By Juan David Laverde Palma, EL ESPECTADOR, August 14, 2021

(Translation by Eunice Gibson, CSN Volunteer Translator)

EL ESPECTADOR is revealing the document that requests a Declaration of an Unconstitutional State of Affairs with regard to the guarantees of security for the former combatants of the now-defunct FARC guerrillas. A harsh diagnosis of the administration’s defaults that are contrary to the Peace Agreement.

With the sun at his back now, in the last year of his term, President Iván Duque and his administration are about to receive one of the worst scoldings of his ragged tenure. The Constitutional Court is studying a report by Justice Cristina Pardo Schlesinger which requests a Declaration of an Unconstitutional State of Affairs in the carrying out of the implementation of the peace process with the now-defunct FARC guerrillas. It is a draft decision that is based on the multiple breaches by the administration in guaranteeing the reincorporation into civilian life of more than 13,000 former combatants who laid down their arms, and of the unceasing count of killings of signers of the Agreement. The Commons Party calculates that there were 270 such victims since December of 2016. It’s a snapshot of the omissions and governmental excuses that, for the Justice, are unacceptable.

EL ESPECTADOR has obtained a copy of the 253-page document that has nerves on edge at the President’s Office. The genesis of the case was a number of civil rights actions that were filed by eight former guerrillas and local managers of the Commons Party with different tribunals in the country. The Court put them together in one single case file. All of the plaintiffs complain of the resurgence of the conflict in their regions, the multiplication of threats and risks to them and their families, and the very precarious progress in the guarantees of their security, personal integrity, and decent conditions to live in peace, as was agreed with the government. That, in good measure, is due to the activities of illegal groups like the ELN, the Clan del Golfo, and the current dissidents from the process; but most of all it’s due to the very limited presence of the Armed Forces and of the government agencies that belong in those territories.

For Justice Pardo Schlesinger, the news about the murder of former FARC combatants that are reincorporated has become part of the landscape, as well as the delayed reaction of the authorities, and their announcements of investigations to the last ditch. The report is emphatic: “That’s why the murder of a single one of these people that signed the Agreement has a disproportionate effect, and it demands immediate and coordinated action by the entire government, because it’s the only way to bring equity to the asymmetry here. We have to keep in mind that they exchanged their demobilization and disarmament, which have already happened, and that those who promised to reincorporate into the social fabric have fulfilled that commitment completely, so the least they can expect is to be able to make that significant transfer with confidence that their lives and personal integrity will be safe and secure.”

According to the document, it’s extremely serious for our democracy that 270 former combatants that signed the Peace Agreement have been murdered, after a process that ended a half-century of war, so that chain of crimes irremediably undermines the confidence that the demobilized can have in the government, which they had battled for so many years.

In addition, Justice Pardo Schlesinger maintains that the response to the covenant they made when they laid down their arms has turned out to be very unequal, as the government had promised to protect them and, citing a report by the JEP, she points out that if the rate of murders were to be continued, it’s possible that by 2024, “there would be around 1,600 cases of murders of the demobilized,” which would equal “12% of all of the former fighters that signed the Peace Agreement.”

In that manner, Justice Pardo Schlesinger captures the words used last April 19 by the President of the Special Jurisdiction for Peace, Eduardo Cifuentes. “When those who are violent silence the defenders of human rights and the former members of the FARC, they are not only doing harm to them and their families. They also deprive our society of an irreplaceable fragment of the truth and a source of reparation, and they affect all of the parties (. . .) The persons involved, existentially and morally transformed, that are trying to carry out their obligations as revitalized individuals, who are or who aspire to be, disposed to reveal all of the truth and to offer reparation, and no repetition, are being intimidated by the killing of their comrades. That’s the way the violent are undertaking an ominous apparatus for the discouragement of contributions to the whole truth.”

