-
1 Introduction
In a context of both hope and uncertainty as a result of the freshly concluded Final Peace Agreement (FPA) between the Colombian government and the FARC-EP,1x The Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP)), a Colombian guerrilla group, were founded in the 1960s. the Colombia-based restorative justice expert Annette Pearson contributed to the 2017 Notes from the Field section of this journal. Her text affirmed the important milestone for peace-making in the country and discussed the preconditions for a more robust and victim-centred transitional justice framework. She did so by looking back at the trajectory of transitional justice as well as restorative justice in the ordinary justice system in Colombia and by exploring relevant developments in the transitional justice academic and practitioner scene. Her text concluded with recommendations for making the ambitious new restorative transitional justice project work, to the ‘transformative benefit’ of the Colombian society as a whole. Her analysis and reflections were responded to by Felipe Gómez Isa in the same Notes from the Field who, in overall terms, shared her positive outlook on the restorative setup of the new Colombian transitional justice framework as defined by 2016 FPA, but she also warned of challenges and stumbling blocks vis-à-vis its implementation (Gómez Isa, 2017; Pearson, 2017).
Meanwhile, and as a concrete result of the 2016 FPA, a three-pillared Comprehensive System for Justice, Truth, Reparations and Non-Repetition (from now on, Comprehensive System) was created and consolidated by a Legislative Act within the Colombian Constitution (01/2017). The present publication will mainly focus on one of its three pillars: the Special Jurisdiction for Peace (SJP). The SJP is an independent judicial body created to investigate, clarify, prosecute and punish the most serious crimes committed over the longer than 50 years of armed conflict in Colombia, before 1 December 2016. However, the partial intersections with the other two pillars of the Comprehensive System, the Commission for the Clarification of Truth, Social Cohesion and Non-Repetition, and the Unit for Searching Persons Reported as Disappeared in the Context of the Armed Conflict will also be considered.2x See https://www.jep.gov.co/DocumentosJEPWP/3SIVJRNR_ES.pdf; www.youtube.com/watch?v=AEWZgYlJ57o; www.youtube.com/watch?v=q1f4WhyBv4w (all last accessed 23 May 2023) for the ‘Comprehensive System’ (Sistema Integral para la Verdad, Justicia, Reparación y No-Repetición (SIVJNR)) and its three pillars: the Special Jurisdiction for Peace (SJP; Justicia Especial para la Paz); the Unit for Searching Persons Reported as Missing in the Context of the Armed Conflict (Unidad de Búsqueda para Personas Dadas por Desaparecidas en el Contexto y en Razón del Conflicto Armado); the Commission for the Clarification of Truth, Social Cohesion and Non-Repetition (Comisión para el Esclarecimento de la Verdad, Convivencia y No-Repetición Civil).
In this first part of the Notes from the Field, the conceptual and contextual developments in the past five years will be reviewed. Accordingly, Greve and Vega will assess whether previous recommendations, such as the ones made in the 2017 publication of Pearson and Gómez Isa, were considered or responded to in the implementation process of the SJP so far. Thereby, light will be shed on the significant contextual – institutional, judicial, political and societal – developments since the inauguration of the SJP in 2018. Furthermore, the authors will highlight which lessons, including those from the previous transitional justice processes in the country, have been learned (and incorporated). All of this will highlight the achievements reached, the challenges that persist and the drawbacks and unexpected (‘collateral’) innovative outputs and impacts of the implementation of a transitional justice framework.
In the following three parts of this Notes from the Field, various Colombian practitioners – experts working for or associated with the SJP – will share their experience-based assessments and views of the implementation process of the SJP. They will also provide perspectives for the way forward for restorative (transitional) justice in Colombia. -
2 The Colombian transitional justice context: polarisation and varying expectations
Researchers and practitioners alike have emphasised the fact that there is no single model of transitional justice (Vega, 2018) and that the design of a transitional justice framework requires taking contextual characteristics and needs into consideration to lead to positive, sustainable results.
Building on this, over a decade ago, Clamp and Doak (2012) underlined the peace-consolidating capacity of restorative justice in transitional contexts. However, they also alerted the research and practitioner community to the risk of restorative justice becoming a victim of its own success and meaningless if ‘co-opted and construed in so many different ways’. It is therefore useful to assess if and how this risk has been addressed or mitigated since.
The case of Colombia – a country on a winding road towards peace that has, since 2005, institutionalised and implemented various transitional justice schemes – is therefore of utmost interest, also internationally, for both practitioners and academics. It is being followed with great attention, and in the past years there has been significant academic output regarding its setup and process and the first steps taken (see Ambos & Peters, 2022; Castro, Martínez & Quijano, 2022; Corporación Excelencia en la Justicia, 2021; Institute for Integrated Transitions, 2019; Sánchez & Parra, 2018).
The 2016 FPA posed a historically outstanding opportunity to take transitional justice to the next level via the creation of the Comprehensive System, including the SJP. The leap forward taken by the current Colombian transitional justice model consists of the integration of restorative justice into its core. The implementation of the latter has already produced important information on the degree of restoration possible within a transitional justice framework for a specific post-conflict context. Yet, the case of Colombia, while outstanding, continues to be fragile.
When the FPA was developed, transitional justice frameworks from other countries were referred to; however, the complexity posed by Colombia’s post-conflict context required a unique and tailored approach. Spanning over fifty years, the violent conflict in Colombia has been the longest-lasting in Latin America and one of the most protracted worldwide (Centro Nacional de Memoria Histórica, 2013).
The sheer number of crimes against humanity and serious violations of human rights committed by paramilitary and different guerrilla groups as well as public security forces are harrowing: more than 9 million people have been recognised as victims and included in the Unified Registry of Victims in Colombia.3x The people recognised as victims and included in the Unified Registry of Victims (Registro Único de Víctimas) in Colombia are, on the one hand, almost 2 million people corresponding to deceased victims or direct victims of forced disappearance or homicide, and, on the other hand, a little more than 7 million people corresponding to surviving victims who meet the requirements to access the measures of attention and reparation established by Law 1448/2011. See https://www.unidadvictimas.gov.co/es/registro-unico-de-victimas-ruv/37394 (last accessed 23 May 2023). Among this universe of victims, there are millions who were forcefully internally displaced or exiled; over 1 million lost their lives, tens of thousands forcefully disappeared (Torrella Llauger, 2022: 1); the natural habitat of Indigenous and other ethnic groups, such as the Palenque, was partially destroyed (Cote & Vega, 2022); sexual violence occurred thousands of times; the rights of thousands of children and youth were severely violated by forced recruitment to armed groups; and the negative impact on mental health and on trust between different groups of society and especially between communities and State institutions is unquantifiable. Due to social, political and economic factors and ethnic differences, these crimes impacted different groups in different ways. Furthermore, the severe atrocities which conflict actors perpetrated over decades caused ruptures of social ties and breaches of trust. This led, according to Sánchez Gómez, to a perception of diversity and disagreement as ‘dissociation factors’ and not as organic parts of any (democratic) society (Sánchez Gómez, 2021).
As both Pearson and Gómez Isa highlighted in their 2017 contributions, this challenging pretext for the Final Peace Agreement was met with the engagement of different civil society groups and, therein, victims’ representatives who claimed justice and dignity (Gómez Isa, 2017; Pearson, 2017).
The justice-claiming movement drew from the significant capacities of national transitional justice practitioners, peace-building experts and courageous civil society leaders. Moreover, strong international interest from multilateral and regional organisations assisted the Colombian peace process and its new transitional justice framework. All of these supportive factors contributed significantly to advancing the final negotiation steps and to adjustments of the conceptualisation of this framework so that potential risks or neglected aspects were mitigated.
