Constitutional Court Upholds, Modifies Law Governing Transitional Justice System
Colombia’s maximum judicial review body, the Constitutional Court, completed an 8½-month review of the law governing the Special Jurisdiction for Peace (JEP), which is the body that the peace accords set up to put on trial, and punish, those who committed war crimes and crimes against humanity during the armed conflict. In Colombia’s system, the Court has the power to make alterations to laws, and it addressed some provisions that Colombia’s Congress had controversially added to the JEP Statutory Law’s text last November.
According to press coverage of the 800-page judicial decision, the Court’s changes include:
Allowing those accused of, or guilty of, war crimes to hold political office—as long as they are participating fully in the JEP. This largely upholds what the peace accord and the statutory law allow. War criminals may hold office as long as they have submitted to the JEP, are recognizing and confessing the full truth of their crimes, and are making reparations to victims. Those who do this serve sentences of “restricted liberty,” but not prison, lasting up to eight years. It is not yet clear whether these sentences—which are up to the judge in each case—might interfere with an individual’s ability to hold office.
The Court specifies, though, that those found to be withholding information from their confessions, or those who refuse to recognize crimes and are found guilty, may not hold political office. The accord and law dictate that people in this category must go to regular prison.
The JEP can look at the evidence when it makes extradition decisions. When an ex-combatant is wanted in another country for a crime, the JEP must certify whether the crime happened during the conflict or after it (that is, after December 2016, when the peace accord was ratified). If the crime occurred during the conflict and is covered by the JEP—including the crime of narcotrafficking, if it wasn’t for personal enrichment—Colombia will not extradite the individual.
In April, U.S. prosecutors began the process of asking Colombia to extradite top FARC negotiator Jesús Santrich on charges of conspiring to transship cocaine to the United States in 2017-18. The ensuing process raised confusion about whether the JEP’s role is simply to sign off on the date of the alleged crime, or whether it is able to consider the evidence backing up the allegation. In June, when it passed a law laying out the JEP’s internal procedures, Colombia’s Congress limited the JEP to certifying the date only. The Constitutional Court just reversed that: the JEP may now consider the proof underlying the extradition request.
Judges who’ve worked in human rights during the previous 5 years may remain. The Congress had added a provision to the statutory law banning the JEP from including any judges who, in the past five years, had brought cases against the government, participated in peace negotiations, or taken part in any case related to the armed conflict. This would have disqualified at least 15 of the JEP’s 53 already-chosen judges and alternates. As most observers expected, the Constitutional Court threw this provision out.
Sexual crimes against minors remain under JEP jurisdiction. In the statutory law, the Congress had excluded sexual crimes against minors from JEP jurisdiction, demanding that those accused of such heinous crimes be punished with prison sentences in the regular criminal-justice system. The Constitutional Court stripped out this exclusion.
Some legal and victims’ groups had argued that even though the penalties for child violators would be harsher in the regular justice system, trying such crimes through the JEP will allow victims to hear the truth and receive reparations much more quickly. “If the perpetrators know that they will receive high prison sentences instead of those contemplated in the peace agreement, it is very likely that they would have no reason to recognize sexual crimes against girls, with would force the state to go about proving the allegation, and the victims would have to wait a long time to obtain truth, justice and reparation,” read a statement from Dejusticia, Ruta Pacífica de las Mujeres, Women‘s Link WorldWide and Red de Mujeres Víctimas y Profesionales.
Third parties’ participation in the JEP remains voluntary, not obligatory. But prosecutors in the regular criminal justice system must prioritize their cases. The Congress—in an apparent move to protect landowners, narcotraffickers, local officials, and other politically influential individuals who sponsored armed groups or planned killings—had added language to the statutory law preventing the JEP from compelling private citizens to participate. The concern is that such powerful individuals have little to fear from an overburdened, institutionally deficient “regular” justice system that is unlikely to take up old cases. The Constitutional Court maintained the “voluntary” participation standard, but, as El Espectador puts it, “emphasized that the Prosecutor-General’s Office has the obligation to prioritize, in the criminal justice system, investigations against third parties and non-combatant government agencies who have not voluntarily submitted to the JEP.”
Though there might be language about these items in the very long text of the Constitutional Court’s opinion, it appears to have left untouched the following concerns about the JEP:
- It remains up to the judges in individual cases how austere the conditions of “restricted liberty” will be for those who give full confessions and reparations.
