Can Colombia Make Peace with the JEP?

On June 6, 2019, defenders of the Colombian peace accords sighed with relief when President Iván Duque signed the statutory law for the Special Jurisdiction for Peace (Jurisdicción Especial para la Paz, or JEP), the transitional justice body set up by the 2016 peace accords between the country’s government and the FARC. The move came reluctantly: three months prior, Duque presented objections to a handful of articles in the law, which—while not unreasonable—cast doubt on the future of a keystone of the peace accords. Although the JEP’s legal mandate and procedures are now established, some members of Duque’s Centro Democrático (CD) party—particularly Senator Álvaro Uribe, a former president who paved the way for Duque’s election—continue efforts to prevent the JEP from exercising its judicial authority. For Duque, who opposed the peace accords but came to office promising to fine-tune rather than sabotage them, what happens next will be a crucial test of his leadership.

The JEP was established in the November 2016 peace accords, but its precise functions were laid out in a 2017 Statutory Law passed by the Colombian Congress. While the JEP  began its work in March 2018, final approval of the statutory law remained pending. The Constitutional Court approved the law in August 2018. Duque’s televised announcement objecting to 6 of the 159 articles of this law was within his authorities as president, but represented the first time a Colombian president had exercised such authority after the Constitutional Court had already ruled on a law.

The JEP’s primary aim is to uncover and adjudicate serious violations of human rights committed during Colombia’s internal armed conflict, such as kidnapping, torture, extrajudicial executions, sexual violence, forced displacement, and recruitment of minors. Some “political” crimes—such as that of “rebellion” against the state, illegal arms dealing, or other crimes “connected” (conexos) with the conflict —are given a blanket amnesty. Controversially for Colombia’s right-wing—and the United States, the top destination for Colombian cocaine— the crime of narcotrafficking is, although not automatically amnestied, subject to pardon on a case-by-case basis.

So far, the JEP has taken on seven cases: 1) kidnapping by the FARC; 2) the grave human rights situation of the populations of the Tumaco, Ricuardo and Barbacoas in the Nariño region on Colombia’s Pacific coast; 3) deaths illegitimately presented as combat casualties by agents of the state (i.e. “false positives”); 4) the grave human rights situation of populations in municipalities in Antioquia and Choco, also on or near Colombia’s Pacific coast; 5) the grave human rights situation of the populations of municipalities in Cauca, on Colombia’s Pacific coast; 6) the victimization of members of the Patriotic Union (UP) party by agents of the State; and 7) the recruitment of children in the armed conflict.

In terms of meting out punishment, the Tribunal for Peace operates by a loose three-tier grading system, wherein a defendant can mitigate his or her sentence through admitting responsibility and cooperating with the JEP, which in some cases would allow them to serve 5-8 year sentences of undefined “restrictions on liberty” rather than jail time. Importantly, it is not only the FARC guerillas that benefit from the JEP’s light sentencing: right-wing paramilitary and military members who committed atrocities during the conflict can also potentially avoid harsher judgments before the ordinary courts by applying to be judged by the JEP.

This transitional justice scheme is a key component of the 2016 peace accords and it has facilitated the demobilization and confession of thousands of former FARC members. However, it remains a sticking point for those, such as Duque and some of his supporters, who see it as a denial of justice to the victims of the conflict. Particularly controversial is that the masterminds of grave human rights violations—i.e. FARC leadership—will likely receive not only lenient sentencing in return for their cooperation, but seats in the Colombian Congress and Senate as well, despite not receiving nearly enough popular support in 2018 legislative elections to have achieved such representation absent the peace accord.

Duque’s specific objections centered around the concern that JEP’s statutory law was not clear enough regarding the obligation of perpetrators to provide reparations to their victims, as well as a disagreement with the terms of non-extradition and lenient sentencing.

Duque was applauded for his objections by the CD, but received backlash from opposing and independent parties who saw his challenges as a back-door attempt to derail the peace accords as a whole. The international community, despite having acknowledged problems with the JEP law when it was passed in 2017, generally rejected the objections as a productive vehicle for change, supporting the JEP’s stated role as the central juridical body in the Peace Accords. A recently released analysis by the International Commission of Jurists also emphasized the necessity of “consolidating the role of the JEP as the component for justice in the Final Peace Accords.”

The debate over the JEP grew even more polarized as a result of an explosive extradition case which played out in the period between Duque’s presentation of the objections and the ratification of the statutory law. FARC Congressman and former guerilla leader Seuxis Hernandez, nome de guerre Jesús Santrich, was arrested in April 2018 on charges of drug trafficking to the United States, crimes that U.S. officials claimed were carried out after the signing of the November 2016 accords and therefore should not be shielded from extradition. The U.S. insisted that he be extradited and tried before a U.S. court, but in mid-May 2019, after Santrich had been in captivity for 13 months, the JEP ordered that he be freed. Immediately upon release, Santrich was re-arrested by the Attorney General’s office, which claimed that it had received new evidence from U.S. authorities. Santrich was re-released soon after, and Attorney General Nestor Humberto Martinez resigned in protest of the JEP’s decision both to free Santrich and to open an investigation into misconduct by his office and the U.S. Drug Enforcement Administration. Santrich was finally summoned before the Supreme Court, as is customary for cases against members of Congress. For opponents of the JEP, the episode reinforced deep-seated concerns about the perceived privileges and protections the transitional justice mechanism affords to notorious FARC leaders. These concerns only deepened in light of Santrich’s disappearance on the weekend of June 29, which led President Duque to claim that Santrich’s “desire is to elude justice” and renege on his responsibilities before the peace process.

Over the course of three months, Duque’s objections to the JEP statutory law cycled through the Colombian Congress, Senate, and finally the Constitutional Court, all of which rejected them. President Duque responded by stating, “I accept the Constitutional Court’s decision regarding the objections to the JEP, but it is necessary to reflect on the tools that must remain open to correct things that are not going well.” His political godfather Uribe was less willing to concede defeat. Mere hours before Duque was to ratify the Statutory Law, Senator Uribe stated that the JEP ought to be replaced with a special “transitional justice” chamber in Colombia’s Supreme Court. The following day, a newly formed citizen committee called the “Movement for Order and Liberty” submitted a request to collect signatures in order to hold a referendum on keeping the JEP, with the express goal of eliminating it and making other changes to the administration of justice within the peace accords. A few days later, Senator Uribe voiced his support for the Movement.

Whether or not the Movement will collect the necessary signatures—more than 1.8 million over six months–to hold the referendum remains unclear. Either way, President Duque must confront a new test of his leadership rather than put the JEP controversy behind him. Duque has remained silent on the referendum thus far, but now must decide whether to accept the judgment of the Colombian Congress and Constitutional Court and allow the transitional justice process to move forward, or join his mentor Uribe’s continuing efforts to undermine the JEP. After the troubled tenure of Martínez, who squabbled repeatedly with the JEP, Duque’s choice to serve as the new Attorney General, the candidates for which will be presented in the coming weeks, will be an early indication of how he intends to proceed on this pivotal issue.