Subsequently, the FPA between the Colombian government and the guerrilla groups FARC-EP sought to not only put an end to violence but also trigger transformative changes to overcome some of the deeply rooted causes for violence in the country. Sánchez Gómez regards the recognition of the historical and social reasons for the armed conflict and their resolution, as well as a political and institutional commitment to democratic transformation, as preconditions to safeguarding Colombia’s demanding peace efforts (Sánchez Gómez, 2021).
Before its signature in 2016, the FPA had been submitted for endorsement through a plebiscite. The results – with a significant percentage of votes against the envisaged Agreement – reflected a highly polarised social context and the (political) instrumentalisation of fears in parts of society regarding the risk of impunity and the potential political role of former guerrilla leaders.
The FPA was concluded with six points related to rural reform, political participation, illicit drugs policies, ceasefire, disarmament and demobilisation, victims’ rights as well as the implementation and verification process.4x See complete FPA document here: https://peacemaker.un.org/sites/peacemaker.un.org/files/Colombia%20Nuevo%20Acuerdo%20Final%2024%20Nov%202016_0.pdf (last accessed 23 January 2023). The fifth point of the FPA, which concerned the rights of the victims, provided the basis for the establishment of the Comprehensive System. The SJP is the judicial component of this system and mandated to investigate and punish the crimes committed in the context of the armed conflict before 1 December 20165x The SJP has a mandate of fifteen years, extendable for another five years, to administer transitional justice and determine atrocities committed in the context of the armed conflict by former combatants of the FARC-EP, members of the State’s military, State officials, and third parties such as civilians (see https://www.jep.gov.co/ServicioAlCiudadano/Paginas/preguntas.aspx) (last accessed 23 May 2023). (Arts. 8 and 9 Law 1957/2019).
The Constitutional Court of Colombia has played a very important role in the understanding and development of the SJP and the entire Comprehensive System, especially via its landmark ruling C-080 of 2018. The latter presents one of the most important decisions for the implementation of transitional justice in the country, inter alia because it declared restorative justice as the guiding paradigm of the SJP with a central place in all the jurisdiction proceedings.
Accordingly, Colombia is currently a relevant example for challenges that can arise or be avoided regarding the aim to establish peace and guarantee the rights of victims to truth, justice and reparation, as well as to comply with the penal obligations vis-à-vis grave violations of human rights and international humanitarian law during the armed conflict (Comisión Colombiana de Juristas, 2019). -
3 Gradual steps towards restorative transitional justice
Transitional justice has, in Colombia and elsewhere, experienced several changes over time. The first transitional justice processes focused on judging and punishing those responsible for serious human rights violations that constituted war crimes or crimes against humanity; that is, it consisted of a retributive approach (Teitel, 2003). However, in recent decades, transitional processes in certain contexts have given way to the incorporation of restorative measures to address crimes that occurred during periods of mass violence. In other words, transitional justice has begun to opt for more holistic strategies, with both retributive and restorative components (Roccatello & Rojas, 2020). This demands a rethinking of the functions of punishment in transitional scenarios (Hernández & Vega, 2021) and recognising that a purely retributive approach neglects trust-building, reconciliation or a meaningful participation of victims throughout the process. By contrast, the integration of restorative justice into a transitional justice framework supports the creation of dialogical linkages between victims, perpetrators and society with the aim to advance on relevant aspects for non-repetition. With the engagement of civil society, it also supports the legitimisation of the difficult transition processes away from armed conflict and helps overcome a culture of impunity (Abuchaibe, Gómez-Suárez & Umaña Hernández, 2018).6x See also de Gamboa Tapias (2020), Bogotá (2020), Doak and O’Mahony (2012). Additionally, since the State alone cannot provide for stable and lasting peace and national reconciliation, restorative justice takes into consideration that perpetrators of mass atrocities need to be held accountable effectively and contributes to guaranteeing the rights and dignification of victims (Ospina, Linares & Leyke, 2019).
In Colombia, the idea of interlinking retributive and restorative transitional justice, that is, the integration of restorative justice into the SJP framework, was a result of lessons learned within the country as well as a reflection of the ‘Zeitgeist’ of international transitional justice practice and research which reflected ‘the potential of restorative justice for the reconstruction of social fabric and trust in institutions … without being a remedy for everything’ (Abuchaibe et al., 2018). Such potential as well as the need to ensure victims’ reparation to advance reconciliation and to make the process more participatory (Torrado, 2018) have been gradually acknowledged and reflected in the Colombian transitional justice developments.7x In the Colombian case, restorative justice has been integrated not only into transitional justice but also into ordinary justice. The most important regulatory advances for restorative justice in the framework of ordinary justice are in the current Code of Criminal Procedure, Law 906/2004 (Arts. 518-527) and the current Code for Children and Adolescents, Law 1098/2006 (Arts. 140 and 178). However, while restorative justice has been laid out normatively, its conceptual and practical implementation is dragging on. The retributive and punitive and even exclusionary and discriminatory elements of a justice system dating back to colonial times still cause stumbling blocks for a restorative ‘breakthrough’ of Colombia’s response to crime in general (see Arias, 2019). Yet, there have been significant initiatives and programmes which focussed on the implementation of restorative justice. One example is the District Programme for Restorative Juvenile Justice in Bogotá, which since 2016 provides a space for young people in conflict with the law to take responsibility for their acts, make restitution to victims and reintegrate into society (see Velasco, 2020). Another example is the Restorative Justice Pilot Programme, which was developed in 2018 in the District Prison of Bogotá and, supported by the Procurator General’s Office, provided awareness-raising workshops on restorative justice, especially to prison officials (see Hernández & Vega, 2021).
However, a more comprehensive approach came with the challenging requirement for accountable institutions to generate legitimate truth-finding, to thoroughly investigate and prosecute and to provide reparations as well as protection for vulnerable groups of the population, such as Indigenous groups, Afro-Colombians and peasants.
The centrality of victims within the SJP calls for a strong institutional setup, which represents a major difference from the earlier transitional justice scheme in Colombia, the ‘Justice and Peace Law’ (Law 975/2005), which had been created in the context of the demobilisation process of the paramilitary umbrella organisation AUC.8x The Autodefensas Unidas de Colombia (AUC) had tens of thousands of members who, over many years, committed mass atrocities throughout Colombia (see on the trajectory of the group: Ronderos, 2014). While the ‘Justice and Peace Law’ had conceptually envisaged a reparation system for victims and had a limited retribution focus, a meaningful participation of victims in the process was not fulfilled throughout the implementation process. This let to severe frustrations of victims and their families or communities and to a loss of trust in transitional justice institutions. Many victims felt deprived of their rights and felt that the outcomes failed their hopes for reparation and truth. Notable among the flaws was also the lack of protection measures and psychosocial support for female victims of sexual violence by paramilitary groups, which hindered their participation in the hearings and failed to protect them from revictimisation (Rähme, 2018).9x See also Montealegre, Bautista, Castaño, Betancur Marín & Jaramillo Burgo (2011).
Additionally, the SJP took into consideration the recent developments with respect to the implementation of the administrative reparation scheme as introduced by the so-called Victims Law of 2011 (Law 1448/2011). The Victims Law provides the legal basis for material and symbolic victim reparation, both individually and collectively. The law requires a consultative process with the victims concerned and therefore invites increased victim participation in shaping the forms of reparation. However, it did not have a transformative impact, as it was not accompanied by a responsibilisation of the perpetrators or an engagement of the wider Colombian society (with the exemption of communities concerned by collective reparation efforts) (Sandoval Villalba et al., 2021).
