Last Week in Colombia’s Peace Process

This post is several days overdue because of staff travel—it covers the week of February 4-11.

Citing insecurity, FARC suspends election campaign

The Common Alternative Revolutionary Force, the political party formed by the former Colombian Revolutionary Armed Forces (FARC) guerrilla group, announced on February 10 that it was suspending its campaigning for Colombia’s March 11 legislative elections and May 27 presidential elections. Party leaders cited a wave of threats and violence against its candidates, including its presidential nominee, former maximum FARC leader Rodrigo Londoño alias Timochenko.

The FARC clarified that it is not abandoning these candidacies: Londoño and 74 House and Senate candidates are still running, but they are staying off the campaign trail. “We’ve decided to suspend our campaign activities until we have enough [security] guarantees,” read a statement.

One of the promises of the November 2016 peace accords was that the FARC, or any other leftist opposition movement, would be able to participate in politics without fear of violence. The New York Times remarked that “their sudden departure from the campaign—on the grounds that it is not safe—casts doubt on whether the conflict is over yet.”

Days before the suspension, Colombia’s vice president, Oscar Naranjo, and vice-prosecutor general, María Paulina Riveros, reported that since the signing of the peace accord, 28 FARC ex-combatants have been murdered. Another 12 relatives of ex-combatants and 10 leaders of social organizations “associated with the FARC party,” they reported, have also been killed, bringing the total to 50. On February 6 assassins, apparently from the still-active National Liberation Army (ELN) guerrilla group, killed ex-FARC member Kevin Andrés Lugo Jaramillo on the premises of the former guerrilla demobilization site (ETCR) in Montecristo, Bolívar.

Less lethal—so far—but still concerning has been a series of incidents in which angry mobs have descended on FARC campaign events. In most cases, ex-guerrilla candidates have been met with shouted epithets and chants of “murderer,” organized by victims of the guerrillas or, at times, local right-wing politicians.

In Armenia, the capital of Quindío department, a mob damaged the car in which Londoño was traveling. In Cali and nearby Yumbo, in Valle del Cauca, a crowd hurled vegetables and objects at Londoño and attacked his supporters and security guards, injuring several members of a local labor union. In Cali, Londoño had to be escorted from a neighborhood by members of the riot police (the ESMAD, a unit most often associated with heavy-handed repression of protests). In Pereira, Risaralda, protesters kept FARC organizers and candidates from leaving the cooperative where they were holding a campaign meeting. Senate candidate and former chief negotiator Iván Márquez had to cancel campaign events in Caquetá and Huila.

Activists from the Democratic Center, a right-wing political party led by former president Álvaro Uribe, were seen on video egging on some of the protests. Another protest organizer is Herbín Hoyos, who during the conflict hosted a radio show that allowed relatives to broadcast messages to kidnap victims whom the FARC were holding in remote jungle camps.

Suspending the campaign will further dampen the electoral prospects of the FARC party, which already appeared low, with Londoño consistently polling well below 5 percent. Regardless of outcome, however, the peace accord grants the FARC five automatic seats in each house of Colombia’s Congress for the next eight years.

Secretary of State Tillerson visit

On the afternoon of February 6, Bogotá was a stop on U.S. Secretary of State Rex Tillerson’s five-country tour of Latin America. In his public remarks alongside President Juan Manuel Santos, Tillerson had nothing to say about Colombia’s peace process or about attacks on social leaders. He focused on coca cultivation and on Venezuela.

The Secretary’s visit came days after President Trump, in a meeting with Homeland Security officials, mused about cutting aid to drug-producing countries.

“And these countries are not our friends.  You know, we think they’re our friends and we send them massive aid.  And I won’t mention names right now, but I look at these countries, I look at the numbers we send them — we send them massive aid and they’re pouring drugs into our country and they’re laughing at us.  So I’m not a believer in that.  I want to stop the aid.  I want to stop the aid.  If they can’t stop drugs from coming in — because they could stop them a lot easier than us.  They say, “Oh, we can’t control it.”  Oh great, we’re supposed to control it.

“So we give them billions and billions of dollars and they don’t do what they’re supposed to be doing.  And they know that.  But we’re going to take a very harsh action.”

“I don’t think that President Trump was referring to Colombia because Colombia is not laughing at the U.S.,” President Santos said. “On the contrary, we think we’re working together in a problem and a challenge that needs cooperation from both countries.”

For his part, Secretary Tillerson took a much more conciliatory tone than his boss.

“We did discuss our concerns about the surge in coca cultivation and cocaine production in Colombia, but the president also gave me a very good report of the steps that are being taken, the progress that’s being made, and he just spoke to much of that. And we are quite encouraged by what we hear.”

Santos offered some statistics about Colombia’s post-conflict coca eradication and substitution effort.

“So far this year we have forcefully eradicated 54,000 hectares, which is more than the goal we had set, and by the end of this year we hope to have cleared 150,000 hectares.

“As far as voluntary substitution is concerned, for the very first time we have a greater likelihood of being successful, and that has led us to sign agreements with 124,000 families that say that they have over 105,000 hectares of illegal crops. This is almost 30,000 of these families today are currently substituting their illegal crops.”

In March 2017, the U.S. government estimated that 188,000 hectares of coca were growing in Colombia in 2016, more than double the 2013 figure.

Tillerson also praised Colombia for being “a key player in the hemisphere’s efforts to restore democracy in Venezuela,” adding, “we had a very extensive exchange on how we can work together, along with others in the region, through the Lima Group, ultimately through the OAS, to restore democracy.”

Venezuela migration crisis

Meanwhile, citizens from shortage and inflation-plagued Venezuela are pouring into Colombia in ever greater numbers. The official number of Venezuelans moving to Colombia just in the last half of 2017 was 550,000, a 62 percent increase over a year earlier. Colombian officials cited by The Guardian “believe more than 1 million Venezuelans have moved to Colombia since the economic crisis took hold in 2015.” With Red Cross and UN assistance, Colombia opened up a “Temporary Service Center” in the border city of Cúcuta that can care for 120 migrants at a time for up to 48 hours. President Santos also banned the entry of Venezuelans without passports or border-crossing permits, and ordered 2,000 military personnel to the Venezuelan border to clamp down on illicit crossings.

ELN could be distributing Venezuelan government food rations on the Venezuelan side of the border

Across the border in Táchira, Venezuela, the Venezuela Investigative Unit at InsightCrime reported that ELN guerrillas may have been given a role in distributing food to Venezuelan citizens.

“Javier Tarazona, director of the Venezuelan non-governmental organization Fundación Redes, reported on February 6 that the National Liberation Army (Ejército de Liberación Nacional – ELN), the largest active guerrilla group in Colombia, is distributing boxes of food in the Venezeulan border states of Táchira, Apure and Zulia by way of the government-run Local Storage and Production Committees (Comités Locales de Abastecimiento y Producción – CLAP).

