Asserting his intention to build a peace that unites the country, Colombian president Duque announced on March 10, 2018, his decision not to sign the statutory law aimed at ruling the functioning of the Especial Jurisdiction to Peace (JEP). This judicial body is a mechanism of transitional justice created through the peace agreement signed between the Colombian Government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas in 2016. Its main purpose is to provide justice for victims of the most serious crimes committed in the context of the internal armed conflict, in particular, crimes against humanity, genocide and war crimes. Therefore, the JEP is responsible for delivering criminal justice, while still embedded in a system of transitional justice whose main focus is restorative rather than punitive. This means for the JEP that it must strive to privilege the victims’ right to truth and reparation by inciting the perpetrators to acknowledge their culpability and to repair the victims in exchange for lighter sentences than those they would receive in an ordinary court. From March 15, 2018, when the JEP started its operations until March 2019, it has obtained the commitment of at least 9,699 guerrilla members and 1,973 militaries to appear before it. However, as Duque claimed that six articles of the statutory law were whether violating the rights of the victims or leaving open the door to impunity, it is not surprising that Duque’s refusal to sign the draft law has caused alarm bells to ring.
Thousands of voices who support the peace agreement, including groups of retired militaries, have gathered in social media and public spaces around slogans and hashtags such as #NoEnredenLaPaz (Do not entangle the peace) or #yodefiendolaJEP (I stand with the JEP). According to them, Duque’s position is putting in jeopardy the success of the Peace Accord. Yet, the lack of an own legal framework, resulting from Duque’s decision, does not prevent the JEP from ruling, as it can keep working in the light of relevant case law and the available constitutional rules. Against this background, how can Duque’s politics vis-à-vis the JEP, and especially in regard to the Peace Accord, be interpreted?
There is a shared view among public opinion that a turning back to war with the FARC is unlikely, all the more so given the achievements of the demobilization and disarmament of FARC guerrillas. According to Insight Crime, as of December 2018, more than 13,000 guerrilla members had demobilized. What is certain, though, is that the impact of Duque’s decision resides in its ability to trigger a climate of legal uncertainty in the implementation of the Peace Accord. However, is this effect a random outcome? Or, is it telling of an antagonistic politics aimed at undermining the capabilities of the system of transitional justice to bring about sustainable peace? A closer look at Duque’s politics towards the mechanisms of transitional justice through an intersectional lens of gender, class and location shows that Duque’s antagonistic politics is not so much a move against peace. Rather, he is deploying an antagonistic politics against the transformative dimensions included in the terms of Colombia’s transition to peace set out through the Havana Accord in 2016.
Understanding the Rationale behind Duque’s Flawed Objections
Broadcasted nationally on March 10, Duque’s refusal to sign the draft law did not come out of the blue. Indeed, before Duque’s objections went public, his political godfather and leader of the opposition to the Peace Accord, the hard right-wing ex-president Alvaro Uribe, posted a tweet asserting that the best that Duque could do was to eliminate the JEP. However, the strong signals sent by local actors and the international community allowed some sectors of Colombian public opinion to remain hopeful that the JEP will finally get a legal framework of its own. For instance, the JEP has been incorporated into Colombian law and, insofar as the debate and critiques to the JEP have arisen, the international community and the International Criminal Court (ICC) have immediately reiterated their support to the JEP. The role of the ICC in this debate must be considered through the lens of the principle of positive complementarity through which, briefly speaking, the ICC induces States parties to comply with their obligation to investigate and prosecute crimes domestically (Bjork and Goebertus 2014). This international support added to the role played locally by Colombian Constitutional Court which, after evaluation of the draft law, had already delivered a favorable decision on its constitutionality. Indeed, the Court’s decision took off the table the possibility that Duque could invoke the unconstitutionality of the law as an argument to justify his negative decision. Despite this, Duque did not resist the pressure to meet the expectations of his political godfather, and neither did he lose the opportunity to recapture its hard-line constituency. Finding a way around, Duque opted to refuse approval by challenging six articles of the law. But indeed, these aspects had already been revised by the Constitutional Court. It is therefore, to say the least, clear that Duque has provoked a clash between the executive and the judiciary powers in which, as Rodrigo Uprimny and Juanita Goebertus suggest, the executive power attempts to revive a discussion on issues about which the Constitutional Court has already given its final decision.
