Last Week in Colombia’s Peace Process: Week of May 27-June 2

First-Round Election Results: Petro vs. Duque

As polls predicted, no single candidate won more than 50 percent of the vote in Colombia’s May 27 first-round presidential election. The candidates who will go on to a second round runoff on June 17 are rightist Senator Iván Duque and leftist former Bogotá mayor Gustavo Petro. Duque got 39 percent of the vote, Petro 25 percent. Duque is broadly viewed as likely to win that runoff and ascend to the presidency on August 7—but most analysts caution that a Petro win, while improbable, is not impossible.

Some facts about the vote:

  • At 53 percent, voter turnout was the highest in a presidential election since 1998, and the highest in a first-round vote since 1974. Improved post-accord security conditions get some of the credit.
  • Sergio Fajardo, a former mayor of Medellín leading a center-left coalition, outperformed poll predictions by winning 24 percent of the vote, nearly overtaking Petro. Pollsters’ head-to-head matchups had generally given Fajardo a higher probability than Petro of defeating Duque in a second round.
  • Former vice-president Germán Vargas Lleras was expected to perform better than the 7 percent he received, as he worked assiduously to court local political bosses—some of them rather corrupt—throughout the country. This shady get-out-the-vote “machinery,” which has contributed enormously to past elections, failed Vargas Lleras this time.
  • Humberto de la Calle, a former vice president who led the government’s negotiating team with the FARC in Havana, won the Liberal Party’s nomination but took in only 2 percent of the vote.
  • Candidates in favor of the FARC peace accord won a combined 51 percent of the vote, or 58 percent if one counts Vargas Lleras, who has flip-flopped a bit on whether he supports the accord or not (he most recently decided that he does).
  • Petro and Duque were in a virtual tie, far ahead of the other candidates, in zones most affected by the conflict.
  • Petro won, 35 percent to Duque’s 31 percent, in municipalities that voted “yes” in the October 2016 plebiscite on the FARC peace accord. Duque carried “no” municipalities with 42 percent, over 23 for Fajardo and 12 for Petro.

Third-place finisher Fajardo, who like Petro supports the FARC peace accord, is not throwing his support behind either of the two second-round candidates. He announced that he will turn in a blank ballot on June 17, and said his 4.6 million voters are free to vote as they wish. This was a blow to Petro, whose only hope of winning is to have a large majority of Fajardo’s voters go to him. “To vote blank is to vote for Uribe,” Petro said, invoking hardliner Álvaro Uribe, Senator Duque’s patron and party chief, a former president (2002-2010) and current senator. (A blank ballot can be strategic under some circumstances: under Colombian law, if “blank ballot” gets more votes than other candidates in a first-round vote, a new election with different candidates must be held. This doesn’t apply to second-round voting, in which voting blank is only symbolic.)

Candidates’ Positions on Peace

Iván Duque actively supported the “no” vote in the October 2016 plebiscite on the FARC accord. He was the main plaintiff in the case that led Colombia’s Constitutional Court, in May 2017, to strip out much of the legislative “fast track” authority needed to pass laws to implement the accord—a key reason so many accord commitments haven’t become law. The same Court ruled last October that Colombian governments during the next three presidential terms are required to implement the peace accord and cannot change it. But since he is a leading opponent, a President Duque would be unlikely to implement it with vigor.

The ideal of Duque, and of ex-president Uribe and his supporters, is an accord that is generous with individual ex-combatants who demobilize and aren’t accused of serious war crimes, but offers no political reforms in exchange for that demobilization: just surrender terms. It is possible, then, that a Duque presidency might implement reintegration programs for former FARC fighters more energetically than has the Juan Manuel Santos government. But the accord’s other chapters—rural development, political participation, crop substitution, victims and transitional justice—could get short shrift, or Duque could even seek legislation to change them.

Duque has described as a “monument to impunity” the transitional justice system set up by the accord, the Special Peace Jurisdiction (JEP), which hands out punishments for war criminals that he and his party view as too lenient. Duque has proposed pursuing at least four big changes to transitional justice:

  • Tightening penalties for those found guilty of war crimes. These are currently foreseen as a maximum eight years of “restricted liberty”—not prison—for those who make full confessions and reparations to victims.
  • Eliminating amnesty for the crime of narcotrafficking, even if the perpetrator did not benefit personally from the trafficking activity.
  • Getting government personnel who perpetrated war crimes out of the JEP and into the jurisdiction of Colombia’s Supreme Court.
  • Prohibiting guerrillas accused of war crimes from holding office until they’ve paid a penalty.

All of these are very hard to change, not least because it took 19 months to negotiate these provisions and altering the deal could cause many guerrillas to prefer to take up arms again. As an analysis from La Silla Vacía points out, the transitional justice provisions have been made into law and approved by Colombia’s Constitutional Court.