Accordingly, both the Colombian ‘Justice and Peace Law’ and the subsequent ‘Victims Law’ did not meet the requirements of the TARR model.10x The TARR model was originally developed by Parmentier to assess the restorative basis of transitional justice. See, inter alia, Parmentier and Weitekamp (2007). On the limitations of reparations in the context of the Justice and Peace Law (Ley Justicia y Paz), see de Gamboa Tapias (2020). This model is set on four pillars (Truth, Accountability, Reparation, Reconciliation [TARR]) which are interdependent and interconnected by judicial and nonjudicial measures and imply dialogical and participatory processes with the stakeholders, namely, the victims and the perpetrators.
The conceptualisation of the SJP drew from these lessons while also ensuring that the obligations of Colombia as a signatory party to the Rome Statute are met. The latter requires the investigation and sanctioning of severe violations of human rights and international humanitarian law, crimes that are not reflected in the Colombian penal code. Therefore, the SJP framework incorporates both retributive and restorative elements, as well as provisions relating to amnesty (Ambos & Cote, 2019) for the comparecientes – individuals, nationals or foreigners to 'appear' in court – who have committed or have allegedly participated in criminal conduct related to the armed conflict, directly or indirectly.
The Colombian ‘Amnesty Law’, Law 1820/2016, regulates amnesty and pardons for political crimes and related crimes, with a differentiated treatment for State agents who committed crimes in the context of the armed conflict. According to Article 15 of this law, de jure amnesty applies to the political crimes of ‘rebellion’, ‘sedition’, ‘uprising’, ‘conspiracy’ and ‘seduction, usurpation and illegal retention of command’.11x Examples of offences considered connected to political crimes are illegal constraint, unlawful violation of communications or illicit use of communications networks (see Art. 16 of Law 1820/2016). The list has been declared non-exhaustive, and the Amnesty and Pardon Chamber of the SJP may consider other conducts according to the criteria established by law. It also outlines those conducts that cannot be subject to amnesty and pardon under any circumstances (Art. 23): crimes against humanity, genocide, war crimes, or other serious deprivation of liberty, torture, extrajudicial executions, forced disappearance, violent carnal access and other forms of sexual violence, child abduction, forced displacement and the recruitment of minors (Ambos & Schellenberger, 2021).
Since its establishment in 2018, the SJP has received pertinent information from three corresponding State institutions12x These institutions are the Attorney General’s Office of the Nation (Fiscalía General de la Nación), the Procurator General’s Office of the Nation (Procuraduría General de la Nación) and the Ombudsman Office (Defensoría del Pueblo). as well as hundreds of reports from the victims of atrocities that were committed in the context of the conflict between the Colombian State and the FARC-EP guerrilla before December 2016. Several national and international institutions and organisations supported victims and communities in the reporting process, which entailed a cumbersome gathering of supporting documents and testimonials. Such collaboration proved important given the severe impacts on the mental health of victims and community members who were involved in the development of the respective reports (Vega, 2020). After a systematic analysis of the information received, the SJP opened different so-called macro-cases, that is, umbrella cases, which bundle the most emblematic crimes that were committed by ex-combatants of the FARC-EP, members of the security forces, other State agents and civilian third parties during the armed conflict. The SJP facilitated this ‘bundling’, or rather, the systematisation of emblematic crimes, in accordance with previously established prioritisation criteria and methodology.13x JEP: Criterios y metodologías de priorización de casos y situaciones, 2018 (https://www.jep.gov.co/Documents/CriteriosYMetodologiaDePriorizacion.pdf) (last accessed 23 May 2023). This approach allows for a judicial investigation, the respective accreditation of and participation by the victims in hearings related to those macro-cases, and for sanctioning – despite the sheer total number of crimes. By now (May 2023), ten macro-cases14x Macro-case 01: Illegal detentions of individuals by the FARC; Macro-case 02: Territorial situation of the Tumaco, Ricaurte and Barbacoas Municipalities (Nariño); Macro-case 03: Deaths illegitimately presented as combat casualties by agents of the State; Macro-case 04: Territorial situation in the Urabá Region; Macro-case 05: Territorial situation of the Northern Cauca and Southern Cauca Valley regions; Macro-case 06: Victimisation of Patriotic Union (UP) Members by the Colombian Armed Forces; Macro-case 07: Recruitment of children in the context of the armed conflict; Macro-case 08: Crimes committed by the security forces, or by State agents in association with paramilitary groups, or civilian third parties in the armed conflict; Macro-case 09: Crimes for which no amnesty can be granted, committed against ethnic peoples and territories in the context of the armed conflict; Macro-case 10: Crimes for which no amnesty can be granted, committed by the extinct FARC-EP in the context of the armed conflict. Macro-cases 01, 03, 06, 07 refer to specific crimes; macro-cases 02, 04, 05 address crimes that occurred in certain geographic territories; macro-cases 08, 09 and 10 are ‘umbrella’ cases (see https://www.jep.gov.co/Paginas/casos.aspx) (last accessed 23 May 2023). have been established by the SJP. They are being investigated, and persons with the highest level of responsibility are being sanctioned accordingly.
For this objective, the SJP consists of three Chambers of Justice and the Tribunal for Peace.15x For the SJP structure, see https://www.jep.gov.co/Paginas/organigrama.aspx (last accessed 23 May 2023). The Chambers of Justice are the Chamber for Amnesty or Pardon,16x Law 1957/2019, Arts. 81 and 82. the Chamber for the Definition of Legal Situations,17x Law 1957/2019, Art. 84. and the Chamber for the Recognition of Truth, Responsibility and Determination of Facts and Conduct.18x Law 1957/2019, Arts. 79 and 80. The Tribunal for Peace is subdivided into five sections: the First Instance Section for Cases of Acknowledgment of Truth and Responsibility,19x Law 1957/2019, Art. 92. the First Instance Section for Cases of Absence of Acknowledgment of Truth and Responsibility,20x Law 1957/2019, Art. 93. the Revision Section,21x Law 1957/2019, Art. 97. the Appeals Section,22x Law 1957/2019, Art. 96. and the Section for Stability and Effectiveness of Resolutions and Judgments.23x Law 1957/2019, Art. 91. The SJP also has an Investigation and Indictment Unit which exercises judicial police functions in support of the work of the Chambers and Sections, as well as the investigation and indictment of those persons considered most responsible for serious and representative crimes and who do not acknowledge responsibility.24x Law 1957/2019, Arts. 111 and 112. There is also an Executive Secretariat, which is in charge of the administrative management and support of victims and comparecientes.25x Law 1957/2019, Arts. 86-89. Finally, there is an Information Analysis Group that carries out analysis as well as identifies and characterises patterns of criminal conduct which occurred within the context of the Colombian armed conflict.26x Agreement 001 of 2 March 2020, which adopts the General Regulations of the SJP. -
4 The SJP as a hybrid transitional justice model
Considering the above, it can be affirmed that the setup of the SJP is the result of a balancing act between feasibility, normative ambitions, retributive and restorative elements, ‘differential’ (ethnic- and gender-sensitive) methodologies and legal obligations (universal jurisdiction). The role of the SJP is to fill the respective concepts with meaning, especially via the different judicial decisions during its implementation process. The ‘hybrid’ model of the SJP, with retributive and restorative elements, allows for the
resolution of both the judicial conflict (re-establishment of the normative order) and social conflict (interpersonal relationships) by promoting the resocialisation of the offender (positive specific prevention) and the reparation of the direct victim (positive general prevention). (Mayans-Hermida & Holá, 2023: 16)
The ‘hybridity’ is reflected in the following elements of the SJP.
