Colombia: Forced Disappearances Remain High in Norte de Santander

By Jessica Spanswick and Javier Ochoa*

Event in Cúcuta, Colombia, hosted by Fundación Progresar and UNDP – a book release featuring stories of 100 disappeared people.

Event in Cúcuta, Colombia, hosted by Fundación Progresar and UNDP – a book release featuring stories of 100 disappeared people.

The Colombian department of Norte de Santander, along the most heavily traveled part of the national border with Venezuela, has the highest rate of forced disappearances in the entire country – increasing as implementation of the historic peace accord signed in 2016 has faltered. Homicides, kidnappings, and other disappearances have all surpassed national averages. Fundación Progresar, an NGO based in the province’s capital, Cúcuta, estimates that one person in the area was forcibly disappeared every three days in 2018. During fieldwork with the NGO in 2019, we interviewed surviving family members and heard their accounts of suffering. Some of the reasons for these disappearances have deep historic roots, such as the perennial absence of sustained, trusted government presence in the area, but others reflect trends that have grown in importance since 2016.

  • Armed groups filling the void left by the formal demobilization of the FARC have proliferated. In the last two years, the criminal activity of at least a dozen armed groups was registered in Norte de Santander, ranging from enduring guerrilla groups (National Liberation Army, ELN; the Popular Liberation Army, ELP, also known as Los Pelusos; and dissident FARC groups); armed groups resulting from the demobilization of paramilitary groups in 2004 (including Los Rastrojos); and organized criminal groups (including purported affiliates of the Sinaloa Cartel). Most are engaged in highly profitable cocaine production, narco-trafficking, and gas-smuggling activities in the area.
  • Our analysis of data from the UN Office on Drugs and Crime (UNODC) indicates that the number of hectares under coca cultivation in Norte de Santander grew from 6,944 in 2014 to 33,958 in 2018, with no sign of abating. The government abandoned voluntary eradication programs and did not honor agreements to help communities within the framework of the peace accord. The province provides a strategic corridor for smugglers to bring in Venezuelan oil products for transportation and to make drugs – more than 100,000 gallons a day when it’s available – and exfiltrate the finished cocaine.

A massive influx of Venezuelans fleeing crisis back home has also led to a spike in disappearances. The United Nations High Commissioner for Refugees (UNHCR) estimates that nearly 5 million Venezuelans (many of Colombian heritage) have fled the country, the vast majority passing through or staying in Colombia. Many, distrustful of both countries’ officials at formal ports of entry and without a proper channel to receive refugee status, transit informal trocha crossings controlled by criminal groups, where they are at risk of extortion, human trafficking, sex trafficking, murder, and forced disappearance. Our research shows that even those paying a fee to pass through these areas are subjected to abuses.

  • Many Venezuelans, including children, are forced to work as raspachines (coca leaf pickers), who have told human rights groups that they want to go to school but are working essentially as indentured slaves. Older youths have been recruited as soldiers. According to five military commanders, as many as 30 percent of the insurgents in that region are Venezuelans who take up arms “in return for food and pay.” They receive more than 27 times the monthly minimum wage in Venezuela. Others are pressured by criminal groups to join. Another problem is that an increasing number of Venezuelan women and girls are victims of human and sex-trafficking rings in the province. According to local organizations interviewed by Refugees International, they “are often forced to ‘pay’ for passage by providing sexual services.” UN Humanitarian Affairs officials (OCHA) say that “fear of being deported or arrested keeps [[victims]] from seeking help from local authorities.”

The standard solution for reducing the influence of criminal groups in situations like this – establishing state control – remains elusive. The Colombian government has the resources and institutions to address the problem, but it has been slow to take action. Some 99 percent of complaints remain in the initial phase of the criminal process (indagación) – with little chance of moving toward deeper investigation and prosecution. Of 1,106 cases, only six are on, or approaching being on, trial. Having met face-to-face with the families of victims, we know how difficult – and unsatisfying – it is to tell them that governments, NGOs, and others are “doing all they can” to find justice for them.

June 9, 2020

* Javier Ochoa and Jessica Spanswick are recent Master’s graduates of the Center for Latin American Studies at Georgetown University. Ochoa interned with the Inter-American Commission on Human Rights, and Spanswick interned at Fundación Progresar, the Colombian Truth Commission, and the Guernica Center for International Justice. The full text of their study is here.

Colombia: Lame Duck President?

By Fernando Rojas*

Uribe and Duque

Former Colombian President Álvaro Uriba (left) and President Iván Duque. / Centro Democrático (left), Casa de América (right) / Flickr, modified / Creative Commons

A combination of defections from within his governing team and widespread street protests suggest that Colombian President Iván Duque’s administration may be running out of steam 18 months into his four-year term. Doubts are mounting as to whether he has built a discernible platform for addressing the country’s most pressing social, environmental, political, or geopolitical dilemmas.