- A watered-down definition of “command responsibility” for war crimes committed by the military, which may exonerate commanders who should have known what their subordinates were doing, remains in place. This could set Colombia on a collision course with the International Criminal Court, whose founding statute uses a “should have known” standard to determine command responsibility.
- It remains unclear under which circumstances “false positive” killings may or may not be tried within the JEP. It appears that most of these thousands of extrajudicial killings were committed by soldiers for personal gain, and thus unrelated to the armed conflict. It will be up to judges to decide on a case-by-case basis. Of 2,159 current or former security-force members participating in the JEP, at least 1,824 are accused of committing extrajudicial executions, most of them probably “false positives.”
Top FARC Leaders Have Gone Off the Grid
FARC Senator Victoria Sandino confirmed to reporters that two top FARC leaders have left the demobilization site where they had been staying, and that their current whereabouts are unknown. They are Iván Márquez, a former FARC Secretariat member who was the guerrilla group’s lead negotiator during the Havana peace talks, and Hernán Darío Velásquez, alias El Paisa, who headed the guerrillas’ Teófilo Forero Column, a notoriously lethal unit once active in southern Colombia.
Both had been in the Miravalle “reincorporation zone” in Caquetá department. Márquez had relocated there in April when his close associate, former negotiator Jesús Santrich, was arrested pending possible extradition to the United States for narcotrafficking. While they are not required to remain at the site, that their whereabouts have been unknown for about two weeks raises concerns that the two leaders, both considered hardliners, might have abandoned the peace process.
Sandino, the FARC senator, told Colombia’s Blu Radio that Márquez and Velásquez left the Miravalle site after “a situation that happened about a month ago, where there were several operations [nearby] with some pretty complicated aspects, in which people wearing face masks came to the dwelling where Iván Márquez was present. They left beforehand. At this moment, they’re not there, and in my personal case I don’t know where they are.”
In July, the two leaders had sent a letter to the chief of the UN verification mission, Jean Arnault, claiming that “since Friday, July 6, special Army counter-guerrilla troops, belonging to the 22nd and High Mountain Battalions, have deployed a land operation around the El Pato region, which we have no doubt aims to sabotage the progress of hope for peace.” Luis Carlos Villegas, the defense minister at the time, denied that military operations were occurring. He said that drone overflights that the leaders may have observed, which are not prohibited, were actually those of oil companies carrying out seismic explorations.
Sen. Sandino said that she has had no contact with Márquez and Velásquez, as there is no phone service where they are. Asked whether the two could be in Venezuela, according to El Espectador, “the senator said that is only speculation, and that they remain active members of the [FARC] political party.”
Newly inaugurated President Iván Duque has named the two officials who will be most responsible for implementing the FARC peace accord and for carrying out negotiations with the ELN, should they continue.
Miguel Ceballos will be the Presidency’s next high commissioner for peace, directing negotiations and some aspects of accord implementation. He replaces Rodrigo Rivera, who in 2017 replaced Sergio Jaramillo, a chief architect of the FARC accord and of the Santos government’s post-conflict territorial implementation strategy. The nomination of Ceballos, a former vice-minister of justice who taught at Georgetown University and Bogotá’s Conservative Party-tied Sergio Arboleda University, was well-received. Though he was a key advisor to the Conservative Party wing that supported a “no” vote in the October 2016 plebiscite on the peace accords, Ceballos is viewed as a pragmatist who would not seek to “tear up” the accords, as some in President Duque’s coalition have urged. He takes over the process of deciding whether to continue the Santos government’s peace talks in Havana with the ELN; in his inaugural speech, President Duque called for a 30-day review period to make this decision.
Emilio José Archila replaces Rafael Pardo as high counselor for the post-conflict, a position within the Presidency that manages implementation of the peace accord. Archila, too, is identified with the Conservative Party. A lawyer focused on economic issues, he served in the past as head legal officer in the Commerce and Industry Ministry. He will oversee the struggling coca crop-substitution program set up by the peace accord’s fourth chapter, and the ambitious Territorially Focused Development Plans (PDET) program foreseen in the first chapter, which seeks to build state presence and provide basic services in sixteen conflictive regions.
Ceballos and Archila will sit on the Committee for Follow-up, Stimulus, and Verification of Peace Accord Implementation (CSIVI), the main oversight mechanism to guarantee that accord implementation is on track, along with representatives of the FARC and the accord’s guarantor countries.
