It is important to note that state agents and the army cannot benefit from amnesty because auto-amnesty is prohibited under the law. The deal specifies however that all warring parties receive differentiated but comparable treatment (paragraph 44 of item 5.1.2 of the peace deal). What this means in practice is that the deal and the implementing law provide for the possibility of commuting sentences of those who cannot be subject to amnesty, which is a comparable solution. Similar treatment is more challenging when it comes to alternative penalties because state agents and the army cannot serve their sentences in the zones specifically designated for demobilized guerillas. As things stand, they will serve their punishments in prisons. This aspect creates discontent in some of the ‘no’ voters arguing for tougher treatment of FARC.
Finally, the El Sistema law expressly provides opportunities for reparations. It is well known that FARC acquired significant wealth during conflict, for example through illegal mining. The law creates explicit incentives for FARC to declare their assets to the government (to be later used for reparations) by including them in a special inventory covered by the SJP jurisdiction. Offences relating to assets discovered at a later stage and not on the inventory will be subject to ordinary criminal jurisdiction.
Challenges Ahead
by the lack of popular support is one of the biggest obstacles on the way to its successful execution. Unresolved concerns of the ‘no’ campaign keep reappearing paytm database during the process of adoption of implementing legislation. One result of these lingering disagreements resulted in the creation of two separate regimes under the El Sistema law – one for the army and largely regulated by Colombian law, and the other for FARC under the auspices of international law. This is a significant change compared to the more unified approach in the peace deal. The law introduces a separate chapter dedicated exclusively to the army and designating it as lex specialis.
The chapter on the army also contains a controversial provision on command responsibility, which uses a narrower definition than that contained in the Rome Statute of the International Criminal Court (ICC). According to Article 24, responsibility of the members of armed forces is triggered only with respect to the conduct of subordinates over which the commander had effective control and knowledge based on the information available to them before, during or after the event (detailed discussion of the provision is found here). This construction based, to some extent, on Colombian penal law makes it difficult, if not impossible, to convict a commander based in Bogota for crimes committed in the regions. While there is a clear discrepancy between Article 28 of the Rome Statute and Article 24 of the El Sistema law, the real question is whether domestic policy makers have the flexibility in implementing international criminal law standards. The Constitutional Court of Colombia is likely to rule on this issue in the course of its review. If the current formulation of command responsibility remains intact, it may lead to possible responsibility gaps triggering future involvement of the ICC. Colombia remains under the preliminary examination of the ICC, whose Chief Prosecutor has already signaled her concern over the issue of command responsibility.