  • Soon after his inauguration in August 2018, Duque announced a major tax reform and succeeded in pushing through a promised expansion of incentives and other privileges for large corporations and higher-income groups. His Administration’s first development plan was a potpourri of policy inertia without a clear message or Presidential imprint. Members of his planning team either resigned or were dismissed soon after the plan became law. His other big push was for a gradual reorientation of the peace agreement that two years earlier had ended Colombia’s 50-year insurgency. That agenda has advanced mostly through non-implementation of accord provisions rather than through alternative policies.
  • Duque’s greatest political asset was his endorsement by former President Álvaro Uribe. Unlike former President Juan Manuel Santos (2010-18) – another candidate initially backed by Uribe but who subsequently broke from his mentor to launch the peace process – Duque has opted to adhere to Uribista critiques of the accords.

During Duque’s term so far, some policies that had been successful under President Santos have atrophied through inattention.

  • Funds for programs initiated under Santos to secure peace and stability in the countryside have been channeled into communities and municipalities based on political criteria. The Regionally Focused Development Plans (Planes de Desarrollo con Enfoque Territorial, PDET), for example, are managed and selectively funded directly by the President’s office. One of the requirements to support rural communities in conflict-ridden areas appears to be adherence to Duque’s implicit pacification strategy. Most visibly, the government has paid little attention to the killings of more than 100 community organizers – even calling a UN report on them last month an unwelcome intervention in the country’s sovereignty and roughly equating the murders to robberies of cell phones on the street. A long-debated initiative to expand identification of the use of land plots in order to better focus social and economic development policy is increasingly being deployed to formalize land property in its current hands – not in the name of the millions of displaced peasants awaiting restitution of their plots.
  • Government silence on environmental protection has allowed small legal and illegal miners – often protected by guerrillas or paramilitary groups – to circumvent the opposition of communities concerned about the mercury and other poisonous elements such operations dump into water supplies. Powerful international corporations are being granted concessions for extraction of gold and precious metals in mountains that provide water and are home to unique flora and fauna.

Uribe has no choice but to support Duque through the end of his term in 2022, while hoping that political protests do not interrupt his term – for the first time in Colombia since 1953. Duque’s approach to national affairs does serve the interests of many Uribistas, who welcomed the tax cuts and reprogramming of funds from ordinary peasants to peasant-sympathizers or landowners. But political loyalty is a fragile virtue when there is no vison of common values nor transparent consensus on how to make them reality. The riots that shook the government in November, although short-lived, revealed a sort of vulnerability about Duque that could strain Uribe’s patience. Duque appears to be at the mercy of both those who enabled his rise to power and those who want to overthrow him.

March 9, 2020

* Fernando Rojas is a consultant on government management, decentralization, and multi-level governance.

Afro-Colombians and Indigenous: From Hope to Invisible Again?

By Luis Gilberto Murillo Urrutia*

Firma de la paz

Signing of the peace accords between the Colombian government and FARC, 2016/ Gobierno de Chile/ Wikimedia Commons/ https://commons.wikimedia.org/wiki/File:Jefa_de_Estado_participa_en_ceremonia_de_la_Firma_de_la_Paz_entre_el_Gobierno_de_Colombia_y_las_FARC_E.P._(29953487045).jpg

Colombia’s delicate and fragile transition to peace, a process enshrined in the 2016 peace accord between the government and the FARC guerrillas, has brought some benefits to Colombia’s Indigenous peoples and communities of African descent but has fallen far short of expectations – with troubling implications for those groups in the future.

  • Official figures tend to understate the size and influence of the Afro-Colombians and Indigenous. According to the government, 15 percent of Colombia’s population is of African descent, and 4 percent (from 82 different ethnic groups) are Indigenous. But other estimates, such as that of the Centro de Investigación en Ciencias Sociales y Económicas (CIDSE) of the Universidad del Valle, estimate that Afro-Colombians could be as much as 25 percent of the national population, and Indigenous ethnic groups occupy some 15 percent of the national territory. These groups suffered deeply during the half-century of conflict that the peace accord intended to stop. One of many examples is the massacre of Bojayá, in the predominantly Afro-Colombian department of Chocó, which left more than 100 people dead – mostly women and children who had sought refuge in a church. The Indigenous also suffered great losses.

These historically neglected communities – which numerous observers report experienced a disproportionate deepening of poverty and discrimination during the conflict – saw in the peace accord and its implementation the opportunity to push longstanding demands for full exercise of their rights, especially control over their own territories in places such as Chocó, the Indigenous free farm labor system in Cauca and Nariño, and the ethnic region of Sierra Nevada de Santa Marta.

