Congress Makes Big Changes To Transitional Justice System
On June 27 Colombia’s Congress passed a Procedural Law for the Special Peace Jurisdiction (JEP), the separate justice system that will confer lighter penalties (“restriction of liberty”) on those who committed war crimes during the conflict, in exchange for full confessions and reparations to victims. The new law is necessary for the JEP to function properly, and its long-awaited passage is an important step.
However, the congressional bloc supporting Iván Duque, the rightist president-elect who is a critic of the FARC peace accord, added some last-minute changes that—if ruled to be constitutional—would diverge from the accord’s vision and intent.
Before going into that, a quick overview of the JEP legislative process so far. The new system, enshrined in chapter 5 of the peace accord, requires three laws to function:
- A constitutional amendment enshrining the JEP within Colombia’s legal system, which Congress passed as part of the post-accord “fast track” legislative process in March 2017, and which the Constitutional Court reviewed and approved, with minor modifications, in November 2017.
- A statutory law (ley estatuaria) to implement the JEP, which Congress passed in November 2017, adding some controversial provisions contrary to the accord’s original intent. The Constitutional Court has not yet completed its review of this law.
- An “ordinary law” (ley ordinaria) governing the JEP’s procedures, which Congress passed on June 27, 2018. This law is also certain to undergo a months-long Constitutional Court review.
Even without all of its laws in place, the JEP is starting to operate, though it is a long way from issuing its first verdict and sentence to a war criminal.
- A five-member panel of Colombian and international jurists named 38 magistrates and 13 alternates in September 2017, as well as JEP director Patricia Linares, a legal expert who had most recently consulted with the government’s Historical Memory Commission.
- The JEP officially opened its doors in March 2018. It has received a large initial volume of conflict-related case files from the “regular” criminal justice system (the criminal prosecutor’s office, or Fiscalía).
- It has been required to rule on whether an ex-FARC leader’s potentially extraditable drug-trafficking offense occurred before or after the peace accord went into effect, which will be its first ruling—but it has not done so yet.
- As of April, 6,094 former FARC members facing war crimes charges had agreed to appear before the JEP, as have 2,159 members of the armed forces (as of June) and 50 civilians accused of aiding and abetting armed groups’ war crimes: 44 who worked in government and 6 private citizens.
Congress passed the procedural law troublingly late, as the JEP has been working without clear regulations. Legislators from the party of President-Elect Duque, led in the Senate by Senator and former president Álvaro Uribe, had been holding up its consideration.
On June 26, with the legislative session nearing its end, the UN Mission in Colombia put out a statement voicing alarm about “obstacles” to the JEP’s functioning: “the victims are still awaiting the first hearings and appearances of those who were involved in serious human rights and international humanitarian law violations.” A harsh reply from Uribe and Duque’s rightist party, the “Democratic Center,” made clear that it “rejects and doesn’t accept their demands.” The party’s proposed modifications to the JEP, it said, “can’t be viewed as obstacles” but as a reflection of “the desire of the majority of Colombians” as reflected in the October 2016 plebiscite rejecting the peace accord’s first version, and by Duque’s June 2018 election.
The following day, though, Colombia’s Senate considered and approved the new procedural law. It passed, though, with two amendments introduced by the Democratic Center, which passed thanks to votes from several senators who until recently had been part of President Juan Manuel Santos’s pro-peace coalition. The uribistas’ (Uribe supporters’) changes are, in the words of La Silla Vacía analysts Juan Esteban Lewin and Julian Huertas, “a first indication that, while [Duque’s party] won’t destroy the accord, it will seek to remove its teeth and make it resemble FARC surrender terms.”
The FARC political party put it even more starkly:
The elites that have historically covered themselves in impunity and made the war into an immense business for corruption and land theft, took advantage of the delayed and chaotic consideration of the JEP’s procedural norms to render ineffective the basic pillars of the peace accord.
“Welcome to the Iván Duque government” is how uribista Senator Paloma Valencia, who led the legislative push for the two amendments changing the JEP, greeted their approval.
Changing the JEP’s role in extraditions of former combatants
The first amendment would restrict the JEP’s role in determining whether a former combatant can be extradited to another country. The JEP is currently required to determine, within 120 days, whether the crime triggering the extradition request happened before or after the November 2016 ratification of the peace accord (if it took place before, it is likely subject to amnesty and non-extradition). It wasn’t clear, though, whether the JEP could actually consider whether a criminal allegation is built on solid or flimsy evidence.