Tarazona says that the boxes are delivered with propaganda for the ELN’s Carlos Germán Velasco Villamizar Front. They also promote one of their three radio stations broadcasting in that region of Venezuela.”

InsightCrime speculates that the Colombian guerrillas “may be seeking a rearrangement that lets continue to operate in Venezuelan territory, while consolidating its position in case the peace talks with the Colombian government collapse.”

With dialogues frozen, ELN calls an “armed blockade”

The ELN continued a wave of violent actions that began after January 9, when guerrilla and government negotiators in a slow-moving negotiation process could not agree on terms to renew a 100-day bilateral ceasefire.

On February 7 the group announced a three-day “armed blockade” around the country, warning Colombians to abstain from travel between February 10 to 13 because of increased attacks on social leaders and “the government’s refusal to continue the fifth cycle of conversations” at the negotiating table in Quito, Ecuador. While the 2,000-person ELN lacks the capacity to attack travelers in most of the country, incidents were reported on roads in areas under its longtime influence, like Cesar and Arauca.

The government negotiating team remains absent from Quito, pending a display of goodwill from the ELN. However, two politicians with a longtime history of playing a good offices role in guerrilla negotiations, Senator Iván Cepeda and former mining and energy minister Álvaro Leyva, continue to seek to broker a solution. Public calls on the ELN to restart the bilateral ceasefire, and the negotiations, came from a group of artists and intellectuals, and from the National Peace Council, a multi-sectoral government advisory body.

Demining plan in Putumayo

Putumayo department, in southern Colombia bordering Ecuador, will be the site of an ambitious plan to remove landmines, carried out by Colombia’s army, the Colombian Campaign Against Mines, and the HALO Trust. The goal is to clear mines from 2,757,000 square meters of territory—equal to Bogotá’s colonial La Candelaria neighborhood—across 10 of Putumayo’s 13 municipalities. During the conflict, landmines, mostly laid by guerrillas, have killed 110 Putumayans and wounded another 335.

Tribunal calls for investigating ex-president Uribe for paramilitary ties

The Superior Court of Medellín released a finding citing the existence of “sufficient elements” to investigate former president and current Senator Álvaro Uribe for supporting paramilitary groups during Uribe’s 1996-99 tenure as governor of Antioquia, the populous department of which Medellín is the capital. During Uribe’s term, the United Self-Defense Forces of Colombia (AUC) paramilitary organization expanded rapidly in Antioquia, carrying out emblematic massacres. The Medellín high court asked Colombia’s Prosecutor-General’s Office (Fiscalía) to investigate the popular but controversial former president for possible responsibility for two of these massacres, in El Aro (1997) and La Granja (1996), and for the 1998 murder of human rights lawyer Jesús María Valle.

Three weeks before he was killed, Valle told a Medellín prosecutor:

“I always saw that there was something like a tacit agreement or an ostensible behavior of omission, cleverly plotted between the commander of the [Army’s] 4th Brigade, the Antioquia Police commander, Dr. Álvaro Uribe Vélez, Dr. Pedro Juan Moreno [Uribe’s chief of cabinet, who allegedly served as a go-between to the paramilitaries], and [paramount AUC leader] Carlos Castaño. The power of all of these ‘self-defense groups’ has been consolidated through the support they have had from people tied to the government, to the military class, the police class, and the wealthy cattlemen and bankers of Antioquia department and the country.”

The Medellín tribunal’s finding stated, “The military, police, and security forces, the Antioquia governor’s office, groups of cattlemen, businessmen, industrialists, and a good quantity of people who were victims of guerrilla actions, allied with these self-defense groups or paramilitaries.”

It’s not clear what the next judicial steps might be, as Colombia’s prosecutor-general’s office may be in no rush to order an investigation. Senator Uribe, for his part, rejected the court’s allegation as a campaign-season maneuver.

Social leaders: failure to follow up on an early warning

In Tibú, Norte de Santander, authorities found the body of rural community leader Sandra Yaneth Luna, who had disappeared after armed men took her from her house in September 2017. Investigators believe her killing was a response to non-payment of an extortion demand. Still, Luna’s murder is one of well over 100 killings of social leaders that took place around Colombia last year.

The country’s human rights ombudsman (Defensor del Pueblo), Carlos Negret, called into question the government’s commitment to protecting social leaders. Negret alleged that, between March and July 2017, the Interior Ministry “held on to” a report demanding that it take early-warning measures to protect leaders in several parts of the country. The report, the ombudsman said, cited “up to 500 citizens under threat, among them Víctor Alfonso Castilla and Bernardo Cuero who were later killed.”

Interior Minister Guillermo Rivera rejected Negret’s accusation of inaction, tweeting a March 2017 email that he had sent to the government’s Early Warning System, which is meant to manage the deployment of protection measures. In turn, Negret, the ombudsman, said that the minister’s e-mail proved nothing. It “doesn’t constitute an early warning, not even the evaluation of one. It is a request that the corresponding authorities verify the information in order to proceed later to evaluation” of an early-warning operation.

“The Ombusdman’s Office,” Negret’s statement continued, “notes with concern that the Minister of Interior considers that a reaction and immediate response to a warning about a serious human rights situation would be the simple sending of an e-mail.”

In a column, Rodrigo Uprimny, a former Supreme Court auxiliary magistrate and founder of the DeJusticia think-tank, called the wave of attacks on the country’s social leaders “a historical anti-democratic pattern in Colombia, in which any democratic openings are violently closed by a jump in violence against social leaders, usually deployed by paramilitary groups.” Uprimny called for “massive rejection to those crimes, through a pact between all political forces without regard to their orientation, that condemn those crimes, without regard to whether or not the victims’ political sensibilities were the same as ours.”

In-Depth Reading

Last week in Colombia’s Peace Process

This post is several days overdue because of staff travel—it covers the week of January 28-February 3.

Wave of violence intensifies

Violence involving guerrillas, guerrilla dissidents, or organized crime forced 2,560 people to flee their homes in January, according to CODHES, an NGO that tracks forced displacement. Of the displaced, 230 were forced out in mass events, a big increase over the 100 such displacements measured in January 2017.

