By placing Colombia’s transitional justice system and the 2016 peace agreement at the centre of one of his first ‘addresses’ last week, President-elect Abelardo de la Espriella signalled what could be one of his government’s first battlegrounds. He described its judicial arm, the Special Jurisdiction for Peace (JEP), as a “court in name only” that “seeks to whitewash the crimes” of the former Revolutionary Armed Forces of Colombia (FARC) and suggested that “criminals have institutions at their disposal”.
He also questioned the fact that Rodrigo Londoño, the rebel group’s last commander-in-chief, who was convicted last year by the JEP of war crimes and crimes against humanity, had been granted permission by the special tribunal to attend a forum in Spain. “That bandit Timochenko deserves to be imprisoned for life. I’m going to work on that,” he said, using Londoño’s nom-de-guerre, before adding that “no apparent formalities can hide the fact that the war crimes and crimes against humanity committed by the FARC leaders remain unpunished”.
Eleven years ago, when he was already a high-profile criminal lawyer, De la Espriella advocated a much more lenient approach than the one established in the peace agreement for those tried as most responsible of atrocious crimes, including allowing them to serve their sentences whilst remaining at liberty. In a book entitled ‘The Legal Way Out of the Negotiation Process with the FARC’, published in 2015 by his legal firm De La Espriella Lawyers Enterprise and which is scarcely in circulation, he put forward proposals that contradict his current positions and would be anathema to his political base today.
In the book, a copy of which lies in the National Library, De la Espriella proposed that those guilty of serious crimes should even serve their sentences outside Colombia. He also argued that the peace agreement should be binding for the entire State, and that organised crime groups stemming from the paramilitaries – known as ‘criminal gangs’ or ‘bacrim’ – should have access to transitional justice measures, given that the Colombian state failed to guarantee them sufficient reintegration measures. This argument is similar to that put forward by outgoing president Gustavo Petro in his ‘total peace’ policy, which involved opening talks with groups such as the Clan del Golfo or the FARC dissidents who walked away from the peace deal.
The president-elect’s ‘legally viable solutions’ to the conflict
In July 2015, when the government’s and the FARC’s negotiating teams had been in talks for three years and had been bogged down over a year in discussions on victims and transitional justice, De la Espriella published a book in which – as the back cover states – he “seeks to contribute, from a legal and judicial perspective, to the resolution of an armed conflict which, in his view, is meaningless”.
In this hardback edition, published by his law firm De la Espriella Lawyers Enterprise, the criminal lawyer developed – in the words of the author of the foreword, the late criminal lawyer Juan Fernández Carrasquilla – “the very assertive thesis that a way forward does indeed exist, without the need to adopt positions of uncompromising criminalisation that could frustrate the process towards peace agreements or, at some point, lead to counterproductive social outcomes”. Moreover, he adds, “it is clear that the model adopted with the FARC-EP would also have to serve for subsequent peace efforts with the ELN”.
Many of the points that De la Espriella now criticises regarding the JEP and the peace agreement signed by Juan Manuel Santos’s government – and even the failed ‘total peace’ policy of Petro – coincide with or resemble ideas that he vehemently defended in a text that today appears to be available only at the National Library, which holds the legal deposit of all books published in the country.
Throughout its 120 pages, the now president-elect argued – at a time when the nature of the Colombian model was still unclear – that “the implementation of transitional justice mechanisms is, within the Colombian framework, an opportunity to realise legal and social benefits that will foster peace and generosity, without compromising the essence of international obligations and human rights”.
To achieve this, he suggested to resort to “both substantive and procedural criminal law provisions that entail a more lenient treatment than the ordinary one”, including “lower sentences, allowing for parole and/or recognising reductions in sentences”.
“The sentence does not necessarily have to be served in a prison”
De la Espriella argued that, whilst there is no place for amnesties for the most serious crimes and the Colombian State has national and international obligations to investigate, prosecute and punish the most serious crimes committed during a 52-year-long armed conflict, there is no international rule dictating what the sentence should be for those who committed them.
It was this legal reality that led the Santos government to introduce the Legal Framework for Peace, which made the negotiations with the FARC in Havana viable, and to agree with the guerrilla group on a transitional justice system focused on those most responsible for these crimes and on ensuring that victims’ rights are upheld.
The logic behind the model currently in place is that, provided these former guerrillas or military officials own up to their role, tell the truth and provide redress to their victims, they may receive a 5-to-8-year sentence of ‘effective restriction of liberty’ – a non-prison setting which must entail a restriction on their rights and movements (a requirement of the agreement which, as Justice Info explained, has not yet been fully implemented by the JEP).