The uribistas’ amendment says that no, the JEP cannot consider the quality of the evidence, only the date on which the crime allegedly occurred. If the alleged crime took place after November 2016, it must send the ex-combatant’s case to Colombia’s Supreme Court, which rules on extraditions. If the Court green-lights an extradition, the President has discretion about whether or not to hand over the accused individual.
This issue has already come up. On April 9, following an indictment by a U.S. grand jury, Colombian authorities arrested Jesús Santrich, one of the FARC’s negotiators in Havana, on charges of conspiring to send 10 tons of cocaine to the United States starting in 2017. Rather than simply rule on the date of this alleged conspiracy, the JEP had frozen Santrich’s extradition process and asked Colombian criminal prosecutors to provide more evidence. On June 12, the Constitutional Court ruled in favor of the regular justice system, “un-freezing” Santrich’s case and ruling that the JEP does not have the power to delay an extradition process.
The new amendment, according to Sen. Valencia, guarantees that “extradition requests won’t be unjustifiably delayed when the Supreme Court is empowered to investigate.” Sen. Roy Barreras, a Santos supporter who led the procedural law’s passage in the Senate, opposed the amendment on grounds that it places U.S. counter-drug interests above the stability of peace. “To extradite those who signed the peace sends a terrible message to those who did the work of breaking up a guerrilla group.” The response from super-hardline uribista Sen. José Obdulio Gaviria: “Don’t distinguish between Colombia’s peace and illicit crops, doctor Roy. You [peace supporters] filled Colombia with the damned manure of coca money. That’s the main result of the peace policy that you all pushed.”
Separating out members of the security forces, and freezing their trials for 18 months
The Democratic Center at first sought to change the procedural law so that members of the military and police could be tried in a new, separate chamber of the JEP. Its legislators argued that soldiers shouldn’t be tried on equal footing, in the same tribunals, as former guerrillas. Critics suspect that they are in fact seeking to protect the armed forces from accountability by delaying and weakening efforts to bring their war crimes to justice.
The uribista legislators didn’t quite get a new tribunal, which would be a change too fundamental to be made through the procedures of an “ordinary law.” Senator Valencia and her colleagues instead got an amendment stating that current and former members of the armed forces and police awaiting judgment before the JEP do not have to appear before the new system until a new “special and differentiated process” exists to judge them, a change that would probably require a constitutional reform. The text gives 18 months to do that, during which the military and police perpetrators’ cases are suspended.
Currently, 2,159 active or former members of Colombia’s security forces have signed up to have their cases tried before the JEP. (2,109 from the Army, 34 from the National Police, and 16 from the Navy.) 1,578 of them have been released from custody pending trial.
Sen. Barreras, the pro-peace legislator who managed the JEP bill in the Senate, called the amendment a “serious error,” as it weakens the “judicial certainty” the armed forces had achieved in negotiating the JEP’s design. The appearance of a “self-pardon,” he said, will attract the attention of the International Criminal Court. Meanwhile, the Senator added,
while the FARC submit now to the JEP and begin to tell the truth in favor of the victims, other victims, like the Mothers of Candelaria [a Medellín-based victims’ organization] for example, have to wait 18 months to be able to know the truth, and the families of the disappeared also have to sit and wait. This is called re-victimization, and it implies that there is an indifference and a lack of consideration for the victims. These 18 months of waiting are truly unacceptable.
The amendment favoring military and police personnel is probably unconstitutional, opponents said, predicting that it will not survive Constitutional Court review. “At the end of last year, the Court stated that the participation of ex-combatants from the FARC and members of the security forces had to be mandatory. On this issue it will be the Constitutional Court that has the last word,” said Interior Minister Guillermo Rivera.
Though it was purportedly designed to favor them, Colombia’s armed forces, in fact, opposed the uribistas’ amendment. On June 26, the Minister of Defense, the Director of the National Police, and the Commander of the Armed Forces sent a letter to Sen. Valencia asking her to allow the procedural law to pass without her proposed language. The officials are concerned that the Democratic Center’s changes prolong judicial uncertainty for more than 2,000 accused soldiers and police, and may cause the International Criminal Court to involve itself more deeply in their cases. “We need the Congress to advance in approving this regulation,” said armed-forces chief Gen. Alberto Mejía. “We need to mark out the playing field of the JEP, because if we don’t do it, we’ll end up being exposed.”
One major who was given conditional release from prison last November so that the JEP could consider his case, told El Colombiano that having to wait another 18 months complicates things for him. “This keeps us in a ‘sub judice’ situation [not yet judicially decided], which worries us, given that nobody is giving us job opportunities because we still have criminal records, which would only be lifted once we pay the penalty that the JEP procedures impose.”
