of human rights, prepared for the Subcommittee on Prevention of Discrimination and Protection of Minorities, Mr. Louis Joinet established generally accepted criteria for distinguishing between political offense and common crime (E/CN.4/ Sub.2/1985/16, of June 21, 1985, paragraphs 47 and 48). lxxv The Tratado de Montevideo sobre Derecho Penal Internacional of 1889 (art. 23), the Tratado sobre Extradición y Protección contra el Anarquismo, adopted at the Second International American Conference in 1902 (art. 2), the Convención de Montevideo sobre Extradición de 1933 (art. 3), the Convención de Caracas sobre Asilo Territorial de 1954 (art. 20), the Tratado de Montevideo sobre Derecho Penal Internacional de 1939 (art. 20), the European Convention on Extradition of 1957 (art. 3), the Inter-American Convention on Extradition of 1981 (art. 4) and the Arab Charter on Human Rights (art. 28). lxxvi Article 5 of the European Convention on the Suppression of Terrorism. See also P. Weis, “Asylum and Terrorism”, in The Review, International Commission of Jurists, No. 18-19, 1977, p.94 et seq For example, the Additional Protocol to the European Convention on Extradition (art. 1). lxxvii For example, the Additional Protocol to the European Convention on Extradition (art. 1). lxxviii Ibidem. lxxix For example, the Convention on the Prevention and Punishment of the Crime of Genocide (Article VII) and the Additional Protocol to the European Convention on Extradition (art. 1). The Inter-American Convention on Forced Disappearance of Personas (art. V) and the International Convention for the protection of all persons from Enforced Disappearance (art. 13). lxxx The Inter-American Convention on Forced Disappearance of Personas (art. V) and the International Convention for the protection of all persons from Enforced Disappearance (art. 13). lxxxi The Universal Declaration of Human Rights (Article 14), the Arab Charter on Human Rights (art. 28), the American Convention on Human Rights (Article 22.7), the United Nations Declaration on Territorial Asylum. lxxxii See, among others, Article 1 (f) of the Convention relating to the Status of Refugees and Article 1 (2) of the Declaration on Territorial Asylum.

to the perpetrators of crimes against peace, war crimes, crimes against humanity, grave common crimes and acts against the purposes and principles of the United Nations, among others. Although such crimes can be inspired by political motives, given their severity and the legal goods infringed, they are not considered political crimes for the purpose of the right to asylum and their authors are denied international protection provided by the refugee statute. As stated by the Commission on Human Rights: States have agreed, through various sources of International Law, that there are limitations to asylum under which such protection cannot be granted to persons for which there is strong evidence to believe they have committed international crimes, such as crimes against humanity (concept that includes forced disappearances, torture and summary executions), war crimes and crimes against peacelxxxiii.

If the granting of amnesties for grave human rights violations, crimes against humanity, genocide and war crimes is prohibitedlxxxiv, the International Law allows it for political offenseslxxxv. The General Assembly of the United Nationslxxxvi, the former Commission on Human Rightslxxxvii, the Human Rights Committeelxxxviii and the Inter-American lxxxiii Recommendation on Asylum and its relation to international crimes adopted by the InterAmerican Commission on Human Rights during the regular session 108 of October 20, 2000. lxxxiv Human Rights Committee, General Comment No. 20 (44) on Article 7, 44 Session of the Human Rights Committee (1992), Official Records of the General Assembly, 47 Session, Supplement No. 40 (A/47/40 ), Appendix VI.A, Report of Human Rights Committee, Supplement No. 40 (A/34/40), 1979, paragraph 81, and Final observations of the Human Rights Committee on Chile, CCPR/C/79/Add. 104, paragraph 7; France, CCPR/C/79/Add.80, paragraph 13; Lebanon CCPR/C/79/Add.78, paragraph 12; Republic of Croatia, April 4, 2001, CCPR / CO / 71/HRV, paragraph 11, El Salvador, CCPR/C/79/Add.34, paragraph 7; Haiti, A/50/40, paragraphs 224-241; Peru, 1996, CCPR/C/79/Add.67, paragraphs 9 and 10, Peru, November 15, 2000, CCPR/CO/70/PER, paragraph 9; Uruguay, CCPR/C/79/Add.19, paragraphs 7 and 11, and Yemen, A/50/40 , paragraphs 242-265. Inter American Court of Human Rights, Sentence of March 14 2001, Caso de Barrios Altos (Chumbipuma Aguirre y otros c. Peru). lxxxv Special Rapporteur, Study on amnesty laws and their role in the defense and protection of human rights, Sr.Louis Joinet, Study on amnesty laws and their role in the defense and protection of human rights, Commission on Prevention of Discrimination and Protection of minorities. E/CN.4/Sub.2/1985/16, de 21 de junio de 1985. lxxxvi See for example, Resolution 32/171 of 16 December 1977, resolution 32/116 of 16 December 1977 and Resolution 32/65 of 8 December 1977. lxxxvii See, for example, Resolution 1993/69, Situation in Equatorial Guinea, of March 10, 1993. lxxxviii See for example, Concluding Observations of the Human Rights Committee on: Morocco, November 23, 94, CCPR/C/79 / Add.44, paragraph 6, Syrian Arab Republic, on April 24, 2001, CCPR/CO/71/SYR, paragraph 3; Armenia, of November 19, 1998, CCPR/C/79/ Add.100, paragraph 6 , and Libya, of November 23, 94, CCPR/C/79/Add.45, paragraph 7.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

Commission on Human Rightslxxxix have recommended to release the authors of political crimes and grant amnesty or similar measures for political offenses. Furthermore, the International Humanitarian Law also recommends granting amnesties to those who have fought against a government in the context of an internal armed conflictxc. Res judicata cannot be invoked in accordance with International Law, from a previous ruling or other judicial decision of a national court in violation, by act or omission, of international obligations of the State or which violates internationally protected human rightsxci. International Law rejects the practice of fraudulent administration of justice. The International Law Commission of the United Nations has stated that the validity of the ne bis idem principle cannot be recognized when the proceedings were aimed at performing a mock trial or imposing penalties not at all proportional to the severity of the crimesxcii. The “Draft Code of Crimes Against the Peace and Security of Mankind” by the International Law Commission of the United Nationsxciii, the “Statute of the International Tribunal for the Former Yugoslavia”xciv, the “Statute of the International Tribunal for Rwanda”xcv and the “Rome Statute” of the International Criminal Courtxcvi enable to disregard a court ruling resulting from a process aimed towards obtaining impunity. The human rights international jurisprudence is reiterative in concluding that in cases against alleged perpetrators of lxxxix See for example, Report on the Situation of Human Rights in the Republic of Nicaragua, OAS document OEA/Ser.L/V/II.53, doc. 25 of June 30, 1981, Recommendations 3 and 5. xc Article 6 (5) of the Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol II) xci See for example: Inter-American Court of Human Rights, Sentence of May 30, 1999, Castillo Petruzzi y otros c. Peru, operative paragraph 13, Commission on Human Rights, Inter-American Commission on Human Rights, Resolution No. 15/87, Case 9635 (Argentina), June 30, 1987 and Report No. 136/99, Case 10,488 Ignacio Ellacuría SJ y otros (El Salvador), December 22, 1999,; Human Rights Committee, decision of November 6, 1997, Communication No. 577/1994, Polay Campos (Peru), the Committee against Torture, Decision of May 17, 2005, Caso del Sr. Kepa Urra Guridi c. España, Communication No. 212/2002, and the International Law Commission, Report of the International Law Commission on the work of its 48th session - May 6 to July 26, 1996, document of the United Nations Supplement No . 10 (A/51/10), p. 72. xcii Report of the International Law Commission on the work of its 48th session - 6 May to 2 July 6, 1996, Document Supplement No. 10 (A/51/10), comments on article 12 of the Draft Code , pgs. 71 et seq., and Report of the International Law Commission on the work of its 46th session - May 2 to July 22, 1994, Document Supplement No. 10 (A/49/10), p. 86. xciii Article 12 of Draft, Report of the International Law Commission on the work of its 46th session - May 2 to July 22, 1994, Document Supplement No. 10 (A/51/10), p. 30. xciv Article 10 (2). xcv Article 9 (2). xcvi Article 20 (3).

grave human rights violations, crimes against humanity, genocide and war crimes, res judicata from a ruling cannot be invoked, nor the ne bis in idem principle when the judicial proceedings have not answered a real attempt to bring those responsible to justice or have obeyed the purpose of shielding the accused from the responsibility for these crimes (fraudulent res judicata)xcvii.