Although he now speaks of “life prisoners”, in his book the new president stated that it need not be prison. “Deprivation of liberty is not the only way to deliver justice,” he wrote. “The sentence does not necessarily have to be served in a prison facility. The convicted person could even serve their sentence whilst remaining at liberty, through work activities that facilitate their reintegration and/or their participation in a social reintegration programme,” he added elsewhere.
But De la Espriella went far beyond the model set out in the peace deal: in his view, it is possible that “the greatest reduction in sentence proposed arises from the serving of the sentence and, in addition, from the possibility of freedom whilst doing so”.
In another passage, he stated that “freedom may operate in the form of a suspended sentence and, in this way, the requirements relating to the investigation, prosecution and punishment of serious crime would be met, given that deprivation of liberty is not the only penalty that can be imposed”.
With greater emphasis, and in bold, he argued that “the possibility of serving the sentence whilst at liberty alters the axiom that the only rehabilitative sentence is one involving deprivation of liberty”.
Contrary to his attack on the JEP over Londoño’s permission to travel to Madrid, in the book published a decade ago De la Espriella proposed that the sentence could even, preferably, be served in a country other than Colombia. “It is proposed that, as part of the alternative sentence, it be served outside the country so that demobilised combatants can learn various trades that will provide them with sources of lawful employment,” he wrote.
In other words, more favourable terms than those agreed in Havana in 2016.
“Telling the truth [and] publicly asking for forgiveness”
De la Espriella, the writer, not only agreed with the possibility of handing down alternative sentences, but also with imposing requirements on perpetrators as a condition for granting them a more lenient sentence – something similar to what the peace agreement calls the ‘conditionality regime’.
“They could be required to fulfil the following obligations in order to access the benefits set out: to tell the truth [and] to ask for forgiveness publicly,” he stated in one section. Public apology, he elaborated in another section, helps “create a collective awareness of the need to ensure that criminal behaviour is not repeated”. He also envisaged a truth commission to gather information on kidnappings and enforced disappearances, which, in his words, would allow for the “recognition of the full, harsh, complex truth, unvarnished”.
The advantage of these conditions, according to him, is clear. “Fulfilment of such obligations would allow victims to feel that their pain is acknowledged, whilst also acting as a preventive mechanism to ensure that what happened doesn’t happen again, as it enables the perpetrator or participant in such acts to become aware of the harm caused,” he wrote.
For members of the FARC, in addition to laying down their arms and demobilising, the now president-elect added other possible conditions, such as handing over all hostages in their custody, providing information on those who may have died whilst in captivity, and releasing minors from their ranks.
The conditions of truth and forgiveness would apply not only to the guerrillas but also to the military. For the latter, De la Espriella proposed a “special regime” whereby “it would be taken into account that offences committed during the conflict could be subject to special treatment”.
In other words, something similar to what was provided for in the peace agreement and is currently being implemented by the JEP, which, in the interests of the principle of symmetry, has indicted 200 former members of the security forces, has declared 3,271 of them not to be most responsible, and has already resolved the legal situation of 605 of them by waiving criminal prosecution. It has granted more than 2,000 of them criminal benefits similar to those afforded to former guerrillas, including conditional release and deprivation of liberty in military units. This is a point on which De la Espriella has not wavered, either as a candidate or as president-elect, but which has historically been a key campaign issue for current political allies like former President Álvaro Uribe and former presidential candidate Paloma Valencia.
Likewise, the JEP sentenced Londoño and FARC's entire former leadership following a three-year investigation which documented 21,396 kidnappings committed by that guerrilla. The seven former members of its Secretariat have acknowledged their responsibility, publicly apologised to their victims and provided information on many of those abductions – conditions necessary for them to receive 5-to-8-year sentences in a non-prison setting, in line with the peace agreement. In total, the JEP has charged a total of 104 former FARC rebels.
It’s true that De la Espriella’s proposal did not envisage a special tribunal operating for 15 years, as is the case with the JEP, but rather this entire process taking place within the ordinary justice system, where criminal lawyers such as himself play a leading role in helping their clients negotiate a lenient sentence in exchange for information or the surrender of assets. In this sense, it more closely resembles the logic of plea bargains, which are common in the US justice system.
In any case, it was a far cry from the vision of life imprisonment for former guerrillas that he now claims to advocate.
“It is important to include incentives for the Bacrim to reintegrate”
A decade ago, De la Espriella proposed not only including guerrillas and military officials who committed crimes within the transitional justice model. He also argued that it should include those who reinvented themselves during the war under new identities, such as the ‘Bacrim’ who left the Justice and Peace transitional mechanism in the mid-2000s to become organised crime groups. In his words, “it’s important to include incentives for the Bacrim to reintegrate”.
In his view, achieving peace involved dismantling the economic structures that perpetuate the conflict and, therefore, “if the general interest is to achieve peace as a way of life, it would not be in line with the principles of equality (…) to exclude any group operating outside the law”. This is why, he wrote, there is a need to “facilitate demobilisation and reintegration without discrimination”.
