Colombia: Effective Transitional Justice?

By Ana Isabel Rodríguez Iglesias*

A large open square surrounded by buildings in Colombia

A view of the Colombian Congress building. / Fernando Garcia / Flicr / Creative Commons

Just hours before its “fast-track” authority for such legislation expired, the Colombian Congress in late November approved legislation establishing the Special Jurisdiction for Peace (JEP) with a weaker mandate than envisioned in the peace accord.  It covers only armed combatants – and excludes the civilians who financed the paramilitaries and other irregular forces – and falls short of enshrining the authority of the JEP magistrates.  This outcome was the result of obstructionism not only by the opposition parties led by the Centro Democrático of former President Álvaro Uribe and its Conservative Party allies; current President Juan Manuel Santos’ political partners in Cambio Radical, including leader Germán Vargas Lleras, broke with the government several months ago and made criticism of the peace agreement a centerpiece of the presidential campaign.  After much wrangling, the watered-down proposal for JEP passed on November 29.

  • The Constitutional Court still has to rule on the constitutionality of the new law, but most provisions apparently face no opposition. The Court unanimously approved the law giving Congress the authority to form the JEP and ruled on some sensitive measures.  It confirmed, for example, that members of the FARC could participate in politics without first being judged by the JEP as long as they promise to submit to the tribunal.  The Court also said that the JEP will determine on a case-by-case basis if FARC politicians’ responsibilities are compatible with fulfilment of their sentences.  It left many details, however, to the Tribunal.
  • The most controversial point in the Court’s decision that provided the framework for the Congressional vote is that civilians and state agents outside the armed forces will not be under the JEP’s jurisdiction unless they opt to be (such as when they expect more leniency than from the ordinary judicial system). That includes businessmen and politicians who financed paramilitarism – a provision that the opposition and Cambio Radical fought hard for.  (During legal proceedings involving demobilized paramilitaries under the Justice and Peace Law, former combatants mentioned their civilian sponsors more than 11,000 times.)  Victims and human rights organizations have called the decision an attack on their interests and stated it will bring only more impunity in the post-conflict era.

The Congress also took steps that, on balance, weakened the JEP’s authorities.  It excluded from JEP processes any FARC members accused of sexual crimes against minors.  The ordinary judicial system will have greater difficulty investigating and corroborating facts and, combined with delays and problems with impunity, could very well fail to satisfy the rights of either victims or perpetrators.  Another change made by Congress was to disqualify JEP magistrates who had worked as lawyers on cases involving human rights and armed conflict during the last five years.  Critics claim this article is illegal because it changes the rules of the game months after the magistrates were selected based on specific requirements such as knowledge and professional experience in human rights law.  Even though the Constitutional Court most likely will declare the provision unconstitutional, the fact that Cambio Radical proposed these disqualifications raises the prospect of more tensions in coming months and the continued stigmatization of human rights defenders at time that many face security threats in the country.

Rhetoric during the peace negotiations and subsequent political skirmishes that the victims were front and center in the formation of the JEP is proving to ring hollow.  The JEP starts its mission weakened both by the Constitutional Court and now by Congress.  The magistrates will face strong political pressures, and the exclusion from proceedings of the sponsors of paramilitary violence, which during the war at times surpassed by far that of FARC combatants, already complicates matters.  Ensuring the rights of the victims, providing justice, and determining the appropriate role for former guerrillas in politics and their reincorporation into society will be no easy task.  It will be up to the Colombian people, through popular vote in elections next March, whether a successor government will improve implementation of the peace agreement and the administration of justice, truth, and reparation to the war’s eight million victims.

December 13, 2017

* Ana Isabel Rodríguez Iglesias is a Ph.D. Candidate in International Politics and Conflict Studies at the University of Coimbra (Portugal) and a CLALS Fellow.

