Constitutional implications of Colombia’s judicialized peace process

Because of efforts to constitutionalize and insulate the ultimate accord from ordinary politics, the Colombian peace process has been marked by a high level of judicialization, with the Constitutional Court intervening at key moments. The Court’s central role provides needed guidance and limitation but raises significant risks, offering crucial lessons for other peace processes – writes Professor Landau.

On 23 June 2016, Colombian President Juan Manuel Santos announced the definitive ceasefire and disarmament in peace talks with the FARC, Colombia’s largest guerrilla group. As the culmination of a drawn-out process but with much work still ahead, this moment offers an ideal time to take stock of the Colombian peace process in comparative perspective.

Ever since President Santos announced, in 2011, that he would pursue peace with guerilla groups and an end to the country’s long-running internal civil conflict, one of the most striking features has been the substantial involvement of the Constitutional Court. Indeed, Colombia offers us a chance to learn from a highly judicialized peace process, an event often seen as paradigmatically political. To gain a full picture, one must trace the legal contours of the peace process from its origins up to the present.

The Constitutional Court, which is perhaps one of the most powerful domestic tribunals in the world, has based its interventions on two doctrines. The first, the “constitutional block,” holds that the Colombian constitution of 1991 incorporates major parts of international law, such as human rights law and international humanitarian law. This doctrine has a textual basis (primarily in article 93), but the Court has used an aggressive thread of this text and has often relied on international norms to strike down and interpret domestic law.

The second, the substitution of the constitution doctrine, allows the Court to strike down even constitutional amendments when they “substitute” rather than merely amending core constitutional principles.  This Colombian variant of the unconstitutional constitutional amendment doctrine was used most famously to block a proposed amendment that would have allowed then-President Alvaro Uribe to seek a third term in 2010, but the Court has become increasingly aggressive in deploying it in less dramatic circumstances – most recently to strike down constitutional changes to the governance structure of the judiciary.

The result of these two doctrines, in conjunction with Colombia’s open standing rules where any citizen can challenge any law or constitutional amendment, has enabled opponents of the peace process within Colombia to frame serious challenges to many legal aspects of that process. Moreover, the Court’s own doctrines have developed in order to limit fundamental exercises of political power and tether the domestic legal order to international law, leading it to examine these challenges carefully.

The constitutional implications of the peace process   

In 2012, the Congress passed Santos’s package of constitutional amendments called “The Legal Framework for Peace.” These reforms set out a transitional justice regime by adding several transitional constitutional provisions to the text. The core provisions contemplated a range of judicial and non-judicial institutions, including a Truth and Reconciliation Commission. Most controversially, the amendments gave the Congress and the state ample power to select and prioritize the criminal prosecution of “top-level actors” who had committed the worst crimes such as genocide, crimes against humanity, and war crimes. Other actors might not face criminal prosecution if they cooperated with the peace process, and even the “top-level actors” carrying out the most serious crimes might receive alternative punishments or reduced sentences in return for their cooperation. The amendments also gave Congress significant discretion in labelling crimes as “political” and thus in avoiding a standard sanction for convicted criminals – loss of political rights.

Those constitutional changes were designed in part to pass muster under the “constitutional block” jurisprudence of the Court, which had been aggressive in striking down prior legal enactments touching on the internal armed conflict if they were inconsistent with the principles of international humanitarian law and international human rights law. And as is well known, those bodies of law limit the ability of states to amnesty the gravest violations of their precepts. The constitutional changes potentially fell afoul of these limits, particularly because they only required criminal punishment for “top-level actors” involved even in the most serious crimes.

However, in two decisions in 2013 and 2014, the Court upheld these constitutional changes against charges that they substituted the existing constitutional order. It did so after President Santos himself attended a public audience for the Court and argued that the Framework represented a “historic opportunity” that should be upheld. The Court acknowledged that there is a fundamental constitutional principle of respect for human rights, which requires the state to investigate and punish gross violations of international human rights and international humanitarian law. But it held that the amendments were consistent with that duty. The Court emphasized the massive nature of the violations, which demanded a reasonable system of prioritization. And it viewed the overall scheme’s flexibility as consistent with transitional justice regimes used elsewhere.

Once issued, the Court’s decision offered guidance to political actors involved in the peace negotiations – they suggested that the state had broad, if not unlimited, discretion even in the sensitive area of criminal punishment for violations of international law. The Santos administration began negotiating with the FARC, Colombia’s largest guerrilla group, in 2012. Over the next four years, the parties reached agreement on a broad range of questions. They agreed, for example, on frameworks for the cease-fire and laying down of arms, the recognition and reparation of victims, measures to discourage the legacies of paramilitary groups still operating in the country, and more far-flung but significant measures such as land reform.