  • The chapter of the peace accord dealing with ethnic matters, included as a result of the activism and leadership of Afro-Colombian and Indigenous organizations, encouraged those hopes. As accord implementation started, these groups focused on achieving protection for social leaders; the removal of anti-personnel mines from their territories; substitution of illicit crops; protection for, and expansion of, traditional homelands; and various environmental protections.
  • Last March, ethnic organizations reported some advances during the early stage of the implementation of the peace accord, during the administration of President Juan Manuel Santos and, more recently, when President Iván Duque’s government, in the planning process for regional programs and projects, included about US$5.5 billion in the four-year mandatory National Development Plan 2018-2022. If faithfully carried out, which appears doubtful, such expenditures would benefit Afro-Colombian and Indigenous communities.

At the same time, however, leaders stated that, of the 13 specific provisions in the accord’s Ethnic chapter, implementation of seven had not even started – significantly less than the accord as a whole. Even more troubling to them, security in their communities has continued to deteriorate.

  • Some 35 percent of citizens displaced since 2016 have been Afro-Colombians and Indigenous. An estimated 40 percent of social leaders murdered have been from these groups, including 11 percent of those promoting manual eradication of coca production instead of forced aerial spraying. Disputes among armed groups with roots in both paramilitaries and guerrilla groups have increased the vulnerability of these communities.
  • Ethnic organizations blame this poor performance on the lack of a fluid dialogue between government and community leaders; the ignorance (willful or not) of the current government to embrace the deals made by its predecessors; and the lack of dedicated budget resources. The government has not convened a meeting of the Special High-Level Authorities of the Ethnic Peoples established by the accord. Afro-Colombian and Indigenous leaders have been largely excluded from critical decisions related to peace process implementation affecting their communities.

Growing challenges to accord implementation further complicate prospects for progress for Afro-Colombian and Indigenous communities. Political tensions in Bogotá, the government’s efforts to unilaterally alter implementation, the assassination of social leaders, and – most recently and perhaps most disturbingly – some FARC negotiators’ decision to abandon the accord and take up arms anew, all have dire implications for them. Afro-Colombian and Indigenous leaders – lacking a viable alternative – seem likely to continue betting on the peace process and fulfilling their obligations under the accord. The bottom line, however, remains that the slow, inconsistent implementation and the absence of serious dialogue and coordination suggest that, once again, these important communities may become invisible.

September 12, 2019

* Luis Gilberto Murillo is a CLALS research fellow and former Minister of Environment and Sustainable Development of Colombia, with 30 years of experience in the areas of environment, sustainable development, and peace building.

Domestic Politics and U.S.-Colombia Relations 

By Sebastian Bitar and Tom Long*

duque and pompeo

Secretary Pompeo and Colombia President Ivan Duque Marquez Visit the Migration Transition Assistance Center in Bogota. U.S. Department of State / U.S. Government Works

Colombian domestic politics and institutions have created obstacles for President Iván Duque during his first year in office, complicating efforts to meet demands from U.S. President Donald Trump and reestablish close bilateral cooperation with the United States. As the hand-picked successor of former President Álvaro Uribe, long Washington’s closest ally in Latin America, Duque was widely expected by many in the United States to fully align Colombia with U.S. priorities. Like his mentor, Duque criticized the Colombian peace process as prolonging drug trafficking, raising Washington’s hopes that he would aggressively confront a spike in coca production that started in 2016.

  • In September 2017, nine months before Duque’s election, Trump publicly threatened to “decertify” Colombia for inadequate cooperation on counternarcotics – almost unthinkable in the Plan Colombia era. Despite efforts, the new government has not delivered to Trump’s satisfaction. Opponents blocked resumption of aerial spraying of coca fields with glyphosate – an herbicide linked to cancer. The new transitional justice high court, known as JEP, refused U.S. requests to extradite a high-profile former guerrilla leader, “Jesús Santrich,” to face drug trafficking charges in the United States, reversing a decades-long tradition of requiring only a U.S. indictment with no judicial process in Colombia. The Trump administration retaliated by suspending the visas of some Colombian justices, provoking a domestic political backlash that has further hemmed in Duque.

The U.S. actions emerge from the inaccurate assumption that Colombian presidents can make foreign policy without regard for domestic opposition and institutions. Much U.S. scholarship and policy commentary on the Andean nation’s foreign policy is marked by a near-exclusive focus on the person of the president on the one hand, and on the role of the United States on the other. In our recent article, “Domestic Contestation and Presidential Prerogative in Colombian Foreign Policy,” we demonstrate the limits of these commonly held views of Colombian foreign policymaking. While U.S. pressure is indeed a heavy constraint and Colombian Presidents, constitutionally and institutionally, enjoy wide latitude in foreign policy, we show that Colombian foreign policy increasingly responds to domestic pressures.

