4-Years after the Peace Deal: Lessons of Transitional Justice from Colombia (Part II)
People protest against the government of President Ivan Duque in Cali, Colombia
I Luis Yobayo (AFP)
By Om Nagle
Part I of this two-part piece addressed the Special Jurisdiction for Peace (JEP); the transitional justice system investigating human-rights abuses during the conflict between the Colombian government and the guerrilla group, FARC. Furthermore, the article looked at the impact of the JEP’s trial on political formulations in Colombia, particularly regarding its effects on the aspirations of the peace deal.
Part II will address the alleged abuse(s) of power by the state and its unwillingness vis-à-vis the reincorporation of ex-FARC combatants into society. Click here to read Part I.
The JEP has also recently announced that it will be investigating and prosecuting state security forces for war crimes. The Colombian state stands accused of allegedly murdering an estimated 6,402 civilians under what is known as the “false-positive scandal”. The scandal refers to when members of Colombia’s armed forces killed unarmed civilians and dressed their corpses in militants’ outfits to meet their kill quotas. This was done in an attempt to give the impression that the state’s offensive mission was successfully winning the war against the FARC. Almost 80% of these crimes were committed between 2002 and 2008 under the Uribe administration who, along with his supporter Uribistas, have heavily criticised the JEP and the peace deal’s reconciliation efforts. If the ruling against the state is as revealing and crushing as the one against the FARC, many decorated generals in the armed forces could be implicated and indicted the same way as the former top FARC commander Timochenko and his fellow defendants were.
Many believe that the anti-FARC offensive led by Uribe’s government, and continued under Duque’s presidency, was beneficial for the country. As such, there has been no constructive effort by state forces to reduce these grave human-rights violations. The New York Times reported that, during May 2019, there was an increase in the practices of the “false-positive scandal” as the army chief had ordered soldiers to double the number of criminals killed, captured, or forced to surrender. Undoubtedly then, the revelations of the JEP’s trial will have a seriously damaging impact on the political legacy of the Uribe administration and of the Centro Democrático Party. Consequently, Uribistas and the country’s social elite have been consistent in their criticism of the JEPand have actively continued to undermine its legitimacy in an attempt to slow down transitional justice. More recently, the United Nations Office of the High Commissioner for Human Rights has taken notice and expressed concern about the “persisting public statements questioning the suitability of the JEP and their staff, and about the legislative proposals to abolish the Special Jurisdiction for Peace” (A/HRC/46/76). Domestically, Senator Juanita Goebertus (Green Alliance Party), along with 14 other opposition senators, revealed the damage being done to the JEP in a detailed report. Consequently, the post-conflict nation has numerous hurdles to overcome while pursuing truth and reconciliation, many of which have been placed there by the state and its machinery.
Ariel Avila, from the Peace and Reconciliation Foundation, has stated that: “As ex guerrilla members, military officers, [politicians], begin to tell the truth, they will inform on those who supported them, those who benefitted from the war, people who, for the most part, are within the scope of legality.” With transitional justice moving forward, theconfessions of ex-combatants and armed forces would expose the real masterminds of the conflict. This would be deeply upsetting for some of the more powerful people - politicians, oligarchs, and landowners - who are threatened by the JEP’s investigations which could reveal their past connections to the repression of trade unionists, peasants, social workers, and civilians under the guise of defeating the FARC. As the JEP investigates, prosecutes, and reveals the truth of the conflict in its attempt at reconciliation, it acts as a serious catalyst in the polarisation of Colombian society.
A result of this fear of investigation can be seen with the rise in the number of deaths of ex-FARC combatants, social leaders, and families of victims. These deaths are a deliberate attempt at silencing and dissuading civil society from testifying and revealing the full extent of the abuses. Even the UN Security Council, despite applauding the peace process, took note of the increased deaths of ex-combatants (SC/14325). Furthermore, social leaders are being left to fill the gaps in the reintegration process – gaps which the state should, ideally, be filling itself. The president of the JEP even claimed that “a social leader is killed every 41 hours.” Most murder cases of ex-combatants or social leaders are not being solved and the Inter-American Commission for Human Rights indicates that most government investigations focus on the “material authors” of the crime, rather than on those who gave the order. HRW states that, because of such state shortcomings, investigations and prosecutions are facing significant hurdles, particularly with regard to the “real authors'' of many killings.
A Netflix Show titled “Distrito Salvaje” dramatizes the struggle of ex-FARC combatants in reintegrating into society. The protagonist, an ex-guerrilla assassin, attempts to rebuild his life and reintegrate into society. The chaotic realities of the city, however, combined with an embarrassing lack of social nets, leads him back into a life of crime and violence. He works within a crime syndicate as an agent of the state and gets tasked with murdering a prosecutor working to reveal corruption within the government. Although highly dramatized, the show manages to encapsulate the lack of effort from the state in effectively reintegrating and protecting ex-FARC combatants.
The ruling elite - comprising the government, Uribistas, and the oligarchy - are targeting the reforms in the rural sector, the voluntary coca eradication campaigns, and the effective reincorporation of ex-combatants. One of the core aspirations of the 2016 peace deal was the reintegration of ex-combatants through the allocation of land in rural areas and through the creation of reincorporation spaces (ETCR). Ex-combatants, however, have yet to receive their own land, which puts their economic stability and the sustainability of their projects at risk. As of August 2019, the validity of the decree that createdreincorporation spaces has expired. Under the obligation of the legislation, the government was supposed to buy and create 24 of those reincorporation spaces for ex-combatants but only ended up creating two ETCRs before the decree’s expiration. By July 2020, 71.3% of ex-combatants were not linked to a productive project disbursed by the national government. The lack of re-education and employment opportunities, combined with the shameless lack of effort from the government in fulfilling its land reform obligations under the peace deal, leaves ex-FARC combatants vulnerable to exploitation and drug trafficking. Some reports have even suggested that up to 1800 ex-combatants have returned to fighting the state or gotten involved with drug cartels. This number exemplifies the Colombian’s state failure at rebuilding a post-conflict state through truth, reconciliation, and reintegration as espoused by the 2016 peace deal.
Yet Colombia’s unique model of transitional justice serves as a larger example for post-conflict states around the world. It is a beacon of hope, where warring parties have shown adequate commitment to resolve and reconcile their differences. Underlying the peace deal and the transitional justice tribunalis the notion that only the truth can heal the country from its bloody past and ensure that these crimes do not occur again. The Special Jurisdiction for Peace (JEP), even with its challenges, has been monumental in uncovering that truth.
Om Nagle is a second-year law student at SOAS, University of London. He is interested in exploring the intersection of law, international affairs and public policy. He thinks that Latin America is often forgotten while studying comparative and post-colonial law.