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1 Introduction
After five years of implementation, it is fair to say that the Special Jurisdiction for Peace (SJP) in Colombia is successfully delivering justice. In other words, we would argue that the Colombian transitional justice arrangement is working. Its major success has been the substantive contribution to truth and the acknowledgement of individual criminal responsibility by both former insurgent commanders and mid- and high-ranking members of the official military forces. At the same time, it has fostered a public conversation about two of the most representative macro-criminal phenomena of the Colombian internal armed conflict. Their criminal patterns are the subject of macro-case 01 (the taking of hostages and the serious deprivation of physical liberty, which were committed by the former FARC-EP guerrilla) and macro-case 03 (killings and enforced disappearances illegitimately presented as combat casualties by State agents – the Colombian military, locally better known as ‘false positives’ since they consisted of extrajudicial executions linked to a de facto institutional body-count policy). Within the Colombian society, these two criminal patterns, defined by the SJP as macro-cases,1x Under transitory Art. No. 07 of the Legislative Act 01 of 2017 (Colombian Congress, 2017), the Jurisdiction will be composed (among others) by the Truth and Acknowledgement Chamber, which will work according to prioritisation criteria based on the seriousness and representativeness of the crimes and the degree of responsibility for them. For this reason, the Colombian Constitutional Court (2018) established that as a consequence of the selection and attribution of the most serious and representative cases to maximum perpetrators, the SJP should favour the construction of macro-processes, which excludes, in principle, the case-by-case investigation. See also the information on the macro-cases in the contribution by Janna Greve and Lorena Vega in this Notes from the Field. are regarded as some of the most severe forms of crimes committed during the decades of the internal armed conflict.
This Notes from the Field aims to describe the restorative justice process as well as identify the incentives that have led to the acknowledgements by the perpetrators who adhere to the SJP. We finish this contribution with a reflection on the remaining challenges that SJP faces, as well as lessons learned about the communicative power of the judicial process in the public sphere.
The description and reflections that follow are based on our own experiences as judge (Catalina Diaz) and law clerks (Lina Moreno and Sandra Santa) at the SJP’s Truth and Acknowledgement Chamber for the past five years (2018 to present). As was also the case with her 37 fellow judges, Judge Diaz was elected by a hybrid international-national panel integrated by five different institutions designated by the Havana Negotiating Table: the UN Secretary General, the European Court of Human Rights, the ICTJ, the Supreme Court of Colombia and the Colombian Counsel of Public Universities. It was an unprecedented, merit-based, entirely public and highly competitive process in which more than 3,000 applicants across the country competed for 38 positions. The result of this process is a new, diverse jurisdiction integrated by a majority of female judges, including several Afro-descendant and Indigenous judges.
In our capacities at the SJP Truth and Acknowledgement Chamber, based on the corresponding legal principles,2x Political Constitution of Colombia, SJP Statutory Law (Act No. 1957 of 2019) and the SJP Law on Procedure (Act No. 1922 of 2018). we have further developed and implemented the truth and acknowledgement legal procedure and the parallel restorative justice process of the SJP. This has required in-depth personal involvement with both victims and perpetrators. Notably, together with Judge Oscar Parra and Judge Alejandro Ramelli, we have been in the lead of macro-case 03 (deaths illegitimately presented as combat casualties by State agents – that is, extrajudicial executions known as ‘false positives’). This Notes from the Field contribution builds mainly on our personal engagement with this macro-case, which, during the first five years of existence of the SJP, has become a significant platform to address State agents’ accountability. -
2 The first two leading ‘macro-cases’
During a three-day public hearing in Bogotá between 21 and 23 April 2022, seven men who were part of the leadership of the former FARC-EP and remained constituents of, over decades, the so-called Secretariat of this insurgency acknowledged their responsibility in crimes against humanity and war crimes. These crimes were associated with their policy of kidnapping civilians for ransom as a way to finance the organisation, to exercise pressure for a presumed exchange of prisoners and to police and exercise territorial control.3x Such was established in the Judgement of Determination of Facts and Conduct issued in macro-case 01 (Truth and Acknowledgement Chamber Judgement No. 019 of 2021). In addition to the taking of hostages as a war crime and the grave deprivation of liberty as a crime against humanity, they were indicted by the Acknowledgement Chamber of the SJP for assassinations, enforced disappearance, torture and other inhumane treatment, sexual violence and forced displacement of hostages.4x For further reflections on restorative justice in case 01, see Lemaitre and Rondón (2020). The event was televised and had active participation of the victims of the aforesaid crimes.
