Militares mal asesorados. Jurisdicción especial para la paz.

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El general (r) Jorge Enrique Mora, delegado plenipotenciario del Gobierno Nacional para el Proceso de Paz, interviene ante las tropas, en la Escuela Militar de Aviación "Marco Fidel Suárez" de Cali.

La naturaleza jurídica de la JEP es garantista. La balanza no se puede inclinar a favor de ninguna de las partes en el conflicto y blinda a las dos

Hernán Camacho

Uno de los acuerdos mejor definidos después de los cinco años de conversaciones de paz en La Habana, es la Jurisdicción Especial para la Paz, JEP. Una mezcla de nuevo derecho que le entrega al país la posibilidad de terminar un conflicto armado.

Pese a que la arquitectura de la JEP es avalada por los organismos internacionales de justicia, cuenta con el concepto favorable de la gran mayoría de juristas colombianos expertos en derecho penal y Derecho Internacional Humanitario, ha tenido un tortuoso camino en el Congreso de la República, debido a los intentos de modificación sustancial por interpretaciones erradas, presiones clientelares, chantajes burocráticos y el intento de extraer a los militares de su responsabilidad en el conflicto; así como el afán de permitir que los civiles eludan su responsabilidad por los delitos cometidos en la confrontación. Finalmente se plegaron ante algunas de esas presiones.

Militares equivocados

Pero la presión mayor tuvo origen en la posición de los militares en retiro, después de dar a conocer una carta dirigida al mandatario Juan Manuel Santos, en donde recalcan su desacuerdo con la JEP por la inseguridad jurídica que ofrece a los militares. Una posición avalada de manera férrea por el Centro Democrático y no desmentida contundentemente por el Gobierno nacional.

Según expertos, la JEP es un acuerdo asimétrico que tiene en su contenido una amnistía casi de hecho para los miembros de la Fuerza Pública encartados en procesos judiciales por actos del servicio en el marco del conflicto. La garantía es tal que no existe acuerdo alguno en el mundo que permita ampliar la amnistía, solamente reservada para los delitos políticos, a quienes son servidores públicos.

“Gracias a la aplicación del DIH en la jurisdicción, la Fuerza Pública va a tener un tratamiento preferencial. No saldrán perjudicados, todo lo contrario. Quien los esté asesorando lo está haciendo mal”, señaló el abogado Enrique Santiago, uno de los asesores de la mesa de conversaciones.

La finalidad de la JEP evita al máximo el intercambio de impunidades y le entrega a las víctimas un mecanismo al que pueden acudir sin temor a ser revictimizadas y obteniendo a cambio verdad, justicia, reparación y no repetición. La otra variación sensible es el cambio de paradigma frente al infractor. El sistema tradicional de justicia es sancionatorio y se basa en castigos intramurales, en cambio, la JEP impone un concepto restaurador y retributivo después de examinar al máximo las responsabilidades de los infractores y aplica sanciones reparativas del daño causado, que no implica prisión.

Aprobada la JEP, permitirá, previo reconocimiento de verdad de quienes asistan a ese tribunal, la mutación de sus condenas ejecutoriadas a unas sanciones restaurativas que como máximo serán de ocho años. Por eso los altos mandos militares, que están condenados a treinta o cuarenta años de prisión, podrán comparecer solamente con el requisito de entregar verdad, reconocer responsabilidad y reparar; advirtiendo que la verdad no quiere decir confesión de parte, que el grado de responsabilidad será criterio del operador judicial.

Llama la atención de la JEP la sanción restaurativa para el caso de militares, que será trabajo social y profesional a las comunidades golpeadas por el conflicto. Según explicó el jurista Enrique Santiago; “un militar podrá salir de la prisión y ponerse su uniforme para construir infraestructura con el batallón de ingenieros”.

Blindaje jurídico

Uno de los temores planteados por los detractores del acuerdo es la inminente intervención internacional de la justicia y la posibilidad que los militares acusados o condenados por violaciones al derecho Internacional Humanitario, el temor a comparecer ante ella. Ante esa afirmación, son categóricos los autores del Acuerdo, los abogados de las FARC-EP y del Gobierno nacional, en señalar que la Corte Penal Internacional no podrá entrar a Colombia, dado que el grado de justicia que se está aplicando se ubica entre sus estándares exigidos por los tribunales internacionales.

Además, la JEP es un sistema ágil y garantista a la hora de procesar las conductas de 52 años de violencia. Y eso le entregará seguridad jurídica debido a que será pronta la resolución de la situación jurídica de cada uno de los comparecientes al sistema, aplicando justicia, pues en ningún instrumento internacional se asevera que la justicia es castigo en prisión y penas superiores a dos décadas, como señalan los sectores políticos de extrema derecha.

Esos mismos sectores han sugerido a lo largo del proceso de paz que los militares tendrán que confesar hechos que no realizaron para gozar de la libertad. Un argumento falaz debido a que la JEP no induce a asumir responsabilidades que no les corresponden.

“Ahora, quienes no digan la verdad y prefieran enfrentarse a un juicio de contradicción, tampoco son culpables de facto, tendrán un juicio en donde se establecerá el grado de responsabilidad. Incluso en los juicios de la JEP se aplica con rigurosidad la favorabilidad, es decir, a la hora de aplicar las normas será la más favorable para la persona enjuiciada. Y si es vencida en juicio, la persona será condenada a un máximo de 20 años de prisión ordinaria”, indicó Santiago en entrevista entregada a Voces de Paz.

Militares divididos

De hecho, ya son muchos los altos militares condenados o investigados, que han anunciado su interés de acudir a los tribunales de la JEP debido a su carácter garantista. Y es que un oficial encarcelado con una condena superior a diez años, podrá gozar pronto de su libertad y tener asegurada su situación jurídica, pues después de comparecer al tribunal, entregar la verdad exhaustiva recibirá una sanción máxima de ocho años, y si a la fecha ya hubiera cumplido ese tiempo, quedaría extinguida su pena y obtendrá libertad inmediata.

En cuanto a la responsabilidad de mando en la JEP no es objetiva, es decir, no se aplica a diestra y siniestra sino según el contexto. Explica Santiago; “no siempre el superior va a responder por lo que hace su subordinado, excepto si este le dio la orden o sin darle la orden no ha sido vigilante de esas actividades, pero esa vigilancia debe ser con los medios efectivos a su disposición. Esa responsabilidad en la cadena de mando se aplica en casos en los que el superior ha conocido las acciones ilícitas y en ningún momento hace lo debido para detenerlas o si eso no es posible, las denuncias para recibir las sanciones correspondientes. En últimas, la responsabilidad de mando se aplica por la decisión conciente del superior jerárquico”.

Después de aprobada la JEP en el parlamento, se avecina una nueva disputa política por su reglamentación, mediante la ley Estatutaria que le dará las pautas técnicas de funcionamiento a los jueces escogidos para conformar el tribunal de paz y sus respectivas salas.

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