4.1 The types of procedures
The SJP contemplates two types of procedures: the procedure in case of recognition of truth and responsibility (Law 1922/2918, Arts. 27-33) and the procedure in case of absence of recognition of truth and responsibility (Law 1922/2018, Arts. 34-44).
The combination of a retributive and restorative approach is reflected in the procedure in case of acknowledgment of truth and responsibility by the comparecientes. It has four requirements: first, the acknowledgment of responsibility for the crimes imputed by the Chamber for the Acknowledgment of Truth, Responsibility and the Determination of Facts and Conduct; second, the perpetrator’s commitment to contribute to the satisfaction of the victims’ rights to truth and reparation; third, the imposition of a sanction on the perpetrator that is different from the deprivation of liberty in a prison establishment; and fourth, a dialogical process in accordance with Law 1922/2018 (Arts. 1 and 27) (Cote, 2020).
Accordingly, this procedure is enacted in a sequenced manner. Beginning with the systematisation, concentration and prioritisation of cases and situations, it continues with the contrasting of information and the formulation of preliminary resolution of conclusions, followed by the acknowledgment of responsibility, the formulation of resolution of conclusions, and, lastly, the analysis of correspondence and imposition of sanctions (Andrade & Merchán, 2023).
The most prominent restorative scenarios according to the dialogical procedure are the public hearings of acknowledgment of truth and responsibility. These hearings are decreed by the Truth and Responsibility Recognition Chamber. They provide a space for the perpetrators to acknowledge truth and responsibility in a voluntary, free, complete, detailed and exhaustive manner. At the same time, they require the active participation of the corresponding individual victims or victims’ organisations,27x Victims may participate in the proceedings of the SJP as special interveners once they are formally accredited. This process demands the demonstration of the victim status, which can be the inclusion in the Unified Registry of Victims or the recognition as a victim by the ordinary justice system. It also requires an account of the criminal acts suffered, specifying at least the time and place of their occurrence. This account is made via the reports that victims have submitted to the JEP or via the victim’s direct account. See JEP: Manual para la Participación de las Víctimas ante la Jurisdicción Especial para la Paz; Bogotá, December 2020 (https://www.jep.gov.co/Infografas/participacion/manualparticipacion.pdf) (last accessed 7 April 2023); see also Vargas and Galindo (2020). according to the fundamental rights of victims and in respect of territorial, gender-, ethnic- and racial-specific aspects (Law 1922/2018, Art. 27c).
The public character of the hearings of acknowledgment of truth and responsibility and their national and international media coverage proves crucial. For the victims, the importance lies in the public recognition of their narrative, their pain, their questions, their process, their struggle, their suffering – which is perceived as healing by many of them. At the same time, the comparecientes are provided an opportunity to publicly accept responsibility and share their stories, while facing their victims and confessing not only to them but to the society as a whole. Thereby, truth and subsequent judicial decisions become more tangible, transparent and, thus, legitimate.
The preparation of such hearings is based on dialogical encounters between victims and (legal) representatives of the comparecientes. The preparatory process also allows for the elaboration of proposals for sanctions by both stakeholder groups. The final decision on the sanctions will be taken by the SJP, and the first defined sanctions are expected to be issued in 2023.28x See https://www.jep.gov.co/Sala-de-Prensa/Paginas/JEP-reunio-entidades-estatales-verificar-condiciones-imponer-sanciones-propias.aspx (last accessed 23 May 2023).
The SJP also uses these hearings to shed light on the socioeconomic conditions that compounded the victimisation(s). They are thus not only a space for the restorative addressing of harm that was caused but also a way to highlight requirements for guaranteeing the rights of future generations.4.2 Different types of sanctions
The SJP can impose three types of sanctions:
i). Sanciones propias or Special Sanctions apply to those who fully acknowledge truth and responsibility. At the request of the Constitutional Court29x Ruling C-080 de 2018 of the Constitutional Court. and according to international obligations under the Rome Statute, this type serves both a restorative purpose and a retributive purpose and thus reflects the hybridity of the SJP. The retributive part implies the effective restriction of liberty in non-prison establishments during five to eight years (or two to five years if the participation in the crime was indirect).30x Law 1957/2019, Art. 141. The restorative component is exemplified by the fact that the comparecientes must carry out tasks, projects or activities with restorative content (TOAR: Trabajos, Obras y Actividades con contenido Restaurador). The TOAR mainly aim at repairing collective harm caused, at enhancing confidence and at re-establishing social ties in (rural) communities inflicted by atrocities during the armed conflict. The TOAR are required to be ‘efficient, compliable and realisable’, so that they satisfy the victims’ rights and contribute to the social reintegration of the comparecientes.31x See https://coljuristas.org/observatorio_jep/documentos/documento.php?id=156#3 (Boletín #14 del Observatório) (last accessed 27 December 2022).
According to the restorative objectives of the SJP, the sanctions development and implementation process requires victims’ participation, including in the definition of the TOAR.32x Ibid. Therefore, in 2021, Sandoval et al. underlined the necessity of a pedagogic process and the distribution of information on the possible sanctions imposed by the SJP to ensure that victims can have realistic expectations and can collectively organise to convey their reparatory-restorative demands, according to the possibilities and limits of the SJP process. In the same vein, comparecientes require information on their obligations and possible avenues for restorative activities. Finally, public servants, especially in the different municipalities and regions, identify ongoing projects and programmes which could be articulated with the TOAR.
ii). Sanciones alternativas or Alternative Sanctions, a second type, apply when truth and responsibility are acknowledged before the issuing of a sentence. These sanctions have an essentially retributive function, including the deprivation of liberty in a prison establishment, for five to eight years. According to Mayans-Hermida and Holá (2023: 1), ‘alternative sanctions can be a viable punishment option that may promote active responsibility-taking and contribute to repairing harm, reintegrating offenders into the community and (re)constructing relationships.’
iii). Ordinary sanctions apply to those who do not acknowledge truth and responsibility and who receive a conviction by the First Instance Section of the Peace Tribunal for Cases of Absence of Acknowledgment of Truth and Responsibility. They entail deprivation of liberty in a prison establishment for 15 to 20 years.It is important to highlight that any of the above sanctions will be established by the SJP via a judicial sentence. The restorative character of this procedure is also shaped by the public announcement and dissemination of the sentences. Accordingly, both sentence and sanctions represent a symbolic contribution to a broad recognition of the victimisation that occurred, of the dignity of the victims, of the rights of the victims and, therefore, are supposed to contribute to the guarantees of non-repetition.
Notably, there are also considerable persisting challenges with respect to the future implementation of sanctions and the adequacy of their content and impact. First of all, there are still no clear rules on how the SJP will measure an offender’s contribution to the truth or their efforts to amend the harm to victims and the communities. It is furthermoreunclear how harms will be assessed or how levels and characters of harm will be taken into consideration for proportionality purposes when determining the sanctions; and … the SJP cannot issue economic compensations. (Mayans-Hermida & Holá, 2023: 29)
4.3 The conditionality regime
Adherence to the current Colombian transitional justice system and to a potential special treatment via the SJP process in terms of sanctions depends on the conditions: the comparecientes must comply with the conditionality regime which implies contributing – in a credible, verifiable manner – to truth-finding, assuming responsibility and contributing to victim reparations. The latter also requires the provision of information relevant for the search and identification of persons who were forcefully disappeared and are reported as missing, as well as to guarantees of non-repetition.