Colombia’s Peace Accord and the Prospects of the War System

By Nazih Richani*

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A FARC demobilization zone is visited by the UN Security Council Field Mission. / UK Mission to the UN / Lorey Campese / Flickr / Creative Commons

The Colombian peace accord has achieved another historic landmark, but the process has been anything but easy – and continues to face serious impediments.  The Revolutionary Armed Forces of Colombia (FARC) have deposited 60 percent of their weapons in UN containers to be destroyed, a watershed in the history of Colombia, as the 53-year-old insurgent group enters a new phase.  A coalition of political and social groups, however, continues efforts to stymie implementation of the accord.  It includes large landowners, cattle ranchers, agribusinesses, ultra-right religious groups, and extractive multinational corporations.  Its leading spokesmen are former President Álvaro Uribe and former Attorney General Alejandro Ordóñez, who are spearheading a vigorous campaign arguing that President Juan Manuel Santos and his government conceded too much to the FARC, compromising private property rights, the prevailing land-tenure system, and the country’s Christian values.  (The official line of the Colombian Catholic Church, which has strongly conservative factions, has been “neutral” on the peace accord, although Pope Francis has expressed strong support for it.)

These forces have flexed their muscles before.  They were instrumental in mobilizing opposition to the referendum on the accord last October, which forced the government to incorporate their demands by making the language of the accord clear that property rights and the agribusiness-extractive-rentier economic model remained dominant.  The opposition remains on the offensive, this time using the Public Prosecutor’s Office and the Constitutional Court.  While Public Prosecutor Nestor Humberto Martínez was going after FARC money, alleging that the rebels did not declare all their assets, the Constitutional Court challenged the “Fast-Track” process by which passage of bills related to implementation of the peace accord could be accelerated by reducing the number of parliamentary debates and the time required for approval.  This opened the door for the opposition coalition in parliament to challenge the accord repeatedly with protracted debate and amendments.  Its main goal has been to prevent any change in the rural land tenure system and block the inclusion of the FARC in the political process.

The opponents’ ability to tip the political balance against the accord is likely to grow as Colombia prepares for its presidential election in May 2018.  The Santos government, the left, and center-left have already looked weak while trying to make even modest reforms necessary to create conditions for a lasting peace and facilitating a transition from a war system political economy to a different one.  The paramilitaries, including old groups that remained operative after the formal demobilization of 2005-06 (such as the “Urabeños,” mutated from the former United-Defense Forces, AUC); the drug cartels and organized crime; the dramatic expansion of coca plantations; and mining of dubious legality are important components of the “old” war system that are still potent and fuel the reactionary coalition.  The exit of the FARC (and possibly the National Liberation Army, ELN, as well) are certain to change the composition and political economy of the war system that has shaped Colombia for more than four decades, but new actors (the Urabeños and others) are emerging and mutations are taking place.  These forces will persist and wield considerable power as long as Colombia is not willing or capable of addressing the countrys need for agrarian reforms and pursuing sustainable economic development based on a more equitable distribution of wealth and income.

June 27, 2017

* Nazih Richani is an Associate Professor of Political Science and Director of Latin American Studies at Kean University.  In 2014, the State University of New York Press published a revised and updated version of his 2002 study entitled Systems of Violence: The Political Economy of War and Peace in Colombia.

Colombia: Four More Years for Santos

By Eric Hershberg

Photo Credit: eltiempo.com / Foter / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Photo Credit: eltiempo.com / Foter / Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Incumbent center-right president Juan Manuel Santos emerged triumphant from yesterday’s second round of presidential balloting in Colombia – giving momentum to his peace talks with the FARC and his efforts to continue improving the country’s democracy.  He defeated challenger Oscar Iván Zuluaga, of the rightwing Union of the Democratic Center, which is led by former President Álvaro Uribe, a polarizing figure remembered in Washington as George W. Bush’s favorite Latin American leader.  Santos prevailed by a clear margin of five percentage points, and Colombia’s technically impeccable vote-counting process virtually ensures that the outcome will not be disputed.  The turnout of 2.4 million additional voters yesterday reduced voter abstention from 60 percent in the first round to a still-worrisome 52 percent.  Regional divisions among the electorate were striking: in some areas long plagued by Colombia’s civil conflict, the President won overwhelmingly, and he achieved substantial gains in Bogota, winning a strong majority, thanks in large measure to the endorsement of leading leftist politicians.  By contrast, in the central and southern parts of the country, particularly in Antioquia, the bastion of Uribismo, the opposition candidate garnered nearly two thirds of the vote.