  • The Constitutional Court has emerged as a surprising constraint even on very strong presidents’ foreign policies. In 2009-2010, it was mostly an afterthought for the powerful and popular Álvaro Uribe when he prioritized an expansion of the U.S. military presence in the country through the establishment of military bases – largely ignoring South American opposition. The court’s veto, along with strong public opposition, came as a surprise to the President. Its mandate to go through Congress risked political costs that Uribe’s successor, President Juan Manuel Santos, was unwilling to pay.
  • Colombian presidents have also adapted their foreign policies in the face of potential electoral and Congressional costs. In 2012, during the height of the “China boom,” Santos proposed free trade negotiations with China as a top priority, but manufacturing interest groups – including some of Santos’s close allies – turned the Congress against the President. Santos backed away and embraced a face-saving investment agreement. Perhaps more embarrassingly, when the International Court of Justice issued a ruling on a maritime dispute with Nicaragua that gave Colombia sovereignty over disputed islands but forced a compromise on territorial waters, Santos was faced with electoral political mobilization from his former patron, Uribe. Despite explicit promises to abide by the ruling, Santos revoked recognition of compulsory jurisdiction – long a cornerstone of Colombian diplomatic tradition.

While critiques that Plan Colombia (2001-15) was cooked up by the State Department without deep Colombian involvement are false, Colombian domestic politics were secondary to those of the U.S. Congress. An unpopular Colombian President, Andrés Pastrana, was able to sideline domestic opponents and affect the internationalization of the Colombian conflict – shaping the view of Presidential power over Colombian foreign policy. However, in many ways, that was both an outlier and a turning point.

  • Exaggerated presidentialism, linked to tropes of caudillos and strongmen presidents, can lead to one-dimensional analysis and unfulfillable policy expectations. While domestic dynamics are often considered when discussing U.S. foreign policy, they get little attention in the Latin American context. As the recent episodes above reflect, these domestic constraints have caught Colombian presidents themselves off guard, and the presidentialist assumption can lead U.S. policymakers to make demands that assume Colombian presidents are pliable in the face of U.S. pressure but omnipotent domestically. Contested presidentialism is here to stay. 

 

July 31, 2019

* Sebastian Bitar is Associate Professor in the School of Government at Universidad de los Andes. He is author of US Military Bases, Quasi-bases, and Domestic Politics in Latin America. Tom Long is Associate Professor at the University of Warwick and Affiliate Professor at CIDE, Mexico City. He is the author of Latin America Confronts the United States: Asymmetry and Influence. Their full article was published by the Bulletin of Latin American Research and was co-authored with Gabriel Jiménez-Peña.

 

South America: Regional Integration or Presidential Posturing?

By Stefano Palestini Céspedes*

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South American Presidents waving to the cameras in Santiago, Chile / Flickr / Creative Commons

Seven South American presidents’ launch of brand-new regional grouping called PROSUR last week was intended to give a boost to their personal agendas rather than take a serious step toward regional integration. The announcement was made on March 22 at a summit organized by Chilean President Piñera and attended by the presidents of Argentina, Brazil, Colombia, Ecuador, Peru, and Paraguay. The declared goal of the summit was to overcome what Piñera called the “paralysis” of the decade-old UNASUR.  Its final declaration emphasized the need “more than ever to work together to update and strengthen the South American countries’ process of integration” in the face of current and future challenges, including “inserting ourselves in an efficient way into the fourth industrial revolution and society based on knowledge and information.”

  • The creation of the Forum for the Progress of South America (PROSUR), however, delivered very little in terms of regional integration. The Santiago Declaration does not tackle the obstacles that hampered UNASUR, such as its decision-making procedure based on consensus. On the contrary, the declaration envisions PROSUR as a forum exclusively based on presidential diplomacy, in which all decisions by definition must be taken by consensus.
  • The Presidents said the new organization will focus on infrastructure, energy, health, defense, and dealing with natural disasters – the same areas where UNASUR had shown some progress. The declaration did not mention any particular ongoing crisis, such as Venezuela, but it made clear that it would work for full respect for democracy, constitutional order, and human rights. Again, this is not a departure from UNASUR, which also had a democracy clause adopted and ratified by the national parliaments.

The summit promised political gains for several participants. For President Piñera, it was an opportunity to project himself as a regional leader able to convene and coordinate South American heads of states, at a time that his domestic popularity is decreasing. Ecuadorean President Moreno – the only central-left president attending the summit – had yet a new opportunity to signal his willingness to coexist with pro-market governments in the region. For Brazilian President Bolsonaro, a well-known skeptic of South American integration, the summit was a platform to show a more palatable image closer to his liberal peers.

President Piñera and his guests blamed UNASUR’s bureaucracy for its lack of effectiveness, opting instead for a lean mechanism based on presidential diplomacy. Most long-time observers believe, however, that UNASUR’s effectiveness was undermined by its very weak organizational capacity, with a powerless Secretary General and personnel made up of low-ranking national diplomats instead of qualified international civil servants. Presidential diplomacy, unburdened by a bureaucracy of specialists who analyze problems and possible solutions, works well when Presidents get along in ideological terms, but precedent shows it is vulnerable to collapse when governments have divergent preferences or when states must agree on complex transnational issues such as migration, drug-trafficking, or deep economic integration.