Almost simultaneously, 54 of the 615x The figure was updated from 61 to 62 former members of the Colombian national armed forces in April 2023 following an additional indictment at the victims’ request. Recognition from this perpetrator is still pending. former members of the Colombian national armed forces who had served in six different military battalions and had been indicted through four judgements6x These judgements were issued in the Norte de Santander and Costa Caribe sub-cases (Truth and Acknowledgement Chamber Judgements No. 125 and 128 of 2021), as well as in the Dabeiba and Casanare sub-cases (Truth and Acknowledgement Chamber Judgements No. 01 and D-055 of 2022) in the macro-case 03. See also the contribution by Jairo Ignacio Acosta Aristizábal in this Notes from the Field. by the SJP Acknowledgement Chamber for assassinations and enforced disappearances linked to the de facto institutional policy of body count acknowledged their responsibility; 23 have done so in two televised public hearings with active participation of victims. These hearings took place in the localities where the crimes had been carried out – namely, the Colombian towns of Ocaña (in the Norte de Santander province) and Valledupar (in the Cesar province).
The hearings caught the attention of national and international media and were followed online via institutional or alternative social media networks by thousands of people.7x As of today, the videos of the hearings have hundreds of thousands of views. To consult these hearings refer to the SJP institutional channel on YouTube: https://www.youtube.com/@JEPColombia (last accessed 19 May 2023). For several days, the hearings were also reported on and analysed by major Colombian newspapers.
Along the four different indictments in macro-case 03, the Acknowledgement Chamber determined that a de facto ‘body-count’ policy existed: the latter built on the notion that a dead body of the alleged enemy combatant – that is, a militia or guerrilla member – was the most important indicator of success of the military effort. With the return of the Colombian national government to military action at the beginning of the 2000s – after the failed 1998-2002 peace talks – the national security forces pushed for ‘tangible’ results. These results were to be reflected in the number of eliminated alleged guerrilla combatants killed in combat.8x Prioritisation ruling for macro-case 03 (Truth and Acknowledgement Chamber Judgement Auto No. 033 of 2021). This de facto policy led to strong pressure by the military hierarchy which linked their strategies and actions to a scheme of aggressive positive and negative incentives for the presentation of results. The Truth and Acknowledgement Chamber estimated that at least 6,402 persons who had been reported as guerrilleros, militia or other illegal armed groups members fallen in combat were in reality civilians who had been deliberately killed and arbitrarily and falsely declared as enemy combatants fallen in combat or as militias or guerrilleros who had surrendered but were executed by the national troops.9x Ibid.
To date, along the four different indictments in macro-case 03, the Acknowledgement Chamber has determined that 58 military personnel, 3 civilians and 1 member of the official security agency (former DAS) participated, in various forms, in the assassination of 614, mostly young male, civilians and surrendered combatants. The indicted include 37 officials (generals, colonels and lieutenants) as well as others who had lower positions within the chain of command and had contributed to the execution of the crimes. -
3 Acknowledging responsibility
Acknowledgement, however, does not happen automatically or in a vacuum. In the Colombian transitional justice context, it has been strongly linked to a robust restorative justice process and to a set of incentives that triggered certain motivations.
Both the seven FARC commanders and the 54 of 62 indicted former members of the military forces, including the two generals, acknowledged their responsibility according to the required terms that had been determined by the SJP Truth and Acknowledgement Chamber. They confessed their crimes and, as concluded by the Acknowledgement Chamber, told the ‘complete, detailed and exhaustive truth’ which makes them eligible to a restorative ‘special’ sanction.10x Concluding Judgements No. 01, 02 and 03 of 2022. Under section V.II.79.m of the SJP Statutory Law (2019), the Acknowledgement Chamber must present resolutions of conclusions before the Peace Tribunal for cases of recognition of truth and responsibilities, with the identification of the most serious cases and the most representative conducts or practices; the individualisation of responsibilities, in particular of those who had a decisive participation; the legal qualification of the conducts; the acknowledgements of truth and responsibility; and the proposed sanction project.
The acknowledgements were the result of a sequenced process within a strong framework of restorative justice. The restorative justice approach at the SJP Truth and Acknowledgement Chamber starts with a new attitude towards the ‘comparecientes’ (literally, those who appear before the court). This new attitude aims at recognising them as human beings. The war narrative had construed them as psychopaths, monsters, terrorists and evil incarnate. We return them basic human traits: rationality, empathy, compassion, solidarity and, thus, their capacity to reflect on their criminal actions, feel ashamed and understand the devastating consequences of their decisions and conduct over others. We establish a human dialogue in which the context matters, aiming at understanding why they committed the crimes. This new attitude permeates the various procedural phases and is clearly distinguished by them as particular from the SJP, as opposed to the manners and rictus of the ordinary criminal justice system.
Restorative justice at the SJP Truth and Acknowledgement Chamber implies a progressive, mediated dialogue between comparecientes and victims directed by the SJP judges and framed within an individual criminal responsibility accountability process.