Colombia’s BLU Radio reported that two active-duty generals, who asked that their identities not be revealed, had received pressure from uribista legislators to support the proposed changes to the JEP. “People from the Democratic Center are saying ‘you’re all pro-Santos generals, bought off, fond of the peace process, and you forget that there’s a new president now,’” the radio cited the generals as saying.
Retired officers, who tend to be harder-line and commanded the military during a time of more frequent human rights issues, were more favorable toward the uribista amendment. Retired Gen. Jaime Ruiz, president of the powerful association of retired officers ACORE, praised the Senate’s move:
Ever since the list of [JEP] magistrates was announced, we saw that they were no guarantee of justice because of their ideological leanings. The approval of this provision, to remain within the JEP but not to appear until a new reform is made, favors us. We hope there may not be any problem with the [International Criminal] Court.
The Court in The Hague (ICC) does have Colombia under preliminary investigation, and is alert for any sign that Colombia’s justice system may fail to hold accountable those who committed crimes against humanity during the armed conflict. The ICC’s prosecutor, Fatou Bensouda, has shown particular interest in the “false positives,” thousands of military murders of civilians especially during the 2002-2008 period, who were then falsely presented as combat kills in order to claim high body counts. Delaying such cases for 18 months pending the uncertain creation of a new judicial chamber will certainly attract the prosecutor’s attention.
Interior Minister Rivera, as well as at least two Colombian human rights NGOs (the José Alvear Restrepo Lawyer’s Collective and the Colombia-Europe-U.S. Coordination), filed lawsuits before the Constitutional Court to challenge the constitutionality of the amendments that the uribistas inserted.
Duque Visits Washington
President-Elect Iván Duque visited Washington on June 27 through July 5. It is a city he knows well: he did coursework at both American and Georgetown Universities, and worked at the Inter-American Development Bank for 12 years. He was accompanied by veteran politician-diplomat Carlos Holmes, a longtime Álvaro Uribe supporter who is Duque’s likely choice for foreign minister. Senator and ex-president Uribe was not present.
The visit came two days after Duque received a telephone call from President Trump to congratulate him on his victory and to discuss unspecified “security challenges” that Duque’s government is likely to face. No details about that call have emerged, and Trump was outside of Washington for most of Duque’s visit.
According to media reports, Duque’s meetings included:
- Vice-President Mike Pence
- Secretary of State Mike Pompeo
- National Security Advisor John Bolton
- CIA Director Gina Haspel
- Acting Office of National Drug Control Policy Director Jim Carroll
- Sen. Marco Rubio (R-Florida)
- Rep. Ruben Gallego (D-Arizona)
- Staff of relevant committees from both the House and Senate
- OAS Secretary-General Luis Almagro
- Inter-American Development Bank President Luis Alberto Moreno
- International Monetary Fund (not clear with whom)
Support for peace accord implementation did not seem to be a frequent topic in these meetings. The State Department’s spokeswoman said that “Secretary Pompeo reaffirmed U.S. support for a just and lasting peace in Colombia.” Speaking to reporters while in Washington, Duque reiterated his call for the ELN to agree to a “suspension of all criminal activity” and “a prior concentration of forces with international supervision” as pre-conditions for continuing peace talks begun under the Santos government. The ELN are highly unlikely to agree to the second condition, a cantonment of forces.
The crisis in Venezuela was a frequent subject of Duque’s meetings. Sen. Rubio tweeted that they talked about “regional efforts to help the Venezuelan people put an end to their crisis and restore democracy.” After meeting with OAS Secretary-General Almagro, a vociferous critic of Venezuela’s authoritarian government, Duque recommended that Latin American presidents denounce the Maduro regime before the International Criminal Court (ICC) for crimes against humanity. (In July 2017, then-senator Duque led an effort to send the ICC a 56-page petition asking its prosecutor to “place Venezuela under observation and open a formal investigation.” The document bore the signatures of 76 Colombian and 70 Chilean senators.) Duque also recommended that South American governments permanently abandon the fading UNASUR political bloc, which he called an “accomplice of the Venezuelan dictatorship,” and strengthen the OAS.
Drug policy was perhaps the most frequent topic addressed at Duque’s meetings. The White House’s June 25 release of its 2017 estimate of Colombian coca cultivation—which showed a further 11 percent increase in the crop last year—guaranteed that this would be the top priority of the incoming president’s Washington discussions.