  • PROSUR will work exclusively as a forum (not as a regional organization) and its decisions and initiatives will have to be executed and monitored by the national bureaucracies of the member states, which by definition look after national interests rather than regional interests. The Santiago Summit has demonstrated that when it comes to regional integration, leftist and right-wing heads of government look and act alike. No matter which ideology they claim, South American presidents fear collective institutions, cherish presidential diplomacy, and prefer to create new initiatives with pompous names from scratch, rather than make necessary reforms to existing ones. As Uruguayan President Vázquez – who did not attend the summit – put it, South America has a long history of integration initiatives that have not brought about integration. The region would be better served by reinforcing and overhauling existing mechanisms such as MERCOSUR, the Andean Community, or the Pacific Alliance, and try to make them convergent in any possible way, rather than adding yet another acronym.

March 29, 2019

* Stefano Palestini Céspedes is an Assistant Professor at the Institute of Political Science, Catholic University of Chile.

Colombia: Ready to Expand Environmental Policies

By Luis Gilberto Murillo*

Lush view of mountain range in Colombia

Jardín, Colombia by Pedro Szekely / Flickr / Creative Commons

Colombia has provided important leadership in implementing integrated, pro-environment taxes in the country, but there is urgent need for it to do more.  In 2017, Colombia became one of three countries with the greatest advances in implementing fiscal mechanisms to control emissions, one of the principal tasks on its agenda for full membership in the OECD.  But experts believe that the deepening of the global socio-ecological crisis caused by climate change demands broader, accelerated fiscal mechanisms to protect the environment and sustainable development.

  • In 2015, Colombia, as part of its Paris Agreement commitments, set the goal of reducing greenhouse gases by 20 percent by 2030. A recent report by the Comptroller General of the Republic concluded that the Colombian national economy will need to undergo a significant restructuring to meet that goal and make the country resilient in the face of extreme climate events such as floods and droughts.  The Comptroller report opened the door to discussion of fiscal tools for action and environmental protection, with special priority given to controlling deforestation, water conservation, and improving air quality. Environment taxes on carbon, plastic bags, and motorcycles with motors above 200cc have been a starting point, but the Comptroller assesses that they haven’t been effective enough.
  • The government today has much greater resources – more than 700 billion Pesos (about US$227 million) per year – than before. Moreover, the launch of Colombia’s unique voluntary carbon market, bringing important projects and a flow of resources to rural and ethnic minorities (Afro-Colombians and Indigenous communities), has already demonstrated the positive impact of green taxes.  The program to tax plastic bags has reduced their use by 30 percent in just the first year of implementation, 2017.

Debate over how and where to invest the resources created by environmental taxes will certainly be important.  Most observers believe that the central criterion should be how well projects change the attitudes and behavior of those involved.  Projects will be key, but the contribution of each individual to save the planet will be even more important.

  • The recent finance law, introduced by the current government and approved by Congress, missed a valuable opportunity to adjust existing green taxes and create new ones, especially regarding progress in promoting electric vehicles, innovative renewable energy production, and control over the use of plastics other than bags. Upcoming legislation provides ample chances to expand environmental taxes to achieve these goals.  A better balance between various taxes – on capital and labor on one hand, and pollution and environmental degradation on the other – could lay the foundation for progress.

The gains made thus far underscore the importance of having a strategic vision and discipline.  Improvisation will fail; steady work, technical rigor, and political wisdom are required for progress.  An important first step will be the designation of a technical mission to head the National Planning Department, which is charged with leading and coordinating the country’s development agenda in the medium and long term.  Such a technical mission, along with the Comptroller team, can guide public debate and keep it squarely on the national public agenda.

March 1, 2019

* Luis Gilberto Murillo is a CLALS research fellow and former Minister of Environment and Sustainable Development of Colombia, with almost 30 years of experience in the areas of environment, sustainable development, and peace building.

Colombia: Flaws in Transitional Justice Threaten Peace Accord Implementation

By Néstor Raúl Correa*

Acuerdo de Paz Colombia Feb.15.2019 Flickr

People gather at Bogota’s Bolivar main square on September 26, 2016, to celebrate the historic peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC). / Flickr / Creative Commons

The Special Jurisdiction for Peace (JEP), a central part of the Colombia Peace Accord signed in 2016, continues to stumble and is seriously, if not fatally, undermining the justice component for accountability by combatants of both sides of the conflict.  In essence a scheme of transitional justice, the JEP offered a special legal framework and exceptional judicial treatment to create the necessary conditions for peace after decades of massive, systematic violations of human rights.

