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Bases de Un Acuerdo Nacional de Paz en Inglés
Bases de Un Acuerdo Nacional de Paz en Inglés
Contents
TOC
than war. The purpose of this was to create a false dilemma in regard to
the process.
In reference to the plebiscite, the Constitutional Court of Colombia decided that
that the threshold could be amended and clarified that the plebiscite call could
not be construed as an opinion on the right to peace. The Constitutional Court
expressed that peace, as a right, is not subject to discussion and ruled that the
actual sense in voting was the contents of the deals.
In a voter turnout of 13,066,047close to the turnout in the 2010 presidential
election second round and the 2014 presidential election first roundand in
spite of the abovementioned imbalances, the NO vote won victory by polling
50.21% ahead of YES vote that polled 49.78%, that is 6,377,482 votes.
As NO voters rejected the deals and asked for material corrections to be
introduced, a National Deal must be made possible in Colombia so that peoples
mandate is both recognized and materialized. After Colombian peoples
sovereign decision, the Centro Democrtico party has issued a call for such a
deal to be reached.
2. Havana deals state of affairs and the need for an urgent National Deal.
As Colombian peoples sovereign will was expressed on October 2, 2016, it is
evident that the deals and the compromises reached by and between the
Colombian government and FARC are neither legally binding nor enforceable
now.
This evidence notwithstanding and so as to respect the views of millions of
Colombians who voted YES, it is necessary to consider the possibility of
materializing a political understanding that uses such deals as a starting point
to introduce corrections and to reach a compromise that makes Colombias
unity possible.
It is important to highlight that it is wrong to take the approach that Havana
deals are a Special Deal in the light of the IHL and, therefore, are already
included in our Constitutionality Block and, thus, in our legal system. As they
have been rejected by Colombian peoples sovereign will, those deals are not
legally binding as the government and FARC intended.
It is also important to highlight that all corrections to be introduced to the
deals must be based on certain general guidelines related to the topics
included in the Havana deals and a discussion must be started in order to get
a consensus of opinion thereon.
Below are the general guidelines to help us make progress in quickly and
face-to-face reviewing those remarks made for every topic and
conscientiously suggesting and discussing correction proposals without
delay.
3. General guidelines:
3.1.
Preamble
The general framework for both the preamble and the introduction must be the
foundational principles enshrined in the Colombias Constitution.
The final deal shall not be included in the Colombias Constitution on an
unamendable basis. It shall be implemented by the institutional means required to
juridically secure it.
In order to implement it, a parallel strategy, a growing bureaucracy, and tax burden
shall be avoided.
1. The results from the plebiscite means that voters unanimously supported
peace and that most of voters rejected and are worried about the contents
of the deal reached by and between the government and FARC.
2. Peoples mandate is that the President does not implement the deal he
signed, but uses his still intact powers to renegotiate what has been agreed.
3. The new preamble of the deal must consider the plebiscite results and the
mandate from people to the President, along with the clear message from
people to FARC.
4. The deal to be reached must be juridically and politically secured.
5. That juridical and political security must be based on the national deal,
permitting that a compromise to be reached by and between the
government and FARC is widely supported by most Colombians.
6. Prospective justice must not be enshrined.
7. The entire deal cannot be signed as a special deal.
8. It must be clear what a special deal is and what is not for purposes of signing
what is to be agreed.
3.2.
Introduction
The focus must be the willingness to construct a stable and lasting peace only.
The land question must observe decentralization, local democracy, obligation to
honor a political platform, and the ability of future candidates running for governor
or mayor to make proposals.
The concept of involvement of citizens and its methods must be those enshrined in
the Constitution of 1991.
The new national political deal must be in accordance with the new political reality.
3.3.
shall not be included in the Land Fund. The deals must not be detrimental to honest
owners and tenants whose good faith must make an unquestionable presumption
of innocence.