2 - Propositions a) Justice mechanisms for grave human rights violations, crimes against humanity, genocide and war crimes committed 1. A constitutional amendment must be passed to eliminate all kinds of privileges (military, political or religious) for the prosecution and punishment of grave human rights violations, crimes against humanity, genocide and war crimes. 2. Establishment of a specialized criminal jurisdiction for grave human rights violations, crimes against humanity, genocide and war crimes, composed of specialized chambers in the Supreme Court and the High Courts of the Judicial District as well as Specialized Courts throughout the country. This specialized jurisdiction shall be accompanied by: a) The establishment, in the Attorney General’s Office and the Technical Investigation Unit (Cuerpo Técnico de Investigaciones –CTI-), of a National Unity of grave human rights violations, crimes against humanity, genocide and war crimes. b) The enablement to act as a civil party in criminal proceedings -with such broad authority and powers to act in all stages of the proceedings, including the preliminary phase- of the victims and their families, associations of victims, human rights organizations, and , in general, any person having a xcvii See, inter alia: Inter-American Court of Human Rights, Caso de Carpio Nicolle y otros c. Guatemala, Sentence of November 24, 2004, Series C No. 117, Case of La Cantuta c. Peru, Sentence of November 29, 2006, Series C No. 162; Almonacid Arellano y otros c. Chile, doc. cit., and Case of Gutiérrez Soler c. Colombia, Sentence of September 12, 2005, Series C No. 132, Inter-American Commission on Human Rights, Report No. 36/96 of 15 October 1996, Case 10.843, Hector Marcial Garay Hermosilla y otros (Chile), paragraphs 106 et seq.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

legitimate interest, . c) Previous vetting measures to prevent any judicial official from the Attorney General’s Office, from the CTI and from auxiliary corps of justice, that has been implicated, by action or omission, in grave human rights violations, crimes against humanity, genocide, war crimes and paramilitary groups or activities, or who has acted in order for these crimes to go unpunished, from integrating this specialized jurisdiction. 3. Reopen all criminal investigations filed or declared prescribed when these have been processed for acts constituting serious violations of human rights, extrajudicial executions presented as ‘battle deaths’, forced disappearances, sexual violence, crimes against humanity, genocide and war crimes, and void all sentences resulting from a fraudulent administration of justice, irrespective of the legal classification that was originally given to the crimes. 4. Ongoing criminal investigations and criminal investigations that are reopened should be conducted in a thorough and diligent manner, incorporating techniques and research methodologies concerning systematic crimes and aimed at effectively identifying all authors, participants and accomplices of crimes, and in particular those most responsible. 5. During criminal investigations, alleged perpetrators and partakers of these crimes should be removed or suspended from duty or any public function or position. 6. Persons convicted of grave human rights violations, crimes against humanity, genocide and war crimes must be detained in correctional facilities and not in military or police facilities, military or police detention centers or “special reclusion centers”. Rather, they should be subject to the imprisonment regime of ordinary prisoners.

III - TRUTH 1 - International Legal Background The right to the truth for victims of grave human rights violations and crimes under International Law, as well as that of their families, is largely protected by International Law. Several international instruments enshrine it and protect itxcviii. Intergovernmental political bodies have reaffirmed the right to the truth: the General Assemblyxcix, xcviii Protocolo Adicional a los Convenios de Ginebra del 12 de agosto de 1949 relativo a la protección de las víctimas de los conflictos armados internacionales, conocido como Protocolo I (artículo 32); Conjunto de principios actualizado para la protección y la promoción de los derechos humanos mediante la lucha contra la impunidad, los Principios y directrices básicos sobre el derecho de las víctimas de violaciones manifiestas de las normas internacionales de derechos humanos y de violaciones graves del derecho internacional humanitario a interponer recursos y obtener reparaciones, los Principios rectores de los desplazamiento internos y la Convención Internacional para la protección de todas las personas contra las desapariciones forzadas Ver Resoluciones Nos. 66/160 de 19 de diciembre de 2011; 65/210 de 21 de diciembre de 2010; 65/209 de 21 de diciembre de 2010; 65/196 “Proclamación del 24 de marzo como Día Internacional para el Derecho a la Verdad en relación con las Violaciones Graves de los Derechos Humanos y para la Dignidad de las Víctimas” de 21 de diciembre de 2010; 64/167 de 18 de diciembre de 2009; 63/183 de 18 de diciembre de 2008; 61/155 de19 de diciembre de 2006; 59/189 de 20 de diciembre de 2004; y 57/207 de 18 de diciembre de 2002; y 57/161 de 16 de diciembre de 2002. Additional Protocol to the Geneva Conventions of 12 August 1949 on the protection of victims of international armed conflict, known as Protocol I (Article 32); Updated set of Principles for the protection and promotion of human rights through the fight against impunity, the Principles and guidelines on the right of victims of gross violations of international human rights law and serious violations of international humanitarian law to a Remedy and Reparation, the Guiding Principles on Internal Displacement and the International Convention for the Protection of All persons from enforced Disappearance View Resolutions Nos. 66/160 of 19 December 2011, 65/210 of 21 December 2010, 65/209 of 21 December 2010, 65 / 196 “Proclamation of 24 March as the International Day for the Right to the Truth concerning Gross Violations of Human Rights and Dignity of Victims” of December 21, 2010, 64/167 of December 18, 2009 , 63/183 of December 18, 2008, 61/155 of December 19, 2006, 59/189 of December 20, 2004, and 57/207 of December 18, 2002, and 57/161 of December 16, 2002. xcix See Resolutions Nos. 66/160 of 19 December 2011, 65/210 of 21 December 2010, 65/209 of 21 December 2010, 65/196 “Proclamation of 24 March as the International Day for the Right to the Truth concerning serious violations of Human Rights and Dignity of Victims “of 21 December 2010, 64/167 of 18 December 2009, 63/183 of 18 December 2008, 61/155 of19 December 2006, 59/189 of 20 December 2004, and 57/207 of 18 December 2002, and 57/161 of 16 December 2002

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

the Human Rights Councilc and the former United Nations Commission on Human Rightsci, as well as the General Assembly of the Organization of American Statescii. The broad jurisprudence and doctrine on the right to truth has been systematized in several studies by the Office of the United Nations High Commissioner for Human Rightsciii. The right to the truth, as has been properly summarized by the InterAmerican Commission on Human Rights, means “to know the whole, complete and public truth of the events, their specific circumstances and who participated in them”civ. This involves knowing the complete and total truth regarding the facts, their specific circumstances, the identity of the perpetrators and their accomplices, and their motivationscv. In cases of forced disappearance, secret executions and clandestine burials, the right to the truth also has a special dimension: to know the fate and whereabouts of the victimcvi. Likewise, in cases of disappearance or abduction of children during the captivity of their parents, victims of forced disappearance, the right to the truth also implies the right of the children to know their true identitycvii. c