Even if Duque manages to get a law passed that sends guerrilla war criminals to a proper prison, La Silla argues, the “favorability principle” in Colombian law states that when two laws contradict, the accused pays the lighter penalty—the “restricted liberty” foreseen in the JEP. Any change to amnesty for non-personal-gain narcotrafficking could not be retroactive, it could only apply to crimes committed after the peace accord, or to future peace processes. It would not affect demobilized FARC who have behaved.

La Silla foresees some possibility that Duque could push through a constitutional change prohibiting un-punished guerrillas from holding office, which could force changes in who holds the ten congressional seats granted to the FARC between 2018 and 2026. This, the site contends, “could cause mid-level commanders to leave the demobilization zones with some of their fighters and join the dissidences or start new groups.”

Duque would be likely to abandon the slow-moving peace talks taking place between the government and the ELN guerrilla leadership in Havana, out of a desire to negotiate only the guerrillas’ surrender and submission to justice and nothing else. Duque has said, according to El Espectador, that he would only continue the ELN talks under four conditions:

[The ELN’s] prior concentration in some part of the country with international supervision, suspension of all criminal activities, a defined timeframe for the conversations, and negotiations limited to a substantial reduction of sentences, but not an absence of penalties.

The ELN, which remains quite rooted in three or four parts of the country, is very unlikely to accept these terms. The group wants to continue talks, though. “If Duque wins, well, he’ll find us here, at the table,” chief ELN negotiator Pablo Beltrán said this week.

Duque has no enthusiasm for the coca crop-substitution scheme being implemented (slowly) under Chapter 4 of the peace accord, which he calls a “disastrous chapter.” He favors to a return of massive forced eradication, including through aerial herbicide spraying.

While the Constitutional Court prevents Duque from doing away with the accord—and he insists that he doesn’t want to do away with it, just modify it—the rightist candidate can certainly “slow-walk” its implementation, carrying it out at a bare minimum. The choice between Petro and Duque, the La Silla analysis puts it, is about “whether the peace accord will serve as a roadmap for Colombia’s future, or whether it will be a marginal policy to guarantee that the demobilized don’t take up arms again.”

It explains that Duque can marginalize the accord, without killing it, by underfunding the agencies and programs set up to implement it, including the JEP and the Territorial Renovation Agency (ART) that is supposed to build state presence and rural development in the countryside. He can also “name second-tier functionaries,” with little political pull, to head such agencies, if he doesn’t abolish them entirely.

Gustavo Petro takes the opposite view. Although it doesn’t go into great detail, his campaign rhetoric mentions not only preserving the FARC peace accord, but improving the level of victims’ participation in it. He says he would increase civil-society’s direct role in accord implementation, particularly in the struggling coca-substitution programs, for which he proposes a greater role for coca-growers in “design, execution, and evaluation.” Petro would change the overall FARC accord, he says, only in ways that would make it possible for the Congress to pass the remaining laws needed to implement it fully. Petro also proposes levying a tax on unproductive large landholdings and directing the proceeds to programs that benefit conflict victims.

On a tour of Europe, President Santos told an audience in Brussels that “it’s impossible, legally and politically, to tear the peace accords to shreds.” He added, “Those of us who last Sunday saw the leader of the FARC, Timochenko, casting his vote within democracy—are we going to give him a rifle again so that he might return to the jungle? That’s irrational.”

Increase in European Union Assistance

During President Santos’s visit to Brussels, the European Union announced its approval of an additional €15 million of assistance “in support of the consolidation and implementation of the peace process in the country.” The aid, El Espectador reported with little additional detail, “will increase concrete measures, such as new programs to encourage economic activity and to contribute to rebuilding the social fabric in conflict-affected areas and the reinsertion of hundreds of FARC ex-combatants.” The aid is in addition to an EU trust fund announced in December 2016, which has provided €96.4 million to support accord implementation, especially in rural conflict zones.

73 U.S. House Members Call for Improved Protection of Social Leaders

Seventy-three members of the U.S. House of Representatives, all of them Democrats, signed and sent a letter to U.S. Secretary of State Mike Pompeo urging more U.S. government action to help Colombia’s government protect human rights defenders and social leaders. “A Colombian social leader is murdered every two and a half days,” the letter warns.

“In the past,” it continues, “Colombian authorities have shown that when it is important to them to lower the number of such killings, they are capable of doing so. And, while physical protection is important for those facing the highest known level of risks, it is expensive and impractical to provide it for every individual under threat.”