In brief, the process elapses as follows: victims and civil society organisations, as well as the ordinary Office of the Prosecutor General and other official entities, submitted to the SJP a series of reports accounting for several macro-criminal patterns throughout the country.11x Between 15 March 2018 (the day the SJP opened its doors to the public) and 21 March 2022 (the day on which the deadline for the presentation of reports expired), the Jurisdiction received 974 reports from State entities and victims’ organisations. Based on the reports and on evidence coming from ordinary criminal justice proceedings, the SJP Truth and Acknowledgement Chamber calls on the comparecientes (according to an investigation strategy) to render a voluntary version, which is done with the active participation of victims and their judicial representatives. Usually, during this hearing, the judicial representatives gather questions from the victims to pose them to the comparecientes, and the judicial representatives are given significant space to intervene. The versions of the comparecientes are subjected to examination by victims and their lawyers.
Beyond a mere scriptural exchange between attorneys and the court, the Truth and Acknowledgement Chamber created the Observations hearing, a public two-day hearing in which the victims themselves – not their attorneys – are the protagonists. Then the Chamber proceeds, contrasting the version of the perpetrator, the observations of the victims and that of their judicial representatives with the evidence coming from the proceedings. Finally, the Chamber indicts those who bear the greatest responsibility. Those with less responsibility are sent to the SJP Chamber for the Definition of the Legal Situation. The Truth and Acknowledgement Chamber has given the indicted comparecientes 60 days to respond to the indictments, acknowledging their responsibility or defending themselves from the charges. This entire restorative justice/individual criminal accountability judicial process has taken three to four years.
The Truth and Acknowledgement Chamber has implemented innovative public Acknowledgement hearings that were prepared with a robust restorative justice approach: over several weeks, teams of psychologists12x The nonprofit organisation Dunna-Creative Alternatives for Peace led the implementation of the restorative justice approach in the preparation for the acknowledgement hearing in macro-case 03/Norte de Santander. Dunna ‘works by implementing social innovation models for mental health, psychosocial attention, and peaceful coexistence’ (see www.dunna.org) (last accessed 31 May 2023). and anthropologists led separate and, at a later stage, joint substantive dialogue sessions with perpetrators (and their representatives) and victims. The perpetrators were given ‘tools’ to confront the victims and the public, to have the courage to admit to their crimes and to use non-offensive language when speaking to the victims or explaining why the crimes were committed. In fact, such dialogue was established by law as a guiding principle of the SJP13x According to section 1.b of the SJP Law on Procedure (2018), in cases of truth acknowledgement, the procedure shall have a dialogic character, with the participation of victims and comparecientes. and thereby contributed to putting restorative justice into action.
In the interest of factual rigour, it is necessary to state that the success of the Colombian transitional justice arrangement so far is also strongly based on a set of incentives for acknowledging responsibility and truth-telling.14x For a detailed account on the connections between moral emotions and the incentives coming from individual legal circumstances, see Orozco, Peralta and Sánchez (2022). These authors have done thorough work in the follow-up of the processes with recognition before the SJP, particularly on the first two public acknowledgement hearings and will publish two additional articles in 2023: ‘Secuestro: ¿De rebeldes en la política a criminales en la justicia? (Sobre la audiencia de secuestro en Bogotá)’ (June 2023) and ‘Recuperar el buen nombre, la dignidad y la palabra (La audiencia por falsos positivos en Ocaña)’ (December 2023). The incentives differ in the processes with the former FARC-EP commanders and those with members of the national armed forces.
In the case of the former FARC-EP, apart from a political decision by the leadership to acknowledge responsibility for the policy on hostage taking, the acknowledgement of responsibility of assassinations, enforced disappearances, torture, inhumane treatment and even sexual violence, and the language, empathy, genuine character of acknowledgement, shame and responsiveness to victims happened in an incremental manner. The reason for this was the restorative justice process which implied an exposure of the former FARC-EP commanders to the victims’ experiences and perceptions and to a profound dialogue. Thereby, the commanders were enabled to distinguish their own past reasons to commit the crimes from the actual implications of their actions for the victims, which they gradually understood over the course of the SJP experts-facilitated encounters.
The comparecientes who were members of the national armed forces have different ranks and served in different localities during different periods of time. Despite the great majority of them being part of the Army, they are not a single entity which took a deliberate joint (political) decision to participate in the SJP and acknowledge responsibility. Therefore, in this case, the incentives are closely linked to individual legal circumstances. In conversation with the SJP judges, law clerks and experts, many of the militaries stated that not returning to prison was one of their main reasons to commit to the SJP process and fulfil the requirements. They regard the peace agreement and the early release provisions as a ‘second opportunity in life’. Some who had previously been sentenced, accused or indicted by ordinary judicial authorities also called for an assumption of responsibility of those higher in the military hierarchy; others simply wanted to end years of endless and costly judicial proceedings. Many also stated that telling the truth contributes to reaching ‘inner peace’ and alleviates the various symptoms of posttraumatic stress they suffer from. -
4 A robust restorative justice approach
As said, the success of the SJP in terms of truth-finding and public acknowledgement of criminal responsibility is strongly linked with the implementation of a robust restorative justice framework. This framework ensures a dignified treatment of both victims and perpetrators (comparecientes) while establishing a constant dialogue among victims, perpetrators, attorneys and the judiciary. Among the various aspects that have seen significant creative jurisprudential development is victim participation, according to the centrality of victims as a core principle of the SJP.