Nevertheless, in order to ensure that land property is legitimately owned, the State
shall define the competences, scope, and legal instances in order to apply the
governmental in rem forfeiture both due to breach of the ecological purposes and
for public and social purposes. Furthermore, environmental legislation and
institutions need to be comprehensively reviewed.
The deal must explicitly provide for acknowledging and recognizing that funds
obtained from that organizations war economy, along with the land stolen, must
be utilized to pay reparations to victims.
The State shall ensure that the use of rural land for profit purposes is determining
by free market, under those restrictions laid down in an updated environmental
legislation. However, the State may award incentives and benefits to encourage
land owners to use their land for specific purposes based on any priorities set forth
in departmental, regional, or national plans and Colombias macroeconomic
strategies.
The Colombian government must reconsider the distortions of Act 1448 dated
2011, in reference to restitution of lands, such as the so-called concept of nonguiltiness-free bona fide purchasers, which is not only intrinsically contradictory,
but detrimental to the right to legal landownership. A context analysis cannot
operate as an evidence to find bona-fide owners guilty.
Peasant Reserve Zones (ZRCs)
The Colombian State must draw up and implement policies for all peasants, without
any discrimination whatsoever on grounds of location. For the sake of the principles
of equality and inclusion trumpeted under the Rural Reform, may no type of
preference whatsoever exist as it is discriminatory against peasants who are not
located in ZRCs.
The Cadastre
The Comprehensive Rural Reform must observe Article 9 of Act 101 dated 1993,
which provides that When town regulations on land use do not permit any use
other than agricultural and livestock, cadastral valuations may not consider
anything other than productivity, profitability, and tenement improvements, thus
excluding the influence of the development of industry and tourism, building
development, and other similar developments.
Otherwise, rural cadastral survey, for property tax, becomes an exaction for
producers.
Cadastral update processes shall respect legitimate landownership and current
land use for production. Governmental institutions shall be the sole bodies allowed
to conduct these processes.
The Colombian government shall give priority to the challenging and necessary
cadastral update in reference to the land registration process, two essential
processes to legalized ownership. In regard to valuating the existing rural cadastral
survey instead, those tenements thereunder have experienced a material increase
from 32 trillion Colombian pesos in 2002 to 157 trillion Colombian pesos in 2015,
resulting in an exorbitant increase in the property tax.
Involvement of Citizens or Communitarianism
The involvement of communities operates as the exercise of a right that cannot
become FARCs social and land control method after a deal is reached.
Article 103 of Colombias Constitution is the foundation and guideline for the
involvement of citizens.
Thus, National Plans included in the RRI, financed and promoted by the State must
observe decentralization and regional and local autonomy, under the Colombias
Constitution and laws.
The involvement of communities must respect the ability of future candidates
running for governor or mayor to make proposals and preserve the obligation to
honor a political platform, which is the declared policy of whoever aspires to be
elected and a means for voters to demand that declared policy to be honored.
New institutions
By creating 14 National Plans to address all demands related to a comprehensive
rural reform, apart from other bodies to address the land use and other purposes
within the RRI, new institutions are created, which are not only dissociated from
existing institutions, but also burdened with a fiscal cost that must be taken into
account to include them in the Reform.
Consequently, those National Plans and other bodies must be, as a general rule,
included in existing centralized and decentralized institutions.
3.4.
Political participation
3.5.
FARC political party must not be given exorbitant privileges, but be provided
with the same funds and means as those of the other political parties and
movements in Colombia. Moreover, it must be governed by the same standards
related to operation and funding as the other political parties are. In no case
whatsoever may FARC have a seat in the Colombias National Electoral Council,
a privilege that many existing parties are not given.
The 3 temporary representatives from FARC in the Senate and the House of
Representatives or other bodies, to discuss regulations relating to the
implementation of the deals, cannot be individuals convicted of crimes against
humanity or serious crimes, save for political crimes or negligent crimes.