On June 28 Duque told reporters he had received expressions of support for his anti-drug strategy, which though lacking in specifics would rely more heavily on forced coca eradication than did the Santos government during its second term. “Obviously the backsliding has been very large in the last few years, and that’s why we have to seek effective and fast mechanisms,” he added. “They showed much confidence in the agenda we presented,” Duque said of the Americans, noting that his objective is to show measurable results against the coca crop within two years.
In an interview that El Tiempo published July 1, Duque said his government’s approach to coca would have a large alternative development component. He hinted, though, that unlike the model laid out in chapter 4 of the FARC peace accord, he sees oil palm—a capital-intensive crop favorable to large landholdings—as a promising legal alternative to coca.
In some places, coca is almost the only crop that offers opportunities. Nobody can deny it. But exactly what we want to do is alternative development and productive development. We should begin from this baseline: as it is going to be very hard for a licit crop to be more profitable than an illicit crop, substitution and eradication must be made obligatory, but while opening new opportunities leading to labor formalization and stable incomes. There are important substitutions of coca crops with palm crops.
Asked in Washington whether he would prefer to eradicate crops by spraying herbicides from aircraft or from drones (discussed in the next section), Duque said, “at this moment we have to look at all the options, and they have to be the options that guarantee greater precision, greater effectiveness, and that minimize damage to third-parties to the greatest extent possible.”
US Releases Coca Figure, and Colombian Government Approves Fumigation With Drones
On June 25, about three months later than usual, the White House Office of National Drug Control Policy released its estimate of Colombia’s coca crop during the previous year. The U.S. government reported finding 209,000 hectares of coca in Colombia in 2017, 11 percent more than the 188,000 measured in 2016. Both figures were the highest the United States has ever reported. The 2017 increase was the fifth annual uptick in a row. However, 11 percent is the smallest percentage increase of the five, which may at least indicate some leveling off in a year that saw forced manual eradication triple from 18,000 to 53,000 hectares, along with the launch of the peace accords’ crop substitution effort, which eradicated at least 7,000 more hectares.
The White House estimated a 19 percent increase in potential cocaine production, from 772 to 921 tons. Both are records, and the 2017 figure is quadruple the U.S. government’s 2013 estimate. This indicates U.S. estimators see a sharp increase in yield—the number of kilograms of cocaine being produced from each hectare—as plants grow taller and more mature.
“President Trump’s message to Colombia is clear: the record growth in cocaine production must be reversed,” the White House release cites ONDCP Deputy Director Jim Carroll. “Even though Colombian eradication efforts improved in 2017,
they were outstripped by the acceleration in production. The Government of Colombia must do more to address this increase. The steep upward trajectory is unacceptable.”
President Juan Manuel Santos argued that the increase owed to short-term factors and will be reversed by the government’s strategy, which includes the National Integral Crop Substitution Plan foreseen in chapter 4 of the peace accord (whose implementation, like so much of the accord, is underfunded and behind schedule). “It’s very easy to come and criticize Colombia because illicit crops increased,” Santos said. “But measure the other circumstances and the other indicators: the effectiveness of drug seizures, how many members of the mafias we have extradited, the immense effort that we have made and will continue making.”
In an interview, Vice-President Óscar Naranjo, a former National Police chief, pointed out that because Colombia’s cocaine seizures—much of them in coastal areas—have increased from 148 tons in 2014 to 432 tons in 2017, the amount of the drug actually making it into world markets has increased only somewhat and may still be less than it was during the early years of “Plan Colombia,” instead of the quadrupling of supply that the U.S. tonnage estimate might indicate. Increased interdiction may explain why data about cocaine abuse in the United States show an increase that is far less steep than data about cocaine supply. Another explanation is greater cocaine consumption outside the United States. In 2000, the UN Office on Drugs and Crime’s World Drug Report estimated that North America accounted for 50 percent of world cocaine consumption; its 2018 report, released in June, attributed only a 32 percent share to North America.
As past analyses from WOLA, the Ideas for Peace Foundation, InsightCrime and others have pointed out, Colombia’s coca boom owes to several factors. Proponents of vastly increased forced eradication point to the 2015 suspension of aerial herbicide spraying, and to the peace accord’s promise of cash for those who planted coca, as the main reasons for the increase. These undeniably contributed, but the Colombian government’s failure or inability to replace eradication with state presence and development assistance in rural areas—effectively leaving most coca-growing areas in a state of neglect—gets at least as much blame. So does a decline in gold prices, as many coca-growers had turned to artisanal mining in the years following the 2008 financial crisis, when sky-high prices caused the metal to be more profitable than the crop.
