Javaria would like to thank Professor Mark Osiel and her Associate Note Editor Lindsey Lange for their academic guidance and helpful remarks throughout the progression of this Note. She would also like to thank Emily Alward, Christine Benson, Bryan Gerbracht, Megan McMillan, Victoria Kozyr, Kate Wolfe, and the wonderful staff of the journal of Transnational Law and Contemporary Problems for their help in refining this piece for publication. Lastly, she would like to thank her friends and family for their love and support.
On February 18, 2000, members of the Peasant Self-Defense for Córdoba and Urabá-the Autodefensas Campesinas de Córdoba y Urabá (ACCU)-ran amok in the city of El Salado, Bolívar and tortured the town's inhabitants. Some 300 armed men "garroted, stabbed, decapitated, and shot residents," killing thirty-six, while kidnapping another thirty.1 A six year-old girl was suffocated with a plastic bag while bound to a pole, while a woman was raped by gangs of armed men.2 A Page 335 survivor explained that, "[t]o them, it was like a big party . . . they drank and danced and cheered as they butchered us like hogs."3
Time and again, Colombian presidents have failed to hold paramilitary human rights violators accountable for their behavior. In fact, for decades, Colombia's legitimate armed forces have often coordinated with Colombia's paramilitary terrorists to torment Colombians.4 For example, in the account described above, Colombia's navy actually maintained barricades around El Salado and prevented the International Committee of the Red Cross from providing aid.5 Navy troops finally entered the village after the paramilitaries had safely made their escape.6 Notwithstanding the ACCU's egregious behavior, the United Self-Defense Forces of Colombia-alternatively known as Autodefensas Unidas de Colombia (AUC)-the largest of Colombia's paramilitary groups, has committed the most depraved human rights abuses; in spite of agreeing to a cessation of hostilities in December 2002, the group has subsequently murdered more than 2,000 people.7
Presently, the Colombian government is leading human rights investigations against many Colombian paramilitary leaders.8 However, the investigators have been slow to initiate the investigatory process. In order to encourage these leaders to demobilize and to expedite national stability, Colombian President Álvaro Uribe signed "la ley de justicia y paz," the Law of Justice and Peace, on July 25, 2005.9 Page 336
The law promises the citizens of Colombia peace and solace for the atrocities they and their loved ones have suffered. But these promises may prove fruitless. The law has caused a great deal of uproar and has elicited much criticism because it is yet another attempt by the nation to enforce order and instill responsibility among the defiant. In spite of the Colombian Constitutional Court's May 18, 2006 decision correcting its flaws, the Law of Justice and Peace may nonetheless guarantee de facto impunity for human rights offenders by granting them lenient punishments in exchange for full confessions.10 It incorporates lax penal periods-a minimum of five years and a maximum of eight years-for human rights violators, allows extensive rehabilitation for those who serve time, and even describes "alternative" punishments for those who come forth with the truth.11 Although conferral of the alternative punishment benefit is conditioned upon a complete and honest version of the truth and may be revoked if it is later discovered that the combatant lied, the law still contains many deficiencies.12 As a result of the Colombian Constitutional Court's recent adjustments, the law does not grant complete amnesty. However, it ultimately awards impunity through its failure to incorporate appropriately severe consequences for the gross human rights violations that have occurred in Colombia for over twenty years and that continue to occur daily.13
The Law of Justice and Peace also seeks to demobilize individual combatants, rather than to target the foundation of paramilitary structures.14 Effective demobilization will occur when the Colombian Page 337 government can dismantle underlying structures by pinpointing paramilitary "political, economic and criminal" strongholds and successfully take them apart.15 But the law offers no explicit provision for prosecuting those responsible for the economic assistance and political support of the paramilitaries.16 As a result, facts about specific crimes will go unheard and important information concerning the illegal economic means by which the crimes were carried out will remain undiscovered, leaving paramilitary structures intact.17
While the purpose of the law is to hold human rights violators accountable for their crimes against humanity, it also artfully incorporates as much international human rights jurisprudence as possible, including the rights of the disabled and the right to collective memory.18 Further, it deceivingly distinguishes itself from the amnesty laws that the Inter-American Court of Human Rights (IACHR) has held invalid, as in the cases of Barrios Alto,19 and Velasquez Rodriguez,20discussed in further detail below. Notably, the Law of Justice and Peace recently evaded review by the IACHR in the Masacre de Mapiripán case, also discussed below.21 Page 338
This Note seeks to demonstrate the manner by which the Law of Justice and Peace ingeniously takes into account the IACHR jurisprudence and provisions of the American Convention on Human Rights, previously held in contention in the Court's most important amnesty cases. In Part II, this Note establishes the historical context that underlies both the extent of Colombia's corruption and the motives behind its violence and human rights abuses. Part III presents this Note's thesis and explains that because the Law of Justice and Peace complies with the American Convention on Human Rights, ratified by Colombia in December 1997,22 it will stand up against IACHR challenges, while simultaneously ensuring impunity in numerous ways. This analysis is written in light of the IACHR's most controversial amnesty cases- Masacre de Mapiripán, Barrios Alto, and Velasquez Rodriguez-and explains how the IACHR has left "open doors" for the Law of Justice and Peace to retain validity, yet still ensure impunity. Part III also describes some of the more recent developments that have occurred since the passage of the law and discusses President Uribe's attempts to enforce the law as amended by the Colombian Constitutional Court. Part IV then recommends ways in which the government can amend the Law of Justice and Peace, in addition to other general proposals, to achieve an actual "justice and peace" for the victims of Colombia's past and present carnage.
Colombia's human rights situation is one of the most problematic and severe in Latin America.23 As a result of Colombia's political crisis and the unchecked power of the paramilitary and guerrilla groups, an average of fourteen people perish each day;24 one human rights defender Page 339 is killed every month;25 over 3,000 civilians are kidnapped yearly;26 and 1.8 million Colombians have been driven from their homes through displacement, a deliberate strategy of war.27 The forty-year, three-way war among the nation's military, paramilitary forces, and guerillas has forced these displaced persons to seek refuge from Colombia's deadly whims in the surrounding countries.28 Due to its history of violence-civil wars, vicious confrontations between the Liberal and Conservative parties, and current armed insurrection brutality-Colombia is notorious for its inability to hold human rights violators accountable for their atrocious crimes. Impunity governs in this land where people are regularly threatened, and the judiciary has no force.29 A glimpse into Colombia's past will establish a better understanding of its current political situation. Page 340
More than 500,000 Colombians have perished as a result of political violence during the past 100 years.30 The period declared "La Violencia" that began in the late 1940s continues to haunt present-day Colombia. The term was initially used to characterize the undeclared civil war that began in the late 1940s and ended in...