Thus, the conditionality regime has two facets: one based on negativism, which is equivalent to not committing new crimes, and one based on positivism, which refers to carrying out specific future-oriented activities that contribute to fulfilling the purposes of the Comprehensive System. Correspondingly, legislative Act 01 of 2017 (Art. 1) states that:The different mechanisms and measures of truth, justice, reparation and non-repetition, as part of a system that seeks a comprehensive response to the victims, cannot be understood in isolation. They will be interconnected through conditionality relations and incentives to access and maintain any special treatment of justice, always based on the recognition of truth and responsibilities. Compliance with these conditionalities will be verified by the Special Jurisdiction for Peace.
-
5 Restoration through a differentiated approach
Step by step, since its foundation, the SJP has addressed the needs and demands of different victim groups in a more tailored manner. The ethnic and gender diversity of its staff,33x The Magistrates of the SJP were elected by a Selection Committee, established through Decree 587 of 2017 and Legislative Act 01 of 2017 (see https://www.jep.gov.co/Normativa/Paginas/Acto-Legislativo.aspx) (last accessed 23 May 2023) and composed of five persons appointed by Colombian State University System, Colombian Supreme Court of Justice, Secretary General of the United Nations, European Court of Human Rights, and the International Center for Transitional Justice (ICTJ). The selection ensures gender-equality and respect for ethnic and cultural diversity, and it is subject to the principle of transparency. its activities in different parts of the country, and the development of differentiated methodologies and strategies have improved the work with and for victims who are women, youth, Indigenous, Afro-Colombian, peasants and so on.
The SJP has placed special emphasis and importance on the needs of women and child victims, who suffered disproportionately and in a differentiated manner from the effects of the Colombian armed conflict. Accordingly, all of the jurisdiction’s actions, especially reparations, are to be designed with a special focus on gender. Similarly, the SJP has specifically considered the needs of Indigenous, Black, Afro-Colombian, Raizal, Palanquero and Roma people communities and their individual members. In this sense, all actions of the jurisdiction must adopt an ethnic approach and recognise the impact of the conflict on the individual and collective rights of these groups of the population. The differentiated approach is defined by Law 1957/2019 (Art. 18).
With the aim to implement the differentiated approach, the SJP created several special commissions, including an Ethnic Commission and a Gender Commission.34x There are also the Territorial and the Environmental Commissions, which are in charge of promoting the effective implementation of the territorial and environmental approach in the justice component of the Comprehensive System. Their functions are found in Chapter 16 of the General Regulations of the SJP (see JEP, ASP Agreement 001 of 2020). The function of the Inter-institutional Coordination Committee of the Comprehensive System is to promote the articulation and coordination of the actions of the three bodies of the System. For other temporary and permanent instances that can be created by the Governing Body of the JEP, see https://www.jep.gov.co/Paginas/organigrama.aspx (last accessed 16 April 2023). The Gender Commission is responsible for promoting the effective implementation of the gender approach in the SJP, while also considering ethnic perspectives. The Ethnic Commission is responsible for promoting the effective implementation of the ethnic-racial approach in the SJP.35x ASP Agreement 001 of 2020, Arts. 109 and 107; see also https://www.jep.gov.co/DocumentosJEPWP/protocolo.pdf (last accessed 23 May 2023).
Regarding the ethnic-sensitive approach, the SJP also refers to the Indigenous Special Jurisdiction which aims at harmonising society, not at retribution per se (Abuchaibe et al., 2018). As highlighted by Gómez Isa in 2017,Indigenous peoples in Colombia have traditionally used restorative mechanisms as the preferred means to make justice, since they are an inherent part of their cosmovision about justice and reconciliation. In that sense, Colombian society and the relevant stakeholders in the peace process can learn much about how Indigenous justice deals with both perpetrators and victims, aiming at reconstructing the communitarian links that were broken with the crime. The primary aim of Indigenous justice is not to punish the perpetrator but rather to allow her or him to reconcile with the community as a whole, not only with the individual victim. (Gómez Isa, 2017: 310)
The ongoing efforts of the SJP to take the thinking, logic, and cosmic vision of Indigenous people and ethnic groups into consideration come not without obstacles – and certain criticism persists given the largely absent voices of Indigenous in the conceptualisation process of the SJP and, partially, in the qualification of certain crimes as macro-cases. Improvements in this realm require an understanding of the culture, spirituality, social fabric, meaning of territory and environment, and collective organisation of certain ethnic groups – also in light of international norms which apply to the Colombian context (Cote, 2021).36x See also USAID (n.d.). Justicia especial Indígena. Baston jurídico. Retrieved from www.minjusticia.gov.co/programas-co/fortalecimiento-etnico/Documents/Documentos/JEI%20-%20BASTON%20JURIDICO%20Definitivo.pdf?csf=1&e=i4IGCj (last accessed 3 May 2023).
On the gender-sensitive approach, see, for example, https://www.jep.gov.co/Sala-de-Prensa/Paginas/sanciones-propias-jep-enfoque-genero.aspx (last accessed 23 May 2023).
Based on the differentiating criteria of the SJP, the specific characteristics of different ethnic and gender population groups are taken into consideration during the SJP process (Ospina et al., 2019). The parallel aim of transforming the conditions of inequality and vulnerability which made certain groups more prone to become victims can be interpreted as an intersectional approach of the SJP and the overall Comprehensive System. The multiple victimisations as well as the various impacts which violations have on different groups of people are made known and addressed.
The aim of gender, ethnic and diversity inclusion continues to pose an enormous capacity- and resource-demanding challenge given the extremely wide array of victim groups, such as those in exile, (ethnic) communities in remote rural areas with difficult access, and children and youth in urban spaces. -
6 Conclusion – shouldering the responsibility for the system’s performance and its results
It goes without saying that the implementation of the recent Colombian Comprehensive System and the SJP’s aim for complementarity of retributive, restorative and transformative elements are not free of tensions and challenges.
Context-specific dynamics and sociopolitical developments continue to permeate the transitional justice process: the overall context in which the Comprehensive System is applied continues to be fragile, with stumbling blocks both for the desired transformation and for the guarantees of non-repetition. Inequality continues to produce vulnerabilities vis-à-vis new rights violations, and structural violence as well as violence by different (criminal) groups, especially against human rights defenders, but also against ex-guerrilleros, is still impacting many of the rural regions or neglected urban areas. The absence of the State and lack of access to justice – causing an amalgam of arbitrary social control, violence, marginalisation and impunity – partially persists in regions like Chocó, Bajo Cauca and Catatumbo. This negatively impacts trust in the State’s capacity and willingness to take peace-making efforts forward. Overcoming this structural deficit beyond military presence while respecting local peace customs turned out to be a prerequisite for the implementation of the Peace Agreement. It requires strengthened and sensitised institutions, logistics and, thus, dedicated resources. As Sánchez Gómez (2021) states, Colombia is rich in its formula for peace but has poor follow-up measures to ensure efficiency, and there is still a discrepancy between military policies for peace and social policies for peace (Sánchez Gómez, 2021: 352). It is therefore indeed necessary ‘to provide the political basis for the reconstruction of living together or for re-establishing broken relations due to the violence and the historical exclusions associated with it’ (Gallon, 2022).
In the long run, the political buy-in (which also reflects in budgeting and administrative support), as well as the societal ‘belief’ in the need for truth and justice and improved relationships or living together will be crucial for a thorough peace-conducive transformation – that could find its visible and tangible parts in the implementation of the sentences in remote regions of the country as well as neglected parts of cities, such as the suburb Bosa of the mega-city Bogotá.
