By: Roberto Porras and Fabian Mendoza

The negotiated peace agreement between the Colombian government and Colombia’s largest guerilla group-the Revolutionary Armed Forces of Colombia-People’s Army (Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo, FARC-EP)has undergone much review in Colombia’s Constitutional Court. Ratification of the Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace (the “Final Agreement”) proved only to be the beginning of a long and drawn-out process towards effective implementation. Political infighting and the COVID-19 pandemic have all obstructed the deal’s implementation. 

Dejusticia has worked to make peace possible in Colombia by supporting both efforts to achieve peace through negotiations and peacebuilding initiatives. One of the ways in which Dejusticia has engaged in supporting the effective implementation of the Colombian peace agreement is through strategic litigation.

Advocacy in favor of extending the Truth Commission’s operating period

Dejusticia, along with several other organizations promoting victim’s rights, submitted a Public Action of Unconstitutionality (a mechanism by which Colombian citizens can challenge the Constitutionality of a law) to the Constitutional Court requesting an extension of the three-year time period for the activities of the Truth Commission established by the Final Agreement to account for disruptions caused by the COVID-19 pandemic. 

The Commission for the Clarification of Truth, Coexistence and Non-repetition (the “Truth Commission”) was designed to provide victims of the armed conflict with their right to truth and identify those parties responsible for human rights abuses. The mandate for the creation of a truth commission, which was established in the peace agreement, was implemented by Congress’ passing of Decree Law 588 of 2017, in which Article 1 and Article 24 established a period of three years for the Commission’s fact-finding activities as well as an additional six-months for the preparation of a final report.

However, the onset of the COVID-19 pandemic resulted in the declaration of a State of Emergency by the Colombian government, greatly impacting the effectiveness of the Commission’s activities. Instead of conducting field visits and face-to-face meetings with witnesses, the Commission was constrained by the limits of working virtually. 

In the action brought before the Constitutional Court, Dejusticia and its partners argued that the Commission only functioned under normal conditions for one year, three months and fourteen days, or about 40% of its prescribed period. This violated both Article 1 and Article 24 of Decree 588 of 2017, which established a three-year operating period for the Truth Commission’s fact-finding activities.

The Constitutional Court agreed with Dejusticia’s arguments and extended the operating period of the Truth Commission by seven months, to June 2022. This decision bolstered the peace process, as it ensured the effectiveness of the Truth Commission’s mission of acknowledging and guaranteeing the rights of victims as well as promoting open dialogue about the facts of the conflict.

The Total Peace Policy at trial

Dejusticia has also contributed to the discussion of the policy of Total Peace, outlined in Law 2272 of 2022. The Total Peace policy aims to completely end the armed conflict in the country through negotiating disarmament with armed factions throughout Colombia, offering amnesties to those who reach agreements while also addressing the root social causes of the conflict. Importantly, this extends the peace process to actors who did not partake in the peace agreement with the FARC.

On March 8, 2023, Colombia´s Constitutional Court began proceedings in a lawsuit initiated by three Colombian Congressman which challenged the constitutionality of Law 2272 of 2022. The action contained four charges disputing the law’s constitutionality. Dejusticia then intervened, submitting a brief that rebutted each charge. 

Three of these four charges were based on procedural grounds. The court dismissed these charges by ruling that there were no procedural irregularities in the process of debating and passing this law.

The substantive charge argued that Law 2272 of 2022 extends the benefits of participation in total peace to individuals who were covered by the Final Agreement with the FARC and subsequently reoffended. The plaintiffs argued that this provision conflicts with point 4.1.3.4 of the Final Agreement, which stipulates a “loss of benefits for recidivists”. Thus, it is in violation of the rights of victims. 

Dejusticia rebutted this charge by asserting that the Final Agreement simply prohibits recidivists from participating in final agreement transitional justice mechanisms such as the JEP and does not prohibit their participation in subsequent programs created by the State.

The case has finished the hearings stage and is currently awaiting a decision. A ruling upholding the constitutionality of the law is vital for affirming the effectiveness of the Total Peace policy. Offering sufficient incentives to armed actors to demobilize is an essential component of any tentative solution aspiring towards a conclusive end to the armed conflict in Colombia.

Amicus curiae in favor of PNIS (National Comprehensive Program for the Substitution of Crops used for Illicit Purposes)

One of the policies in which Dejusticia has expended much advocacy efforts is its submission in favor of the PNIS (National Comprehensive Program for the Substitution of Crops used for Illicit Purposes). PNIS arose out of the Final Agreement and aims to eliminate the production of illicit crops through providing incentives for growers to transition to legal economic activities. Volunteers are guaranteed bi-monthly payments for two years while also receiving funding and assistance for legal economic activities.

For those who choose not to participate in PNIS, the government has continued to use methods of forced eradication, including the use of aerial spraying of chemicals such as glyphosate to eliminate illicit crops. Dejusticia has made multiple interventions aiming to prevent the use of such chemicals in forced eradication programs.

In June 2021, the Constitutional Court consolidated three tutela actions—a legal mechanism for lodging complaints that seek to protect an individual’s fundamental rights—brought by communities in the Pacific region of Nariño, Catatumbo in Norte de Santander, and three municipalities in Cauca. In each of these cases, cultivators of illicit crops had expressed their willingness to participate in the PNIS substitution regime. However, the State did not follow through with the program and even implemented forced eradication measures. 

Dejusticia intervened in the case, taking the position that the government’s failure to comply with their end of the bargain constituted a violation of the Final Agreement, as well as the Constitutional duty to act in Good Faith. Dejusticia argues that the voluntary agreement between cultivators and the government are legal agreements which entail a duty of both sides to comply with their obligations under the agreement, akin to a contract. The organization requested the court to immediately order the suspension of the forced eradication programs, including the use of glyphosate, in the communities that expressed a willingness to participate in the PNIS program as well as assert the government’s responsibility to comply with the program’s provisions. 

The case is currently pending a decision by the Constitutional Court. Several similar cases concerning the government’s failure to comply with their obligations to comply with PNIS have also been brought before the court and are also pending. A successful outcome is vital to the efficacy of the PNIS program and a shift from economic reliance on illegal crop cultivation in marginal regions of Colombia towards legal economic activity based on productive enterprise.

Peace in Colombia: a long road ahead

The Final Agreement has borne fruit in several areas. For instance, the Final Report of the Truth Commission was released in June of 2022, marking an important step in affording victims their right to truth and unraveling the complexities of the armed conflict. However, further efforts are needed to comply with the provisions of the Final Agreement which seek to improve socioeconomic conditions, as this is vital to addressing the key grievances which lie at the root of the conflict. 

On a broader level, Dejusticia’s legal support for the upholding of the peace agreement illustrates the vital role of an organized and alert civil society in ensuring the implementation of policy. This oversight role is among the most important functions of civil society in a democratic system. Holding the government to account ensures that the state will act primarily in the interests of its citizens, rather than parochial interests which only serve a select few.