Ariel Ávila, an analyst at Bogotá’s Peace and Reconciliation Foundation, voiced concern about possible name changes for both officials’ agencies: the High Commissioner for Peace might become the High Commissioner for Legality, and the High Counselor for the Post-Conflict might become the High Counselor for Stabilization. “All state institutions must act under legality, there’s no need to create an office for that,” Ávila noted, adding that “stabilization” is just the first phase of a post-conflict period—it should be followed by “normalization,” which he defines as “the building of a new society, long-term reforms, and reconciliation.”
Meanwhile historian Gonzalo Sánchez, the longtime head of the government’s autonomous Center for Historical Memory, resigned this week. The Center has produced dozens of highly regarded reports and an extensive public archive documenting some of the most severe violations of human rights, committed by all sides, during the long conflict. El Tiempo reports that the two most likely candidates to head the Center are Eduardo Pizarro, who headed the Center’s precursor, the National Commission for Reparation and Reconciliation, during the government of Álvaro Uribe, and Alfredo Rangel, a onetime academic conflict analyst who later became a hardline senator in Uribe’s party.
ELN May Release Captives and Kidnap Victims
Colombia’s Defense Ministry announced that protocols have been activated for the release of nine people—seven security-force personnel and two civilians—whom the ELN had captured or kidnapped in Arauca and Chocó departments. The Ministry said it is awaiting the ELN’s provision of geographic coordinates for the handovers.
Pablo Beltrán, the guerrilla group’s chief negotiator in Havana, said on August 14 that the liberation should happen in eight days, although a guerrilla communiqué stated that nearby security-force operations could complicate logistics and put the victims’ lives “at high risk.” The guerrillas also provided a proof-of-life recording of three policemen and one soldier whom they had taken from a boat on a tributary of the Atrato River in Quibdó municipality, Chocó.
In his August 7 inauguration speech, President Iván Duque said that he would spend 30 days reviewing whether to continue peace talks with the ELN. Duque said that an end to ELN kidnappings, and the freeing of all guerrilla captives, is a precondition for any resumption of negotiations.
Meanwhile, after the Human Rights Ombudsman’s Office (Defensoría) denounced that the ELN has recruited 24 minors so far this year, the Prosecutor-General’s Office (Fiscalía) issued arrest warrants for sixteen ELN leaders, including all five members of the group’s Central Command. Chief negotiator Beltrán, speaking from Havana, denied that the ELN had committed a war crime: “Here, nobody is recruited or kept against their will. Those who want to enter, enter; those who want to leave, leave.” Tacitly admitting that minors are recruited, Beltran said that the group does not recruit anyone under 15 years old. (The ELN’s maximum leader, Nicolás Rodríguez Bautista alias “Gabino,” joined the group in 1964 at age 14.)
The ELN negotiator said the group remains willing to engage in a bilateral ceasefire, like the one in place during a 100-day period that ended in January. President Duque was not warm to the idea: “I haven’t agreed with those who now seek to intimidate the country seeking bilateral ceasefires while they commit acts that are deplorable and despicable in the light of any eye.” Speaking before a military audience, he continued, “What we want is that anyone who wants to demobilize, disarm and reinsert does so on the basis of the immediate suspension of all criminal activities.”
A week before the end of Juan Manuel Santos’s administration, government and ELN negotiators closed a sixth round of talks in Havana without an agreement on either a ceasefire or a mechanism for involving civil society in the talks, as the ELN demands. Citing “two sources who have access to privileged information about the negotiations,” Ana León of La Silla Vacía noted that the ELN is now willing to consider a halt to kidnappings and extortion during a ceasefire. But she cited three issues on which the ELN talks are stuck:
- How to monitor and verify a ceasefire. While the ELN would keep in place the mechanisms employed during the late-2017 ceasefire, the government wants more specificity. During the earlier ceasefire, a source told León, “There was no clear definition of what a hostility was, what a ceasefire violation was, and so the UN was not going to commit to verification.” That source said the ELN is unwilling to ease monitoring by providing more detail about its zones of geographic control, since many of these are in dispute with other illegal armed groups.
- The ELN’s demand that the government commit to halting murders of social leaders. While virtually all analysts agree that the government should be doing more to protect social leaders, the government does not have the power to stop the killings completely, especially those that result from local dynamics.
- The definition of “civil society participation” in the negotiations, a longtime ELN demand that is included, but poorly defined, in the talks’ agreed agenda.