All of this also connects to the Final Report of the Colombian Truth Commission which was launched in August 2022. The Report not only documents the numerous conflict-related atrocities but also ascribes ethnic and political responsibilities to the State as well as makes concrete recommendations for addressing the root causes of violence. So far, several obstacles still lie within institutions and society and partially hinder the work of the Truth Commission’s follow-up committee which disseminates the Report.
As the justice expert Uprimny stated at the end of 2021,while there have not yet been sentences, the SJP is starting to bear fruits … Nevertheless, [the] advances are still fragile due to the permanent attacks and attempts for counter-reforms of certain sectors against the SJP and the Truth Commission … However, this limited peace is important and significant, but … the gains are at risk. The challenge of the democratic sectors is thus to protect the advances … and recuperate the transformative dimension of the Peace Agreement. (Umprimny, 2021)
The envisaged transformative effect of the Colombian transitional justice system is based on the victim-centred restorative approach. This requires a strong institutional setup which respects the participatory preparations of the sentences and guarantees follow-up, sustainability, accountability and, if need be, adjustments to suit community needs and to develop comparecientes’ contributions to restorative activities, meaning the TOAR. The Colombian government will thus need to prioritise and support transitional justice institutions and their work more than ever, especially in terms of budgeting. So far, there has been a constant struggle for resources (human and financial) at the SJP since its creation in 2018. Regional and local government authorities and institutional representatives play a key role for the nationwide implementation of the transitional justice scheme. This implies a significant impact by decentralisation policies and budget allocations. Furthermore, coordination between different State institutions, as well as between them and the Indigenous autonomous bodies, plays a highly influential role for the long-term implementation of transitional justice, including the sanctions (Comisión Colombiana de Juristas, 2019).
The challenge of restorative transitional justice consists partially in difficult-to-measure impacts, such as trust, hope and feeling dignified. The actual limitations with respect to outreach and participation as well as interaction with the wide universe of victims and their needs and expectations remain to be assessed in coming years.
Finally, as already flagged by Pearson in her 2017 contribution, different interpretations of restorative justice continue to challenge the implementation process – without making it less relevant for Colombia or other contexts. References Abuchaibe, H., Gómez-Suárez, A. & Umaña Hernández, C.E. (2018). Justicia restaurativa: oportunidades y retos para construir una paz estable y duradera. Bogotá: Defensoría del Pueblo de Colombia.
Ambos, K. & Cote, G. (eds.) (2019). Ley de amnistía. Comentarios completo y sistemático (ley 1820 de 2016). Bogotá: Editorial Nomos.
Ambos, K. & Peters, S. (2022). Transitional Justice in Colombia. The Special Jurisdiction for Peace (with the collaboration of Susann Aboueldahab). Baden-Baden: Nomos.
Ambos, K. & Schellenberger, M. (2021). Primera imputación en la JEP: toma de rehenes y otras privaciones graves de libertad cometidas por las FARC-EP (CAPAZ Policy Brief). Bogotá: CAPAZ.
Andrade, G. & Merchán, M. (2023). Investigación macrociminal y enfoque restaurativo en la justicia transicional. Bogotá: Tirant lo Blanch.
Arias, D.A. (2019). Historiografía de las penas privativas de la libertad en Colombia (Doctoral Thesis). Universidad Autónoma de Barcelona, Spain.
Castro, C., Martínez, J. & Quijano, L. (2022). Introducción a la Jurisdicción Especial para la Paz. Bogotá: Tirant lo Blanch.
Centro Nacional de Memoria Histórica (2013). ¡Basta ya! Colombia: memorias de guerra y dignidad. Bogotá: Centro Nacional de Memoria Histórica.
Clamp, K. & Doak, J. (2012). More than words: restorative justice concepts in transitional justice settings. International Criminal Law Review, 12, 339-360. doi: 10.1163/157181212X648824.
Comisión Colombiana de Juristas (2019). El rol de las entidades territoriales en la
implementación del Sistema Comprehensive de Verdad, Justicia, Reparación y No Repetición. Bogotá: Comisión Colombiana de Juristas. Retrieved from www.coljuristas.org/documentos/tmp/el_rol_de_las_entidades_territoriales_en_el_sivjrnr.pdf (last accessed 10 May 2023).
Corporación Excelencia en la Justicia (2021). La Jurisdicción Especial para la Paz en el modelo de justicia transicional colombiano. S.l.: Corporación Excelencia en la Justicia.
Cote, G. (2020). El carácter dialógico del proceso con reconocimiento de responsabilidad ante la Jurisdicción Especial para la Paz: retos del derecho penal en contextos de justicia transicional. Vniversitas, 69, 1-30.
Cote, G.E. & Vega L.C. (2021): El crimen de genocidio y el enfoque étnico en la Jurisdicción Especial para la Paz: reflexiones para la calificación jurídica en casos de violencia contra pueblos indígenas (CAPAZ Policy Brief). Bogotá: CAPAZ.
Cote, G. & Vega, L. (2022). La noción de destrucción en el genocidio y la protección de la identidad cultural de grupos étnicos en conflictos armados: el caso del pueblo nasa en el norte del departamento del Cauca (Colombia). Dikaion, 31(2), 1-36.
de Gamboa Tapias, C. (2020). La justicia restaurativa en la justicia transicional: una reflexión general para el caso colombiano (documento de trabajo 4-2020). Bogotá: CAPAZ.
Doak, J. & O’Mahony, D. (2012). Editorial. Transitional justice and restorative justice. International Criminal Law Review, 12, 305-311.
Gallon, G. (1 December 2022). Los procesos de reconocimiento de responsabilidades. El Espectador, Bogotá. Retrieved from www.elespectador.com/opinion/columnistas/gustavo-gallon/los-procesos-de-reconocimiento-de-responsabilidades/ (freely translated by Janna Greve) (last accessed 28 December 2022).
Gómez Isa, F. (2017). Response to Annette Pearson’s note on restorative justice in the Colombian peace process. Restorative Justice: an International Journal, 5(2), 309-312. doi: 10.1080/20504721.2017.1343417.
Hernández, N. & Vega, L. (2021). Justicia restaurativa intramuros: el caso de la Cárcel Distrital de Bogotá. In Á.M. Olarte Delgado & M. Gutiérrez Quevedo (eds.), Criminalización y control: retos hacia visiones restaurativas e interculturales de la justicia (pp. 329-360). Bogotá: Ed. Universidad Externado de Colombia. Retrieved from https://bdigital.uexternado.edu.co/server/api/core/bitstreams/b185aac3-7789-46bd-ad54-ccda74756631/content (last accessed 31 May 2021).
Hernández, N. & Vega, L. (2022). Enfoque teleológicos de la pena. In Á. Orlando Pérez Pinzón (ed.), Derecho penal general colombiano. Ideas clave (pp. 761-788). Bogotá: Grupo Editorial Ibáñez.
Institute for Integrated Transitions (IFIT) (2019). Análisis y sugerencias sobre la justicia restaurativa en la JEP. Retrieved from https://ifit-transitions.org/wp-content/uploads/2021/06/Analisis-y-sugerencias-sobre-la-justicia-restaurativa-en-la-JEP.pdf (last accessed 1 June 2023).
Mayans-Hermida, B.E. & Holá, B. (2023). Punishing atrocity crimes in transitional contexts: advancing discussions on adequacy of alternative criminal sanctions using the case of Colombia. Oxford Journal of Legal Studies, 43 (1), 1-31.
Montealegre, D.M., Bautista, A.J., Castaño, A., Betancur Marín, N.C. & Jaramillo Burgo, A.M. (2011). Verdad, justicia y reparación. Una deuda pendiente con las mujeres víctimas de las violencias. Bogotá: Ruta Pacífica. Retrieved from http://rutapacifica.org.co/descargas/publicaciones/Verdadjusticiayreparacion.pdf (last accessed 30 March 2023).