Resolutions Nos. 9/11, “The right to the truth” of 24 September 2008 and 12/12, “the right to the truth” of 1 October 2009 ci Resolution No. 2005/66 “The right to the truth” of April 20, 2005. cii See Resolutions “The right to the truth”: AG/RES. 2175 (XXXVI-O/06), AG/RES. 2267 (XXXVII-O/07), AG/RES. 2406 (XXXVIII-O/08), AG/RES. 2509 (XXXIX-O/09), AG/RES. 2595 (XL-O/10), AG/RES. 2662 (XLI-O/11) y AG/Res. 2725 (XLII-0/12). ciii on the right to the truth - Report of the Office of the United NationsHuman Rights document E/CN.4/2006/91 of January 9, 2006, The right to the truth - Report of the Office of the United Nations High Commissioner for Human Rights document A/ HRC/5/7 of June 7, 2007, The right to the truth - Report of the Office of the United Nations High Commissioner for Human Rights A/HRC/12/19 of August 21, 2009, and Report of the Office of the United Nations High Commissioner for Human Rights on seminar file experiences as a means to ensure the right to truth, document A/HRC/17/21 of April 14, 2011 civ Report No. 37/00, April 13, 2000, Case No. 11.48, Monseñor Oscar Arnulfo Romero y Galdámez (El Salvador), paragraph. 148. cv See for example: Commission on Human Rights (Report No. 136/99 of 22 December 1999, Case 10488, Ignacio Ellacuría SJ y otros (El Salvador), and Report No. 1/99 of 27 January 1999, Case No. 10480, Lucio Parada Cea y otros (El Salvador)) and Inter-American Court of Human Rights (Caso de Barrios Altos c. Peru, Sentence of March 14 2001, Series C No. 75, Caso de Myrna Mack Chang c. Guatemala, Sentence of November 25, 2003, Series C No. 101, Caso de La Cantuta v. Peru, Sentence of November 29, 2006, Series C No. 162, Caso Gelman c. Uruguay, Sentence of 24 February 2011, Series C No. 221, and Caso de la Masacre de Rochela c. Colombia, Sentence of May 11, 2007, Series C No. 163). cvi See, among others, Human Rights Committee: Opinion of March 26, 2006, Caso Sankara y otros (Burkina Faso), Communicationn No. 1159/2003; Opinion of April 3, 2003, Caso Lyashkevich (Belarus), Communication No. 887/1999; Opinion of March 30, 2005, Caso Khalilova (Tayikistán), Communication No. 973/2001; Opinion of November 16, 2005, Caso Valichon Aliboev (Tayikistán), Communication No. 985/2001. cvii Inter American Court of Human Rights, Caso Gelman Vs. Uruguay, and Sentence of February 24, 2011, Serie C No. 221. See also Caso Contreras y otros Vs. El Salvador,

Likewise, the jurisprudence and the international doctrines believe that society as such is also entitled to know the truth about grave human rights violations and crimes under International Lawcviii. This has been particularly captured in the “Updated Set of principles for the protection and promotion of human rights through action to combat impunity”. Indeed, the right to the truth also has a collective dimension: society has the right to know the truth about the grave human rights violations, the circumstances in which they were committed, those responsible for these actions and their motives. As the Inter-American Court of Human Rights has stated, the investigation of these crimes and satisfaction of the: Law which assists the families of the victims in learning what happened and in knowing who were the State agents responsible for the respective events [...] not only benefits the families of the victims but also the society as a whole, in that in knowing the truth about such crimes it has the ability to prevent them in the futurecix.

In effect, the right to the truth has been characterized as inalienable and imprescriptible by both the international instruments and the international doctrine and jurisprudence. In this matter, the Principle 4 of the “Updated Set of principles for the protection and promotion of human rights through action to combat impunity” states that: Regardless of any legal actions before the Justice, the victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in case of death or disappearance, the fate of the victim.

This characterization of the right to the truth has other consequences, as noted by the High Commissioner of the United Sentence of August 31, 2011 Serie C No. 232 and Caso de las Hermanas Serrano Cruz Vs. El Salvador, Sentence of March 1, 2005 (Merits, Reparations and Costs). Serie C No. 120. Likewise, see article 25 of the International Convention for the Protection of All Persons from Enforced Disappearance. cviii See among others: Human Rights Committee, “Observations and recommendations of Human Rights Committee: Guatemala”, document CCPR/C/79/Add.63; Inter-American Court of Human Rights Caso de 19 Comerciantes v. Colombia, Sentence of July 5 2004, Series C No. 109, and Commission on Human Rights, Report No. 1/99 of 27 January 1999, Case No. 10480, Lucio Parada Cea y otros (El Salvador). cix Caso 19 Comerciantes Vs. Colombia, Sentence of July 5 2004, Serie C No. 109, paragraphs 258 y 259. Study on the right to the truth - Report of the Office of the United Nations High Commissioner for Human Rights document E/CN.4/2006/91 of January 9, 2006, paragraph. 60

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

Nations for Human Rights: Given its inalienable character and its close relationship with other non-derogable rights such as the right to freedom from torture and ill-treatment, the right to the truth should be considered as a right that cannot be suspended. Amnesties and similar measures, and restrictions on the right to request information should never be used to limit, deny or impair the right to the truth, which is closely linked to the obligation of States to combat and eradicate impunitycx.

Along this same line, the Work Group on Enforced or Involuntary Disappearancescxi, the Special Rapporteur on the independence of magistrates and lawyerscxii, the Inter-American Commission on Human Rightscxiii and the Inter-American Court of Human Rightscxiv have spoken. It is noteworthy that the latter has concluded the following: Amnesty provisions, provisions on prescription and the establishment of exclusionary provisions that hinder the investigation and punishment of those responsible for serious human rights violations, such as torture, extrajudicial or arbitrary summary executions, forced disappearances, all of them prohibited because they violate nonderogable rights recognized by the International Human Rights Law, are inadmissible [...] Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity, so they are manifestly incompatible with the charter and spirit of the American Convention. This type of law hinders the identification of the individuals responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their families from knowing the truth and receiving the corresponding reparationcxv. cx Study of the right to the truth - Report of the Office of the United Nations High Commissioner for Human Rights document E/CN.4/2006/91 January 9, 2006, paragraph. 60 “General Comment on the right to the truth in relation to enforced disappearances”, in the Report of the Working Group on enforced or involuntary disappearances, United Nations document A/HRC/16/48. cxi “General Comment on the right to the truth in relation to enforced disappearances”, Report of the Working Group on Enforced or Involuntary Disappearances, UN Document A/HRC/16/48. cxii UN Document, E/CN.4/1998/39/Add.1, paragraph. 131. cxiii See among others, Report No. 37/00, April 13, 2000, Caso No. 11.48, Monseñor Oscar Arnulfo Romero y Galdámez (El Salvador); Report No. 136/99, December 22, 1999, Caso 10.488, Ignacio Ellacuría S.J. y otros (El Salvador); and Report No. 1/99, of January 27, 1999, Caso No. 10.480, Lucio Parada Cea y otros (El Salvador). cxiv See among others, Caso Gelman Vs. Uruguay, Sentence of February 24, 2011, Serie C No. 221. cxv Caso Barrios Altos Vs. Perú, Sentencia de 14 de marzo de 2001, Serie C No. 75, párrafos

As has been pointed out by the international doctrine and jurisprudence, the right to the truth is closely linked to the right to justice. Indeed, by definition, the right to the truth requires the action of justice, it entails knowledge of the circumstances in which severe violations of human rights were committed, as well as the identity and degree of involvement and responsibility of the authors and others involved. This entails the determination by a court of individual criminal responsibility. In this regard, the United Nations High Commissioner for Human Rights has stated that: If the right to the truth is examined in the context of judicial proceedings or after the determination of criminal responsibility by a court, there is no conflict between the right to the truth and the principle of the presumption of innocence. However, problems can arise if the perpetrators are identified within the framework of an extrajudicial mechanism, such as a truth commission, since not all the truth-seeking processes apply guarantees of a due processcxvi.