A particularly sensitive issue, once again, was the regime of criminal punishment. The finalized accords will apparently create a special system of courts, the Special Justice Regime for Peace (JEP). These agreements require criminal punishment for the worst criminal offenders who committed grave violations of international human rights or international humanitarian law. Other actors need not be subject to criminal punishment. However, these “worst” offenders will face greatly reduced criminal sentences if they confess their crimes and cooperate with the peace process. Further, there is some discretion to give them alternative punishments that involve “effective deprivation of liberty,” but not necessarily imprisonment in a strict sense. Moreover, the accords have generally preserved rights of political participation for former FARC members. Under the agreements, special transitional measures will be taken to give the FARC representation in Congress for a period of time.

This accord has set off a second major round of legal and constitutional changes in order to ensure its implementation. On the one hand, these measures contemplate a wide range of extraordinary measures, which work around ordinary political mechanisms, and are intended to implement the measures rapidly and insulate them from politics. On the other hand, the Court again is certain to play a protagonist’s role. 

Thus, Congress passed a law contemplating a plebiscite on which the public will vote “yes” or “no” on the peace accords as a whole. The law states that the plebiscite will be approved if more than 13 percent of registered voters vote yes, and if the yes votes outnumber the no votes, which are slightly different rules from those used in normal referendums. Moreover, the law states that the plebiscite result will be “binding for constitutional and legal development” and on all state officials.

This law was automatically sent to the Constitutional Court for review. In July 2016, the Court upheld the plebiscite but placed some conditions on it, stating for example that the agreement would not be automatically incorporated into the constitution or law if approved and that the result would only be binding on the president and not on other state authorities. The law requires that the peace agreement, the definitive version of which still has not been made public, be made available through various media 30 days before the plebiscite. The plan is thus to have the agreement made public soon and the vote held within the next several months.

In June 2016, the Congress also passed new “temporary” constitutional amendments. The amendments created a special, expedited congressional procedure for approval of the agreement itself and laws related to it. They also gave the president sweeping powers to issue decrees with the force of law in order to implement aspects of the accord. Both of these measures are also subject to special procedures for challenge before the Constitutional Court. Finally, and most controversially, the amendments make the peace agreement with the FARC, once approved by plebiscite and implemented, a “special agreement” for purposes of common article 3 of the Geneva Conventions and state that it is automatically incorporated into the “constitutional block.”

These extraordinary measures are carefully designed to create certainty that the agreement will be enforced, while insulating it from political challenge. However, it is virtually assured that the Court will continue to play a key role in judging the peace process. First, the new amendments themselves can be challenged as substitutions of the constitution. Second, the agreement, laws, and decree-laws will all be subject to legal challenge. In responding to these challenges, the Court will surely have to wrestle with the provision making the agreement a “special agreement” and placing it in the constitutional block.  There are presumably limits of some kind on the content of international agreements that can be given constitutional status.  And the peace agreement, if placed in the constitutional block, will need to be interpreted along with many other provisions of international humanitarian law and human rights law that have been given that status. The “special agreement” provision of the Geneva Conventions will also need to be interpreted in light of Colombian and international law. In short, there is much work for the Court ahead.

Concluding remarks

The experience of Colombia may help illustrate both the risks and potential benefits of a highly judicialized peace process. On the one hand, the Court in issuing all of these decisions was facing an extremely difficult and politically charged choice. If it were to strike any of these measures down, particularly the ones stemming directly from the FARC agreement, it would imperil a delicate process and potentially cause grave social and political consequences. But if it were to make its existing doctrines excessively flexible in response to this political pressure, it could risk its achievements in strengthening the rule of law, constitutional values, and the increasingly robust legal nexus between domestic and international law in Colombia. It is reasonable to question whether either risk is too high, and if so asking whether the peace process would have been better off with less judicial oversight.

On the other hand, the Court’s interventions have helped to provide credible limits and guidance to key actors. While it has been flexible in interpreting those limits, it has maintained that there are lines involving the most serious crimes that the state cannot cross even in a transitional justice regime. The FARC agreement appears cognizant of those limits, although it may test them in some respects. More broadly, the Court’s constitutional block jurisprudence has forced the political system to recognize the rights of victims, a discourse that has become ubiquitous in politics and during the peace process. Finally, the Court’s decision on the plebiscite may be forcing political actors to understand that transitional justice is not an excuse for them to throw away the constitutional rules, and that they instead must synthesize the ordinary and the extraordinary.

For my money, the positive aspects of judicial guidance have outweighed its significant risks. But we may need to wait some years until we can take full measure of the judicialized Colombian peace process.

David Landau is Mason Ladd Professor and Associate Dean for International Programs at Florida State University College of Law. He is also a founding editor of I·CONnect, the blog of the International Journal of Constitutional Law.