  • The Accord would not only produce temporary justice; it would be negotiated justice – and it would build on other positive results such as the guerrillas’ surrender of arms and subordination to the political regime it had sought to destroy. It was centered on a quid pro quo: “You give me your weapons and, in exchange, I’ll give you softer penalties and allow you to participate in politics.”  One of three institutions established to promote reconciliation, the JEP’s mandate was to guarantee the rights of the victims.

The Peace Accord in general and the JEP specifically, however, have stumbled over multiple obstacles, in particular the opposition of segments of the Colombian populace that have not forgotten the crimes of the FARC and are interfering with the implementation of the JEP.  While every political faction has constructed its own narrative surrounding the Accord, the most radical and divisive is that of the political right.  Various factors have distorted the role of the JEP to the point that it is no longer a trustworthy reference for the conflicting parties, the victims, or citizens in general.

  • Critical constitutional and legal reforms necessary for the JEP to function, which were already thought to take at least four years, were further delayed when the Legislature diluted or postponed accountability of combatants while providing them quick relief for their crimes, especially in Amnesty Law 1820 of 2016.
  • Having eight units (three courts, four sections and one prosecutorial office) and 38 judges, the JEP was practically guaranteed to have lengthy and convoluted proceedings – a Kafkaesque labyrinth. When a guerrilla defendant has previously served in the military or as paramilitary, the process plunges into chaos.  Further complicating matters, the right has been concerned about the neutrality of current judges in the JEP, arguing that it was conceived as a FARC justice mechanism.
  • JEP management and decision-making – dominated by a handful of judges since 2018 – have become burdened with inefficiencies long present in Colombia´s justice system. Budget squabbles, bloated staffs, contract disputes, and even controversy over holidays and vacation time have become distractions.

As a result, the hope of victims on both sides of the conflict that light sanctions for those responsible for major crimes would be counterbalanced by integral and sustainable protection for themselves has vanished.  Nearly 7 million Colombians were displaced by the internal conflict (out of a total of 8,794,542 registered victims).  JEP dysfunction has denied them their voice in the processes against those who victimized them.  Victims were barred, for example, from attending the hearing of an Army Reserve general accused of murdering innocent civilians he claimed were guerrilla members killed in combat (falsos positivos), while a senior FARC commander firmly rejected victim participation as inconsistent with the Accord.  Former FARC combatants have not been held rigorously accountable.  They move freely within the country, and some FARC commanders remain in hiding and have never presented themselves.  This has further undermined civil society confidence in the JEP and the Accord.

The flaws in Colombia’s transitional justice provide valuable lessons for future peace processes.  The whole process should remain simple and expeditious, with fewer sentencing judges and proceedings.  A competent management unit, independent from the judges, should take charge of administration, including core information systems.  The role of foreign judges, particularly in cases of internal conflicts that have somehow been tainted or affect a vast number of citizens, should be increased, clarified, and protected because of the credibility, legitimacy, and independence they can bring.  It is also critical to avoid creating false expectations among victims, particularly regarding their role in judicial hearings.  An efficient, transparent judicial process provides the best guarantees of justice and effective remedies to victims and civil society.

February 15, 2019

*Néstor Raúl Correa is former Executive Secretary of JEP, a former magistrate, and currently a professor at Pontificia Universidad Javeriana in Bogotá.

Colombia: Slow to Deal with Conflicts of Interest

By María Paula Ángel*

Image of Nestor Martínez

Nestor-fiscal.jpg / Wikimedia Commons / Creative Commons

Revelations about Colombian Attorney General Nestor Humberto Martínez’s knowledge of serious cases of corruption prior to his election is raising questions about his ability to do his job with impartiality and independence – and about the efficacy of Colombia’s anti-corruption measures.  Martínez was a legal advisor for Grupo Aval – a partner with the Brazilian firm Odebrecht on a major infrastructure project – with whom a project auditor shared his deep concerns about corruption.  In 2015, Martínez confirmed to the auditor the range of the crimes, including “bribery, money-laundering, use of false documents, improper management, abuse of confidence, fraud, aggravated theft, misappropriation,” according to recordings of unchallenged authenticity.  Martínez failed to report this knowledge to the Supreme Court when he was being considered as a potential Attorney General.  Critics point out that this case makes clear Martínez’s multiple conflicts of interest during the campaign and now as fiscal general tasked with investigating the massive Odebrecht corruption case and the death of the auditor and his son, who were poisoned to death last November.