We have addressed the participation of victims in two parallel conversation tracks: with the attorneys and legal representatives, as well as with the actual victims, survivors and family members. The cases dealt with by the Truth and Acknowledgement Chamber that involved State agents have been strategically litigated by renowned Colombian human rights nongovernmental organisations.15x Among the main ones are the Colombian Commission of Jurists (CCJ), the José Alvear Restrepo Legal Collective (CAJAR), the Minga association, the Corporación Colectivo de Abogados Luis Carlos Pérez, the Corporación Jurídica Libertad, as well as many other organisations that have worked for decades in the defence of human rights and the legal representation of victims. The Chamber could have limited the participation of victims to a traditional scriptural exchange between their legal representatives (attorneys) and the court. However, inspired by a genuine restorative justice approach, the Chamber has given proper voice to the victims themselves, that is, to the people who had directly suffered from the crimes and the family members of those who had been murdered or disappeared. Thereby, survivors and the family members have become the actual protagonists of the truth and acknowledgement proceedings, along with the comparecientes.
Victims have actively participated in the voluntary versions with the comparecientes. In these hearings, the comparecientes are interviewed for the first time, and legal representatives of the victims can submit written and oral (during the hearings) questions as well as observations. Moreover, the Chamber has organised public hearings in which survivors and family members of the dead and disappeared could share their views, opinions and comments on whether or not the perpetrators are telling the ‘complete, detailed, and exhaustive truth’.16x To consult the observations hearings, refer to the SJP institutional channel on YouTube: https://www.youtube.com/@JEPColombia (last accessed 19 May 2023). Victims have taken these opportunities to expose their stories and the harm suffered by them, their families and communities. Victims have been also directly consulted regarding the restorative sanctions. Most innovatively, they have participated in the public hearings for the acknowledgement of responsibilities by the perpetrators, whom they actively confronted with questions and comments.17x This was clearly evidenced in the public hearing for the acknowledgement of responsibilities of the Norte de Santander sub-case, within macro-case 03, which was the first scenario of its kind in the SJP. The victims’ experience in the SJP was so different from their previous trajectory in the ordinary justice system that the public hearing held in the town of Ocaña inspired the documentary ‘Las “locas” estábamos diciendo la verdad’ (‘The “crazy women” were telling the truth’). To access this documentary, please visit https://www.youtube.com/watch?v=9y8MaEqYLAA (last accessed 20 May 2023). The acknowledgement hearings have become truly collective catharsis instances.
This restorative justice approach has required the implementation of permanent dialogue, restorative circles and pedagogical workshops with victims and perpetrators. The process has been led by the judges of the Acknowledgement Chamber but implemented by teams of psychologists, lawyers and anthropologists with other expert support. Based on the notion that the process needs to be designed and implemented with the active participation of all stakeholders to lead to a proper healing of relationships, each one of the restorative spaces mentioned have been prepared and carried out collaboratively with all actors involved.
In the case of voluntary versions,18x These hearings constitute the first approach with the comparecientes, through which the judges inquire about the crimes under investigation from the voice of the perpetrators. In this way, the voluntary versions hearings presented by the comparecientes before the Acknowledgement Chamber are the starting point of their contribution to the uncovering of the truth before the SJP. both the lawyers representing the victims and those representing the comparecientes participate. However, victims are asked if they wish to participate,19x Initially, the rules of procedure of the SJP did not contemplate the participation of victims in these hearings since the voluntary versions are not intended as a confrontational scenario. However, through its jurisprudence (Judgement No. 080 of 2019), the Truth and Acknowledgement Chamber stated that the participation of victims in this particular scenario could result in greater satisfaction of the victims’ right to the truth and therefore established a series of guidelines to ensure that the participation would be restorative and not re-victimising. and, if they decide to do so, they are offered preparatory workshops prior to the hearing. The sessions are designed to help victims emotionally prepare themselves to face those responsible for their pain and trauma. Our teams guide participants in developing coping mechanisms, building resilience and navigating the complexities of hearing the narration of the victimising events from the voice of the perpetrators. At this initial moment of the SJP process, the victims and perpetrators do not yet meet directly (in the same physical space) but in separate rooms where the hearing is being broadcasted in real time.20x This was also established through the ruling cited in the previous footnote: Judgement No. 080 of 2019. If victims wish to ask questions, they can do so through their lawyers’ interventions during the hearing. Once the voluntary version hearing concludes, victims’ lawyers can submit written comments and observations.