From that perspective, the murders are terrorizing people, and sending a paralyzing message to reincorporated former combatants. That puts the Peace Agreement in serious danger, as well as the implementation of a projected society that can turn the page on the deep scars left by the conflict in Colombia. That’s why the purpose of the proposed decision is to put forward the idea that the security of the former combatants does not only consist in furnishing them with security systems, Kevlar vests, cell phones and panic buttons, which is what the National Protection Unit provides, but rather, “This has to do with the creation of institutional, civil, social, cultural, and territorial relationships that permit the people that demobilized to be a real part of the social and community fabric.” And it’s exactly in this situation where the government, in spite of some progress, programs, numbers, and projections continues to break down, and very seriously.

Another characteristic: the wandering justifications by the different government agencies when they are asked for explanations of what is going on. Something that, for Justice Pardo Schlesinger, is absurd, and she emphasizes that in the document. “The omissions in the area of security cannot be justified by giving the reason that the population of demobilized signers of the Agreement usually live in areas where public order is precarious. It’s quite the reverse. The extraordinary circumstances that would result from the adequate accomplishment of the commitments made by the authorities are now an obligation, and, by the way, this is an opportunity for the government to assume some sovereignty, to exercise control, and to be able to expand the totality of its commitments as a government of law in the whole of the national territory.”

That means, according to this draft decision, the administration is out of excuses. What the Armed Forces and the agencies responsible to provide for the safety and security of those who signed the Agreement need to do, and beyond the usual rhetoric, what Justice Pardo Schlesinger proposes, is a complete articulation of the entities that can’t just keep on passing the buck of their responsibility. On the contrary, that line in the Agreement about “a stable and lasting peace” will be a dead letter in the coming years. Furthermore, the dressing down given by the document warns that it is regrettable that the “security component is analyzed and applied only in terms of measuring risk, individual preventive actions, security schemes with vehicles and bodyguards, and not in terms of strategies for consolidating integration into the social fabric.”

According to the extensive study by this Justice of the Constitutional Court, the administration has created a parallel system of agencies that have set aside the entities agreed upon in the Peace Agreement that would have been key for attending to the situations of risk: the High Level Government Instance and the National Commission for the Guarantee of Security, where there is participation by the demobilized persons that signed the Agreement.

That circumstance, in the judgment of Pardo Schlesinger, “generated an institutional confusion that has paved the road for the different agencies failing to take complete responsibility for their actions. That creates a means of invalidating the obligations imposed on the authorities by the regulations, allowing them to ignore their duty to implement the Final Peace Agreement in good faith and in the framework of the principles of comprehensiveness and effectiveness.”

The document uses this tough language: “If the duties they took on had been observed adequately, many of the deplorable events suffered in recent years could have been avoided.” And it adds: “Examination of the elements set forth in the files demonstrated the necessity of adding to the reactive and individual approach to security a preventive, collective, and comprehensive focus to confront the immense challenges that arise in the coordinated implementation of the Final Peace Agreement. It has to be tightly bound to the possibility of assuring the signers—who laid down their weapons—that they can have confidence that their transfer to civilian life will be completed without the anxiety produced by the murders, death threats, pillage, and displacements that, regrettably, they have had to suffer and are still facing.”

The document that the Court is studying en banc now also emphasizes that the government’s efforts have turned out to be significantly inferior to what it agreed to do to assure the protection and the lives of those who, as we have known since Day 1, had an extraordinary level of risk, because the crimes against them have not stopped; nor have the threats or the displacements that have been forced on some of them. And it’s even more serious, as the document notes, because they have never given in or given up, but rather they laid down their weapons and transferred to civilian life, in exchange for the government’s promise to guarantee their lives. “That way, beyond taking weapons out of the hands of those who in the past were combatants, and taking them out of the military, what’s in play here is their genuine political, social, and economic reception and welcome into civilian life.”

Some of the organizations that sent their concepts to the Court, such as the Kroc Institute of  Notre Dame University, insisted that “the greatest difficulties encountered by historical peace processes have taken place during the first five years after the conclusion of the conflict. After those, it’s very hard to maintain sufficient confidence and encouragement to carry the government’s burden of keeping a peace process going. If Colombia desires to turn the page of violence that has impeded its development as a country, it’s in the right moment to double its commitments to what was agreed upon in the Final Peace Agreement,” states the document. It also points out that the administration ought to be building, on an urgent basis, a policy of prevention with a multidimensional focus on the former combatants, on their gender, and their ethnicity.