To these effects, the “Updated Set of principles for the protection and promotion of human rights through action to combat impunity” stipulates standards to safeguard the rights and, in particular, the presumption of innocence of the alleged authors implicated in truth commissionscxvii. However, given the inherent implications of the right to the truth, international jurisprudence has pointed out that truth commissions or other similar mechanisms have a limited scope. Thus, in the case of the Truth Commission for El Salvador, the Inter-American Commission on Human Rights has stated that: Despite the importance that the Truth Commission had in establishing the facts related to the gravest violations and in promoting national 41 y 44. Ver, entre otros, Caso Almonacid Arellano y otros Vs. Chile, Sentencia de 26 de septiembre de 2006 Serie C No. 154, párrafos 112 y 114. cxvi Study of the right to the truth - Report of the Office of the United Nations High Commissioner for Human Rights document E/CN.4/2006/91 January 9, 2006, paragraph. 39. cxvii Principle 9 states: Before a commission identifies perpetrators in its report, interested persons are entitled to the following guarantees: a) The commission must try to corroborate information implicating individuals before they release their name publicly b) the persons involved must have been heard or at least summoned for this purpose, and have the opportunity to state their side of the story at a hearing convened by the commission while doing the research, or incorporate it into a document file equivalent to a right of reply”.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

reconciliation, the functions performed by it, though highly relevant, cannot be considered an adequate substitute of the judicial process as a method for reaching the truthcxviii.

The Inter-American Commission also stated that this type of commissions: Neither do they substitute the non-delegable obligation of the State to investigate violations that have been committed within its jurisdiction, to identify those responsible, to impose penalties and to ensure the victim adequate reparation [...] all within the imperative need to combat impunitycxix.

The Inter-American Commission has stated that the measures of reparation to the victims and their families, as well as the establishment of truth commissions, do not in any way absolve the State of its obligation to bring to justice those responsible for violations of human rights and to impose sanctionscxx. Along those same lines, the InterAmerican Court of Human Rights has stated that: In fulfilling its obligations in guaranteeing the right to the truth, States may establish truth commissions, which contribute to the construction and preservation of historical memory, the elucidation of facts and the determination of institutional, social and political responsibilities in certain historical periods of a society. However, this does not complete or replace the State’s obligation to establish the truth through judicial processes, therefore it is an obligation of the State to initiate criminal investigations in order to determine the corresponding responsibilitiescxxi. cxviii N 136/99, Caso 10.488 Ignacio Ellacuría S.J. y otros (El Salvador), December 22, 1999, paragraph. 229. cxix Ibídem, paragraph 230. cxx See, for example, Report No. 28/92å, Cases 10.147, 10.181, 10.240, 10.262, 10.309 y 10.311 (Argentina), October 2, 1992, paragraph 52. cxxi Caso Contreras y otros Vs. El Salvador, Sentence of August 31, 2011, Serie C No. 232, paragraph 135. See also: Caso Gomes Lund y otros (Guerrilha do Araguaia) Vs. Brasil, Sentencia de 24 de noviembre de 2010, Serie C No. 219párr. 297; Caso Almonacid Arellano y otros Vs. Chile, Sentence of September 26, 2006, Serie C No. 154, paragrpah. 150; Caso Chitay Nech y otros c. Guatemala, Sentence of May 25, 2010. Serie C No. 212, paragraph 234, and Caso Ibsen Cárdenas e Ibsen Peña Vs. Bolivia, Sentence of September 1, 2010, Serie C No. 217, paragraph 158; Caso Almonacid Arellano y otros Vs. Chile, Sentence of September 26, 2006, Serie C No. 154, paragraph 150; Caso Radilla Pacheco c. México, Sentence of November 23, 2009, Serie C No. 209, paragraph 179; Caso Anzualdo Castro Vs. Perú, Sentence of September 22, 2009, Serie C No. 202, paragraph 180; and Caso De la Masacre de las Dos Erres Vs. Guatemala, Sentence of November 24, 2009, Serie C No. 211, paragraph 232

Moreover, by examining and taking stock of the national commissions of inquiry on extrajudicial executions, created during the 26 years of his mandate, the United Nations Special Rapporteur on extrajudicial, summary and arbitrary executions concluded that “a commission cannot substitute a criminal trial”. cxxii. He stressed that these commissions do not have the authority that a court has to declare an individual guilty or innocent and said that “the function of a commission within the obligation incumbent upon a State to prosecute and punish, is to gather evidence for further judicial proceedings, to identify authors of the crimes or to recommend certain persons be put on trial”cxxiii. Thus, truth commissions or other extra-judicial mechanisms for clarification of grave human rights violations and crimes under International Law cannot override the action of justice or relieve the State of its obligation to establish the truth through judicial processes, to investigate the facts judicially and to criminally punish the authors. The principles and standards governing the creation and operation of truth commissions are embodied in the “Updated Set of Principles for the protection and promotion of human rights through action to combat impunity.”

2 - Proposals Truth Commission A truth commission on human rights violations, crimes against humanity and war crimes committed in Colombia since 1945 up to the date of the conclusion and enforcement of the peace agreement should be created, with a special emphasis on crimes committed by state agents and paramilitary groups. The truth commission shall not possess jurisdictional nor disciplinary attributions, therefore it cannot substitute the functions of the Judicial Power nor the Attorney General’s Office. cxxii Report of the Special Rapporteur on extrajudicial, summary and arbitrary executions, Philip Alston, United Nations document A/HRC/8/3 of May 2, 2008, paragraph. 55. cxxiii Ibídem.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

1. The truth commission will have as a mandate:

i. To clarify the process, facts and accountability for the grave human rights violations, crimes against humanity and war crimes, including exile and persecution against opposing political parties and movements, civil society, peasant and union organizations, ethnic communities, and defenders of human rights committed in Colombia since 1945 up to the date of the conclusion and enforcement of the peace agreement, with special emphasis on the crimes committed by state agents and paramilitary groups. ii. To contribute to the clarification by the ordinary criminal jurisdiction of the grave human rights violations, crimes against humanity and war crimes committed in Colombia since 1945 up to the date of the conclusion and enforcement of the peace agreement as well as the establishment of criminal liabilities. iii. To help clarify the fate or whereabouts of victims of forced disappearance, their location, liberation or the return of their remains to their families. iv. To contribute to administrative vetting processes of the Public Force, security corps of the State and the public administration -including the three branches of the Government- of all public servants who, by act or omission, committed or contributed to the commission of grave human rights violations, crimes against humanity and war crimes, or participated in the creation of paramilitary groups or favored their impunity. v. To contribute to the elucidation of the responsibilities of nonstate actors, including business guilds, in the grave human rights violations, crimes against humanity and war crimes. vi. To identify policies, doctrines, rules, practices and mechanisms that promoted the commission of grave human rights violations, crimes against humanity and war crimes, the creation and promotion of paramilitary groups and their impunity; and the victimization of opposing political parties and movements, civil society organizations, human rights defenders, peasant and trade unions or ethnic communities. vii. To recommend reforms, whether they be institutional, legal or of any other nature, as prevention and guarantees of non-