The letter makes five concrete recommendations:

For these reasons, protection mechanisms must be combined with other decisive action. First and most importantly is to swiftly bring to justice those who plan and orchestrate these murders, and not just the “triggermen” who execute the killings. Second, is for Colombian authorities at all levels to send clear, public and consistent messages that perpetrators, collaborators and beneficiaries of these crimes will face consequences. Third, is to dismantle illegal and violent armed actors that continue to murder and attack social leaders and the economic structures that support them. Fourth, is for the Colombian authorities to establish security and functioning state resources and presence in regions vacated by the FARC guerrillas, as required by the peace accords. And fifth, is for Colombia to achieve a complete peace by advancing the peace process in Havana with the ELN.

The signers include 14 ranking Democratic members of House committees. All would rise to these committees’ powerful chairmanships if, as some polls indicate might happen, the Democrats win majority control of the House in mid-term elections.

Local Officials Meet ELN in Havana To De-Escalate Catatumbo Violence

Since mid-March, a wave of fighting between the ELN and a smaller, locally influential guerrilla group, the EPL, has brought violence back up to conflict-era levels in Catatumbo, a poorly governed coca-producing region near the Venezuelan border in Norte de Santander department. In an effort to stop it, officials from the Norte de Santander departmental government gained permission to visit Havana to speak with ELN leaders participating in the peace talks with the national government. It is not clear what concrete gains the commission, led by departmental victims’ office director Luis Fernando Niño, achieved after meeting with the guerrilla leaders. However, the intensity of ELN-EPL fighting, which had displaced thousands, appears to have ebbed in the past few weeks.

Handoff of Cases To Transitional Justice System

The transitional justice system (JEP) is beginning to operate, even though it is still awaiting a Constitutional Court decision on the basic law governing its structure, and Congressional approval of another law governing its procedures. On May 30, the Prosecutor-General’s Office (Fiscalía) handed over to the JEP three of eighteen expected reports on crimes committed during the conflict by guerrillas and government agents. The documents register 223,282 cases involving 280,471 suspects and 196,768 victims of serious human rights abuses. According to Semana’s coverage:

  • 52,220 of the Fiscalía’s cases correspond to the FARC;
  • 13,934 cases correspond to the security forces;
  • 10,164 cases correspond to the ELN;
  • 55,768 cases correspond to the former AUC paramilitaries;
  • 3,324 cases correspond to other guerrilla groups; and
  • 87,872 cases do not identify a responsible group.

For the notorious extermination of the Patriotic Union, a FARC-tied political party, during the late 1980s and early 1990s, the Fiscalía’s records include 863 cases covering 1,620 victims and 277 perpetrators who were government forces.

The JEP will use this information to choose emblematic cases to pursue, and as evidence in trials of the nearly 8,000 ex-guerrillas, security-force personnel, and government civilians who have agreed to cooperate with the JEP in exchange for lighter sentences.

Visit from International Criminal Court Prosecutorial Official

The deputy prosecutor of the International Criminal Court in The Hague paid a visit to Colombia this week. At an event about transitional justice, James Stewart reiterated the Court’s concerns about aspects of the peace accord’s provisions for judging war crimes.

Stewart praised the accord and the JEP as “an innovative, complex, and ambitious system, designed to assure accountability as part of the peace accord’s implementation.” However, Stewart—reiterating what chief ICC prosecutor Fatou Bensouda has said in the past—recalled that the Court has its eye on how Colombia handles the following issues:

  • Cases of sexual or gender-based violence.
  • Extrajudicial executions or “false positive” killings, for which Stewart contended, Colombia’s “legal processes…don’t seem to have centered on the people who might bear the greatest responsibility within the military hierarchy.”
  • The responsibility of military commanders for crimes committed by their subordinates. At particular issue is whether the JEP will hold commanders accountable for crimes they “should have known” about (the Rome Statute standard), or just crimes that it can be proved that they knew about (the peace accord standard).

The ICC can only intervene in cases of war crimes and crimes against humanity if it determines that Colombia’s own system is not meeting the accountability standards laid out in the 2002 Rome Statute, to which Colombia is a signatory.

Three More Former FARC Combatants Killed

The FARC political party denounced the killings of three more of its members, all demobilized combatants, between May 22 and May 26 in the southwestern departments of Cauca and Valle del Cauca. Cristian Bellaizac, Jhon Jairo Ruiz Pillimue, and Wilinton Bravo Angulo were murdered in the respective municipalities of Jamundí, Valle; Suárez, Cauca; and Buenos Aires, Cauca. The FARC communiqué cited 24 murders of ex-combatants so far this year, and alleged that “paramilitary successor criminal groups” are threatening and harassing its members in Bogotá. A day earlier, President Santos said that 40 reintegrating ex-guerrillas had been killed since the accord was signed in November 2016. The FARC says the number is now near 60. In early April, the UN Secretary General cited 44 murdered ex-combatants and 18 relatives of ex-combatants.

In-Depth Reading

Tags: Elections, Transitional Justice, U.S. Policy, Weekly update

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