The Colombian Constitution requires public servants to declare, under oath, their assets and income and the private interests they may have due to their private past before assuming public office, when leaving office, or when the competent authority requests it.  This Income and Asset Disclosure System (IAD), formally implemented in 1995 and managed by the Administrative Department of the Public Function (DAFP), is supposed to provide a means for monitoring inconsistencies or irregularities in officials’ declared income and assets, and for detecting and avoiding potential conflicts of interest before they occur.  Information on the Attorney General’s previous clients, for example, should have identified potential and actual conflicts of interest.  However, the system has major flaws, and it is very difficult for the state or citizens to take advantage of the information:

  • A combination of a badly designed legal framework, political resistance to implementation, resource and capacity constraints, and lack of public awareness of its usefulness hamper DAFP’s work. There are no penalties for failure to submit information.
  • The DAFP only verifies the receipt of the submitted forms; the review of the completeness and accuracy of the information is only carried out, if at all, on a random basis. Similarly, when citizens have asked for a copy of a public servant’s submission, DAFP and the official in question have – unlawfully – denied access, arguing the latter’s right to privacy.  In the rare cases that access is approved, processing and analysis are highly unlikely because documents are often handwritten.

The case of Attorney General Martínez underscores the need for Colombia to move beyond rhetoric and get serious about disclosure and accountability.  Martínez has been through the revolving door in and out of government on at least eight occasions – common for public servants.  The World Bank Group and the United Nations Office on Drugs and Crime (UNODC) offer a range of “good practices,” elements of which are being implemented in the region – albeit also imperfectly.  Argentina has electronic data management procedures that have automated submissions and allow targeted verification of completeness and accuracy of the information more feasible for about 33,000 declarations annually.  Despite its myriad corruption scandals, Guatemala is among the countries that make disclosure compliance statistics publicly available, thus allowing citizens to hold accountable public servants that do not comply.  In Paraguay, the Criminal Appeals Court ordered the government to grant a journalist’s request for IAD submitted by public servants who occupied the highest public positions between 1998 and 2017.  Not one of these countries has adopted a comprehensive, effective approach to anti-corruption, but there is no reason that Colombia shouldn’t lead the way.

January 25, 2019

* María Paula Ángel is a researcher at the Centro de Estudios de Derecho, Justicia y Sociedad (Dejusticia), in Bogotá.

Colombia’s Duque: The End of the Road for Empty Politics?

By a Colombia Watcher*

Iván Duque

Colombian President Iván Duque. / Casa de América / Flickr / Creative Commons

Colombian President Iván Duque’s first 100 days in office have left three important baskets empty: the basket of public policy, the basket of new ideas, and the basket of trust in government.  His problem is not so much that he is a puppet of his mentor, former President Álvaro Uribe; it is that they have failed to jettison their recent past and articulate a credible vision for Duque’s four-year term.

  • Duque’s economic development plan was hurriedly prepared with little policy guidance from the president’s office. It consists of a long list of sector-by-sector aspirations that bear no connection with either the current budget or realistic medium-term fiscal planning.  The underlying assumption appears to be that the government will somehow – on its own – abandon a longstanding tendency toward clientelism based upon contractual power for a results-driven technocracy.
  • Duque’s financial strategy appears to be stumbling. Congressional opponents say his nominee to be Finance Minister, Alberto Carrasquilla, is guilty of corruption in a previous job.  Instability in global prices torpedoed Duque’s plan to rely primarily on proceeds from a new oil boom, so the government has wagered on a highly unpopular and inequitable tax reform.  Reducing federal expenditures is out of the question — key constituencies depend on the government’s purchasing power – and a serious review of fiscal decentralization also appears beyond Duque’s political will and expertise.  Going back to debt financing would face legal, fiscal, and political challenges.
  • Achieving his promises to reduce corruption also appears difficult. The lack of accountability in the Odebrecht corruption case, in which supporters of Uribe (as well as former President Santos) reportedly were involved, has fueled cynicism.  Unlike in other Latin American countries, no high-level economic or political Colombian is in jail on Odebrecht corruption charges.  Moreover, leaks of irrefutable recordings and documents demonstrate efforts by the country’s attorney general, Néstor Humberto Martínez, to cover up irregularities.  (The auditor who leaked the evidence was subsequently killed, as was his son when he returned from Spain to attend the funeral.)

The new administration faces other challenges.  Polls taken immediately after the economic plan was announced showed that public support for the government continued its free fall after reaching the lowest level recorded during a president’s first 100 days in office.  The government appears to be looking for legal ways to abandon the already fragile peace process with the former FARC guerrillas – already undermined by the fact that killings and disappearances of local civic leaders continue unabated.  Dissident FARC members are returning to the jungle or joining the growing number of criminal bands that operate in both the cities and the countryside.  Protests joining students and workers from various sectors, including healthcare and transportation, continue to affect essential services in a way not seen in Colombia in recent years.

Restoring public trust in Colombian institutions will be a monumental task for which Duque does not appear to have a credible path forward.  He will probably struggle to distance himself from some of his scandal-plagued financial and political backers, but they will demand unconditional support and loyalty amid public outcry and pressure.  The coalition that ensured Duque’s second-round victory in June was temporary – united only to stop his leftist opponent – and is already showing signs of abandoning him.

