With the triumph of Iván Duque in yesterday’s presidential election runoff, the main question for Colombia lies in the future of the peace process signed by the government and the guerrilla movement Fuerzas Armadas Revolucionarias de Colombia (FARC). Although members of his party, Centro Democrático (CD), which is led by ex-president Alvaro Uribe, had in the past promised to “shred the deal to pieces,” Duque retreated from such extreme threats in recent weeks. Now that Duque has won the presidency, a closer look at the changes he has proposed and a mapping of the biggest vulnerabilities to the agreement signed in November 2016 illustrates the stakes.
The Apocalyptic Options
One possibility is that the new government decides to attack the peace process in a visible and damaging way. The two most likely routes are either to convene a constitutional assembly or to call for a referendum.
CD has been flirting with the idea of convening a constituent assembly for a while, and while Duque recently repeated that he thinks it would be inconvenient to do so, his party might decide to revive this option. A constituent assembly would be the ideal way for the Uribista coalition to push back on the issues they lost in Congress—such as gay marriage and the elimination of the presidential reelection—and an opportunity to design a constitution which is much less progressive than the one approved in 1991. With the high degree of polarization in Colombia, convening an assembly is a very worrisome option.
The second option is a referendum, which is something the CD has already started working on. On October 17, 2017, the voting authorities authorized a request introduced by three CD congressmen to begin collecting signatures that would allow for the repeal, via referendum, of three legislative acts related to the peace agreement that were approved in Congress. Repealing the three legislative acts would be a fatal blow to the peace process, as this would go straight to the core of the agreement. It seems, however, that the CD has (for now) decided not to pursue this, as there are no traces of the type of serious campaign they would have to conduct in order to collect the two million signatures needed to start this process. But it remains a possible future option.
Another less confrontational route is that Duque will focus on those areas where changes can be undone via regular legislative procedures. These changes would be in three critical areas: the transitional justice system; questions on how the FARC leadership will serve their sentences and how it conflicts with their political participation; and the question of illicit drugs.
The Transitional Justice System
For those set on undoing significant parts of the agreement, the focus will likely be on the Special Jurisdiction for Peace (JEP, for its Spanish acronym). A Duque government will look to weaken the JEP by removing the military out of its jurisdiction. The CD has argued against the equivalency of crimes the military might have committed in the course of the war while trying to fulfill their duties to defend the motherland, with those committed by the FARC, who they see as mere criminals, not political actors. The CD has also questioned the impartiality of some of the judges chosen for the JEP, given that some of the magistrates have worked with human rights organizations. According to the uribismo, they can’t “guarantee that the members of the security forces will receive a fair and impartial judging,” rendering the JEP unsuitable to judge them.
In fact, the opposition in Congress has already tried to curtail the work of the JEP by creating some limitations on who could be a judge. For example, those who in the last five years have been legal advisers in cases related to the armed conflict or those who have brought suits in international human rights courts against the Colombian state, or have advised those who have done so, are barred. This has meant that, when President Santos oversaw the oath ceremony for judges earlier this year, eight of the chosen judges couldn’t join their colleagues, as they are waiting for a decision from the Constitutional Court regarding the legality of these restrictions.
Restrictions on Liberty and Political participation
One of the central arguments of the opposition campaigning for the “no vote” in the referendum of October 2016 was that the peace agreement and the FARC allowed for impunity. The agreement calls for a model of restorative justice where those who are guilty of international crimes and serious human rights violations would present themselves to the JEP and, in exchange for telling the truth, would receive alternative sentences and “effective restriction of their liberty.” A central point of contention with the opposition, then, is not only the length of the sentences the FARC might receive, but where and how any “restrictions” are applied.
The FARC were clear during the negotiation process in Havana that they would not accept regular jail terms, and while that is not spelled out as such in the agreement, it has become a widely-agreed condition. During the negotiation stage between the government and the opposition leadership after the “no vote” won the referendum, the idea that FARC members could serve their sentences in what have been called “agricultural colonies,” which would be safeguarded by the national penitentiary organ, INPEC, surfaced. This idea, which was put on the table by then conservative presidential pre-candidate Martha Lucía Ramírez, has not been formally incorporated in any guideline, but remains a referent of what the opposition could agree to as a minimum standard.