recurrence in order to be processed and addressed through legislative, political or administrative initiatives. viii. To establish mechanisms for monitoring their recommendations. 2. The truth commission shall consist of 60 persons of Colombian and foreign nationality (the commissioners), of recognized ethical career and moral integrity, and committed to the defense of human rights, with the exclusion of everyone implicated, by act or omission, in grave human rights violations, crimes against humanity and war crimes, paramilitary activities or their impunity, and any member of a party to the armed conflict. Regarding the commissioners, at least one shall be appointed by the organizations of victims of grave human rights violations committed by the State and another by civil society movements that have been victims of state violence. Commissioners shall: ix. Enjoy conditions that ensure their independence and impartiality by their tenure during their mandate, except for reasons of incapacity or conduct that makes them unfit to discharge their duties. This in accordance to procedures which ensure fair, impartial and independent decisions. x. Have the privileges and immunities necessary for their safety, including the period following their mission, especially regarding any defamation proceedings or other civil or criminal action against them on the basis of facts or opinions contained in the truth commission reports. 3. The truth comission shall: xi. Have a renewable term, no shorter than five years. xii. Have the necessary administrative and budgetary autonomy to develop his or her mandate, for which the State must ensure the timely allocation of resources from the national budget. xiii. Have broad authority, powers and functions to fulfill his or her mandate, such as: 39

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

• Access to private files and documents, or files and documents from the State, as well as to any place or site that is required for the development of his mandate, without any restriction and without it being possible to invoke any legal reserve or otherwise. • Interview and collect from any person, authority, official or public servant any information he or she may consider relevant. • Conduct public hearings -retransmitted by public and private television and radio channels, during prime timeand other measures deemed appropriate in a confidential manner, whilst maintaining confidentiality of the identity of those who provide important information or to those who take part in the investigations. • Perform without any restriction, visits, inspections or any other steps deemed appropriate. • Manage security measures for people who, in the opinion of the commission, are in a life threatening situation or one that compromises their personal integrity. • Establish offices in departments and anywhere in the country as deemed necessary. • Subscribe agreements or covenants with public or private, national, foreign and international entities, including NGOs. 4. The Final Report of the Truth Commission will be widely released by the National Government and other territorial entities. For this purpose:

xiv. The National Government will use television and radio to broadcast messages, documentaries and audiovisual and radio programs of the Final Report of the Truth Commission. The content of these messages, documentaries and programs shall be prepared by the truth commission. These messages, documentaries and programs shall be broadcast during prime time programming. xv. The Final Report of the Truth Commission and its findings shall be widely diffused through publications and media – written and radio- as well as public and private television networks.

xvi. The Final Report of the Truth Commission shall be permanently included in the curricula and institutional development plans of public and private educational institutions existing in the country. The Ministry of Education shall promote and encourage the preparation of textbooks and educational materials about the truth commission and the conclusions and recommendations of its final report. 5. Interim reports and the Final Report of the Truth Commission as well as all the files and all documentation compiled by the Truth Commission shall be declared historical heritage of the nation and, once the mandate of the truth commission has concluded, they shall be delivered to the National Archives for preservation, access and public consultation. Technical measures and criminal penalties shall be adopted to prevent the theft, destruction, concealment or falsification of the archives and all the documentation collected by the truth commission. 6. The files and documentation collected by the Truth Commission and its interim reports and final report will be made available to the Judiciary Power and the Attorney Generalâ&#x20AC;&#x2122;s Office for criminal and disciplinary proceedings purposes. The truth commission shall proceed to this at any time during the performance of their duties. 7. A mechanism for monitoring, taking public accountability and tracking of the implementation or ignorance of the Truth Commission conclusions and recommendations.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

IV - Reparation 1 - International legal background It is a general principle of international law, recognized long ago, that any violation of an international obligation entails the obligation to provide reparationcxxiv. The International Law of Human Rights does not escape the application of this general principle and the violation of the obligation to guarantee the effective enjoyment of human rights and to refrain from violating them implies an obligation to provide reparation. This obligation is not only enshrined in international treaties and instrumentscxxv but, as has been repeatedly pointed out by the international human rights jurisprudence, it is norm of Customary International Law, which is mandatory in naturecxxvi. Furthermore, International Law requires that the granting of reparation to the victims does not exonerate the State of fulfilling its obligations to investigate, prosecute and punishcxxvii. cxxiv See among others: Permanent Court of International Justice, Sentence of September 13, 1928, Chorzow Factory Case (Germany vs. Poland), in Series A, No. 17, International Court of Justice, Sentence in June 1949, Case Strait Corfu, International Court of Justice, Judgment on merits, military and Paramilitary Activities in and against Nicaragua (Nicaragua v. united States of America), 1986, and Report of the International Law Commission - 53 session (23 April-June 1 and July 2 to August 10, 2001), Official Records of the General Assembly, 56th session, Supplement No.10 (A/56/10). cxxv For example: the Universal Declaration of Human Rights (Article 8), the International Covenant on Civil and Political Rights (Articles 2.3,.9.5 and 14.6), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 13 and 14), the International Conventionon on the Elimination of All Forms of Racial Discrimination (art. 6), the International Convention for the Protection of All persons from enforced Disappearance (Article 24, the Basic Principles and Guidelines on the right of victims of gross violations of international human rights and serious violations of international humanitarian law to a Remedy and Reparation, the Updated Set of principles for the protection and promotion of human rights through action to combat the impunity, the Declaration of Basic Principles of justice for Victims of crime and Abuse of power, the Declaration on the Protection of All persons from enforced Disappearance (Article 19), the Principles on the Effective prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (Principle 20), the Declaration on the elimination of Violence against Women, and the American Convention on Human Rights (Articles 25, 68 and 63.1). cxxvi See for example Court of Human Rights, Sentence of August 29, 2002, Caso del Caracazo c. Venezuela, paragraph 76, and United Nations document E/CN.4/Sub.2/1993/8, of July 2, 1993, paragraph 41. cxxvii Special Rapporteur on extrajudicial, summary or arbitrary executions, the UN document,

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

The “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law”, which constitute the legal reference in the field, have systemized the repair obligations imposed by International Lawcxxviii for both human rights and International Humanitarian Law violations. Reparation must be comprehensive. This means that all damages caused by the violation of human rights or crime committed under International Law, that is, both the material and moral damages must be repaired. The reparation must be appropriate and proportionate, fair and prompt, and can be individual or collective, depending on the nature of the right violated and the human group affected. Thus, for example, indigenous and afro-descendant communities have the right to collective reparations. Reparation modalities are diverse and include: restitution, compensation, rehabilitation and satisfaction. Those entitled to compensation are: Any person who has suffered damage, individually or collectively, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute a blatant violation of international human rights or a gross violation of international humanitarian lawcxxix.

The relatives of the victims of grave human rights violations, crimes against humanity, genocide and war crimes, and persons who have suffered harm by intervening to assist victims in distress or to prevent victimization are also entitled to compensation. Likewise, the concept E/CN.4/1994/7, paragraphs 688 and 711, Inter-American Court of Human Rights, Sentence of August 27, 1998, Caso Garrido y Baigorria (Reparaciones), paragraph 72. cxxviii The Preamble of the Principles expressly states that “the basic principles and guidelines contained in this document do not entail new international or domestic legal obligations but identifymechanisms, modalities, procedures and methods for the implementation of existing legal obligations under the international human rights standards and international humanitarian law”. cxxix Article 8 of the Basic Principles and Guidelines on the right of victims of gross human rights violations law and grave violations of international humanitarian law to Remedy and Reparation.

of victims that are rights-holders to reparation includes combatants or members of armed opposition groups and victims of acts and methods prohibited by International Humanitarian Law and which constitute war crimes, even in situations where they have not been put out of action. The reparation measures can also shelter legal persons, such as political parties, trade unions and civil society or human rights organizations, when its members have been persecuted or victimized due to their membership or to their activities carried out in these organizationscxxx.