Anticorruption bill, with a clause preventing ex-guerrillas in politics, is withdrawn
The new Duque government introduced a bill to fight corruption, but abruptly withdrew it after it was found to include language that would prevent former guerrillas from holding political office. Juanita Goebertus, a former government peace negotiator recently elected to Congress as a Green Party representative, denounced the presence of text deep within the bill stating, “those who have been convicted at any time for crimes related to membership, promotion, or financing of illegal armed groups, crimes against humanity, or drug trafficking cannot be registered as candidates for popular election.”
Colombian politics has a term for a snippet of unrelated and probably unpopular legislative language stuck into a larger bill: a “mico” or “monkey.” Interior Minister Nancy Patricia Gutiérrez withdrew the anti-corruption bill and pledged to re-submit it without the mico. (In Colombia, the Interior Minister manages the Presidency’s legislative agenda.)
Minister Gutiérrez also pulled back the nomination of Claudia Ortiz to head the Interior Ministry’s National Protection Unit (UNP), which provides bulletproof vests, bodyguards, vehicles, and other protection to threatened individuals, from politicians to opposition figures to ex-guerrillas to social leaders. An outcry followed the revelation of tweets from Ortiz, a longtime supporter of ex-president Álvaro Uribe, attacking opposition figures. The tweets’ vicious language called into question Ortiz’s will to protect those who disagree with and criticize the government. No new nominee to head the UNP has been named.
Visit from Defense Secretary Mattis
The U.S. secretary of defense, James Mattis, paid a brief visit to Colombia on August 17, the last stop of a South America tour that took him to Brazil, Argentina, and Chile. Mattis met with President Duque and with Defense Minister Guillermo Botero.
We know little about the subject matter of Mattis’s discussions. “The leaders discussed a broad range of defense issues, and the secretary thanked the minister for their country’s regional leadership role as a security exporter” was how a Pentagon spokesman vaguely put it. Mattis also thanked Duque for Colombia’s regional diplomacy to “denounce undemocratic actions” in Venezuela and Nicaragua.
Earlier on his trip, Mattis criticized Venezuela’s authoritarian government, but made clear that the crisis in Venezuela is “not a military matter.” In Bogotá, he discussed the heavy flow of Venezuelan migrants into Colombia. “A subject [that] came up in both of my meetings this morning … was on what we’re working on in terms of the Venezuelan refugees and their destabilizing impact they have,” Mattis said.
He announced that sometime this fall, the Defense Department would dispatch the USNS Comfort, a giant Navy hospital ship, to Colombia’s Caribbean coast to attend to Venezuelans in Colombia. The Secretary added that President Duque and Colombian defense officials “not only agreed in principle” to the Comfort deployment, “they gave details on how we might best craft the cruise through the region,” Mattis said. The State Department and USAID have otherwise committed US$46 million in assistance to Colombia to help attend to Venezuelan refugees.
Colombia’s Foreign Ministry has announced that it will ask the United Nations to name a special envoy to coordinate humanitarian aid for Venezuelans in Colombia and elsewhere in the region.
- “Tras Investigacion de Semana, Procuraduria Llama a Juicio a General y Coroneles de Inteligencia Militar” (Semana (Colombia), August 17, 2018).
- Naryi Vargas, “Naufraga la Sustitucion de Cultivos de Uso Ilicito” (Fundación Paz y Reconciliación (Colombia), August 16, 2018).
- “Juez Redujo Crimen de Jaime Garzon a un Caso de Sicariato” (Verdad Abierta (Colombia), August 15, 2018).
- Édinson Bolaños, Juan Gomez, Laura Penuela, “Asi Estan Asesinando a los Exguerrilleros de las Farc” (El Espectador (Colombia), August 14, 2018).
- Natalia Arbelaez Jaramillo, “Si No Protegen a los Lideres Comunales el Acuerdo de Paz Fracasa” (La Silla Vacia (Colombia), August 14, 2018).
- Juan Carlos Palou, “Las Encrucijadas del Acuerdo de Paz” (Razon Publica (Colombia), August 13, 2018).
- Humberto de la Calle, “Narconexion” (El Espectador (Colombia), August 13, 2018).
- Alejandro Jimenez, Lucia Baca, “In Colombia, Will Peace Continue Costing Lives?” (NACLA, August 13, 2018).
- “Con Dudas de las Victimas, Empieza Proceso por ‘Falsos Positivos’ en la Jep” (Verdad Abierta (Colombia), August 13, 2018).