Last September, due to rising production statistics, President Trump sought to decertify Colombia for failing to cooperate fully in anti-drug efforts, a move that would cut some forms of aid and place Colombia in the same category as Venezuela or Burma. Top advisors talked him out of it, but the White House’s statement noted that decertification remains “an option.” Despite the unencouraging 2017 numbers, the White House is unlikely to greet Iván Duque with a decertification six weeks after his inauguration.
Two days after the White House announcement, Colombia’s National Drug Council, an advisory body of ministers and high officials, approved the use of drones to apply herbicides to coca plants. The move comes after several months of pilot testing of the remote-controlled craft. Each of the chosen models costs about US$10,000. It flies about one meter above the plants, and can spray about 1 liter of herbicide mixture at a time in 10 minutes of operation between recharges. Spraying began in the final days of June in Putumayo, Meta, Caquetá, Guaviare, and Nariño departments.
For now at least, the herbicide will continue to be glyphosate, marketed by the U.S. chemical giant Monsanto, but at a concentration about 50 percent weaker than that used by U.S.-funded, contractor-flown aircraft during the years of the now-suspended aerial eradication program (1994-2015). Since that program’s suspension, much manual eradication has been carried out by eradicators wearing backpack-mounted herbicide sprayers applying this weaker mixture. This is a dangerous practice, as hundreds of eradicators or their police escorts have been killed or injured in the past 15 years by landmines, booby traps, ambushes, and sniper attacks. The idea is that using drones would curtail that risk, while applying the herbicide more accurately than aircraft flying 50-150 meters above the ground.
The aircraft-spraying program was suspended in October 2015 after a World Health Organization literature review found that glyphosate is “probably carcinogenic to humans.” Colombia’s Constitutional Court later ratified this suspension because of the possible risk. However, glyphosate has not been banned for agricultural use in Colombia, and officials expect that application by more accurate drones, which poses less risk of spraying residential areas or legal crops, gets around the Court’s restrictions.
While critics of the drone decision acknowledge a reduced risk to human health, they lament that this method of eradication will probably be carried out with no permanent state presence in abandoned rural areas, little face-to-face dialogue with coca-growing families, and perhaps with little coordination with food security and other assistance. “They’re making decisions from a desk without caring about the territory,” Nariño governor Camilo Romero tweeted in response to the drone decision. “I’ll say it clearly: any anti-drug policy that doesn’t involve the dozens of thousands of families that lack opportunities today, is condemned to failure. You can’t fumigate people only to have them plant again!”
A State Department spokesperson told EFE that the drone plan is up to Colombia: “The choice of eradication methods is a sovereign decision of the Colombian government. However, the United States believes that all tools should be used to turn back the sharp increase in cocaine production.”
- Natalia Arbelaez Jaramillo, “Santos No se Tomo en Serio el Punto Agrario del Acuerdo de Paz” (La Silla Vacia (Colombia), June 29, 2018).
- “¿Y Fue el Congreso de la Paz?” (El Espectador (Colombia), June 29, 2018).
- Renata Segura, Sabrina Stein, “The Colombian Peace Process With the Farc: A Mapping of Vulnerabilities” (Social Science Research Council, June 29, 2018).
- David Hill, “‘The War Goes On’: One Tribe Caught Up in Colombia’s Armed Conflict” (The Guardian (Uk), June 27, 2018).
- Javier Alexánder Macías, “Un Ano Sin Armas de las Farc” (El Colombiano (Medellin Colombia), June 27, 2018).
- Kyle Johnson, “En Argelia, Temen por su Tranquilidad y Dudan de la Paz” (International Crisis Group, Verdad Abierta (Colombia), June 27, 2018).
- Edinson Arley Bolanos, “ ‘Lideres Que Apoyan la Paz Estan Siendo Encarcelados y Asesinados’: Diana Sanchez” (El Espectador (Colombia), June 27, 2018).
- Juan Carlos Garzon v., Maria Victoria Llorente, “¿Por Que Siguen Aumentando los Cultivos de Coca en Colombia?” (Fundacion Ideas por la Paz (Colombia), June 26, 2018).
- “La Paradoja de la Paz: Cuatro Historias de Destruccion Ambiental Tras el Acuerdo Con las Farc” (Semana (Colombia), June 26, 2018).
- “La Riqueza Maldita del Catatumbo” (Verdad Abierta (Colombia), June 25, 2018).
- Carolina Avila Cortes, “Desplazamiento Forzado, un Drama Que No Cesa en el Bajo Cauca Antioqueno” (El Espectador (Colombia), June 25, 2018).