In addition:

  • The Antioquia Indigenous Organization (OIA) warned that 400 Senú people are in imminent risk of forced displacement because of nearby combat in in the Bajo Cauca region municipality of Caucasia.
  • Army troops killed Embera indigenous leader Eleazar Tequia Bitucay in Chocó on the night of January 26. The Army at first claimed that Tequia, a leader of the local Indigenous Guard, was killed while trying to disarm a soldier during a peaceful protest over delayed education funds. However, the community said he was shot for no reason. Five days later, the Army admitted responsibility and asked forgiveness of the community.
  • Elsewhere in Chocó, in the Chagpien Tordó indigenous reserve of Litoral de San Juan municipality, Colombian security forces wounded a minor while carrying out a bombing raid on suspected ELN targets. The Defense Ministry insisted that the joint military-police operation was planned and carried out within the framework of international humanitarian law.
  • Six Colombian employees of the UN Office on Drugs and crime were robbed, apparently by members of a FARC dissident group, in a rural area of Paujil municipality, in Caquetá. The UNODC is verifying that families participating in the crop substitution program mandated by the peace accord are truly eradicating their coca. Two truckloads of verifiers were stopped by armed men who took their vehicles, cell phones, and GPS devices. The assailants said they opposed the crop substitution program. The incident has suspended the ONDCP program in this area.
  • The human rights ombudsman’s office (Defensoría) warned that a longstanding pact has broken down between the ELN and the Popular Liberation Army (EPL), a geographically limited but locally strong guerrilla group. The office issued an “early warning” alert about probable violence in southeastern Cesar department and the western part of Norte de Santander’s Catatumbo region. The EPL appears to be expanding into this zone of increasing coca cultivation.

“Don Temis” and the plight of social leaders

On the evening of January 27, two armed men shot and killed Temístocles Machado outside his house in the Isla de Paz neighborhood of Buenaventura, Valle del Cauca. The 58-year-old Machado, known widely as “Don Temis,” was a member of the Black Communities Process (PCN, a national Afro-Colombian rights association). He had been receiving threats for more than 10 years.

In Buenaventura, Colombia’s largest port city, Machado had led efforts to save his neighborhood. Isla de Paz is under threat from business interests and aligned armed groups who would eject residents to make room for new cargo warehouses and truck lots for the expanding port. Machado was also at the forefront of efforts to petition the government to provide basic services to his neighborhood. In May 2017, he was among the most visible leaders of a 21-day peaceful protest that brought the city to a halt.

Juan Diego Restrepo, editor of Colombia’s Verdad Abierta investigative website, had sat down with Machado last October. “Through the civic stoppage” of last May, “Don Temis” told him, “we now have interlocution with the national government. But Buenaventura is a town without law, nothing works, the oversight and accountability entities don’t work.”

“Theft of land in Buenaventura,” he added, “is carried out by the very same public officials, starting with the national government, to the municipal, through its illegal armed groups.… Whenever there’s a ten or fifteen-year plan for a new economic project, the armed groups come first, generating terror, intimidation, fear, to displace the people and later grab the land and sell it. I don’t believe the armed groups come here alone. Without consent. It’s not a coincidence. They are armed apparatuses used by politicians, businessmen. Government authority doesn’t function here.”

Despite frequent threats to his life, Machado had not accepted protection from the Interior Ministry’s National Protection Program. An official of the program told La Silla Vacía, “He said only God protects him.” Berenice Celeyta, longtime head of the local human rights group NOMADESC, rejects that. “It’s not that he didn’t want protection, but that he wanted collective protection [for the neighborhood], more than just a bodyguard and bulletproof vest for one person.”

Colombia’s Prosecutor-General’s Office (Fiscalía) stated that Machado’s killing was likely related to his community work, and that it is prioritizing bringing his case to justice. Just days before his murder, Machado had met with the Office’s number-two official, Vice-Prosecutor General María Paulina Riveros, to discuss his security situation.

That same night of January 27, assailants on motorcycles in Villavicencio, Meta attacked and wounded María Cecilia Lozano, a victims’ leader and survivor of the 1998 paramilitary massacre in Mapiripán, Meta.

Throughout Colombia, the Fiscalía has counted 101 homicides of human rights defenders, social leaders, political leaders, and community leaders between 2017 and so far in 2018. Counts vary so far for January 2018: the Somos Defensores organization denounced 12 murders, the Regional Corporation for the Defense of Human Rights (CREDHOS) counts 18 murders, and the Institute of Studies for Development and Peace (INDEPAZ) has identified 21.

According to Somos Defensores, murders of social leaders in 2017 happened the most in Antioquia, Cauca, Valle del Cauca, Nariño, and Norte de Santander, with notable increases in Chocó and Cesar. “We thought that after 2017 things would calm down,” Carlos Guevara of Somos Defensores told El Espectador, “but it seems like the closer we get to elections this is going to get even worse.”

An analysis by the DeJusticia think-tank of data from the ¡Pacifista! website found that 31% of social leaders killed in 2017 were leaders of local Community Action Boards (Juntas de Acción Comunal), 23% were leaders of peasant farmer organization; 14% were indigenous leaders; 12% were Afro-Colombian leaders; 6% were union leaders; and 3% were trying to reclaim stolen land.

ELN violent activity worsening

President Juan Manuel Santos ordered his negotiating team not to go to Quito, Ecuador to start a fifth round of talks with the ELN. The President cited the guerrilla group’s lack of “coherence” after the January 28th bombing of a police post in Barranquilla, Colombia’s fourth-largest city.

The guerrillas continued a wave of violent attacks that began after a 100-day bilateral ceasefire ended on January 9. The Caño Limón-Coveñas oil pipeline (which the U.S. government provided $104 million in military assistance to protect in 2003) has been out of service for 23 days after 22 different attempted or actual attacks in Arauca, Boyacá, and Norte de Santander.

Arauca has been the hardest-hit department by ELN attacks since the ceasefire ended, concentrating 46 percent of attacks according to the Ideas for Peace Foundation (FIP) think-tank. The ELN has been aggressively assuming control of parts of Arauca that had been under FARC dominion. This, FIP reports, has meant the ELN applying its “norms of social control and conduct” in former FARC areas and increased “pressure against social and political leaders who are either FARC-aligned or contrary to ELN policies.”

The ELN structure in Arauca, the Domingo Laín column, is the group’s largest. It’s leader, Gustavo Giraldo Quinchía alias “Pablito,” is viewed as the member of the group’s five-man Central Command who most opposes peace talks with the government. Other ELN fronts’ actions “have been reduced compared to those of the Domingo Laín,” FIP notes. That could indicate that “this structure may be showing its internal dissent with respect to the Quito dialogues an the slow implementation of the FARC accords.”

In response, the Colombian military’s “Vulcan” Task Force announced an increased deployment of troops from its Energy Operational Command, which consists of three battalions totaling 1,800 troops, to guard pipeline and oil infrastructure.

A communiqué from the FARC political party denounced on February 1 that the ELN kidnapped four of its members, killing three, in Santa Cruz de Guachavez, Nariño. According to the FARC’s count, as of January 23 ex-combatants and party activists had suffered 49 attacks, with 36 killed, since the November 2016 signing of the peace accord. Unknown assailants also killed a demobilized FARC militia member last week in Caquetá.

Armed forces chief Gen. Alberto Mejía meanwhile alleged that in Chocó, Nariño, Arauca, and Catatumbo the ELN is recruiting not only children but impoverished Venezuelan migrants.