  •  Duque may try to make international support a pillar of his presidency, as Uribe and Santos did, but even that is not going to be easy. He cannot expect the same enthusiastic endorsement Santos received from the European Union, Canada, or UN agencies, who applauded his focus on the peace process and building democracy from the bottom up.  There are already voices in the Duque government opposing efforts begun under Santos to meet the conditions for Colombia’s admission into the OECD club.  Duque may be optimistic of gaining U.S. support – heartened by the Trump administration’s reduced emphasis on human rights and democracy in the bilateral relationship – but the most Duque has gotten so far is some continuation of support for anti-drug efforts.  His desperate efforts to develop a strong direct relationship with President Trump have not yet borne fruit.

Duque appears burdened by the bonds that brought him to power – with members of his coalition, with former president Uribe, and with political and financial backers – that have either weakened or are now embroiled in scandal.  Delivering results and inspiring public trust and support may be beyond his skills, raising the prospect – still unlikely – that he might someday be tempted to resort to repressive tools.

November 29, 2018

* The author is a long-time Latin America specialist with particularly deep expertise on Colombia.

Colombia: Duque Preparing to Turn the Clock Back

By Christian Wlaschütz *

Uribe and Duque

Former Colombian President Álvaro Uribe (left) and President-elect Iván Duque (right). / Centro Democrático (left), Casa de América (right) / Flickr, modified / Creative Commons

Colombian President-elect Iván Duque is not losing any time fulfilling campaign promises to take steps that will derail the peace process or at least put serious obstacles in its way, which will likely drive dissident FARC guerrillas back into the country’s already troubled rural areas.  Four weeks after his election and three weeks before his inauguration, Duque’s strong coalition in Congress has already passed legislation weakening the special peace courts (JEP) established for peace accord implantation.

  • Anyone who may have speculated that Duque would distance himself from his political godfather, former President Álvaro Uribe Vélez, as did outgoing President Juan Manuel Santos at his time, does not understand the president-elect’s dependence on Uribe. Santos had always belonged to Colombia’s elite and had his own standing, while Duque has no backing on his own.
  • As Duque assembles his first government, observers expect that he will tap into his campaign alliances – including individuals keenly opposed to the peace accords. Among them are Vivian Morales, a leading representative of the Christian churches, and Alejandro Ordóñez, a Catholic conservative and former Inspector General of the Republic (2009-17) who allied with Duque after losing to him in the primaries.  Morales and Ordóñez were among the main figures behind the negative campaign that led to popular rejection of the peace accord in late 2016, arguing that it promoted homosexuality and would weaken the traditional family.

The changing international context makes it easier for Duque to pursue his agenda.  When Santos assumed the presidency in 2010, he had strong support to pursue peace, led by U.S. President Obama and visibly demonstrated by the frequent presence of UN Secretary General Ban Ki-Moon.  He immediately issued the “victims’ law,” admitted that Colombia had an armed conflict, and moderated the violent discourse of his predecessor, Álvaro Uribe.

  • Now the United States has shifted away from international cooperation and reduced its support for “soft” issues. President Trump has signaled priority to rigid counternarcotics and security policies, and not negotiated settlements.  Since Duque’s agenda includes a strong stance against the “Venezuelization of Colombia,” – referring to the emergence of a left-wing authoritarian government allied with Cuba and Venezuela – he is widely believed to be confident of Trump’s support for initiatives against FARC and other members of the Colombian opposition whom he claims are aided by alleged allies in the neighboring country.  The European Union, for its part, is currently completely immersed in internal affairs regarding migration and its own future.  In general, international enthusiasm seems to be suffering from fatigue –undermined by perceptions of Colombia popular rejection of the accords coupled with frustration over the high number of assassinations of social leaders.
  • The number of threats and assassinations of those who either support the political opposition or defend human rights and victims’ rights is simply breathtaking. Colombia’s weekly Semana reports that, in addition to killings related to land restitution, those related to political vendettas are increasing, concluding that the “ghost of political extermination” – similar to that of the Patriotic Union, a leftist party exterminated in the 1980s and 1990s – is back.

Duque’s efforts to weaken the peace process appear likely to advance – to the detriment of Colombian security.  Former FARC combatants will have little incentive to remain demobilized in cities and towns where they have little hope of inclusion in political and economic life, and are likely targets for harassment and assassination.  More likely, they will return to rural areas, which have already been experiencing a resurgence in criminality in the last year, and align themselves with active criminal groups there.  The insecurity and selective killings may lead Colombia towards times that it already seemed to have overcome.  The new president’s coalition of people with a strong resentment against the policies of the last eight years is not likely to take the steps necessary to lead Colombia into a different future, laying the groundwork for more crises, as the United States, EU, and the international community in general stands by.

July 12, 2018

* Christian Wlaschütz is a political scientist, independent mediator, and international consultant who has lived and worked in Colombia, in particular in conflict zones in the fields of transitional justice, reconciliation, and communitarian peace-building.