A second restorative moment is the hearing for the victims’ oral manifestation of observations. These hearings, created and facilitated by the Chamber, provide victims with a platform to directly express their thoughts and experiences to judges, comparecientes and society at large. The Truth and Acknowledgement Chamber found that written observations are sometimes reduced to legal language, ignoring the voices of the victims. Since most victims are unfamiliar with written or legal communication, they want to express their views orally, particularly about what the perpetrators said during the voluntary versions. For this reason, the Chamber established these observations hearings and provided preparatory workshops to help victims participate effectively in these scenarios and comprehend the implications of its public exposure, as hearings are broadcasted live. The workshops, led by teams of SJP psychologists and lawyers, have a twofold purpose: to offer psychological preparation for victims to confront those accountable for the suffering they have endured21x Voluntary versions are often the first opportunity for victims to know the truthful details surrounding the death or disappearance of their loved ones. and to provide guidance on legal concepts and procedures, empowering victims to assertively voice their objections during the hearing.
A subsequent space is the public hearing for acknowledgement of truth and responsibility. At this point in the process, the SJP conducts separate and joint preparatory workshops with both victims and comparecientes. In the workshops with the comparecientes, the understanding of the SJP model of justice is reinforced, the ‘conditionality regime’ – based on the contribution to truth and acknowledgement of responsibility – is explained, and psychological support is offered prior to directly facing contact with the victims. For the preparation with the victims, the SJP conducts collective workshops in which the scope, objectives and limitations of transitional justice are explained. At the same time, victims are emotionally and psychologically strengthened for their first direct encounter with those responsible for the crimes that caused them such pain.
Within the framework of these preparation sessions, the SJP also organises private meetings between victims and comparecientes. These meetings provide an opportunity for both parties to speak and listen, allowing comparecientes to comprehend the victims’ suffering and the significance of their acknowledgement. In some cases, comparecientes have spontaneously expressed acceptance of their faults and requested forgiveness to the victims. It is also important to mention that during the several preparation workshops, victims and comparecientes are in the company of their lawyers, as well as by delegates from the Public Ministry.22x The Public Ministry has a constitutional duty to represent undetermined victims in ordinary and transitional justice. See the contribution by Jairo Ignacio Acosta Aristizábal in this Notes from the Field.
Finally, via the last restorative step in the proceedings carried out by the Truth and Acknowledgement Chamber, victims and comparecientes collectively develop proposals for the special sanctions (which include TOARs23x Which stands for works, projects and activities with a restorative-repairing content. See for more information the contribution by Greve and Vega in this Notes from the Field.) for comparecientes who acknowledge truth and responsibility. The SJP legislation allows the comparecientes to make TOARs proposals, which are then consulted and discussed with the victims and their legal representatives. At the same time, the SJP conducts workshops with the victims in order to elaborate on criteria for restorative TOARs. Once this process has been completed, the Truth and Acknowledgement Chamber presents in the concluding judgement a nonbinding list of TOARs that can be imposed to the comparecientes by the Peace Tribunal.
All restorative phases are designed and implemented in a process of direct dialogue with all stakeholders. -
5 Challenges and first lessons of the SJP implementation
The SJP continues to face several challenges. Among the main ones are the definition and actual implementation of restorative sanctions for those sentenced by the Peace Tribunal as the ‘the most responsible’ as well as the resolution of the legal situation of the more than 13,000 guerrilla and official military forces ex-combatants who are not those who bear the greatest responsibility in the crimes.
At the core of the Colombian Transitional Justice arrangement is a ‘restorative sanction’ (including TOARs):24x For a detailed description of the Colombian transitional justice arrangement that came out from the Havana Peace Agreement (2016), see Diaz Gomez (2020). works with a certain restriction of liberty and other rights for those who acknowledge their responsibility in the crimes and ‘tell complete, detailed and exhaustive truth’. Providing such a restorative sanction is unprecedented in the country’s transitional justice trajectory – and also worldwide when it comes to other transitional justice schemes as a response to crimes against humanity and serious violations of human rights and international humanitarian law. Based on what was agreed upon in the Final Peace Agreement and incorporated in the legislation,25x Section IX of the SJP Statutory Law 2019. the SJP is currently designing a series of projects in the areas of humanitarian demining, restoration of environmental damage, public infrastructure and memorialisation, which will be implemented with the support of international cooperation.