In a statement responding to President Santos’s freezing of peace talks, the ELN leadership pointed out that it never agreed to a permanent ceasefire with the government.

Polls for May presidential election

It’s very early and things may change. Also, polls don’t take into account shady get-out-the-vote machinery that may boost turnout for candidates who appear unpopular today. But right now, polling for Colombia’s May 27 presidential election is hinting at a leftward or anti-corruption direction.

Several top local media outlets sponsored an Invamer poll of 1,200 Colombians in 41 municipalities (out of 1,100) in 26 departments (out of 33). It found two left-of-center former mayors in the lead. Gustavo Petro, a former member of the M-19 guerrilla group who had a stormy 2012-2015 tenure as mayor of Bogotá, leads a crowded field with an intended vote of 23-plus percent. Sergio Fajardo, a center-left former mayor of Medellín, is just behind with 20-22 percent depending on the likely matchups. Also high in the running are two right-of-center candidates, former defense minister Marta Lucia Ramirez and former vice-president Germán Vargas Lleras.

Taken together, candidates who support the FARC peace accord and its implementation total about 62 percent of voters’ intentions. The FARC candidate himself, Rodrigo Londoño (aka Timochenko), is at the bottom with less than 2 percent.

The “Gran Encuesta” poll seems to show Fajardo besting Petro and all others in hypothetical second-round matchups. But either candidate would have to get there first. Despite his low showing in the poll, Vargas Lleras will be a hard candidate to beat. The former vice-president broke with President Santos after spending nearly seven years in his administration, and is now critical of the FARC peace accord. He has assiduously courted local power brokers around the country who are adroit at getting voters to show up and do what they’re told at the polls.

In-Depth Reading

Last week in Colombia’s peace process

In third week after end of ELN ceasefire, violence intensifies

Talks in Ecuador between the government and the ELN made no progress more than two weeks after the non-renewal of a 100-day cessation of hostilities, which ended on January 9. Last week, events on the battlefield made the situation worse.

In the early morning hours of January 27, an explosive device killed five police and wounded forty-three more as they began their day at a post in Barranquilla, Colombia’s fourth-largest city. A second bomb went off on January 28 near a police post in another Barranquilla neighborhood, wounding two police and three civilians. Also on January 27, a bomb in Santa Rosa del Sur, in the northern department of Bolívar, killed two police. The ELN retweeted a statement from an urban bloc (account since suspended, but it was here) claiming responsibility for the Barranquilla attacks. The government reported capturing a suspect: a man who, authorities allege, had a notebook with a map of one of the bombing sites.

The week also saw combat between Colombia’s army and the ELN in Valdivia, Northern Antioquia, while four ELN members died in an army-air force-police attack in Chitagá, Norte de Santander.

Following the Barranquilla attacks, rightwing candidates for Colombia’s May presidential elections called on President Juan Manuel Santos to suspend or end talks with the ELN. “The government can NOT restart negotiations with the ELN in these conditions, it must react with determination and authority,” tweeted Germán Vargas Lleras, who had served as Santos’s interior minister and vice president. The candidate of ex-president Álvaro Uribe’s “Democratic Center” party, Iván Duque, tweeted, “when terrorism is given advantages, it feels free to attack with cowardice.”

Former FARC launch campaign but are increasingly vulnerable to attack

The Common Alternative Revolutionary Force, the political party descended from the FARC guerrillas, launched its 2018 election campaign at a January 27 event in Ciudad Bolívar, a sprawling low-income neighborhood in southern Bogotá. (And one of a handful of Bogotá districts where a majority voted “no” against the FARC peace accord in an October 2, 2016 plebiscite.) Led by maximum leader and presidential candidate Rodrigo Londoño (previously known as “Timochenko”), the new political party introduced a political platform including a proposed guaranteed basic income for all Colombians.

The peace accords give the former guerrillas an automatic 5 seats in a 107-seat Senate and 5 in a 172-seat House of Representatives. The new party is running 23 candidates for Senate seats and 51 in the House. That places the FARC 12th among all Colombian parties in number of House candidates, and 13th in number of Senate candidates. “We’re very optimistic and confident that we will win more than 10 seats,” said top leader Carlos Antonio Lozada. That is far from certain: the ex-guerrillas’ past of human rights abuses, most of which remain unacknowledged for now, make them quite unpopular in mainstream Colombian opinion. The peace accord also holds out an awkward possibility of FARC officeholders standing trial for serious war crimes.

Meanwhile, threats and attacks against the FARC political organization are worsening. About 33 former guerrillas have been killed since the final peace accord was signed in November 2016. The past week saw armed men raid the FARC party headquarters in Quibdó, the capital of the northwestern department of Chocó. FARC party member Johana Poblador was beaten in Bogotá by armed men who threatened to kill FARC leaders. Two FARC members in Medellín received death threats from the “Gaitanistas” or “Urabeños” neo-paramilitary group, which has already threatened to attack FARC party offices around the country.

Violence and displacement around the country

Last week it became evident that, between only the 17th and 20th of January, violence forced more than 1,000 people to leave their home communities. The Urabeños, the ELN, and FARC dissident groups—all of them fighting to occupy vacuums left by the demobilized FARC—were involved in all cases. Violence continued, and perhaps worsened, this week.

  • About 172 people were displaced by fighting between the ELN and FARC dissidents in the La Voz de los Negros Community Council of Magüi Payán, Nariño, southwestern Colombia.
  • In Cumbal, Nariño, fighting between the ELN and FARC dissidents forced many to flee into neighboring Ecuador.
  • Just to the north, in Argelia, Cauca, at least 11 armed men opened fire on a festival, killing three people.
  • Further north, in Buenos Aires, Cauca, a roadside attack killed two members of a mining cooperative. “We’re feeling the fight for territorial control, with the exit of the FARC from municipalities that have to do with narcotrafficking. In addition are those affected by illegal mining,” said Cauca governor Óscar Campo.
  • An “unidentified armed group” forced 425 people to flee five hamlets and an indigenous reserve in San José de Uré, in the northwestern department of Córdoba. This area, the southern part of the department, sits along a key corridor for trafficking cocaine to the Caribbean coast. The government human rights ombudsman (Defensoría) reports that Urabeños have been increasing their presence, patrolling in camouflage-clad groups of 15 to 30 combatants in zones that used to be FARC-dominated.
  • Just to the south, in the coca and cocaine-producing Bajo Cauca region of Antioquia department, three armed men entered a bar on January 21 in the town of Yarumal, indiscriminately opened fire with Mini Uzis and killed seven people. A similar massacre took place in the same municipality in December.
  • Elsewhere in the Bajo Cauca region, in Cáceres and Caucasia municipalities, violence forced about 400 more people to flee. Here, the identity of the armed group isn’t clear: “It’s that we don’t know who they are, they don’t identify themselves, they don’t wear labels,” a local witness told Medellín’s daily El Colombiano. “We’ve only seen them several times around here, armed, wearing camouflage, it was about 30 men.” The zone has a presence of both ELN and Urabeños. (Also in Caucasia last week was U.S. Ambassador Kevin Whitaker, paying a visit to observe U.S.-supported coca eradication and substitution programs.)
  • Fighting between the security forces and the ELN displaced several families in Paya, Boyacá.