For Justice Pardo Schlesinger, if the direction of implementation of the process is not corrected, it’s probable that sooner rather than later, we will face a resounding failure of that promise of peace and that the horrifying chapter of the Patriotic Union Party will be republished. That’s why her insistence is not only that the safety of the former combatants must be guaranteed, but also that the government must take back the abandoned territory which, as the administration itself has admitted to the Court, needs a presence different from “the traditional deployment of troops and more troops, and police and more police, because this is about materializing the social administration of law. And that means that, once the war is over, those who reincorporated receive health service, education, and even possibilities for cultural and artistic development in territories that were traditionally scourged by violence.

“Because of that, even though the government shows statistics of compliance, these don’t reflect reality. Every day that goes by, the killings, displacements and threats increase and don’t diminish. This is a huge challenge, but it can’t be postponed and it has to receive all of the administration’s attention. Unfortunately this does not appear to be reflected in what’s happening in this country right now, even if the administration has results to show, those, though more than just a little, in no way can be described as sufficient, given the demands of this context,” concludes the document. Even more so in these times of pandemic, because it’s evident that the pandemic has been a recurring excuse by government agencies for evading their responsibilities. The reports of follow-through for productive projects, housing, or the education and health of the former combatants, though with some progress, continue to be precarious.

The document dedicates another chapter to the performance by the Attorney General’s Office and its Special Investigation Unit for these crimes. Last March, according to the organization’s report, they investigated 245 homicides, 15 disappearances, and 42 attempted murders of former combatants, as well as killing of 50 of their family members. For these actions, they issued 238 arrest warrants, of which only 135 have been executed and, up to December 2020, 32 individuals have been convicted. These numbers were criticized bitterly by the Justice of the Constitutional Court, as she considers that “these results are not what would have been expected,” referring to the arrests and convictions of those responsible for this criminal phenomenon. As Pardo Schlesinger sees it, there have been very few people sentenced, and the institutional presence of the Attorney General’s Office has also been lacking.

“The Special Investigation Unit is made up of 24 prosecutors, 16 analysts, and 47 investigators from the Technical Investigation Team. That has become a serious obstacle to progress in doing investigations with the necessary speed and efficacy,” observed the document, which is in ELESPECTADOR’Spossession. Because of that, it suggests that the Attorney General’s Office change its “case by case” method of investigation to one where the phenomenon can be analyzed from the perspective of macrocriminality. “In that way, the authorities in charge of investigating the motives and determinants of these crimes and threats could observe more clearly the terrifying similarities between the phenomenon of violence against the people that signed the Final Peace Agreement and are in the process of reincorporation to civilian life, and the genocide of political forces like the Patriotic Union Party.”

A final dressing-down was left hanging in the air by the Justice. To her, it remains incredible that the former members of the now-defunct FARC had to resort to a civil rights action to preserve their lives. “The Court must repeat—states the document—that the very fact that a person who signed the Agreement had to file a civil rights action to obtain protection is extremely serious in itself,” because “the signers did not capitulate, they did not surrender, and what they expect is that the government will honor its commitment to facilitate their complete reincorporation into political, social, and economic life, and that in that manner they can redress the inevitable asymmetry that we see in relation to the compliance with the commitments made by both parties.” For Pardo Schlesinger, without structural and urgent measures, such as a Declaration of a State of Unconstitutionality, the slaughter will continue inexorably.

Just as occurred with the emblematic decisions like the Declaration of an Unconstitutional State of Affairs in the case of Colombia’s penitentiaries, or the case of forced displacement, if the Constitutional Court adopts Cristina Pardo Schlesinger’s line of argument, the Duque administration would be in a very difficult situation, not just with the international community, which has been standing behind the peace process, in spite of all of its missteps, but also before a majority of citizens who view this administration with suspicion. The recent Invamer survey, published last Friday by NOTICIASCARACOL, shows that 67.6% of the population disapprove of its management. And that, in a context of a presidential campaign, could have a defining result in the electoral equation for the next occupant of the Presidential Palace. Once more, Peace will be the hobbyhorse in what’s to come.

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