2 - Proposals a) General Proposals for reparation The State must guarantee, without discrimination, to all victims of grave human rights violations, crimes against humanity, genocide and war crimes committed by State agents or paramilitary groups, just compensation, proportionate, timely and comprehensive for all damages, both material and moral. Furthermore, without prejudice to the foregoing, the State must ensure: • To all crime victims of forced displacement and dispossession of land an effective restitution, both material and legal, of their property and a safe and dignified voluntary return to their land cxxx See for example: Human Rights Committee of the United Nations (Opinion of 25 October 2010, Communication No.. 1383/2005, Vladimir Katsora, Leonid Sudalenko e Igor Nemkovich c. Belarús; Opinion of 31 October 2006, Communication No. 1274/2004, Viktor Korneenko y otros c. Belarús; and Opinion of July 27, 2007, Communication No. 1296/2004, Aleksander Belyatsky y otros c. Belarús); European Court of Human Rights (Sentence of May 14, 2006), Caso Parti populaire démocrate-chrétien c. Moldova, Petition No.28793/02; Sentence of 8 October 2008, Caso the Georgian Labour Party v. Georgia, Petición No. 9103/04; Sentence of 5 October 2004, Caso Presidential Party of Mordovia v. Russia, Petition No. 65659/01); Sentence of April 11, 2007, Caso Parti conservateur russe des entrepreneurs et autres c. Russie, Peticiones Nos. 55066/00 y 55638/0; Sentence of February 12, 2004, Caso Parti socialiste de Turquie (STP) et autres c. Turquie, Petición No. 26482/95; Sentence of May 21, 2003, Caso Dicle Parti de la Démocratie (DEP) c. Turquie, Petición No. 25141/94; Sentence of February 13, 2003, Caso Refah Partisi (Parti de la Prospérité) et autres c. Turquie, Peticiones Nos. 41340/98, 41342/98, 41343/98 y 41344/98; Sentence of December 8, 1999, Caso Parti de la liberté et de la démocratie (ÖZDEP) c. Turquie, Petition No. 23885/94); and Inter-American Commission on Human Rights (Admissibility Report No. 140/09 of 30 December 2009, Application No. 1470-1405, Miembros del Sindicato de Trabajadores Oficiales y Empleados Públicos de Antioquia (SINTRAOFAN) – Colombia).

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

and as provided for in international normscxxxi; • The removal of all legal or administrative restrictions on the real and integral restitution, or any measure that prevents those stripped of their right to dispose of their land at will, such as the usage and transaction contracts covered by the Victims Law, or surface rights. • The demilitarization of territories that have been most affected by grave human rights violations, crimes against humanity, genocide and war crimes committed by members of the Public Force, so as to ensure the return and the rights of victims of dispossession. • Rehabilitation to all victims of sexual torture and violence, including medical and psychological carecxxxii. • Collective reparation programs for women who recognize the specific ways in which they have suffered violence, such as prostitution, recruitment, domestic work and forced abortions, also including the use of their body as spoils of war and becoming the head of family on their own, among others. Also, re-victimization when issuing a lawsuit for the violated rights of their relatives. • In cases of enforced disappearance, the release of the disappeared or, in case of death, the knowledge of the fate of the victim to all family members and that their remains be returned in conditions of dignity to his family, with a petition for pardon to the children and relatives of the victim. Also identifying, making visible and converting the official or private places where victims were forced to remain captive into Memory Museums. • In cases of secret extrajudicial executions or of clandestine burials, that the remains be returned in conditions of dignity to their families. cxxxi Guiding Principles on Internal Displacement and the Principles on the restitution of housing and property of refugees and displaced persons (United Nations). Basic Principles and Guidelines on the right of victims of gross violations of international human rights and serious violations of international humanitarian law to a Remedy and Reparation (Article 21) and the Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment (art. 14). cxxxii Basic Principles and Guidelines on the right of victims of gross violations of international human rights and serious violations of international humanitarian law to a Remedy and Reparation (Article 21) and the Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment (art. 14).

• A national program of psychosocial care for victims and their families, with a differential approach to cases of women, children, afro-descendants and indigenous communities. This must be based on the experience of the victim’s movements and human rights organizations existing psychosocial care teams, and observe the principles of gratuity and accessibility. Additionally, it must be defined and implemented with the participation of victims’ organizations and independent specialized agencies. • For minors, crime victims of forced recruitment, assistance and care measures for their physical and psychological recovery as well as for their social reintegration. • The voluntary return, in conditions of safety and dignity, of all persons granted asylum, refugee status, or that without this condition officially recognized, were compelled to leave the country because of political persecution, the exercise of their human rights and liberties or their actions in defending human rights or fighting impunity. • The public restoration of the victims and their families right to honor and reputation, including public clarification of the facts, revision of court proceedings, the publication of repair and replication messages in the public and private national media during prime time, and public restoration of the victims and their familie’s right to honor and reputation, including the destruction of State documents –particularly those of intelligence. • The revision of the Law 1448 of 2011 with participation of the victims in the formulation of the new public policy. • The elimination of the statute of limitations to exercise direct reparation actions against the State for human rights violations, crimes against humanity, genocide and war crimes committed by members of the Public Force • The review of administrative reparation measures so as to match those defined by international justice for grave human rights violations, crimes against humanity, genocide and war crimes. • Collective reparation measures for victimized indigenous and afro-descendant communities, and in particular, the restitution of their ancestral lands and measures for the reconstruction of their 47

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

cultural ancestral heritage. • The annulment or revision of the unjust sentences that have resulted from judicial or disciplinary proceedings performed without observance of the due process rules or as a form of political persecution. • Collective reparation measures for trade unions, political, peasant, civil society or otherwise victimized organizations.

b) Measures of satisfaction • The State and the armed opposition groups, parties to a peace agreement, should make a public acknowledgment of the grave human rights violations -which constitute crimes under International Law- crimes against humanity, genocide and war crimes for which they are responsible and ask for the forgiveness of the victims, their families and the Colombian society. • The State must: • Ensure that every year on March 6 and throughout the national territory, the National Day for the Dignity of State Crime Victims is commemorated. • Ensure that every year on March 24 and throughout the national territory, the International Day for the Right to the Truth Concerning Grave Human Rights Violations and for the Dignity of Victims is commemorated, in accordance with Resolution 65 / 196 of the United Nations General Assemblycxxxiii, associating the State violence victims and non-governmental human rights organizations during the preparation of its content and modalities. • Ensure that national, departmental and municipal authorities, as well as private and public educational institutions provide full and effective implementation of Article 14 of Law 1408 of 2010 - “By which tribute to the victims of forced disappearances is payed and measures for their location and identification are cxxxiii Resolution No. 65/196 “Proclamation of March, 24 as the International Day for the Right to the Truth concerning Gross Violations of Human Rights and Dignity of Victims, adopted by the General Assembly of the United Nations, the December 27, 2010.