In-Depth Reading

Last week in Colombia’s peace process

ELN and government negotiating new ceasefire?

The frequency of ELN attacks appeared to slow in this, the second full week after a 100-day ceasefire ended between the guerrilla group and the Colombian government. The days since January 9 have seen at least 24 events, most of them small-scale guerrilla attacks on energy infrastructure or ambushes of military or police personnel. ELN fighters kidnapped an oil worker in Saravena, Arauca, damaged the TransAndino oil pipeline in Nariño, and killed a soldier in the Catatumbo region of Norte de Santander.

The UN verification mission in Colombia, taking note of this reduced tempo of ELN attacks, called on the guerrillas and government to resume negotiations that went dormant after the bilateral ceasefire’s end. The Colombian government’s head negotiator, former vice-president Gustavo Bell, is returning to Quito, Ecuador, the site of the talks. Instead of the agreed negotiating agenda, these talks are likely to focus on conditions for a renewed ceasefire.

Transitional justice system launches

President Juan Manuel Santos swore in 30 magistrates who will adjudicate cases in the Special Jurisdiction for Peace (JEP), the new justice system set up by the peace accords. The JEP will consider cases of war crimes and crimes against humanity.

Another eight magistrates remain to be sworn in. A few are still in the process of leaving current judicial posts. Several others are currently disqualified, as Colombia’s Congress added language to the law establishing the JEP that bars judges who did any human rights work in the past five years. Most participants and observers expect that Colombia’s Constitutional Court will strike down this prohibition when it reviews the JEP law. The Court’s decision is likely before May.

Another part of the JEP, the Unit for the Search for Disappeared Persons, still awaits launch. The Unit is part of the Justice Ministry, within the executive branch. Its director, human rights lawyer Luz Marina Monzón, says frustratedly that she is awaiting a decree allowing the Unit to operate, but there is no clear timetable.

Last year, the embryonic JEP had a budget of US$4.7 million, covered mainly by foreign donors, especially the UN Development Program. In 2018, the system will require 230 billion Colombian pesos (about US$82 million).

To date, 3,534 ex-FARC members have agreed to face this justice system, which will hand out lighter penalties, with no prison time, to those who fully confess crimes and provide reparations to victims. Another 1,729 members of the security forces, including 3 generals, have also signed up. Twenty-one civilians currently imprisoned for human rights crimes, including a former mayor of the city of Cúcuta who worked with paramilitary groups, have also registered.

Threats and attacks against former FARC fighters

Two former FARC fighters were shot to death in the town of Peque, Antioquia while campaigning for FARC congressional candidate Wilmar de Jesús Cartagena. (Congressional elections are in March, with the FARC running candidates as a political party.) “This is the great worry that we have,” Cartagena—who missed the campaign event for medical reasons—told El Espectador. “We don’t see any security guarantee that the government has the commitment to offer us. We don’t know what actions the government might take to facilitate our party’s participation in politics.” A statement from the UN verification mission expressed “serious concern” over the killings, “which constitutes the first mortal attack within the framework of the 2018 electoral process.”

The FARC party headquarters in Cali received a threatening pamphlet signed by the “Gaitanista Self-Defense Groups of Colombia,” a thousands-strong organized crime group commonly called the “Urabeños” or “Clan Úsuga.” The document declared the group’s intention to “blow up” the FARC office in Cali, as well as those of other leftist movements: the National Movement of Victims of State Crimes, the Marcha Patriótica, and the Congreso de los Pueblos.

“While there hasn’t been any serious incident within the training and reintegration zones [where the FARC underwent demobilization] thanks to the security forces’ protection measures, the number of killings outside those zones is an issue of growing concern in the last few months,” said Jean Arnault, chief of the UN verification mission in Colombia.

The Marcha Patriótica political movement counts 54 ex-FARC members or relatives killed between November 13, 2016 and January 18, 2018. These murders took place in Nariño (15), Antioquia (11), Cauca (6), Caquetá (5), Putumayo (4), Chocó (3), Bolívar (2), Meta (2), Norte de Santander (2), Boyacá (1), Tolima (1), Arauca (1), and Valle del Cauca (1).

FARC dissidents attack police in Meta

FARC dissidents attacked police in two different parts of Meta department, in south-central Colombia. Six members of a column of rural police were injured when fighters detonated an explosive as they passed by, then fired upon them, in Mesetas, western Meta. The attack, blamed on remnants of the FARC’s 3rd Front, happened days after two police were injured by a thrown grenade in Puerto Concordia, south-central Meta.

In-Depth Reading

Last week in Colombia’s peace process

We’d like to post these all year without missing a week. Travel plans may complicate that, but we’re going to try.

ELN ceasefire breaks off

For 102 days, while peace talks proceeded in Quito, the Colombian government and ELN guerrillas mostly honored a cessation of hostilities. That period saw 33 possible ceasefire violations committed by the ELN—of which 12 were verified—killing 26 noncombatants and involving the kidnapping of 13 people and forced recruitment of 14. Still, this was a much lower tempo of violence than normal. And there were zero incidents of combat between the ELN and Colombia’s security forces.

The cessation of hostilities ended on January 9, when the parties failed to agree to extend it. Overall analysis of the non-renewal placed most blame on the ELN, which appeared to lack internal consensus, or even unity of command, about whether to continue the truce.

The ELN’s standing in public opinion plummeted further as the group immediately launched a series of attacks on security forces and infrastructure, mostly in the northeast of the country. The week saw approximately 13 attacks, leading to the deaths of at least two police and at least three bombings of the 485-mile-long Caño Limón-Coveñas oil pipeline.

The Colombian government pulled its negotiating team from Quito, and appeared to suspend talks until the ELN agrees to a new ceasefire. This is a reversal of the 2012-16 FARC negotiations, when the guerrillas repeatedly demanded a bilateral ceasefire but the government preferred to keep fighting while talks proceeded.

France, the European Union, the “guarantor countries” of the ELN talks (Brazil, Chile, Cuba, Ecuador, Norway, and Venezuela), and FARC leader Rodrigo Londoño all called on the parties to return to the table and agree on a new cessation of hostilities. The UN noted that it cannot keep its monitoring and verification structure in place very long with no ceasefire to monitor.

The U.S. government issued a travel warning for four departments where the ELN is most active: Arauca, Cauca, Chocó, and Norte de Santander.