Duque’s objections were rejected by the Chamber of Representatives a week ago. But as the decision of the Congress is still pending, the UN Special Representative for Colombia, Carlos Ruiz Massieu, has urged Duque’s Government to move forward in passing a statutory Law for the JEP:
“The Secretary-General has called for prompt action by all concerned to ensure that a Statutory Law consistent with the Peace Agreement is put in place as soon as possible. This Statutory Law is the last missing element of the legal framework for the Special Jurisdiction for Peace and a necessary one to ensure that this institution can operate with the necessary independence and autonomy”UN Special Representative Carlos Ruiz
The chances that Duque’s objections obtain Congress’ approval are few. But it is worth referring to the objection touching on the criterion of prioritization. According to this criterion, the JEP should give priority to the most representative and severe crimes, which is explained by the large number of crimes committed throughout a conflict that has lasted more than half a century. If Duque’s objection is upheld, all the guerrilla fighters should be tried by the JEP, which most likely will result in the overburdening of the transitional justice system and therefore in its collapse. Not surprisingly, it is asserted that Duque’s objections deter guerrilla combatants from demobilizing and seek the failure of the JEP.
The Peace Accord is constitutionally shielded as the Colombian Constitutional Court issued in October 2017 a ruling which states that the next three governments must comply with its implementation. But this does not mean that disagreements over the Peace Accord and its implementation have ceased to exist. During 2017, presidential members of Duque’s political party, the Democratic Center (hereafter DCP), pledged to undercut the Peace Agreement, whereas Duque asserted that once elected he will not destroy but reform it. Once in office, however, Duque has gradually aligned his politics with the practices and discourses of the DCP. I will provide some examples that show how Duque and his Party have specifically targeted institutions and mechanisms of transitional justice performing what could be termed as antagonistic politics against transition to peace.
Submitted to the Congress in September 2018, an initiative prompted by the DCP sought to create a separate tribunal for the militaries, so that they and other members of state security forces did not have to appear before the same court as that of the guerrilla members. Underlying this initiative was the idea spread through social media according to which the peace accords were a means to besmirch the honor of the militaries. In terms of the DCP, the JEP would put national heroes on the same footing as the guerrilla members. Although this attempt failed to win Congressional approval, the amplitude of the debate in public forums and in the media allowed the DCP to pay lip services to their hard-line constituencies, as it made those militaries who support the peace process look as subordinated and kneeled.
Another target of Duque’s administration antagonism against the peace accords has concerned the program of coca substitution and rural development initiatives (PNIs). This program has sought to bridge the social inequality gap between urban and rural territories as well as to tackle the drug trafficking industry, a dangerous mix which has permitted the Colombian armed conflict to persist. The program entails to offer to coca farmers and their families a way out of dependency on coca bush cultivation. Along with granting financial incentives to the families who join the program, the PNIs is linked with development measures such as the building of social and economic infrastructure in the regions that have been most severely affected by the conflict. Viewed as one of the peace agreement’s transformative measures and as a flagship engagement of the Juan Manuel Santos administration, the voluntary substitution of coca crops has provided enhanced opportunities for transitional justice to not only tackle territorial inequalities but to bring about social and gender justice. By 2018, more than 77 thousand families have enrolled in the program and it has allowed the issue of more than 1,065 land titles to small farmers, 44% of whom are women. Such figures speak of the transformative potential of the PNIs to tackle a crucial and historically entrenched marker of gender inequality, specifically women’s access to land. For those populations living in rural drug trafficking areas, the almost only form of governance they have ever known is the alternation in power of armed actors, whether the Colombian army, the paramilitaries or guerrilla groups. Therefore, the PNIs represents as well a chance to bring holistic governance and justice to civilian populations, whose lives have been defined by a patriarchal military rule.
Certainly, however, two main challenges threaten the sustainability of the PNIs. On the one hand, emerging criminal bands (BACRIM) and the National Liberation Army (ELN) are taking over the control of drug trafficking areas formerly controlled by the FARC. But not less concerning is the announcement of the Duque administration to re-integrate forced manual eradication and to resume glyphosate spraying which was banned by the Constitutional Court in 2015. Duque’s securitarian approach against coca farmers has led ex-president Santos to intervene before the Constitutional Court in order to defend the focus on voluntary substitution. Meanwhile, on the ground, thousands of peasants are rallying against the return of glyphosate and the underfunding of the coca crops substitution program by Duque’s government, which as Insight Crime asserts has left “100,000 families in limbo”.
