This post was written by Sarah Henken, Emily Brewer, and Shannan Vance-Ocampo. It is somewhat of a “deep dive” into the particulars of how President Duque is currently trying to undermine the Peace Process in Colombia. The gist is this: President Duque’s proposed changes to several articles in the Special Jurisdiction for peace are unnecessary and undermining of the Peace Process. The changes he seeks to make would do several things, one important one being it does not prioritize victims’ rights and experiences and creates disincentives for perpetrators of violence to come forward. There is widespread opposition to these changes in Colombian society and in Congress. The Peace Process depends on victims telling their experiences, their perpetrators hearing their testimonies and offering some form of reparations, all of which creates a model of restorative–not punitive–justice. We must do all we can to encourage US policymakers to urge the Colombian government to fulfill and fund the Peace Accords as they were written.
Colombian president Ivan Duque is working overtime to make good on his campaign promise to destroy the Peace Accords. The 2016 Peace Accords between the Fuerzas Armadas Revolucionarios de Colombia (FARC – Armed Revolutionary Forces of Colombia) and the Colombian State were negotiated and signed under former Colombian president Juan Manuel Santos. Thankfully, President Duque has not been able to rip up the Accords since he was inaugurated in August 2018, but he has been making their implementation difficult through underfunding and other maneuvers. In early March 2019 he announced that his administration wants to change 6 articles (out of 159) from the Jurisdicción Especial para la Paz (JEP – Special Jurisdiction for Peace). This move is Duque’s most direct threat so far to destabilize the Accords and their implementation.
Photo: AFP
The JEP is an integral element of the Peace Accords. It is a court system separate from Colombia’s regular legal system that was created specifically to hear cases related to the armed conflict. Its mandate is for 10 years with a possible extension of 5 more years. The JEP gives priority to victims’ rights, with the goal that the court’s rulings and sentencing bring about restorative justice (not punitive justice). Telling the truth about crimes committed and harm done is central to the process of restorative justice.
Altering 6 out of 159 articles may not seem like much, but altering any one of these particular 6 articles would destabilize and undermine the Peace Process at a time when the government (and other parties, including the United States) should be doing everything they can to strengthen and stabilize implementation of the Peace Accords. The JEP is already functioning, and to change the rules that led some parties to agree to testify to their crimes could threaten the entire process. It’s important to note that the the JEP is designed to hold all perpetrators responsible, including those who are members of the state army or police and FARC members.
Below are the problems we see with the six changes the Duque government wants to make to the JEP articles:
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- Mandating that individual FARC ex-combatants monetarily compensate victims is close to impossible, and contrary to the reparation mechanism established in the Accords. The majority of FARC ex-combatants are campesinos and do not have the means to monetarily compensate victims. The FARC collectively handed over a list of its assets so that they could be used in making financial reparations to the victims. This reparations program is to be managed by the government, funded by the FARC’s assets as well as fines to be imposed on third-party perpetrators, and some funds that the state may owe due to the actions of its representatives. The JEP sentencing guidelines for perpetrators include reparations in the form of actions such as removing land mines, returning stolen land titles, and finding and identifying remains of victims.
- Removing the JEP’s prerogative to make additions to the list of members of armed groups eligible for the process will politicize the decision to correct any irregularities. At the signing of the Peace Accords, there was an official list of FARC members that was approved by the Colombian government. Only people on this list are eligible to be tried in the JEP, and the JEP has the prerogative to add names to that list. Removing that prerogative means that FARC members not on that original list would be tried in the regular courts, and not by the JEP, meaning their sentences will likely be longer and harsher, undermining the goal of restorative justice that the success of the Accords depends on.
- Colombia’s first responsibility is to its own citizens who are victims of the conflict, not to international judicial cooperation. As part of the Peace Accords, crimes committed by parties to the accords before December 1, 2016 are not eligible for extradition. The Constitutional Court has reiterated that the JEP does have the authority to examine evidence that claims crimes happened after that date and evaluate their validity before anyone is removed from its jurisdiction. However, as the emblematic case of FARC member Jesús Santrich exemplifies, the government does not want to allow the JEP to review the evidence and make that determination, citing the importance of international cooperation and suggesting that a declaration made by the U.S. government should be sufficient evidence.
- Allowing individuals to be extradited before they finish giving their testimony to the JEP will create a void of key information in Colombia’s truth-telling process. In the past, perpetrators of violence in Colombia have been extradited as a way of silencing testimony which could implicate prominent individuals. For reconciliation to occur and peace to have a chance, perpetrators must confess their crimes in Colombia.
- Tougher sentencing for war crimes will disincentivize perpetrators from coming forward, leading to impunity for those who gave the orders in crimes against humanity. Focusing investigation on the most serious crimes and punishing the highest responsible parties is key to shining a light into the dark corners of the war and helping the country move forward. The alternative sentences available to those who testify and cooperate voluntarily with the JEP about their participation in war crimes were agreed upon in order to pave the way for the kind of honesty and truth-telling that is necessary for healing and reconciliation.
- Allowing simultaneous investigations in Colombia’s normal judicial system is a bad-faith move. This would discourage perpetrators of violence from readily admitting their crimes if they thought they might also face convictions and prison time through the regular judicial system. Any hope for reconciliation depends on honesty from perpetrators about the harm they have caused to victims and their families. Moreover, thousands of people have already submitted confessions for review by the court with the understanding that they would not be eligible for prosecution in the regular judicial system.
In his speech announcing those six objections, President Duque also identified other changes he hopes to make to the JEP through a different legislative procedure, and we can highlight a concern about one of those which is of a unique nature as it relates to a particularly vulnerable category of victim. Excluding sexual crimes against minors from the JEP’s jurisdiction and returning them to the regular court system will in all likelihood result in a lack of justice for the victims, since around 95% of sexual violence cases in Colombia remain in impunity. Seeking the harshest punishment for these crimes may seem to be an act of solidarity with the victims but the reality is that, without the confession of the perpetrators, most of these cases would remain impossible to convict in the regular court system. The JEP’s restorative justice model provides an incentive for the perpetrators to admit the truth of what they did, removing the burden of guilt, shame, and doubt from those they violated.
Most of Colombia–civil society, ex-combatants, and other political parties–do not support the changes Duque seeks to make. The US ambassador to Colombia, Kevin Whitaker, said in a statement that the US supports Duque. However, we should listen to what the majority of Colombians want here: for the Peace Accords to move forward and the articles of the JEP to remain unchanged.
It remains unclear (as of April 2, 2019) whether or not Duque’s proposed changes that would affect those six articles of the JEP will be allowed to happen. Congress and the Supreme Court have already approved the articles of the JEP as they were articulated by the Peace Accords. Some of the objections Duque has made would require more complicated amendments to existing laws, so the path forward remains uncertain, and that uncertainty itself poses a threat to a fragile peace process.