President Duque raises objections that block the Special Jurisdiction for Peace.
Photo: Juanita Goebertus
Colombia’s peace court, the Special Jurisdiction for Peace – known as the JEP – is facing an uncertain future after President Duque refused to rubber-stamp a legal framework already approved by congress and the constitutional court.
In a controversial move on March 10, the president bounced a bill back to congress for revision, a move that many observers see as a blow to the JEP, which is responsible for delivering transitional justice under the peace agreement.
Describing the pause as an “opportunity to build an institutional consensus around transitional justice’,” the President – who has been a long-term critic of the current peace agreement – used his power of veto to raise six objections to the 159 articles in the new law. Stressing that this is not a “train smash,” he said “we Colombians need a peace that unites us.”
However, Beatriz Gallego, ex-secretary of the government’s chief negotiator Humberto de La Calle, told The Bogotá Post that President Duque’s block risked increased conflict.
“The peace agreement is at stake,” she said. “Even though it is not likely that the ex-commanders of FARC pick up weapons again, there is a high probability that ex-members of FARC will rearm themselves if the conditions change”
“If the already agreed upon conditions change it could be seen as a breach of the agreement and could push ex-FARC members to join dissidents or criminal bands, given that the guarantees given to them would change.”
However former FARC leader Rodrigo Londoño, also known as Timochenko, tweeted that even before the JEP, “we had already committed to the deal in the Havana agreements. That was our path to peace and reconciliation.’ Today the former guerrillas were ‘fighters for peace,” he said
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Frustration
International supporters of the peace deal have signalled their frustration with the president’s move.
In a statement, the UN Mission in Colombia said that it “regrets that, more than two years after the signing of the final agreement, the JEP does not yet have a Statutory Law.”
The UN also expected that the JEP would “receive the political and practical support for its operation from all the authorities of the country,” it said.
“This support will depend, to a large extent, on the rights of the victims being the priority and the centre of peace building.”
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Meanwhile, the constitutional court has said that congress will need to debate the objections.
Political opposition is already fierce. Juanita Goebertus, a member of the House of Representatives, said the government’s objections were an attack on the peace process and ‘decisions already made’ by the constitutional court. Goebertus led a coalition of opposition parties – Partido Verde, Polo Democrático, FARC, MAIS, Movimiento Colombia Humana, and the Coalición Decentes – in a televised response to a president for the first time in Colombian history.
As Lord David Trimble, ex-prime minister of Northern Ireland said, “The most difficult part of a peace process is its implementation.” That’s the hard line that Colombia is now walking.
The six objections
President Duque objected to six of the 159 articles of the statutes governing the workings of the JEP, consequently sending the bill back to Congress and creating political disruption and uncertainty.
Article 7: President Duque believes it needs to clearly state that there would be material reparation to victims.
Article 63: He argues this does not define the scope by which the High Commissioner for Peace can verify membership of former armed groups, thus qualifying for JEP participation.
Article 79: Is not clear enough about when and how JEP cases can be suspended in the normal courts.
Article 19: Allows waiving criminal action for crimes against humanity, which the President argues would constitute impunity.
Article 150: Concerns over unclear extradition processes, which could seriously damage Colombia’s judicial cooperation with other countries.
Article 153: States that the extradition process for individuals can be conditional upon them providing truth about crimes committed during the conflict. President Duque says that this could encourage criminals to infiltrate and seek milder justice under the JEP.
Understanding the JEP
What is the JEP?
JEP stands for Justicia Especial para la Paz – Special Jurisdiction for Peace – and is a mechanism to deliver transitional justice. It is one of the key components of the peace agreement that was signed with the FARC in 2016 and is separate from the regular judicial system. With 51 judges divided between five chambers, the tribunal is responsible for investigating, prosecuting and sentencing those involved in crimes committed during and related to the conflict.
While President Duque has opened a can of worms by sending the legislation back to congress, the tribunal is actually already working. The JEP started hearing cases in March last year. As of today, it has 11,675 people under investigation and 32,000 victims have been identified in the cases already in motion.
One aspect of the JEP – the reason it exists outside of the current legal system – is its ability to apply restorative justice. The JEP has a responsibility to provide truth, justice, reparations, and insure that these crimes don’t occur again. As an independent body it can reduce penalties in exchange for truth and reparation for victims and their families – something that is not possible within the ordinary legal system.
Transitional justice was a major sticking point during the negotiations because the Colombian government did not want to give perpetrators immunity and the FARC did not want to put down their weapons only to be sent to prison.
How does it work?
The basic premise is that defendants must tell the truth and offer reparations to victims throughout the process – if not, they will be sent to the ordinary legal system.
Cases move through the five chambers of the JEP. First it must process and assess whether the crimes come under its jurisdiction. Following that, it will hear the case, decide on whether the defendant should be sentenced and, if so, then sentence them. Penalties should be decided according to the guidelines set by the International Court and the Rome statute.
Who comes under its jurisdiction?
Anyone who has been directly involved in the conflict: Ex-FARC members who have given up their weapons and signed the peace treaty, government employees, members of the armed forces, and individuals that financed or took part in conflict-related crimes. Both the FARC and the Ministry of Defence have submitted lists to the JEP of people who could be tried.
What is at stake?
The JEP underpins the whole concept of transitional justice, which is at the heart of the peace deal. Putting the current legal and political wrangling to one side, there are already issues over funding and a question mark hanging over its jurisdiction over the extradition of former FARC leader Jesús Santrich.
All of which is further hamstrung by recent accusations that one of the JEP prosecutors had accepted a bribe in the Santrich case.
If the JEP cannot function, it will further erode trust in the peace agreement for both the Colombian public and the former guerillas, some of whom have already joined other armed groups.
Colombia could also lose support from the international community that has been giving funds to develop projects for the implementation of the treaty.