Other coverage: Washington Post, New York Times, El Tiempo

Visit of UN Secretary-General

The need to restart the ELN talks and ceasefire was a main message of UN Secretary-General Antonio Guterres during a January 13 visit to Colombia. Guterres visited Bogotá and Meta to get a sense of how implementation of the FARC accord is going, to give political support to the ELN process, and to support the work of the UN verification mission in Colombia.

That mission’s latest 90-day report to the Secretary-General, made public on January 5, voiced concern about the government’s implementation of the FARC accord: “Overall, the implementation of the peace-related legislative agenda has progressed unevenly, compounded by events relating to the presidential and parliamentary elections, to be held in the first semester of 2018.”

Military sets up giant task force in Nariño

Colombia’s Defense Ministry has set up a joint task force, “Hercules,” with about 9,800 soldiers, marines, sailors, airmen, and police stationed in Nariño, on the Pacific coast in the southwestern corner of the country. Nariño is Colombia’s number-one coca-growing department and a heavily used corridor for cocaine shipments into the eastern Pacific. It has very active FARC ex-militia dissident groups and a growing presence of the ELN. Not all of the 9,800 personnel are new: many are already stationed in Nariño but now form part of this joint command structure.

“This plan has had a big media deployment in the region and in Bogotá,” writes Laura Soto in La Silla Vacía. “But four sources who know the zone (members of the Tumaco mayor’s office, two human rights defenders who have worked closely with Caritas, and a social leader) aren’t hopeful that the panorama will approve, at least not in the short term.”

Lowest homicide rate in 40 years

President Juan Manuel Santos celebrated that Colombia’s 2017 homicide rate reached the lowest point in 42 years: 24 violent deaths for every 100,000 inhabitants (about the same as Washington DC). Security analyst Hugo Acero cast some doubt on the statistics, though the overall trend points to declining homicides.

Nastiness between Santos and Maduro

Venezuelan President Nicolás Maduro told his countrymen that “thousands of Colombian patients cross the border to get operated on here, to treat a flu, to clear up a cataract, to seek medicines in Venezuela” where the health system is “free.” (Venezuela in fact suffers from severe shortages of most medicines, while Colombia’s healthcare system is also theoretically free.) President Santos called this comment “cynical,” pointing out that the reverse phenomenon is happening with Venezuelans recurring to Colombia’s border-zone hospitals. “President Maduro, don’t try to use the Colombian people to hide the enormous shortcomings of your failed revolution,” he said. Maduro responded that Santos “has his country in chaos” and isn’t complying with the FARC peace accord.

In-Depth Reading

Rescuing Colombia’s Post-Conflict Transitional Justice System

It will be up to Colombia’s Top Court—and Perhaps the International Criminal Court—to Undo Damage Wrought by the Congress

“What to do with the worst human rights abusers” was the most controversial part of the peace accord that Colombia’s government reached with the FARC guerrillas a year ago, in November 2017. It was unrealistic to expect the FARC’s members, who weren’t defeated on the battlefield, to turn in their weapons only to report to long prison terms for their thousands of war crimes. It was also unrealistic to expect the peace accord to dishonor the conflict’s millions of victims with a blanket amnesty. It took the accord’s negotiators 19 months to come up with a formula that balanced these two extremes.

Still, the compromises within the peace accord’s language satisfied nobody. It was vague on issues like the conditions of confinement for individuals found guilty of serious human rights violations; how guerrilla and military commanders might be held accountable for their subordinates’ actions; how ex-guerrillas might serve penalties while also being able to participate in politics; and how to hold accountable civilians who, for instance, funded paramilitary groups that went on to kill tens of thousands.

Conservative critics argued that the transitional justice system’s formula is too lenient on ex-guerrilla war criminals, as it specifies five to eight years’ “restriction of liberty” in non-prison conditions. Human rights defenders fear that even this standard might not be rigorously applied to military personnel and third-party accomplices to human rights crimes.

This vague language was improved little by a constitutional amendment that Colombia’s Congress approved in March to green-light the accords’ transitional justice system. As WOLA pointed out at the time, this amendment violated the accords’ spirit in several ways: a weak interpretation of “command responsibility,” the insertion of language that makes it much harder to prosecute third-party civilians, and continued vagueness on other questions.

During the week of November 13, Colombia’s Constitutional Court and Senate took further steps that may pacify conservative critics, but that are alarming human rights advocates and victims’ groups. On November 14, the Court handed down a unanimous ruling upholding most of the constitutional amendment that passed in March. On November 16, Colombia’s Senate—following months of procedural delays—passed its version of a law to implement the new transitional justice system, known in the accord as the Special Peace Jurisdiction (JEP, by its Spanish initials). On November 27, Colombia’s House of Representatives passed its version of the law that would implement the JEP, which in most respects is similar to the Senate’s, and a day later the two chambers reconciled their versions into a single piece of legislation.

WOLA, along with most of our partners in Colombia’s human rights and victims’ rights communities, welcomes the long-delayed approval of the JEP, which is the backbone of the peace accord. Expectations are high: as of November 17, 3,491 ex-guerrillas and 1,714 current and former security-force personnel had signaled their intention to be tried within this new system.

However, we are deeply troubled by the Constitutional Court’s and the legislature’s actions. They deform some of the key tenets of the peace accord. They risk allowing too many top human rights violators to avoid accountability, and denying too many conflict victims their right to truth and dignity. And they may set Colombia on a collision course with the International Criminal Court.

The process is not over yet. The Constitutional Court must review this law’s constitutionality. The International Criminal Court may act if it appears that the JEP will allow war criminals to avoid punishment. So might the Inter-American human rights system.

WOLA urges these bodies to act to address the following concerns about the transitional justice system.

  1. The choices of judges and magistrates for the JEP were excellent. But the bill would undo these by disqualifying anybody who has done human rights work or accompanied victims during the past five years.

As mandated by the peace accord, an independent five-member panel of Colombian and international jurists selected the judges who will preside over JEP tribunals. They fulfilled this task efficiently and transparently. As Notre Dame University’s Kroc Institute noted in a November monitoring report, the panel “established an important balance between interests in academia, the international community and social sectors.” Of the 38 magistrates and 13 alternates chosen, more than half (28) are women and 8 are Afro-Colombian or indigenous. Both proportions resemble those of Colombia’s overall population, the first time that has been true of any Colombian body with real decision-making power.

The implementing law, however, would summarily disqualify at least 15 of the chosen judges. Language would ban any magistrates who, in the past five years, have brought cases against the government, participated in peace negotiations, or taken part in any case related to the armed conflict.

This new requirement—not at all foreseen in the peace accord—was promoted by legislators from Cambio Radical, a party in President Santos’s ruling coalition tied to many regional political bosses and large landholders. Led by former vice-president and leading presidential candidate Germán Vargas Lleras, Cambio Radical has broken with Santos and mostly withdrawn its support for the FARC accord.