The candidates’ campaigns focused on the polarizing issue of peace talks with the Revolutionary Armed Forces of Colombia (FARC), which Santos launched early in his administration and have proceeded slowly but steadily in Havana.  The President sought a second term in order to complete the negotiations and end a conflict that some estimate has taken more than 200,000 lives and caused devastating human and material damage over the past half century.  By contrast, Zuluaga, taking his cue from his mentor and chief advocate Uribe – who had spent Santos’ first term and virtually all of the campaign vilifying the President as a traitor for having launched the talks – changed approach in the second round and suggested that he, too, sought peace but would impose far more stringent preconditions before talks.  Most commentators viewed his shift as suggesting a return to the Uribe-era policy of crushing the insurgency before speaking with it.  Ironically, polls showed an electorate that was barely interested in the talks and far more concerned with other issues as elsewhere in Latin America: citizen security, unemployment and public services (such as health, education and transportation) were at the forefront of voters’ concerns.  On these fronts the two candidates offered little to distinguish themselves from one another.  Further assessments of the voting data will indicate whether this may account for low voter participation in an election that outsiders perceived as momentous.

While commentary in Washington and abroad has focused on the implications of the election for the peace process, the longer term consequences may lie elsewhere, particularly in the robustness of Colombia’s democratic institutions.  We will never know the extent to which Zuluaga would have been a pawn of Uribe, but suspicions were widespread that he was to the former President as Dmitry Medvedev was to Vladimir Putin.  Thus, beyond potential reversal of the negotiations for peace, a Zuluaga presidency might have entailed a return to authoritarian practices that had undermined Colombia’s democracy under Uribe and that Santos did much to rectify.  Although he is a staunchly establishment figure, Santos has advanced the spirit and letter of the 1991 Constitution, a progressive charter that emphasized separation of powers, rule of law, a strong and accountable judiciary, as well as minority representation and unwavering respect for human rights and accountability for abuses.  Santos also embodied a spirit of reasoned deliberation both at home and in matters abroad.  His pragmatic dealings with the often troublesome regime in neighboring Venezuela have been a far cry from the saber rattling that the rightwing authoritarian populist Uribe directed toward his similarly bombastic leftwing authoritarian counterpart Hugo Chávez.  Four more years of Santos may or may not produce tangible advances on the issues that seem to preoccupy the Colombian electorate – jobs, public safety and services – but they probably will ensure continued strengthening of democratic institutions and continued opportunities for Colombia to join with sensible governments elsewhere in the region to cooperate productively regarding Venezuela and other regional concerns. It may also pave the way towards a lasting peace and some degree of reconciliation for a country long plagued by civil war. 

Colombian President Santos’s Challenges Now … and Later

By Fulton Armstrong
Embed from Getty Images
Colombian polls continue to give President Santos a comfortable margin in a second-round re-election victory, but the gap is closing – and an array of issues plaguing his campaign suggest serious challenges ahead for a second term.  The economy grew 4.3 percent last year, and optimism about future growth is so strong that the central bank is implementing measures to keep inflation under control.  The peace process with the FARC has been tedious – yielding agreements on only two of five main agenda items over 17 months of talks – but the fundamental drivers of the talks, including fatigue on both sides, remain strong.  But a number of political messes are swirling around the President:

  • The Army was caught red-handed spying on Santos’s top advisors in the FARC negotiations, suggesting disloyalty to him as Commander in Chief.  (The intercept center that police last week [6 May] raided was not the Army’s.  It was staffed by contractors reporting to the Centro Democrático, the party of former President Uribe and Santo’s leading rival in the election, Óscar Iván Zuluaga.)
  • Uribe, who in March won a seat in the Colombian Senate, has been a relentless critic and drawn Santos into public spats.  Santos recently called on the former President to “stop causing the country harm” and to stop politicizing the Armed Forces.
  • An agricultural strike launched in late April has revived memories of a nasty confrontation last year and threatens food supplies in the run-up to the election.  Santos has mobilized police and military assets to keep highways open, but a political solution has eluded him.
  • In late April, the courts forced Santos to reinstate Bogotá mayor Gustavo Petro, whom he had removed a month earlier because the nation’s inspector general, an Uribe partisan, found that the mayor’s decision to cancel private garbage-collection contracts did not follow proper procedure.  Santos had gone ahead with the firing over the objections of a unanimous Inter-American Human Rights Commission.
  • Santos’s political message has been off target.  He has made the peace talks his top priority and proclaimed that “the second term will be about peace,” but polls indicate that only 5 percent of voters say the peace process is their top concern.