What is curious is that back then De la Espriella appeared to shift the blame for the Bacrim’s decision to rearm onto the government, for having led reintegration processes which, in his view, had failed. In one section, he described them as “those who, having been members of groups involved in the conflict, found no real mechanisms for reintegration and, as a result, returned to a life of crime”.
In another passage, he stated that “the Colombian State is obliged to adopt measures leading to the dismantling of the illegal armed groups that emerged following the demobilisations carried out under legal frameworks which failed to fulfil the objective of genuine reintegration”. He did not specify which ones.
The paradox is that the idea of blaming the State for the rearmament of the ‘bacrim’ is very similar to the argument Petro has used to justify new rounds of political negotiations with FARC dissidents. Contrary to what has been one of the key pillars of his 2026 campaign – to bring criminal groups to heel – De la Espriella, the lawyer, appeared in 2015 to advocate negotiating with everyone, including those who had betrayed the disarmament process by returning to crime, or who had failed to comply with the transitional justice conditions of the Justice and Peace mechanism.
“The provisions of the peace agreement must be clear and binding for all authorities”
One of the most heated debates surrounding the peace agreement was the decision to give it constitutional force so that it would not be the hallmark of a single government, but rather a state policy to be implemented across successive administrations.
This point – one of the most rejected by political sectors opposed to the agreement – is one that De la Espriella defended most vehemently in his book, published just one year before the referendum in which the ‘no’ vote won by 54,000 votes.
“The need to enshrine the peace agreement means that its provisions must be clear and binding for all authorities; therefore, a provision is required to mandate this,” he wrote. In his view, “legal certainty” would stem from the agreed terms having a “prevalent and non-derogable nature”.
De la Espriella called “responsibility for compliance” what the peace agreement later on termed “legal safeguarding”. In his words, “if the agreement complies with the provisions of international law and establishes the peace that underpins the constitutional order, the obligations arising from its observance must be fulfilled in good faith, without any authority being able to invoke any provision to contravene it”.
Hence, he explained, “the obligation to comply fully with its contents [which] will be binding for all authorities” and “cannot be amended or supplemented”. This way, he argued, “broad or contrary interpretations would be avoided which, in this specific case, would be detrimental to the guarantees of legal stability and reintegration without recurrence”, perhaps alluding to changes made by the Constitutional Court to alternative sentences in the transitional ‘Justice and Peace’ mechanism with the paramilitaries during Álvaro Uribe’s government, which the new president publicly defended. On this point, De la Espriella also goes beyond the peace agreement.
This insistence that “the State is accountable to society as a whole for complying with the provisions of the Constitution [and] the peace agreement” takes on greater significance now that, just like Iván Duque’s government before him, De la Espriella appears to want to water it down.
He used to cite them; now he wants to distance himself from them
More broadly, in his book De la Espriella presented himself as a defender of international law. He frequently cited the Rome Statute that underpins the International Criminal Court, and the rulings of the Inter-American Court of Human Rights or the International Criminal Tribunal for the former Yugoslavia, as well as less binding opinions – known as ‘softlaw’ – such as resolutions of the United Nations Security Council or the UN Committee against Torture.
This would not be surprising coming from a criminal lawyer were it not for the fact that a decade later one of his campaign pledges was to withdraw Colombia from the United Nations and the Organisation of American States’ Inter-American Human Rights System – institutions he described as “left-wing political bodies that have served no purpose whatsoever”. His foreign minister-designate, Omar Bula, has also vociferously put forward dozens of conspiracy theories about the UN’s alleged ‘globalism’ and ‘anti-Western agenda’, or the threat to democracy posed by the Inter-American Commission on Human Rights, which forms part of the Inter-American System and refers cases to the Court.
The greatest paradox is that the 2016 peace agreement meets the standards that De la Espriella envisaged in 2015, but he does not recognise those criteria – that there should be no amnesties for heinous crimes, that the most serious crimes should indeed be investigated, prosecuted and punished, and that sentences may be less severe and non-prison if certain conditions are met – in 2026.
When contacted by telephone and email regarding these contradictions between his positions as president-elect and those set out in his 2015 book, and asked when he had changed his mind on these matters, De la Espriella’s press office did not respond.
With just one week to go before De la Espriella he takes office, it remains unclear what his government’s policy will be on transitional justice and the implementation of the peace agreement. Whilst his nominee for Minister of Justice, Iván Cancino – also a criminal lawyer– nuanced this by saying that “it’s not that we want to abolish the JEP”, the new president has made it a punching bag.
This is a joint investigation by Justice Info, the Latin American Center for Investigative Journalism (CLIP), and La Silla Vacía.
