Adam Isacson

I’ll be hard to contact today. (How to contact me)

I’m in an all-day staff training at WOLA. The family are out of town for 2 days, though, so I hope to get some writing and research done at home tonight.

(Cross-posted from WOLA’s colombiapeace.org blog)

On March 11 Colombian President Iván Duque threw the country’s peace process into semi-paralysis. He formally “objected” to parts of the law underlying the transitional justice system that the accords had set up for judging ex-combatants’ human rights crimes. The “objections,” essentially a line-item veto, sent back to Colombia’s Congress a law that originally passed in November 2017. Today, Colombia’s Senate is to vote on the objections, a major milestone in this labyrinthine process.

Without an underlying “Statutory Law,” the transitional-justice system, the Special Jurisdiction for Peace (JEP), can function but is badly hobbled. The JEP is a special tribunal, developed after 19 months of contentious negotiations between the government and the FARC guerrillas in Havana, to judge those on both sides who have committed war crimes or crimes against humanity. In exchange for full confessions and reparations to victims, the JEP sentences war criminals to up to eight years of “restricted liberty,” not quite prison. This was enough to convince 13,000 FARC guerrillas to demobilize, making the JEP the backbone of the 2016 peace accord. But the perception of leniency has made it unpopular and vulnerable to political attack.

For the 11,000 ex-guerrillas and 1,950 military personnel who have signed up to be tried in the JEP, President Duque’s “objections” cause more delay and more uncertainty. And more uncertainty—even the possibility that the JEP Statutory Law could collapse—raises concern among ex-combatants that they could be imprisoned or even extradited to the United States. That possibility could cause hundreds, or even thousands, of ex-combatants to take up arms again. This is serious.

What happened?

For readers coming to this story late, a bit of chronology is in order.

• The government-FARC peace accord went into effect on December 1, 2016. That set in motion a 12-month countdown in which Colombia’s Congress had “fast track” authority to quickly pass legislation needed to implement the accord. Just before the “fast track” deadline, at the very end of November 2017, Congress finally passed the Statutory Law for the JEP. Legislators added some problematic provisions, but at least the JEP had a legal underpinning.
• The law then passed to Colombia’s highest judicial review body, the Constitutional Court, to assess its constitutionality. In August 2018, the Court signed off on most of the law. In December 2018, the Constitutional Court published its 980-page decision.
• That set off a three-month countdown for President Duque, who took office in August 2018, to sign the bill into law. Just before that deadline, on March 11, Duque sent the Statutory Law back to Congress with objections to six of its 159 articles. They mainly had to do with reparations, the definition of “maximum responsible” war criminals, and extradition procedures.

Duque’s objections drew an outcry from peace accord supporters, both within Colombia and in the international community. Opposition legislators, led by former government peace negotiator Juanita Goebertus, used a newly won “right of rebuttal” to broadcast a video laying out the dangers posed by Duque’s move.

The only international government to support Duque’s actions was the Trump administration, in the person of Ambassador Kevin Whitaker, who went on national radio and met with members of Congress to argue for the objections that would ease extradition to the United States.

What happens now?

The JEP Statutory Law went to Colombia’s Congress, which is charged with voting to accept or reject President Duque’s objections. Colombia’s House and Senate vote separately. As we understand it, there are three possible outcomes:

1. If both houses of Congress uphold Duque’s objections, they go back to the Constitutional Court for review. That Court already approved the law’s provisions after exhaustive review in 2018, so it would be likely to overturn the objections again.
2. If both houses reject the objections, Duque must sign the bill into law as is, which would be a huge political defeat for him.
3. If the two houses of Congress split, it’s not clear what might happen, as this situation has never come up under Colombia’s 1991 constitution. Probably, the six objections would be “archived,” and the law would go to the Court’s review without them. But it’s possible that the whole JEP law could get “archived,” or shut down, which would be disastrous. The Constitutional Court will have to decide.

On April 8, Colombia’s House of Representatives dealt President Duque a blistering defeat, voting 110-44 against his objections, with moderate and centrist parties joining the left. (This owed partly to concern about torpedoing the peace process, and partly to an unwillingness to hand Duque’s party a big political victory six months before nationwide gubernatorial and mayoral elections.) That eliminated option 1 above.

It is now up to the Senate to decide whether option 2 or option 3 will prevail. The vote will probably be closer there, not least because a senator from Duque’s party currently holds the body’s presidency. Analyses in Colombia’s media, though, indicate a majority of senators is likely to reject Duque’s objections, which would preserve the Statutory Law as is and deal an embarrassing blow to Iván Duque.

Duque’s supporters know this, and they have used gambits and delaying tactics to delay the Senate vote. Opposition observers worry that the governing party has been using the extra time making promises of patronage, like party positions in ministries, in order to turn the votes of enough moderate senators to gain a majority.

The vote is scheduled for today, Monday, April 29. Unless there are further delays, by Tuesday we should know whether President Duque’s objections have succeeded in keeping the JEP, and the peace process, in a state of semi-paralysis. This is an important vote.