If the polls are correct, Colombians voting in the first round on May 25 and second round on June 15 feel little enthusiasm for Santos, but even less for Zuluaga and Uribe’s party.  A recent surge in support for former Bogota mayor Enrique Peñalosa suggests, on the other hand, that voters could turn on both candidates.  Behind the numbers is a country eager to consolidate its democracy, maintain stability and – probably – end the 50-year insurgency.  But the red flags – such as the security service’s continued penchant for spying on government officials – are not inconsequential.  Santos, who was Defense Minister during Uribe’s presidency, should have earned the military’s confidence, will have to decide how far to push the military to respect democratically elected civilian leadership.  The farmers’ demands, including relief from low-priced, low-quality imports facilitated by Colombia’s free trade agreements, will also be difficult to satisfy.  A peace deal with the FARC will be an historic achievement, but the political reality is probably that any assistance to demobilized combatants will be minuscule compared to that given to the former paramilitaries – increasing the likelihood that ex-insurgents, like the paramilitaries, will join the bandas criminales (BACRIM) who continue to maraud throughout large swaths of the country.  Santos’s second term, should he win one, will not be easy.

Colombia: President Santos’s Challenges

By Maribel Vasquez

President Santos Calderón / Photo credit: Agência Brasil, Creative Commons

President Santos Calderón / Photo credit: Agência Brasil, Creative Commons License

Colombian President Juan Manuel Santos has yet to announce whether he will seek a second four-year term in May, but with the November deadline fast approaching for him to declare his candidacy, many Colombians are expressing dissatisfaction with his performance. Three years after taking office, and after a protracted honeymoon period, Santos’s approval ratings dropped to a dismal 21 percent several weeks ago. (A more recent poll surged to 41 percent but the rollercoaster ride appears likely to continue.) Colombia has experienced a wave of strikes and protests – perhaps reflecting a phenomenon evident from Brazil to Chile to Peru by which popular sentiment nosedives despite steady economic growth because much of the population is left out and institutions fail to respond to needs. The Santos administration has governed more democratically than his predecessor and shown greater commitment to the rule of law and accountability. Unlike the Clintonian dictum that “It’s the economy, stupid,” Colombia’s long-standing adage has been that “La economía va bien, el país va mal.”

The stalled peace talks between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) are also to blame for Santos’s dwindling public support. On October 13th, the 15th round of negotiations concluded in Havana without visible progress towards an agreement. (Talks are set to resume next week.) The agenda has six major points agreed to by both sides: land reform, political participation, disarmament, illicit drugs, rights of the victims, and implementation of an eventual peace accord. To date, agreement has been reached on only land reform and rural development. A number of thorny issues persist, including the FARC’s demand that a constituent assembly be convened to incorporate the peace deals into the country’s constitution – which the government has rejected.  In the latest development, the government also turned down the FARC’s call to have civil rights activist Reverend Jesse Jackson act as mediator in the release of Kevin Scott Sutay, a former U.S. marine abducted by the FARC earlier this year. Criticism of Santos’s handling of the talks is due in part to perennial public concern that the FARC is stalling the peace talks to regroup and rebuild its capabilities.

President Santos has staked his political legacy on ending Latin America’s longest-running armed conflict. Success or failure of the peace talks will define his presidency for many Colombians, and failure to reach an accord would cast a cloud over his political future. While he has talked tough – saying FARC stalling is wearing out the government and the Colombian people’s patience – President Santos appears in every bit of a hurry to see these negotiations come to a conclusion before the end of the year. Former President Alvaro Uribe and his loyalists in the Centro Democrático (CD) have already blasted what they claim is excessive leniency on the President’s part.  Santos is in a bind: if he rushes the peace talks, he risks making too many concessions and playing into the Uribistas’ hand, while canceling the talks would strip him of the desired distinction of being Colombia’s peace president. The easy road to reelection – effective conclusion of the peace process and greater responsiveness to the country’s widespread malaise – seems remote.  A strong opposition candidate has yet to emerge, however, giving Santos time to rebuild public support. CD frontrunner Francisco Santos’s recent threat to leave the party hints at a split within Uribismo.  The failure of an organized opposition may be the only advantage Santos has at the moment.