defined”- establishing the week of the Detained Disappeared, the last week of May of each year, and the International Day of the Disappeared on August 30th of each year. • Declassify, organize and preserve the totality of the State classified documents, especially intelligence files relating to human rights violations, crimes against humanity, genocide and war crimes, to serve as reference materials for the national memory of the victims and serve as input to the judicial process. Similarly, establish a National Memory Register, which shall be jointly administered by the National Archives and both the victims’ and human rights defenders organizations. • Establish a permanent human rights lesson plan for primary, secondary and university level education and ensure that this lesson plan is in the curriculum and institutional development plans of public and private educational institutions. This lecture will include an emphasis on human rights violations, crimes against humanity, genocide and war crimes, and State responsibilities. Once the Final Report of the Truth Commission is concluded, it shall be subject to the permanent human rights lesson plan. • Create a national fund composed of public resources, for victims of human rights violations, crimes against humanity, genocide and war crimes, for the investigation of these crimes, the search for the forced disappeared, funeral costs, construction of the archives and remembrance materials, attention to victims, commemoration and symbolic recognition acts. • Restructure the board of directors of the current Historical Memory Center, so that there is participation of the victims of human rights violations, crimes against humanity, genocide and war crimes committed by the different parties to the conflict. • Adopt a law prohibiting and punishing negationism activities regarding grave human rights violations, crimes against humanity, genocide and war crimes. 49

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

c) Collective reparation measures in relation to political genocide or political persecution against members of the political opposition • The restitution of local human rights liaison office (personería juridical) to political parties or opposition movements, such as the Unión Patriótica (Patriotic Union). • The transient and unconditioned granting of seats in municipal councils, departmental assemblies, the Chamber of Representatives and the Senate, and popular election positions, such as mayors and governors, to political parties or opposition movements which have been victims of political persecution or genocide at the same level than when they lost their local human rights liaison office. • Enactment by the State of a Tribute Law to pay homage to Unión Patriótica (Patriotic Union), A Luchar (To Fight), Frente Popular (Popular Front), AD-M19, Movimiento Gaitanista (Gaitanista Movement) and other political or opposition movements parties who have been victims of political persecution or genocide, to its victimized members, as well as the recognition and condemnation for the extermination of these political parties. • Address by the Head of State, transmitted by radio and television channels during prime time and reproduced in the national newspapers, in which the state apologizes for the extermination of the Unión Patriótica (Patriotic Union), A Luchar (To Fight), Frente Popular (Popular Front), AD-M19, Movimiento Gaitanista (Gaitanista Movement) and other political or opposition movements parties, and recognizes the state responsibilities and condemns the events. • In the case of members of political parties or opposition movements killed or forcibly disappeared whilst exercising positions of popular election, the installation of a commemorative plaque with the headline “Victim (s) of the extermination of [name of party or political movement]”, the name of the person and the popular election position, and ending with the phrase” Never Again” in the offices of the corporations or entities where they carried out such positions.

• In the case of massacres of members, supporters or victimized population within the genocide, extermination and persecution of political parties or opposition political movements, the erection of monuments, in the municipalities in whose jurisdiction these crimes were committed, to honor the victims with a list of their names, date of slaughter and ending with the phrase “Never Again”. These monuments shall be constructed in accordance with the will of the victims. • The creation of schools, colleges and universities with free services for the victims, allowing the formation of the new leaders of civil society organizations, indigenous reserves, AfroColombian community councils, opposition political parties and of the community in general. The support of these institutions is borne by the national budget and its curricular administration and management will be in charge of the social sectors affected. • The derogation of all manuals, instructions, directives and other documents of the Armed Forces and other security corps who qualify, explicit or implicitly, the opposition political parties and movements as ‘enemy within’ or in similar categories. • The revision, purge and maintenance of the intelligence files and records of the Armed Forces, the National Police, other security corps and the Attorney General’s Office containing information or data of members of opposition political parties and movements. • Administrative vetting of the government officials who participated, contributed or incited the victimization of members of opposition political parties and movements without prejudice to the appropriate criminal and disciplinary actions.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

V – Guarantees of non recurrence 1 - International legal background The “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” (or “Repair Principles”) and the “Updated Set of principles for the protection and promotion of human rights through action to combat impunity”(or “Principles against Impunity”) systematize the international obligations of States concerning guarantees of nonrecurrence. It is worth remembering that the “Repair Principles” stipulate in its preamble that these do not create new obligations but rather prescribe the modalities and procedures for their compliance. The obligation of the state to provide guarantees of nonrecurrence of grave human rights violations and crimes under International Law is directly linked to the obligation of the State to adapt its state apparatus, its legislation and its practices to ensure the full and effective enjoyment of human rights and the fulfillment of its international obligationscxxxiv. The subordination of the armed forces to civilian power is a sine qua non condition for the enforcement of human rights and the State of lawcxxxv.

cxxxiv See among others: the International Covenant on Civil and Political Rights (Article 2.2), the American Convention on Human Rights (Article 2) Inter-American Court of Human Rights (Caso Velásquez Rodríguez c. Honduras), Sentence of July 29, 1988. Serie C No. 4; Caso Godínez Cruz Vs. Honduras, Sentence of January 20, 1989, Serie C No. 5; and Advisory Opinion OC-11/90 of August 10, 1990, Series A No. 11) Human Rights Committee of the United Nations (General Comment No. 2) cxxxv See among others: General Assembly of the Organization of American States, its resolution AG / RES. 1044 (XX-0/90) of 1990 and the Human Rights Commission of the United Nations, its resolution No.2000/47, of April 25, 2000.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

2 - Proposals a) Purging of institutions, doctrines and institutional practices of the State 1. Purging the public administration -including the three branches of Government- without prejudice to the relevant criminal and disciplinary actions for those public servants involved, by act or omission, in grave human rights violations, crimes against humanity, genocide, war crimes or paramilitary groups and activities, or who have promoted impunity for these crimes or paramilitary groups and activities. • State institutions should be especially purged of those members of the extinct security corps implicated institutionally in the commission of crimes under International Law, such as the Brigada de Institutos Militares (Military Institutes Brigade -BIM-), the XX Brigada de Inteligencia y Contra Inteligencia del Ejército Nacional (XX Intelligence and Counter Intelligence Brigade of the National Army) and the Departamento Administrativo de Seguridad (Administrative Department of Security). • For this purpose Purge Commissions should be created for every branch and sector of the Public Power and their respective procedures. These Commissions should be composed of persons of recognized ethical career and moral integrity, committed to the defense of human rights and the State of law. Each Commission shall have among its members a representative of human rights defenders NGOs and a representative of organizations of State violence victims.

• The Commissions should be granted unrestricted access, without one being able invoke any legal reserve or otherwise to: files and documents of the State and to any place or site that is required for the development of his or her mandate; interview and collect from any person, authority, officer or public servant any information considered relevant, hold public hearings and proceedings in a confidential manner

as deemed fit, whilst being able to maintain undisclosed the identity of those who participate or provide important information. The procedure should guarantee the presence of the questioned servers and the possibility of exercising their defense. • Those who have been purged will also be ineligible to hold positions of popular election or perform the functions of a public servant or government contractor. • An ongoing evaluation mechanism of the performance of government officials should be established to verify that they observe the rules and principles of the State of law and of human rights in their performances and functions as public servants.

