The Failure of the JEP to Restore Peace in Colombia

 The 2016 Colombian peace accord has failed to restore harmony to a deeply divided country. The Special Jurisdiction of Peace (JEP), the central restorative judicial apparatus stemming from the agreement, has further exacerbated the agreement’s most glaring obvious flaws. Although achieving peace in a war-torn country is a universally lauded goal, how much should a peace agreement be willing to sacrifice a country’s future to amend for its past grievances?

The Revolutionary Armed Forces of the Colombia-People’s Army — also known as the FARC— is a former paramilitary organization turned political party in Colombia. Before signing a 2016 peace deal that reintegrated FARC members into everyday life, the FARC was at the forefront of one of the bloodiest internal conflicts in South American history. The fifty-year struggle between the Colombian people and the FARC killed over 200,000 civilians.1 In addition to the bloodshed, the conflict damaged Colombia’s international reputation as the decades-long insurgency terrified prospective travelers and investors from entering the country. To address the instability, the 2016 peace accord notably established the Special Jurisdiction of Peace (JEP), a transitional body of justice which has ultimately failed to restore peace to Colombia.  

Following a handful of botched attempts, the Colombian government, under the former President Juan Manuel Santos, officially ended the conflict in 2016 by agreeing to a peace deal calling for the disarmament of all FARC members and their peaceful reintegration into civil society. Although the accord was lauded as a monumental success by western democracies like the United States, a retrospective analysis paints a less rosy picture. Since 2016, thousands of ex-FARC members (also known as guerrilleros) struggling to reintegrate back to civil society have opted to return to the lives as paramilitary insurgents.2 The current Colombian administration, led by President Ivan Duque, is partly to blame for encouraging these acts of rebellion. The central government has done a poor job in allocating sufficient resources to see through some of the promises set in the accord such as building better roads in rural towns heavily affected by the conflict. Much of government’s recalcitrant approach to implementing its provisions stems from the creation of the JEP, a judicial apparatus tasked with delivering peace and ‘justice’ to the victims of the conflict. 

Under its original mandate, the JEP was created to “[clarify] and [establish] individual criminal responsibilities for the most serious and representative crimes committed during the Colombian armed conflict and [resolve] the legal situation of all those appearing.”3 It aims to follow a tradition of restorative justice, which can be traced back to South Africa’s Truth and Reconciliation Committee (TRC). The TRC was an organization that sought to provide justice to apartheid victims by not punishing offenders with harsh prison sentences. Instead, the court presented them with amnesty in exchange for a genuine acknowledgment of their past crimes. In line with the ideals propagated by the TRC, the JEP provides ex-guerrilla members and members of Colombia’s Armed Forces with a platform to speak candidly about their crimes in exchange for amnesty. 

There is, however, a caveat to receiving absolution from the JEP. According to the guidelines set by the International Criminal Court (ICC), which Colombia agreed to follow, criminals who have committed crimes against humanity — defined by the ICC as “…acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” — are not allowed amnesty.4 Four years into the accord, the JEP has not adhered to these guidelines. Despite overwhelming evidence of ex-guerrilleros and army officials committing acts of rape, murder, and torture — all of which the ICC considers to be crimes against humanity — Colombia’s revered judicial institution has been mute, refusing to present formal punishment against any of these individuals.5 With the JEP in charge of restoring justice to a disjointed country, it is inevitable that victim’s lingering questions will continue to go unresolved.

The most egregious oversight by the JEP has been its handling of Jesus Santrich, a nefarious ex-FARC commander. In 2019, the JEP shielded Santrich from extradition to the United States despite overwhelming evidence suggesting his involvement in an international drug trafficking scheme. Despite the JEP’s protection, Santrich fled Colombian to Venezuela where he posted a video both denouncing the peace accord and announcing his return to the armed struggle as a guerrillero. 6 The JEP appears to be more concerned in abetting criminals than getting confessions. The court’s supporters defend its’ alarming track record by highlighting its’ main objective as originally laid out in 2016: To restore justice to the victims of the armed conflict, not to harass and imprison ex-guerrilleros, many of whom were simply following their leaders’ commands. Moreover, they fear that extraditing the likes of Santrich to the United States would scare off future guerrilleros looking to stand trial. 

Although a system that encourages ex-guerrilleros to stand trial is crucial to instill a sense of peace for the victims of the conflict, it should not override Colombia’s higher promise to punish those who violate basic human rights. Even the TRC, the gold standard for restorative justice, rejected thousands of offenders who applied for amnesty.7 Not prosecuting crimes against humanity would also set a dangerous precedent for likeminded paramilitary organizations. For example, if guerilla groups like the ELN assume that the government will gift them a lenient JEP-like institution to prosecute their organization’s crimes, the ELN will be incentivized to intentionally instigate violence. 

Adding worse to wear, the Colombian people rejected the peace accord, and by extension the JEP, when asked to vote on it in 2016. In a shocking upset, 51% of Colombians voted against the peace accord’s ratification, commonly citing the lack of punishment for offenders as one of the central reasons for why they voted for the NO side.8  Despite the NO’s opposition victory, Santos did not budge. Instead, he trumped the will of the Colombian people by insignificantly altering the document’s fine print to save face before eventually bulldozing it through a pro-peace Congress. 

The JEP’s shortcomings go beyond how it handles prosecuting ex-FARC members for their crimes. For ordinary Colombian officials and soldiers, admission into the court system is voluntary. It is up to an individual’s own conscious to stand trial. It seems highly unlikely that many soldiers will voluntarily admit to committing atrocious crimes in the name of some amorphous concept of justice. 

Everyday Colombians would be more willing to embrace a flawed judicial organization like the JEP if the accord’s other provisions — such as reducing the number of coca plants — were being implemented.9  However, the JEP does not operate in a vacuum and its flaws are further accentuated alongside the accord’s numerous other deficiencies. Ultimately, if the JEP is unwilling to dole out substantive punishments for war criminals while simultaneously not forcing military members to stand an honest trial, it risks following many of the deal’s other stipulations into the graveyard — a common sight for many Colombians.  

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1 Associated Press Bogota, “Colombian conflict has killed 220,000 in 55 years, commission finds,” The Guardian (25 July 2013).

2 John Otis, “Many of Colombia's Ex-Rebel Fighters Rearm and Turn to Illegal Drug Trade,” NPR (19 May 2020).

3 “Misión, visión y objetivos,” Jurisdicción Especial Para La Paz (2016). https://www.jep.gov.co/JEP/Paginas/Mision-vision-objetivos.aspx.

4 “Rome Statue of the International Criminal Court,” The International Criminal Court (16 January 2001), at 3-7. 

5 “For Enduring Peace, Colombia Must Protect Advocates for Rights and Prosecute War Crimes,” American Bar Association (9 April 2019). https://www.americanbar.org/groups/human_rights/reports/ColombiaPeaceAccords/.

6 “Jesús Santrich reaparece en un video con la nueva guerrilla,” El Heraldo (9 September 2019).  

7 “Amnesty Hearings & Decisions,” Truth Reconciliation Committee 2001). https://www.justice.gov.za/trc/amntrans/index.htm. 

8 “Por qué ganó el No,” Semana (10 February 2016). 

9 The Associated Press, “US report: Colombia coca production still at record high,” WTOP News (5 March 2020).