Despite the efforts so far undertaken by the SJP, to date there remain several uncertainties. It is not yet clear where or under what conditions those who were indicted as most responsible and who acknowledged their responsibility are going to serve their respective restorative sanctions, nor is it clear what concrete works are going to be done. Furthermore, there must be adequate conditions for the implementation so that the requirements of a genuine sanction can be met.26x Colombian Constitutional Court, ruling C-080 of 2018. However, in any case, the implementation of restorative sanctions needs an active engagement of the executive branch: the identification, coordination, monitoring and financing of the projects require the leadership of the various agencies of the national and local governments. The new national administration has shown serious political will, which needs to be translated into concrete action. Moreover, beyond conceptual elaboration, the actual legitimacy of the restorative sanction rests on the perception by the victims, the broader community and the society in general of the restorative potential of the works and activities. In this sense, participation of victims in the definition, design and implementation of the projects becomes crucial.
A core element of the Colombian transitional justice arrangement is the prompt and non-punitive resolution of the legal situation of those who are not the most responsible of the macro-criminal patterns as defined by the SJP. In fact, we would argue that the judicial accountability process for those who bear the greatest responsibility and the non-punitive resolution of the legal situation of the rank-and-file are the two sides of the same coin. The law requires specific contribution to truth and to the reparation of victims as a condition to the cessation of penal action by the SJP Chamber for the Definition of the Legal Situation. The non-punitive resolution of the legal situation for the rank-and-file is yet to properly start.27x In April 2023 (Resolution No. PSDSJ No. 003-2023), the Chamber for the Definition of Legal Situations took the decision to establish Special Sub-chambers of Knowledge and Decision. Their purpose was to definitively address the legal status of non-maximum responsible participants who served in the prioritised military units within the territories of the Caribbean Coast, Catatumbo and Casanare. This decision was made in response to the judgements issued by the SJP Truth and Acknowledgement Chamber. The actual socioeconomic reintegration possibilities of the more than 3,000 former soldiers and others at the base of the chain of command depend significantly on the clearance of their criminal records. The same applied for the thousands of rank-and-file guerrilleros who are to a lesser degree responsible for the crimes.
The Colombian case confirms that the investigation, prosecution and punishment of massive international crimes committed during armed conflict require massive human, financial and technical resources and time. During these first five years of operation (2018-2023), the SJP Truth and Acknowledgement Chamber has been able to indict 80 of those who bear the greatest responsibility in crimes against humanity and war crimes: in 2021,28x Despite previously mentioning the participation of seven former FARC-EP commanders in the acknowledgement hearing of case 01, it is important to note that a total of eight commanders were indicted. This discrepancy arises from the circumstance of one of them perishing during the legal process before the SJP. eight former FARC-EP commanders in macro-case 01 (hostage taking and grave deprivation of liberty by former FARC-EP); 61 former members of the Colombian Army in macro-case 03 (extrajudicial executions known as false positives); in 2023, ten mid-ranking FARC-EP ex-combatants in case 05 (crimes against humanity and war crimes committed in the indigenous and Afro-descendant territories of Northern Cauca and southern Cauca Valley); and one additional former member of the Colombian Army in macro-case 03.
The eight FARC-EP former commanders and 54 of the 62 former members of the official military forces contributed to the exhaustive, detailed and complete truth and acknowledged their individual criminal responsibility. However, in the other four macro-cases opened in the first prioritisation round (2019-2021), the indictments and potential respective acknowledgements of responsibility are still to come. In addition, the Chamber opened in 2022 three new macro-cases and is expecting to open case 11 (sexual violence and other gender-motivated crimes) in 2023. According to express constitutional disposition, the chamber has ten years to finish its investigative work.29x Section II.II.34 of the SJP Statutory Law 2019. The question is then whether the remaining five years would be enough to finish all investigations, indict those most responsible and conduct the restorative justice processes that allow for acknowledgement of responsibility.
One of the most important lessons of the SJP is that the judicial process can substantively impact the public sphere and catalyse social acknowledgement and reduction of denial. In this sense, we would argue the SJP has contributed to channel the public desire for revenge and, thus, contributed to reconciliation. In close cooperation with the SJP judges and law clerks, a communications team within the institution created a specific communications strategy. The strategy was inspired by lessons from other transitional justice experiences that underline the strategic role of communications in meeting the goals of judicial (international, hybrid and domestic) tribunals. Accordingly, the SJP has, among many other tools, produced a series of short documentaries, podcasts and written and audiovisual material for broader audiences with the aim to share not only the most important judicial decisions but also the course of the proceedings.
The SJP process against former members of the official military armed forces in Colombia for assassinations and enforced disappearances also known as ‘false positives’ exemplifies the tremendous communicative force of judicial decisions when pursuing truth and victims’ recognition. The specific aim of the judicial decision with respect to the provisional universe (quantitative starting point of the investigation) of ‘false positives’ was to publicly communicate the prioritisation strategy of macro-case 03, presenting the quantitative framework used by the Chamber to decide which critical territories and periods would be the first investigated by the SJP.30x Truth and Acknowledgement Chamber Judgement Auto No. 033 of 2021. The public impact of the ‘6,402’ cases of alleged ‘false positives’ committed by Colombian armed forces members was far beyond our imagination. It became a symbol, both national and international, of this heinous crime and a judicial recognition of a truth that victims had been seeking for more than a decade.
