In March, at the eleventh hour, Colombian President Ivan Duque declined to sign the piece of legislation that governs the JEP, saying the court operated on terms he couldn’t accept.LUISA GONZALEZ/Reuters
Jaime Castillo left his home in Bogotá one day in 2008 to meet a man about a job. Mr. Castillo was from a poor family displaced to the Colombian capital during the country’s long civil war and he was struggling to keep a roof overhead; he had been told he had the chance at steady work on a plantation in the northeast of the country. But Mr. Castillo, 42, didn’t find a job that day, and he never came home. As his family later pieced together, when he went to the meeting to which he was lured, he was shot in the back by members of the Colombian military; they dressed him in combat fatigues, and photographed his body, presenting it as that of a Marxist guerrilla.
His sister, Jacqueline Castillo, spent months searching frantically after he first disappeared, and then, once she learned he was killed with a group of what are known as “falsos positivos” – civilians executed to boost the apparent success of the military – she turned to a campaign for justice in his murder. “What we want to know is, who gave the order to commit this crime? Whose idea was this?”
When Colombia’s government signed a historic peace deal with the Revolutionary Armed Forces of Colombia (FARC) in 2016, she hoped she might finally get answers about who was responsible for the death of her gentle, broad-shouldered brother.
A key component of the peace deal is a special court, known by its Spanish acronym JEP, for those accused of the most grave crimes of the war. It is one of the most far-reaching experiments in transitional justice in the world to date. But a bit more than a year into the JEP’s operation, Ms. Castillo, and a great many other Colombians, are frustrated by it. She calls it slow, confusing, and too quick to pardon; the true authors of illegal activity by the military are nowhere near its chambers, she is sure. Adding to the court’s woes, it recently became the target of attack for a new right-wing president, the most visible element of a faltering peace process.
“Colombia today is in a moment of enormous uncertainty,” said Catalina Botero, a constitutional law expert and the dean of the law school at the University of the Andes. “Nobody can say what the future of the peace process is.”
The JEP is based on the principle of restorative justice – the accused would have the opportunity to tell the truth about crimes committed during the war years, accept responsibility and take reparative steps designed to help victims – and in exchange avoid prison sentences.
In August last year, Colombians elected a right-wing government, headed by Ivan Duque of the Centro Democratico party, which vehemently opposed the peace deal. Mr. Duque first said he would accept it, given that it was already in process – the FARC had demobilized and begun the process of integrating into Colombian society – but in March, at the eleventh hour, he declined to sign the piece of legislation that governs the JEP, saying the court operated on terms he couldn’t accept.
“When Duque won the presidency, I thought he was in a very tricky position and that he needed to show some people that he made some adjustment to the peace process, but I also thought he was serious enough to understand that it was a huge mistake to undermine the process,” said Rodrigo Uprimny, a jurist who is one of Colombia’s foremost thinkers on transitional justice. “But now I see that, no, he really wants to take the more hard-line stand and destroy the pillars of the peace process. And then what? It’s very difficult to understand.”
Mr. Uprimny worries that Mr. Duque is not just undermining institutions but also creating a climate for renewed violence. While the FARC no longer exists as an entity, there is a risk its leaders could abandon the transitional justice process, he said. “They handed in their weapons in the belief that this is a serious state that is going to implement the peace accord, but now [the government] says ‘No’, they unilaterally change the terms … FARC leaders could claim to have been betrayed and in some sense it is true." If the ex-guerrilla leaders who are now being judged by the JEP were to abandon the process, they could likely rally considerable support, he said. “And we can enter into a new cycle of conflict.” At least 100 former FARC members have been murdered since the demobilization, the most recent a former commander killed last week.
One thing that appears to be driving Mr. Duque is opinion polls: his lacklustre reviews improved markedly when he came out hard against the peace process, appealing to the far right. Refusing to sign the law, he said the JEP as it exists can’t guarantee truth, justice or nonrepetition. But the changes he demanded – that low-ranking FARC fighters, who were already given amnesties, should instead face trials, for example – were all issues that were already settled by the Constitutional Court in 2017.
And even some of the JEP’s sharpest critics believe Mr. Duque is taking a great risk by jeopardizing the court. “You can’t change the rules of the game now – that’s not legal, not ethical,” said Tania Parra, a lawyer who heads a foundation called We Were Heroes that provides legal support to former soldiers. “It’s particularly grave to do this when we are working for reconciliation. I would like to dig out the eyes of the FARC leaders, I could eat them alive. But we’re in a peace process. And this is the deal we have. There have been some hearings where some of the women affected have held out their hand for reconciliation, to offer forgiveness – why would we rupture this process we’ve begun?”
The JEP is divisive because it has the power to pardon those who tell the full truth about their crimes, or give them an alternative sentence that consists not of jail, but of a deprivation of some liberties (such as house arrest) and reparative work – which could include searching for the disappeared or the removal of landmines. (Those who don’t confess, or only partially, but are then found guilty after investigation, will be sent to a regular prison.) Many Colombians are outraged by the idea that guerrilla leaders would avoid lengthy incarceration despite their decades-long practices of recruiting children as fighters, kidnapping, drug-trafficking and laying landmines. Others feared the military, with its close ties to the country’s wealthy landowning elite, would never be held to account for its crimes, such as Mr. Castillo’s murder.
Patricia Linares, the top judge on the court, said that although the legal terrain is complex, she believes the JEP has already made major achievements that move Colombia along the path of “nonrepetition,” one of the ultimate goals. “It’s deeply satisfying, to preside over audiences where [someone] appears and says, ‘I was wrong, I apologize’ and asks forgiveness from the victim’s family,” she said.
Many of those who attack the court, she added in an interview in the JEP’s sterile new offices, do so because they fear what truth may be revealed. “There are certain sectors that seek to weaken the jurisdiction, precisely because it works – we are talking about systemic crimes, and those who [gave orders] from the shadows, and their funders, and these sectors see that the only way to keep that truth from coming out is to prevent the JEP from working.”
Thus far the JEP has made significant advances on kidnappings – with FARC leaders testifying at length about who ordered and maintained the campaigns of kidnapping that terrorized Colombians. The falsos positivos cases – like that of Jaime Castillo – have also seen some progress. Many lower-ranking military officers currently serving sentences for their involvement have come to the JEP to testify about who gave them orders to kill civilians, and been released from detention while their cases are considered.
“The war was a big business with lots of advantages for them,” said Ms. Castillo, who had the task of identifying her brother’s body in a mass grave. "I can’t believe I used to look at the military and believe they kept us safe. Now, if they find the one who gave this order, he could get a sentence of five years – but even if it’s 1,000 years, it doesn’t bring my brother back.”