The proposed disqualification of judges is “serious and concerning because it is a discrimination against the legitimate practice of law, and against people who claim reparations in relation to human rights violations,” said Gustavo Gallón, the president of the Colombian Commission of Jurists and member of the accords’ Security Guarantees Commission.

It will be up to Colombia’s Constitutional Court to delete this language when it reviews the law, as it is required to do, in coming months.  “We believe that the Constitutional Court would throw it out,” Interior Minister Guillermo Rivera said. Rodrigo Uprimny of the legal think-tank DeJusticia is certain that’s what will happen:

“The Constitutional Court has already established that it violates due process to create new requirements or prohibitions to block a person who has already been chosen for a position. …This disqualification from the Senate will, therefore, have no effect. It was just a clumsy maneuver by some senators. But the issue should be taken seriously, as it exhibits a dangerous and unacceptable stigmatization against human rights defenders.”

All who care about “putting victims at the center” of the peace accord must hope that Rivera and Uprimny are correct.

  1. Neither the text of the law for implementing the JEP, nor the Constitutional Court decision, defines how austere the conditions of “restricted liberty” will be for those sentenced for war crimes and crimes against humanity.

As long as they tell the JEP tribunals the full truth about their participation in war crimes, and make reparations to victims, defendants can be sentenced to up to eight years of “effective restriction of liberty.” This is not prison: confinement is to occur in a space no larger than one of the village-sized cantonment zones where the FARC disarmed, but the accord doesn’t specify the conditions within that space. The peace accord leaves that up to the judges in each case. Individuals will also be able to leave these spaces to carry out activities defined as reparations to victims.

How austere or luxurious, then, will conditions be within the “restricted liberty” zones? This thorny question is a “hot potato,” write Juanita León and Juan Esteban Lewin of Colombia’s La Silla Vacía investigative website: no institution wants to be forced to specify the answer. The Constitutional Court’s November 14 decision passes the “potato” to the Congress, requiring its JEP implementing law to “typify” the sanctions that war criminals would receive. However, the implementing law does not do this: it leaves the conditions of confinement up to the tribunal judges.

  1. The Court decision and the law for implementing the JEP includes  a watered-down standard of “command responsibility,” which could  allow dozens of top military commanders to avoid accountability. It may also make Colombia a top priority for the International Criminal Court.

As WOLA noted with alarm in March, the constitutional reform establishing the JEP watered down the definition of “command responsibility”—the extent to which leaders are liable for crimes committed by those below them in the chain of command—“in a way that almost certainly runs afoul of Colombia’s international human rights commitments.”

The Constitutional Court’s November 14 decision upheld that definition. As things stand now, Colombian military commanders can avoid accountability before the JEP by contending that they didn’t know about their subordinates’ illegal actions. As it is almost impossible to prove what a commander did or did not know at a given time, commanders at the level of battalion and higher are likely to avoid accountability. The constitutional amendment does not apply this softer standard to ex-guerrilla leaders, though: they will be liable if they “should have known” about the crimes committed by those they commanded.

“Should have known” is the standard set forth in Article 28 of the Rome Statute, the founding document of the International Criminal Court in The Hague, which merely requires that the commander have had enough control of subordinates to prevent the abuse.

As Colombia is a signatory to the Rome Statute, failing to apply the “should have known” standard for its security forces may run afoul of the Court, which may decide to act against individual Colombian commanders if it determines that Colombia isn’t doing enough on its own to hold them accountable. By applying a weaker standard, Colombia’s Constitutional Court “may open the door for international tribunals to formally investigate high-ranking military commanders, government officials, or guerrillas,” according to the Colombian daily El Espectador.

The International Criminal Court’s prosecutor, Fatou Bensouda, has been unambiguous about this. The JEP constitutional amendment’s definition, she wrote in October, “frustrates the object of command responsibility in international law” and means that “people with the material ability to prevent or to punish subordinates’ crimes, and who may have knowingly omitted doing so, could go unpunished.” It is true that the ICC prosecutor is not the same thing as the Court itself. But since the language, in its current form, makes it harder for those who suffered at the hands of the armed forces to receive justice than for those who suffered at the hands of the FARC, a future clash with the ICC is a strong possibility.

The weak definition of “command responsibility” is a direct result of pressure from Colombia’s powerful military. Hours before the peace accord was signed on November 24, 2016, the Colombian government quietly introduced, and demanded that the guerrillas accept, a key change to page 164 of its text: it eliminated a reference to the Rome Statute’s Article 28 as the standard for “command responsibility.” It did so to at the vehement insistence of the armed forces, whose commanders insist that Colombia acceded to the Rome Statute with a specific reservation against Article 28. The Senate’s final debate on the JEP-implementing law took place with Colombia’s defense minister and armed forces’ chief watching every moment in person. As the Colombian daily El Tiempo reported, “For these two and their advisors, it is vital that everything related to military commanders’ responsibility for subordinates’ crimes, among other norms, remain intact without even a single comma being introduced.”

  1. The Court’s decision, and the law for implementing the JEP, both stripped key language from the peace accord which would have compelled civilian third parties to appear and confess. There is now little hope of holding accountable landowners, narcotraffickers, local officials and other politically influential individuals who sponsored armed groups or even planned killings.

During the most intense years of Colombia’s armed conflict—the mid-1990s to the mid-2000s—guerrillas carried out the majority of kidnappings, child recruitment, indiscriminate bombings, and use of child combatants. However, they did not commit the largest number of homicides and massacres of civilians during this period. That grim distinction belonged to pro-government paramilitary groups, which were frequently armed and backed by civilians: landowners, right-wing politicians, organized crime figures, and some members of the security forces.

After the United Self-Defense Forces of Colombia (AUC) paramilitary umbrella organization demobilized in 2006, its members underwent their own transitional justice process, known as “Justice and Peace,” involving full confessions. These confessions revealed the identities of about 13,000 Colombian non-combatants who allegedly aided and abetted the paramilitaries’ murderous offensives.

Some of these 13,000 may have been extorted into supporting the paramilitaries; others may have done so willingly, for reasons ranging from counterinsurgency to greed. But we still don’t know what happened, because Colombia’s regular criminal justice system failed to act.  The transitional justice system passed these names to Colombia’s criminal prosecutors, who did not follow up.

The FARC peace accord sought to rectify this with an innovative provision requiring that civilians credibly alleged to have “authored” war crimes appear before the JEP, where they might benefit from lighter sentences in exchange for full confessions and reparations to these crimes’ victims. This provision held the promise of identifying, and thus finally dismantling, paramilitary support networks around the country. But it also alarmed politically powerful individuals throughout Colombia’s provinces.

In March, Colombia’s Congress responded to this alarm: its constitutional amendment establishing the JEP gutted the requirement that civilian accomplices participate. Non-combatants now need only appear before the post-conflict justice system “voluntarily.” The assumption—so far proven wrong—is that the regular justice system might uncover enough evidence to make real the threat that these individuals suffer real penalties—decades in prison—for their crimes. They would then see the JEP as the best option for themselves, and do right by their victims..