As often happens, victims of crimes committed by State agents first faced huge barriers, including the systematic denial from the government and good part of the society of the mere existence of the crime. That is why this first recognition had such a huge impact. This number symbolises the truth suited to fostering social consensus around the harm caused to the victims and the collective condemnation of the acts committed by the offenders. As the Argentinian philosopher Carlos Santiago Nino (1991: 2630) said,The formation of a social consciousness against human rights abuses depends more on the exposure of the atrocities and on the clear condemnation of them than on the number of people actually punished.
References Diaz, C. (2020). La Jurisdicción Especial para la Paz: paz negociada, reconocimiento de las víctimas y rendición de cuentas. In D. Rojas (ed.), La JEP vista por sus jueces (2018-2019) (pp. 179-226). Bogotá: Special Jurisdiction for Peace.
Lemaitre, J. & Rondón, L. (2020). La justicia restaurativa y la escucha: un análisis del componente oral de los informes mixtos y de las versiones voluntarias en el caso 01. In D. Rojas (ed.), La JEP vista por sus jueces (2018-2019) (pp. 267-295). Bogotá: Special Jurisdiction for Peace.
Nino, C.S. (1991). The duty to punish past abuses of human rights into context: the case of Argentina. The Yale Law Journal, 100(8), 2619-2640. doi: 10.2307/796904.
Orozco, I., Peralta, L.C. & Sánchez, G. (2022). Tres soldados de a pie confiesan sus crímenes: reflexiones sobre la escena judicial tradicional. Análisis Político, 105, 179-209.
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1 Under transitory Art. No. 07 of the Legislative Act 01 of 2017 (Colombian Congress, 2017), the Jurisdiction will be composed (among others) by the Truth and Acknowledgement Chamber, which will work according to prioritisation criteria based on the seriousness and representativeness of the crimes and the degree of responsibility for them. For this reason, the Colombian Constitutional Court (2018) established that as a consequence of the selection and attribution of the most serious and representative cases to maximum perpetrators, the SJP should favour the construction of macro-processes, which excludes, in principle, the case-by-case investigation. See also the information on the macro-cases in the contribution by Janna Greve and Lorena Vega in this Notes from the Field.
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2 Political Constitution of Colombia, SJP Statutory Law (Act No. 1957 of 2019) and the SJP Law on Procedure (Act No. 1922 of 2018).
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3 Such was established in the Judgement of Determination of Facts and Conduct issued in macro-case 01 (Truth and Acknowledgement Chamber Judgement No. 019 of 2021).
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4 For further reflections on restorative justice in case 01, see Lemaitre and Rondón (2020).
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5 The figure was updated from 61 to 62 former members of the Colombian national armed forces in April 2023 following an additional indictment at the victims’ request. Recognition from this perpetrator is still pending.
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6 These judgements were issued in the Norte de Santander and Costa Caribe sub-cases (Truth and Acknowledgement Chamber Judgements No. 125 and 128 of 2021), as well as in the Dabeiba and Casanare sub-cases (Truth and Acknowledgement Chamber Judgements No. 01 and D-055 of 2022) in the macro-case 03. See also the contribution by Jairo Ignacio Acosta Aristizábal in this Notes from the Field.
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7 As of today, the videos of the hearings have hundreds of thousands of views. To consult these hearings refer to the SJP institutional channel on YouTube: https://www.youtube.com/@JEPColombia (last accessed 19 May 2023).
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8 Prioritisation ruling for macro-case 03 (Truth and Acknowledgement Chamber Judgement Auto No. 033 of 2021).
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9 Ibid.
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10 Concluding Judgements No. 01, 02 and 03 of 2022. Under section V.II.79.m of the SJP Statutory Law (2019), the Acknowledgement Chamber must present resolutions of conclusions before the Peace Tribunal for cases of recognition of truth and responsibilities, with the identification of the most serious cases and the most representative conducts or practices; the individualisation of responsibilities, in particular of those who had a decisive participation; the legal qualification of the conducts; the acknowledgements of truth and responsibility; and the proposed sanction project.
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11 Between 15 March 2018 (the day the SJP opened its doors to the public) and 21 March 2022 (the day on which the deadline for the presentation of reports expired), the Jurisdiction received 974 reports from State entities and victims’ organisations.
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12 The nonprofit organisation Dunna-Creative Alternatives for Peace led the implementation of the restorative justice approach in the preparation for the acknowledgement hearing in macro-case 03/Norte de Santander. Dunna ‘works by implementing social innovation models for mental health, psychosocial attention, and peaceful coexistence’ (see www.dunna.org) (last accessed 31 May 2023).
