Although the chapter on Fundamental
Rights of the 1991 Constitution states that "no one shall be subjected
to forced disappearance", and the 1995 Single Disciplinary Code did class
this type of behavior as very serious misconduct, it took a long succession
of legislative processes to have it incorporated into the Colombian Criminal
Law. It took twelve years and a large number of debates to reach a point
where the bill was seen as belonging to the national interest, and as a
necessary assertion of institutional and social values against violence
in Colombia. Only then was forced disappearance categorized as a crime.
The first bill was introduced in
1988 by Virgilio Barco’s government. This initiative, and those of 1989
and 1990 were shelved without having gone through any legislative procedure.
Two new bills, of parliamentary origin, were introduced in 1992 y 1993.
These were merged into a single one, which was approved in 1994. Disagreements
between the two Chambers during the debates on the President’s objections
led to the shelving of the bill. A new bill was introduced by President
Ernesto Samper’s government in 1997, and again in July 1998. Following
the relevant debate, and once the plenary had given consideration to presidential
objections, the bill was finally approved and became Law 589 of 2000, sanctioned
by President Andrés Pastrana on 6 July, 2000.
This law characterizes the crimes of forced disappearance, genocide and forced displacement of population. It also describes and increases the sentence for the crime of torture. In addition, it classes these crimes among the most serious forms of conspiracy, and aiding and abetting crime. Moreover, important criminal policy measures are introduced to deal with these crimes. These include the setting up of special working groups on disappeared persons, an order to compile a national register of disappeared persons, measures to administer their property, the affirmation of the State’s permanent obligation to search for them, an order to keep a register of persons arrested or in custody, the setting up of an urgent-search mechanism, and a decision on the ineligibility for amnesty or pardon of those who commit the crimes referred to in the bill.
The description of the crime of forced disappearance makes allowances for the possibility that this crime may be committed by public servants, private individuals acting on their orders or with their acquiescence, private individuals who belong to armed groups, or any other private individual. Such differentiation between parties reflects the realities of crime. Furthermore, this is in compliance with international regulations requiring that express reference should be made to certain parties. Both the Inter-American Convention on Forced Disappearance of Persons, of June 9, 1994, and the United Nations Declaration of December 18, 1992, each in its particular sphere of application and in view of the realities of crime in many countries ruled by military dictatorships, established that the commission of this crime is restricted to agents of the state or private individuals acting in association with them. The law recently enacted in Colombia goes even farther by including the diversity of criminal parties mentioned above.
Other points of international law on forced disappearance of persons are also incorporated into the ordinary Penal Code and the Military Penal Code —which will come into force in August this year—. Indeed, the Military Penal Code excludes forced disappearance of persons —together with the crimes of genocide and torture— from military jurisdiction.
Ever since 1988, multilateral Human
Rights bodies belonging to the United Nations System as well as those of
Inter-American level, had consistently recommended the inclusion of this
crime in the domestic law. The incorporation of the crime of forced disappearance
into the internal criminal system, and the constitutional doctrine of recent
years, make the approval of the Inter-American Convention on Forced Disappearance
of Persons now possible. The new law implements recommendations of international
bodies and responds to the demands of the national and international communities
in this respect. In addition, through this law the Colombian state and
society make a vigorous statement in favour of life and liberty, and against
the cruel violence that has affected the country so much in recent years.