The Democratic Center: Its right-wing Populism and the Danger of its Negationist Discourse
The above examples are illustrative of the ways in which Duque’s politics of peace are undermining social, cultural and economic transformations that the transition to peace was aimed at bringing about. Yet, symbolic mechanisms of transition have not been spared from Duque’s antagonistic politics towards peace. In a move that has been described as an attempt to re-write the history of the conflict, Duque appointed as new director of the Center of Historical Memory (CHM), the researcher and historian Dario Acevedo. Known for his negationist statements about the Colombian armed conflict, Acevedo’s perspective echoes Uribe’s discourse according to which Colombia has faced a terrorist menace and not an armed conflict. Created in 2011 through the Victims’ Law, the CMH has the mission “to investigate and to document the atrocities that took place in the context of the internal armed conflict.” So, as soon as Acevedo was appointed in February 2019, intellectuals’ and victims’ associations quickly manifested their disagreement, raising the question of whether a researcher who negates the armed conflict is the right person to lead the CMH to accomplish its task.
The implications that Acevedo’s negationism might entail in allowing or preventing victims’ right to truth are still uncertain. What is certain, though, is that the construction of memory of the conflict is an aspect in which the political dimension of transitional justice and peacebuilding is more visible. Willing or not, memory is produced through agonistic processes in which there will always be moments of conflict regarding, for instance, the terms of the narration, its time framework, the categories it includes, the voices it allows to speak, as well as the methodologies and means through which memory is produced and represented. The Center of Historical Memory has been recognized for its independence from the government in office but also for its participatory methodologies and for giving room to a plurality of voices. However, according to the members of the Democratic Center, the CMH’s research agenda has until now being oriented by a leftist perspective. In their view, the CMH has given bigger weight to the role of paramilitaries in the conflict while devoting less effort in documenting the violence of the conflict undertook by the guerrillas. Bearing this critique in mind, it is reasonable to be concerned about the politics of memory that Acevedo’s work and the Duque administration are aimed at producing.
In a recent paper published by Peter Verošek on the politics of memory, the author draws attention on a contemporary trend driven by populist regimes which seeks to impose a “glorious national past” by portraying those who contradict this kind of narrative as traitors. Reflecting on Verošek’s work, one cannot help but think about the populist reactions of ex-president Uribe against ex-president Santos. Since 2011, when the Santos government recognized the armed conflict and the victims, thereby paving the way for a dialogue with the FARC, Uribe has slandered Santos labeling him as a traitor. A year later, when Santos engaged in peace talks with the FARC, Uribe expressed his rage by portraying the peace process as a surrender of the country to Castro-Chavism.
Investigating the experience of the victims and survivors is much more than collecting facts about the past. It is about reflecting on the causes and making sense of the violence by locating it in a historical and political frame. Actualizing the right to reparation and guarantees of non-repetition that are due to the victims involves building a perspective of the past in which a plurality of voices are represented and which does not erase local interpretations. It is through this agonistic dialogue that victims and survivors obtain redress and societies might know and address the causes of violence, so as to ensure that it will not happen again. To frame the violence of the conflict, however, in the limited context of a terrorist menace overshadows the violence from its social and political causes, whereas it reduces the experience and suffering of the victims as being the result of madness. The spread of such vision, prompted by Duque’s party, undermines sustainable peace as it ends by delegitimizing the needs and efforts to transform power relations of class, ethnicity, location, gender or political affiliation that the Colombian transitional justice system is called to build up.
Duque’s antagonistic politics towards peace is telling of the political and therefore inherent conflictual condition of peacebuilding and transitional justice. Underlying this condition is the fact that the building of peace implies making choices and transforming relations of power. Duque’s antagonistic politics represents an articulation of interests that contests these transformations. This contestation could be legitimate and should have a place in an agonistic dialogue. But if societies are seriously engaged in achieving sustainable peace, this dialogue should seek the reform and consolidation of peacebuilding rather than to induce the failure and collapse of its mechanisms and institutions.
Sonia Garzon-Ramirez received her PhD in Comparative Gender Studies from Central European University, Budapest. Her area of study includes the intersections between feminist theory, transitional justice, peacebuilding and critical race theory. Her current research focuses on societies of the global South experiencing democratic or post-conflict transitions. It explores questions concerned with how to make transitional justice truly transformative, how to transform resistances to peacebuilding into agnostic relationships, and the nexus between transitional justice, peacebuilding and socio-spatial justice.