However, powerful civilian third parties generally haven’t felt threatened by Colombia’s regular justice system. As a magistrate in the paramilitaries’ “Justice and Peace” transitional justice process, Rubén Darío Pinilla sent information about many civilian collaborators to the regular criminal justice system. He told Colombia’s Verdad Abierta:

“The Court’s decision [to uphold civilians’ ‘voluntary’ participation] is serious, because it implies that there is going to be some risk that civilians who participated in a determining manner in the commission of war crimes and crimes against humanity may remain in impunity. And that risk exists because the names sent over from the Justice and Peace courts, which exceeded 13,000, haven’t generated the investigations that should be expected, even though there is evidence not just of participation, but also of responsibility, of people in sectors of business, mining, industry, agro-industry, and cattle mining, as well as of public officials, in cooperation with paramilitary groups.”

As the law stands right now, the JEP will have little opportunity to hold these individuals accountable or to ensure that their victims receive the truth, justice, and reparations that are their due. “The businessmen who financed the paramilitaries can breathe easy,” write León and Lewin in La Silla Vacía. “The ‘gray men’ that investigator Luis Jorge Garay talks about when describing those people who live in ‘legality’ but who are bridges to illegal groups, and those who make it possible, when a capo is taken down, for a new one to take his place the next day.”

If this provision stands, writes columnist María Jimena Duzán in the Colombian newsweekly Semana, the burden will fall on chief prosecutor Nestor Humberto Martínez, whose office tries cases in the regular criminal justice system. If he doesn’t act, the ICC might. Duzán writes:

“Martínez will have to investigate what until now he has not wanted to investigate. If he doesn’t do it, he is going to have the International Criminal Court on his back, which can enter with the argument that civilian third-parties who participated in the conflict are protected with impunity and that victims are being denied justice.”

  1. The Court’s and the legislature’s actions still leave unclear whether “false positive” killings will be tried within the JEP, even though most were unrelated to the armed conflict.

The JEP is meant to offer lighter penalties for war crimes committed in the context of Colombia’s armed conflict. It remains unclear whether this should apply to cases in which soldiers, often conspiring with common criminals, murdered civilian non-combatants, then presented them as combat kills in order to benefit from rewards given for high “body counts.” This happened between 3,000 and 5,000 times during the armed conflict, especially between 2002 and 2008, in a phenomenon known in Colombia as the “false positives scandal.”

WOLA agrees with Jorge Eliécer Molano, a lawyer who represents several “false positive” victims, that most “false positive” killings should not be considered conflict-related, and thus should remain in the regular, criminal justice system with long penalties for the soldiers and officers involved. Molano explained to El Espectador:

“First, the ‘false positives’ owed more to personal purposes (like getting leave time, medals, commendations, promotions, or in many cases, financial rewards). Second, they have no relation to the armed conflict: the armed conflict was used as a pretext for killing civilians who had nothing to do with it. Additionally, many of the cases deal with people presented as common criminals, which undoes much of these crimes’ purported ties to the armed conflict.”

The peace accord and subsequent legislation so far leave it up to tribunal judges, on a case-by-case basis, to decide whether a “false positive” murder is conflict-related or not. But they do not offer detailed criteria to guide judges’ decisions. This remains up in the air, even as criminal-court judges have suspended some trials for  years-old false positive cases out of an unsubstantiated belief that they will end up going to the JEP.

  1. War criminals may still be able to hold office. Or maybe not.

As a condition for turning in weapons, the FARC’s leadership insisted not only on avoiding long prison terms, but on retaining the ability to hold, and run for, political office. There is an obvious tension, though, between holding office and undergoing a JEP-mandated “restricted liberty” for war crimes. The Congress and Court have begun moving to resolve this tension, but the formula so far remains awkward.

The way it stands right now is that ex-guerrillas may run for office and hold political positions before the JEP has decided their guilt or innocence for war crimes. They merely need to sign a commitment stating their intention to “submit to the JEP.” FARC candidates for Colombia’s March 2018 legislative and May 2018 presidential elections, then, have a “green light,” as the JEP won’t even begin to act until well after these elections. So do the five FARC senators and five FARC House members who will get automatic seats in Colombia’s Congress for eight years regardless of the vote outcome.

Once the JEP sentences them to “restricted liberty,” however, the next steps are less clear. The court ruling states, “the JEP will determine the compatibility of political participation with the sanctions it imposes on the ex-combatants.” This may give the JEP the ability to decide whether a FARC political candidate can be blocked from participating in politics, if his or her sentence is incompatible with doing so. (For instance, if a JEP judge sentences maximum FARC leader “Timochenko” to perform demining in Putumayo, he can’t serve in Congress hundreds of miles away in Bogotá.)

On the other hand, this sentence could also be interpreted as giving the JEP the ability to issue penalties that would allow guilty ex-FARC leaders to participate in politics. This raises the bizarre possibility of an ex-guerrilla leader leaving his place of confinement in the morning, spending the day in Congress making laws, then returning to his place of confinement the evening.

  1. The timeline for setting up the JEP is excruciatingly slow. In the meantime, thousands of guerrillas and soldiers are in a legal limbo.

Even if the JEP’s implementing law goes into effect by the end of the year, we cannot expect the first trials to begin for some time. As was the case for the JEP constitutional amendment, the implementing law must undergo a thorough review by Colombia’s Constitutional Court. This will not be a speedy process. “It won’t be sanctioned before April or May of next year,” predicts Prosecutor-General Néstor Humberto Martínez.

After that, it will take months to hire staff and build or re-purpose space for the JEP tribunals and other chambers to carry out their proceedings. We can optimistically expect to see the first trials begin during the latter part of 2018. Pessimistically, in 2019.

In the meantime, over 5,000 defendants remain in a legal limbo, unsure how the next eight-plus years of their lives will play out. This uncertainty could prove too much for many ex-guerrillas, especially former mid-level commanders, who may be tempted to give up on the process. It would be tragic to see more of them return to the jungle, joining the growing ranks of armed “dissident” groups that are taking control of territory and drug-trafficking in several former territories of FARC influence.

Conclusion

The process of crafting the JEP is not over. Opportunities remain to address these concerns, avoid unwanted outcomes, and iron out confusing provisions. Next year, when it rules on the implementing law, we hope that Colombia’s Constitutional Court will address the concerns laid out here and align the JEP more fully with the spirit of the peace accords. If not, the International Criminal Court may have a lot to say in coming years about command responsibility and persistent impunity for civilian accomplices.

These institutions must do their jobs. A lasting peace, with real guarantees for the conflict’s victims, demands it. WOLA and other human rights advocates worldwide will be watching closely.