The special seats that FARC will be given in the Senate and the House of
Representatives for 8 years cannot be taken by individuals who have been
convicted for crimes against humanity or serious crimes.
ECOMUNs role needs to be thoroughly checked. The scope and corporate
purpose of this social and solidarity economy organization, which is present
nationwide for FARC members to become members thereof, remains unclear. It
is of the essence that this organization does not play the same role played by
certain Colombian States institutions, especially in regards to demobilization
and reintegration. Neither can it claim competences and duties allocated to
decentralized bodies.
Preferably, funds from demobilization, disarmament, and reintegration should
be managed by governmental agencies. The idea of creating the ECOMUN must
only be considered as a publicprivate body subject to all regulations related to
the management of public funds.
Section 3.4.3 (of the deals) may result in a new punishable conduct related to
the threat against the implementation of Havana deals. This is a dangerous
ambiguity related to a National Commission for Security Guarantees of which
FARC would be a member holding a permanent seat next to the State security
corps.
The Special Investigation Unit, already created, must not limit its actions only
against those organizations that are said to be heirs of the paramilitaries. Any
violent group should be considered, including, but not limited to, FARC
dissidents and ELN.
FARC must not be allowed to check the background of public servants from all
the Colombian States institutions, by means of the National Commission for
Security Guarantees.
FARC must not be allowed to have influence on the Colombian States
intelligence regulations, by means of the National Commission for Security
Guarantees.
FARC must not be allowed to supervise and control Private Security services, by
means of the National Commission for Security Guarantees.
Section 3.4.7.3.3 (of the deals) provides for the possibility that people who are
trustworthy for FARC become members of a Security and Protection Corps
having direct coordination with the Colombian national police. Any individual
must be selected and hired under authorization of the Colombian national
police after a psychological and professional screening. The Colombian national
police must retain the right to veto.
3.6.
Drug trafficking
The comprehensive and balanced approach to fight against the world drug
problem must clearly continue, instead of adopting a new approach based on a
differentiated treatment.
The new policy must be based on the comprehensive and balanced approach,
which is neither against considering alternative approaches based on evidence,
nor against the general human rights and public health approach, nor against
good practices, nor against recommendations from experts.
FARC group has not expressly admitted its organized drug trafficking business at
all and, instead, is implying to be linked up with it accidentally, as a result of
their Rebellion. The purpose of this groups self-image is to look for pardon
based on the idea that drug trafficking is related to political crimes.
Since FARC is not firmly committed to admit its umbilical link to drug trafficking,
it is required that the deal provides that FARC explicitly undertakes to:
3.7.
Victims
3.8.
Events such as monies from drug trafficking in politics and the scandal of
politicians colluding with outlaw paramilitary groups (parapolitics) were
severely punished in Colombia (fairly in some cases); however, impunity is about
to be given in reference to the scandal of politicians colluding with outlaw
guerrillas (FARCpolitics).
Article 72 prohibits extradition in connection with crimes committed before the
final deal was signed and makes it difficult to extradite FARC members whose
crimes are committed after the final deal is signed. It should be considered that
extradition is prevented on condition that commitments to truth, reparation,
and non-repetition are honored.
Therefore and for the sake of a new proposal that makes transitional justice
possible under existing institutions, we suggest the following:
1. ELIMINATE the so-called Special Jurisdiction for Peace and replace it by a
transitional justice system governed by the regular Colombian judiciary.
2. CREATE, under the regular judiciary, specialized courtrooms that would be
called COURTS FOR PEACE, which would be reporting to the Supreme Court of
Justice of Bogot.
3. GIVE COMPETENCE to the Main Courtroom of the Supreme Court of Justice of
Colombia in order for it to be the highest in rank (second and last instance)
which the so-called Courts for Peace will be reporting to.
4. Courts for Peace will be composed, in turn, of several types of courtrooms
(pardon and amnesty court, truth acceptance court, procedural safeguards
control court, and trial court).