Ospina, J., Linares, C. & Leyke, S. (2019). Desafíos y oportunidades del SIVRJNR. Bogotá: Comisión Colombiana de Juristas.
Parmentier, S. & Weitekamp, E. (2007). Political crimes and serious violations of human rights: towards a criminology of international crimes. In S. Parmentier, E. Weitekamp & M. Deflem (eds.), Crime and human rights (Vol. 9 Sociology of Crime, Law and Deviance) (pp. 109-144). Bingley: Emerald Group Publishing Limited.
Pearson, A. (2017). Is restorative justice a piece of the Colombian transitional justice puzzle? Restorative Justice: An International Journal, 5(2), 293-308.
Rähme, S. (2018). Frictions in transitional justice processes: Colombia’s victims law, comprehensive reparation and the temporality of multiple victimization in displaced women. Gobernar: The Journal of Latin American Public Policy and Governance, 2(1), 33-56.
Roccatello, A. & Rojas, G. (2020). A mixed approach to international crimes. The retributive and restorative justice procedures of Colombia’s Special Jurisdiction for Peace. New York: International Center for Transitional Justice.
Ronderos, M.T. (2014). Guerras recicladas. Una historia periodística del paramilitarismo en Colombia. Bogotá: Penguin Random House.
Sánchez Gómez, G. (2021). Caminos de guerra, utopías de paz. Colombia: 1948 – 2020. Bogotá: Nomos S.A.
Sánchez, N.C. & Parra, O. (2018). Elementos para una justicia de paz restaurativa. Bogotá: Universidad Santo Tomás.
Sandoval Villalba, C., Martínez Carrillo, H., Cruz Rodríguez, M., Zuluaga Afanador, N., Galindo Villareal, J., Lovelle Moraleda, P., Vargas Trujillo, J., Romero Sánchez, A. & Rodríguez Daza, A. (2021). TOAR anticipados y Sanciones Propias (SP). Reflexión informada para la Jurisdicción Especial para la Paz. Bogotá: Editorial Dejusticia.
Teitel, R. (2003). Transitional justice genealogy. Harvard Human Rights Journal, 16, 69-94.
Torrado, L. (2018). Restorative justice in the context of transitional justice: case study of Colombia (Master’s Thesis). University of Utrecht.
Torrella Llauger, L. (2022). Transitional justice in Colombia: between retributive and restorative justice. Retrieved from www.e-ir.info/2022/11/16/transitional-justice-in-colombia-between-retributive-and-restorative-justice/ (last accessed 7 April 2023).
Umprimny, R. (2021). La paz cinco anios después. Retrieved from www.dejusticia.org/column/la-paz-cinco-anos-despues/ (freely translated by Janna Greve) (last accessed 28 December 2022).
USAID (n.d.). Justicia especial Indígena. Baston jurídico. Retrieved from www.minjusticia.gov.co/programas-co/fortalecimiento-etnico/Documents/Documentos/JEI%20-%20BASTON%20JURIDICO%20Definitivo.pdf?csf=1&e=i4IGCj (last accessed 3 May 2023).
Vargas, J. & Galindo, J. (2020). ¿Cómo participan las víctimas ante la JEP? (CAPAZ Policy Brief). Bogotá: CAPAZ. Retrieved from www.instituto-capaz.org/wp-content/uploads/2021/01/Policy-Brief-Azul-7-2020-Vargas-y-Galindo-Web.pdf (last accessed 23 May 2023).
Vega, L. (2018). Modelo de justicia transicional: el caso colombiano. In G.J. Ruiz-Rico Ruiz, I. Szegedy-Maszák, R.A. Prieto Sanjuán & B. Garzón (eds.), Retos en la implementación en los Acuerdos de paz en Colombia (pp. 111-130). Valencia: Tirant lo Blanch.
Vega, L. (2020). Participación de las víctimas en la JEP: especial referencia a los informes de las organizaciones de víctimas, étnicas y de derechos humanos. Vniversitas, 69, 1-18.
Velasco, A. (2020). Experiencias vividas por cuatro adolescentes antes, durante y después del proceso en el programa distrital de justicia juvenil restaurativa (Master’s Thesis). Universidad de la Sabana.
-
1 The Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP)), a Colombian guerrilla group, were founded in the 1960s.
-
2 See https://www.jep.gov.co/DocumentosJEPWP/3SIVJRNR_ES.pdf; www.youtube.com/watch?v=AEWZgYlJ57o; www.youtube.com/watch?v=q1f4WhyBv4w (all last accessed 23 May 2023) for the ‘Comprehensive System’ (Sistema Integral para la Verdad, Justicia, Reparación y No-Repetición (SIVJNR)) and its three pillars: the Special Jurisdiction for Peace (SJP; Justicia Especial para la Paz); the Unit for Searching Persons Reported as Missing in the Context of the Armed Conflict (Unidad de Búsqueda para Personas Dadas por Desaparecidas en el Contexto y en Razón del Conflicto Armado); the Commission for the Clarification of Truth, Social Cohesion and Non-Repetition (Comisión para el Esclarecimento de la Verdad, Convivencia y No-Repetición Civil).
-
3 The people recognised as victims and included in the Unified Registry of Victims (Registro Único de Víctimas) in Colombia are, on the one hand, almost 2 million people corresponding to deceased victims or direct victims of forced disappearance or homicide, and, on the other hand, a little more than 7 million people corresponding to surviving victims who meet the requirements to access the measures of attention and reparation established by Law 1448/2011. See https://www.unidadvictimas.gov.co/es/registro-unico-de-victimas-ruv/37394 (last accessed 23 May 2023).
-
4 See complete FPA document here: https://peacemaker.un.org/sites/peacemaker.un.org/files/Colombia%20Nuevo%20Acuerdo%20Final%2024%20Nov%202016_0.pdf (last accessed 23 January 2023).
-
5 The SJP has a mandate of fifteen years, extendable for another five years, to administer transitional justice and determine atrocities committed in the context of the armed conflict by former combatants of the FARC-EP, members of the State’s military, State officials, and third parties such as civilians (see https://www.jep.gov.co/ServicioAlCiudadano/Paginas/preguntas.aspx) (last accessed 23 May 2023).
-
6 See also de Gamboa Tapias (2020), Bogotá (2020), Doak and O’Mahony (2012).
-
7 In the Colombian case, restorative justice has been integrated not only into transitional justice but also into ordinary justice. The most important regulatory advances for restorative justice in the framework of ordinary justice are in the current Code of Criminal Procedure, Law 906/2004 (Arts. 518-527) and the current Code for Children and Adolescents, Law 1098/2006 (Arts. 140 and 178). However, while restorative justice has been laid out normatively, its conceptual and practical implementation is dragging on. The retributive and punitive and even exclusionary and discriminatory elements of a justice system dating back to colonial times still cause stumbling blocks for a restorative ‘breakthrough’ of Colombia’s response to crime in general (see Arias, 2019). Yet, there have been significant initiatives and programmes which focussed on the implementation of restorative justice. One example is the District Programme for Restorative Juvenile Justice in Bogotá, which since 2016 provides a space for young people in conflict with the law to take responsibility for their acts, make restitution to victims and reintegrate into society (see Velasco, 2020). Another example is the Restorative Justice Pilot Programme, which was developed in 2018 in the District Prison of Bogotá and, supported by the Procurator General’s Office, provided awareness-raising workshops on restorative justice, especially to prison officials (see Hernández & Vega, 2021).