2. The State must derogate the State security doctrine, norms, manuals, regulations and other military and State security corps instructionals that: • Qualify trade unions, opposition political parties and movements, civil society organizations and human rights advocates, among others, as ‘internal enemies’ of the State. • Order or promote the creation of paramilitary groups. • Order or promote the commission of grave human rights violations, crimes against humanity and war crimes. • Order or promote the development of illegal and criminal intelligence activities. For this purpose, a Revision Commission of the State Security Doctrine, composed of persons of recognized ethical career and moral integrity, and committed to the defense of human rights and the State of law shall be created. This commission shall have among its members a representative of human rights defenders NGOs and a representative of organizations of State violence victims. In order to fulfill its mandate, the commission shall have extensive powers and attributions, and, in particular, have unrestricted access to all the files 55

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

and documents of the State without any reservation for reasons of national security or other. 3. Revise the national legislation that helps or promotes violations of the norms and standards of human rights and International Humanitarian Law or that is incompatible with these. For this purpose, a Revision Commission shall be created, composed of persons of recognized ethical career and moral integrity, and committed to the defense of human rights and the State of law. This commission shall have among its members a representative of human rights defender NGOs and a representative of organizations of State violence victims. 4. The State shall adopt and implement public policies and legislation to prohibit the issuance of norms, manuals, regulations and other military and State security corps instructionals that encourage, promote, authorize or order the commission of grave human rights violations, crimes against humanity and war crimes. 5. The State must purge the intelligence records and files -including counterintelligence- of the Army, State security corps and other government agencies where there is information of human rights defenders, victim organizations, trade unionists, members of opposition political parties and movements, and members of civil society organizations among others. To this end, and in accordance with the recommendations made in the past by bodies of international protection of human rights, a Purging Commission of State intelligence files should be established. This Commission shall: â&#x20AC;˘ Be integrated, among others, by the supervisory bodies of the State, representatives of human rights defender NGOs and representatives of organizations of State violence victims. â&#x20AC;˘ Have unrestricted access to any intelligence files or documents of the State, without being subject to legal objection or otherwise. 56

b) Institutional strengthening of the State of law • The National Police should be separated completely from the Ministry of National Defense and placed under the supervision and direction of the Ministry of Interior, as one of its dependencies. Effective measures must also be take into account so as to guarantee that the National Police fulfills its constitutional functions and observes its non-deliberative character established by the Political Constitution (Articles 218 and 219). Likewise: • Suppress the National Police radio station. • Adopt a Law of advancements and promotions of officers and sub officers of the National Police to ensure that those who violate human rights or are involved in illegal activities or abuse of power cannot be ascended or promoted. Likewise, the participation of supervisory bodies and the citizenry in the vetting process shall be guaranteed, through specific forms of participation. • Exclude the members of the National Police from the competency of the military court jurisdiction. • Review the procedures of the National Police and ensure that they conform to the international norms and standards of human rights, the “Code of Conduct for Law Enforcement Officials” and the “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”. • Effective measures must be taken to ensure the Military Forces are subordinated and under the control of the civil authorities, they fulfill their constitutional functions and observe their non-deliberative character established by the Political Constitution (Articles 217 and 219). For this effect, the following actions must be taken: • Repeal or revise the legislation granting the army faculties which are incompatible with the principle of subordination of the military to civilian authorities.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

• Suppress education centers for civilians led by the military -such as military schools and Universidad Militar (Military University) - and which restrict the academic activities solely to the training of soldiers, sub officers and officers. • Suppress compulsory military service. • Suppress the radio station of the National Army, Colombia Estéreo. • Adopt a Law of advancements and promotions of officers and sub officers of the National Army to ensure that those who violate human rights or are implicated in illegal activities or abuse of power cannot be ascended or promoted. Likewise, the participation of supervisory bodies and the citizenry in the vetting process shall be guaranteed, through specific forms of participation. • Reduce the size and resources of the Army, according to the needs for the fulfillment of its functions “defend the sovereignty, independence, integrity of the national territory and the constitutional order”, as provided by Article 217 of the Constitution. • Review the procedures of the National Army and ensure that they conform to the international norms and standards of human rights as well as the International Humanitarian Law. • The following measures must be established in order to strengthen the supervisory bodies: • Create within the Ombudsman’s Office a Delegate Ombudsman’s’ Office for the defense of the rights of National Police members and a Delegate Office for the defense of the rights of the Military members. • Enable the Ombudsman to act as a subject in criminal proceedings for human rights violations, crimes against humanity, genocide and war crimes.

c) Strengthening of the democracy and political freedoms • Legal measures and measures of other nature should be taken to ensure the effective political participation of opposition political parties and movements in the country’s political life. • Legal measures and measures of other nature should be taken to effectively ensure freedom of opinion, expression and association, and in particular of the victimized populations, organizations and communities.

d) Strengthening of the Justice • Purge, without prejudice to the relevant criminal and disciplinary actions, the Judicial Branch, the Prosecutor General’s Office, the Inspector General’s Office, the Justice and Judicial Police auxiliary corps; those public servants involved, by act or omission, in grave human rights violations, crimes against humanity, genocide, war crimes or paramilitary groups and activities, or who have promoted impunity of these crimes or paramilitary groups and activities. • An ongoing system must be established to evaluate the performance of servants from the Judicial Branch, the Prosecutor General’s Office, the Inspector General’s Office, the Justice and Judicial Police auxiliary corps and to verify that they comply with the rules and principles of the State of law and human rights in their performances and functions. • Suppress the graduated regime of the officials of the Executive Branch and of the Prosecutor General’s Office, established by the Political Constitution (Articles 174, 175 and 178) and the Commission of Accusations of the Chamber of Representatives, and radicate in the Ordinary Justice the faculty to judge these officials. • Typify crimes against humanity in the criminal justice system. • Incorporate into the criminal legislation: • The imprescriptibility of crimes against humanity, genocide 59

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE

and war crimes. • The principle of criminal responsibility of the hierarchical superior. • The ban on recognition of due obedience as grounds for exemption from criminal liability in cases of grave human rights violations, crimes against humanity and war crimes. • Incorporate into the criminal procedural legislation of Law 906 of 2004, the figure of a civil party with full power to act at all stages of the proceedings, including the preliminary phase. • Incorporate into the criminal procedural law, the possibility that human rights organizations, victims’ associations and in general, any person with a legitimate interest may constitute a civil party or private prosecutor in proceedings for grave human rights violations, crimes against humanity, genocide and war crimes. • The Attorney General’s Office shall issue a directive intended to all prosecutors and officials of the Technical Investigation Unit (CTI) regarding the criminal law for cases of grave human rights violations, crimes against humanity, genocide and war crimes. • Exclude grave human rights violations, crimes against humanity, genocide and war crimes from the military criminal jurisdiction, and restrict this jurisdiction to prosecute exclusively military offenses committed by military personnel.

e) Disassembly of paramilitarism • Adoption of a legislative actcxxxvi to amend Section 122 of the Political Constitution of Colombia, so as to elevate to constitutional rank the prohibition to create, promote, finance and support paramilitary groups. • In addition to the measures listed previously in sections of justice and guarantees of non-recurrence an ongoing mechanism for monitoring the performance and activities of members of the security forces, the Judiciary Branch, the Attorney General’s Office cxxxvi Legislative bill constitutializing the rights of victims of crimes against humanity and establishes mechanisms to ensure non-recurrence of the paramilitaries in Colombia.

and of the auxiliary corps of Justice should be established so as to verify that their actions and functions observe the rules and principles of human rights and the State of law.

f) Strengthening of the international protection The State shall: • Make a declaration of recognition of the competence to hear individual complaints from the Committee against Enforced Disappearance, established in the “International Convention for the Protection of All Persons from Enforced Disappearance” (Article 31). • Make a declaration of recognition of the competence to hear individual complaints from the Committee against Torture, established in the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (Article 22). • Adhere, without reservation, to the “Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”. • Adhere, without reservation, to the “Optional Protocol to the Convention on the Rights of Persons with Disabilities”. • Adhere, without reservation, to the “Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” • Adhere, without reservation, to the “Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes against Humanity”.

MINIMUM PROPOSALS ON TRUTH, JUSTICE, REPARATION AND GUARANTEES OF NON RECURRENCE