5. CREATE the so-called Offices of the Attorney for Peace, which will be part of
an elite unit from the Office of the Attorney General and will be the highest
in rank.
6. The Offices of the Attorney for Peace duties will be:
(i) to fight against organizations resulting from the conflict and
(ii) to investigate, to describe the facts, and to accuse in Courts for Peace
courtrooms.
7. Justices and prosecutors in these Courts of Peace MUST AND SHALL BE
COLOMBIANS and their minimum age shall be 40. Moreover, these justices and
prosecutors shall ensure the highest international standards of integrity,
independence, autonomy, and impartiality.
8. FOREIGN LAWYERS will be allowed to intervene only to act in the capacity of the
defense counsel for people tried in COURTS FOR PEACE.
9. Courts for Peace shall have competence to try private individuals and army
soldiers and police officers, provided that these people WILLFULLY appear in
these courts; otherwise, they will be tried in a regular court.
10.A DIFFERENT TREATMENT is provided for State officials in reference to justice.
11.FARC commanders liability for their subordinates acts, pursuant to the
chain of command, shall be based on controlling their will in accordance with
the concept of MEDIATE PERPETRATION IN POWER STRUCTURE ORGANIZATIONS.
12.PARDON AND AMNESTY IS GIVEN ALSO TO THIRD PARTIES WHO ARE NOT COMBATANTS
(accessories), provided that all weapons and arsenals are decommissioned.
Pardon and amnesty shall not operate as a waiver of commitment to truth.
13.PENALTIES ARE AMENDED, providing for a minimum jail sentence of 5 years and a
maximum jail sentence of 20 years to be imposed by Courts for Peace to
those who have seriously violated Human Rights or the International
Humanitarian Law.
14.IF RESPONSIBILITY IS ACCEPTED either by the principal or the accessory, jail
sentences would be from 5 to 8 years, if any alternative imprisonment places
such as agricultural farms.
15.IF RESPONSIBILITY IS NOT ACCEPTED but determined by regular legal authorities, jail
sentences would range from 15 to 10 years. For accessories or aiders and
abettors who do not accept responsibility, jail sentence show range from 10
to 15 years.
16.JAIL SENTENCE JUDGMENTS ruled by the Trial Courtroom may be appealed.
Likewise, the Main Courtroom from the Supreme Court of Justice of
Colombia may be requested at any time to review any judgment ruled by the
trial court whenever new evidence is provided to prove that an evident legal
mistake was made against the convict.
17.Courts for Peace may neither ignore nor disregard the res judicata principle
related to previous judgments ruled by regular courts.
18.Jail sentences can be made equivalent, based on favorableness, for the
benefit of those who have been convicted and sentenced by regular courts
to jail terms higher than those set forth in the transitional justice scheme.
3.9.
Peace deals implementation must not be based on a bill and legislation passage
and sanction process that replaces that laid down in Colombias Constitution
and laws. A National Deal must be the foundation for a trustworthy process in
harmony with the fundamentals of Colombias institutions.
The deals must be disclosed and explained before they are implemented so that
they are made widely known to the public for the sake of a national deal going
beyond political views and accepted by all Colombians, unlike the process to
grant 31 FM radio stations to FARC under no public tender and for no
consideration whatsoever.
It is worrisome that the use of funds from royalties is being discussed without
clearly considering what institutions will be involved therein and in times of
uncertainty for the future of such royalties due to the decline of the mining and
energy sector.
It is worrisome that, by the Implementation, Monitoring, and Verification
Commission with a permanent seat for FARC, this group is allowed to:
o settle the peace deal construction elements where FARCs interests are
repeatedly mentioned.
o previously control all new regulations to be implemented or to be
construed as detrimental to FARCs interests.
o have privileges in reference to new legislations.
There is an evident interest in including the Havana deals in the Constitutionality
Block of the Colombias Constitution. A National Deal will help to reach a general
consensus on how to duly implement and enforce the deals, but not to make
them become a parallel Constitution.