-
8 The Autodefensas Unidas de Colombia (AUC) had tens of thousands of members who, over many years, committed mass atrocities throughout Colombia (see on the trajectory of the group: Ronderos, 2014).
-
9 See also Montealegre, Bautista, Castaño, Betancur Marín & Jaramillo Burgo (2011).
-
10 The TARR model was originally developed by Parmentier to assess the restorative basis of transitional justice. See, inter alia, Parmentier and Weitekamp (2007). On the limitations of reparations in the context of the Justice and Peace Law (Ley Justicia y Paz), see de Gamboa Tapias (2020).
-
11 Examples of offences considered connected to political crimes are illegal constraint, unlawful violation of communications or illicit use of communications networks (see Art. 16 of Law 1820/2016). The list has been declared non-exhaustive, and the Amnesty and Pardon Chamber of the SJP may consider other conducts according to the criteria established by law.
-
12 These institutions are the Attorney General’s Office of the Nation (Fiscalía General de la Nación), the Procurator General’s Office of the Nation (Procuraduría General de la Nación) and the Ombudsman Office (Defensoría del Pueblo).
-
13 JEP: Criterios y metodologías de priorización de casos y situaciones, 2018 (https://www.jep.gov.co/Documents/CriteriosYMetodologiaDePriorizacion.pdf) (last accessed 23 May 2023).
-
14 Macro-case 01: Illegal detentions of individuals by the FARC; Macro-case 02: Territorial situation of the Tumaco, Ricaurte and Barbacoas Municipalities (Nariño); Macro-case 03: Deaths illegitimately presented as combat casualties by agents of the State; Macro-case 04: Territorial situation in the Urabá Region; Macro-case 05: Territorial situation of the Northern Cauca and Southern Cauca Valley regions; Macro-case 06: Victimisation of Patriotic Union (UP) Members by the Colombian Armed Forces; Macro-case 07: Recruitment of children in the context of the armed conflict; Macro-case 08: Crimes committed by the security forces, or by State agents in association with paramilitary groups, or civilian third parties in the armed conflict; Macro-case 09: Crimes for which no amnesty can be granted, committed against ethnic peoples and territories in the context of the armed conflict; Macro-case 10: Crimes for which no amnesty can be granted, committed by the extinct FARC-EP in the context of the armed conflict. Macro-cases 01, 03, 06, 07 refer to specific crimes; macro-cases 02, 04, 05 address crimes that occurred in certain geographic territories; macro-cases 08, 09 and 10 are ‘umbrella’ cases (see https://www.jep.gov.co/Paginas/casos.aspx) (last accessed 23 May 2023).
-
15 For the SJP structure, see https://www.jep.gov.co/Paginas/organigrama.aspx (last accessed 23 May 2023).
-
16 Law 1957/2019, Arts. 81 and 82.
-
17 Law 1957/2019, Art. 84.
-
18 Law 1957/2019, Arts. 79 and 80.
-
19 Law 1957/2019, Art. 92.
-
20 Law 1957/2019, Art. 93.
-
21 Law 1957/2019, Art. 97.
-
22 Law 1957/2019, Art. 96.
-
23 Law 1957/2019, Art. 91.
-
24 Law 1957/2019, Arts. 111 and 112.
-
25 Law 1957/2019, Arts. 86-89.
-
26 Agreement 001 of 2 March 2020, which adopts the General Regulations of the SJP.
-
27 Victims may participate in the proceedings of the SJP as special interveners once they are formally accredited. This process demands the demonstration of the victim status, which can be the inclusion in the Unified Registry of Victims or the recognition as a victim by the ordinary justice system. It also requires an account of the criminal acts suffered, specifying at least the time and place of their occurrence. This account is made via the reports that victims have submitted to the JEP or via the victim’s direct account. See JEP: Manual para la Participación de las Víctimas ante la Jurisdicción Especial para la Paz; Bogotá, December 2020 (https://www.jep.gov.co/Infografas/participacion/manualparticipacion.pdf) (last accessed 7 April 2023); see also Vargas and Galindo (2020).
-
28 See https://www.jep.gov.co/Sala-de-Prensa/Paginas/JEP-reunio-entidades-estatales-verificar-condiciones-imponer-sanciones-propias.aspx (last accessed 23 May 2023).
-
29 Ruling C-080 de 2018 of the Constitutional Court.
-
30 Law 1957/2019, Art. 141.
-
31 See https://coljuristas.org/observatorio_jep/documentos/documento.php?id=156#3 (Boletín #14 del Observatório) (last accessed 27 December 2022).
-
32 Ibid.
-
33 The Magistrates of the SJP were elected by a Selection Committee, established through Decree 587 of 2017 and Legislative Act 01 of 2017 (see https://www.jep.gov.co/Normativa/Paginas/Acto-Legislativo.aspx) (last accessed 23 May 2023) and composed of five persons appointed by Colombian State University System, Colombian Supreme Court of Justice, Secretary General of the United Nations, European Court of Human Rights, and the International Center for Transitional Justice (ICTJ). The selection ensures gender-equality and respect for ethnic and cultural diversity, and it is subject to the principle of transparency.
-
34 There are also the Territorial and the Environmental Commissions, which are in charge of promoting the effective implementation of the territorial and environmental approach in the justice component of the Comprehensive System. Their functions are found in Chapter 16 of the General Regulations of the SJP (see JEP, ASP Agreement 001 of 2020). The function of the Inter-institutional Coordination Committee of the Comprehensive System is to promote the articulation and coordination of the actions of the three bodies of the System. For other temporary and permanent instances that can be created by the Governing Body of the JEP, see https://www.jep.gov.co/Paginas/organigrama.aspx (last accessed 16 April 2023).
-
35 ASP Agreement 001 of 2020, Arts. 109 and 107; see also https://www.jep.gov.co/DocumentosJEPWP/protocolo.pdf (last accessed 23 May 2023).
-
36 See also USAID (n.d.). Justicia especial Indígena. Baston jurídico. Retrieved from www.minjusticia.gov.co/programas-co/fortalecimiento-etnico/Documents/Documentos/JEI%20-%20BASTON%20JURIDICO%20Definitivo.pdf?csf=1&e=i4IGCj (last accessed 3 May 2023).
On the gender-sensitive approach, see, for example, https://www.jep.gov.co/Sala-de-Prensa/Paginas/sanciones-propias-jep-enfoque-genero.aspx (last accessed 23 May 2023).
DOI: 10.5553/TIJRJ.000167
The International Journal of Restorative Justice |
|
Notes from the field | Insights from Colombia: restorative transitional justice and the Special Jurisdiction for Peace |
Authors | Janna Greve en Lorena Cecilia Vega Dueñas |
DOI | 10.5553/TIJRJ.000167 |
Show PDF Show fullscreen Author's information Statistics Citation |
This article has been viewed 34 times. |
This article been downloaded 20 times. |
Suggested citation
Janna Greve and Lorena Cecilia Vega Dueñas, 'Insights from Colombia: restorative transitional justice and the Special Jurisdiction for Peace', (2023) The International Journal of Restorative Justice 257-274
Janna Greve and Lorena Cecilia Vega Dueñas, 'Insights from Colombia: restorative transitional justice and the Special Jurisdiction for Peace', (2023) The International Journal of Restorative Justice 257-274
Dit artikel wordt geciteerd in
Contents
- 1 Introduction
- 2 The Colombian transitional justice context: polarisation and varying expectations
- 3 Gradual steps towards restorative transitional justice
- 4 The SJP as a hybrid transitional justice model
- 5 Restoration through a differentiated approach
- 6 Conclusion – shouldering the responsibility for the system’s performance and its results
- References
- ↑ Back to top