There is a particularly complicated issue here; namely that, because of the delays in the creation of the JEP, the FARC members that will occupy the 10 seats reserved for them in Congress by the accord will not have stood before the transitional justice body before doing so. This will likely result in a few challenges. The JEP will have to decide on sentencing guidelines that could result in obstacles for the FARC representatives in Congress to be present in Bogotá. If the idea of the “agricultural colony” remains the baseline that the opposition is willing to accept, the interpretation of the “effective restriction of their liberty” will interfere with the FARC’s participation in politics, given that they would need to be based in Bogotá to do that. Because the FARC chose several of their most well-known leaders—some members of their secretariat, and those likely responsible for serious crimes during the conflict—to fill some of the seats assigned to them, this means that new people would need to be found to replace them. It seems unlikely that the FARC Secretariat would agree to these conditions, which, they would argue, go against the spirit of what was signed in Havana. The CD could, in fact, even demand that the political participation of the FARC is conditioned upon the completion of their sentencing, as some families of the FARC’s victims, among others, have demanded. If this happened, the future of the FARC as a political party would be seriously undermined.
In the course of the civil war in Colombia, there have been extensive discussions on whether drug trafficking should be understood as what is known as “delito conexo,” i.e., a regular crime that is judged as a political crime because it is committed for the purposes of supporting a rebellion. This is of crucial importance because the amnesty law approved by Congress included “political crimes” as well as connected offenses. Ivan Duque has promised that “we will prohibit, through the constitution, the understanding of drug trafficking as a political connected crime. Drug trafficking will not be subject to amnesty.” The legal repercussions of this move are not yet clear. On the one hand, a constitutional reform of this kind would take several months and, more importantly, it would not be applied retroactively. That means that those who were part of guerrilla movements in the past, and trafficked drugs to sustain those rebel movements, could not be judged now for these actions. It is possible, then, that Duque’s proposal is simply political posturing during a presidential campaign. However, the legal insecurity that this statement brings to the process could be a serious threat to the implementation of the agreement.
The other proposal that has been central to the Duque campaign is that illicit drug crop eradication should be compulsory, and not voluntary. The fourth point of the final agreement focuses on finding a solution to the problem of illicit drugs in Colombia. The agreement promotes the voluntary substitution of crops and the socio-economic transformation of the affected areas. One of the principle challenges on this issue has been the clash between voluntary substitution and forced eradication strategies. Forced eradication is taking place in many territories where communities have also signed voluntary substitution agreements. The two approaches are supposed to be complementary— communities subscribe to the voluntary programs and forced eradication is reserved for large-scale plantations controlled by illicit drug-trafficking groups and for farmers who refused to participate in the crop substitution programs. But there is no clear differentiation, and forced eradication has moved forward at a faster pace—in part because of US pressure—without giving enough time for the voluntary programs to take shape. This has increased social protest in these communities, and tensions with the state.
Furthermore, many social leaders who have been trying to implement the voluntary eradication programs have been murdered by organized crime organizations, who are trying to sabotage these processes at any price. Duque’s proposal to eliminate voluntary substitution programs would break with the spirit of the agreement and make already vulnerable populations more susceptible to violence. The Colombian government has implemented forced eradication for decades, which has fueled violence and had a limited impact on the size of drug markets.
The Quiet Option
Finally, another possible strategy to disrupt the peace process could be further slowing down the implementation measures that are already proceeding at an alarmingly slow pace, or to not put forward in Congress the bills required to move forward with sections of the agreement which have been barely implemented, such as rural reform. While this would not bring the same political gain with core supporters as other options, it would result in less confrontation, both with national actors who defend the process and with the international community.
While there is no way to know for certain which strategies the Duque administration will follow, these are issues he has put on the table as possible actions, and it is likely that Colombians who support the peace process will have to actively mobilize to defend against them. Gustavo Petro, from his seat in Congress as head of the opposition, will be an important figure that could galvanize the pro-peace parliamentarians to fight against efforts to undo the ground that has already been broken, and even accelerate the implementation process. Civil society—both national actors, but also very importantly, local peace activists—will have an important role to play. Finally, the international community will have to continue to be an ally of peace. The support of the United Nations and other international actors was central to the successful culmination of the Havana negotiations, and is needed now in order to strengthen implementation efforts.
Renata Segura is the Associate Director of the Conflict Prevention and Peace Forum of the Social Science Research Council.