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13 According to section 1.b of the SJP Law on Procedure (2018), in cases of truth acknowledgement, the procedure shall have a dialogic character, with the participation of victims and comparecientes.
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14 For a detailed account on the connections between moral emotions and the incentives coming from individual legal circumstances, see Orozco, Peralta and Sánchez (2022). These authors have done thorough work in the follow-up of the processes with recognition before the SJP, particularly on the first two public acknowledgement hearings and will publish two additional articles in 2023: ‘Secuestro: ¿De rebeldes en la política a criminales en la justicia? (Sobre la audiencia de secuestro en Bogotá)’ (June 2023) and ‘Recuperar el buen nombre, la dignidad y la palabra (La audiencia por falsos positivos en Ocaña)’ (December 2023).
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15 Among the main ones are the Colombian Commission of Jurists (CCJ), the José Alvear Restrepo Legal Collective (CAJAR), the Minga association, the Corporación Colectivo de Abogados Luis Carlos Pérez, the Corporación Jurídica Libertad, as well as many other organisations that have worked for decades in the defence of human rights and the legal representation of victims.
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16 To consult the observations hearings, refer to the SJP institutional channel on YouTube: https://www.youtube.com/@JEPColombia (last accessed 19 May 2023).
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17 This was clearly evidenced in the public hearing for the acknowledgement of responsibilities of the Norte de Santander sub-case, within macro-case 03, which was the first scenario of its kind in the SJP. The victims’ experience in the SJP was so different from their previous trajectory in the ordinary justice system that the public hearing held in the town of Ocaña inspired the documentary ‘Las “locas” estábamos diciendo la verdad’ (‘The “crazy women” were telling the truth’). To access this documentary, please visit https://www.youtube.com/watch?v=9y8MaEqYLAA (last accessed 20 May 2023).
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18 These hearings constitute the first approach with the comparecientes, through which the judges inquire about the crimes under investigation from the voice of the perpetrators. In this way, the voluntary versions hearings presented by the comparecientes before the Acknowledgement Chamber are the starting point of their contribution to the uncovering of the truth before the SJP.
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19 Initially, the rules of procedure of the SJP did not contemplate the participation of victims in these hearings since the voluntary versions are not intended as a confrontational scenario. However, through its jurisprudence (Judgement No. 080 of 2019), the Truth and Acknowledgement Chamber stated that the participation of victims in this particular scenario could result in greater satisfaction of the victims’ right to the truth and therefore established a series of guidelines to ensure that the participation would be restorative and not re-victimising.
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20 This was also established through the ruling cited in the previous footnote: Judgement No. 080 of 2019.
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21 Voluntary versions are often the first opportunity for victims to know the truthful details surrounding the death or disappearance of their loved ones.
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22 The Public Ministry has a constitutional duty to represent undetermined victims in ordinary and transitional justice. See the contribution by Jairo Ignacio Acosta Aristizábal in this Notes from the Field.
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23 Which stands for works, projects and activities with a restorative-repairing content. See for more information the contribution by Greve and Vega in this Notes from the Field.
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24 For a detailed description of the Colombian transitional justice arrangement that came out from the Havana Peace Agreement (2016), see Diaz Gomez (2020).
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25 Section IX of the SJP Statutory Law 2019.
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26 Colombian Constitutional Court, ruling C-080 of 2018.
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27 In April 2023 (Resolution No. PSDSJ No. 003-2023), the Chamber for the Definition of Legal Situations took the decision to establish Special Sub-chambers of Knowledge and Decision. Their purpose was to definitively address the legal status of non-maximum responsible participants who served in the prioritised military units within the territories of the Caribbean Coast, Catatumbo and Casanare. This decision was made in response to the judgements issued by the SJP Truth and Acknowledgement Chamber.
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28 Despite previously mentioning the participation of seven former FARC-EP commanders in the acknowledgement hearing of case 01, it is important to note that a total of eight commanders were indicted. This discrepancy arises from the circumstance of one of them perishing during the legal process before the SJP.
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29 Section II.II.34 of the SJP Statutory Law 2019.
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30 Truth and Acknowledgement Chamber Judgement Auto No. 033 of 2021.
DOI: 10.5553/TIJRJ.000169
The International Journal of Restorative Justice |
|
Notes from the field | Truth and recognition at the Colombian Special Jurisdiction for Peace |
Authors | Catalina Diaz, Lina Moreno en Sandra Santa |
DOI | 10.5553/TIJRJ.000169 |
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Catalina Diaz, Lina Moreno and Sandra Santa, 'Truth and recognition at the Colombian Special Jurisdiction for Peace', (2023) The International Journal of Restorative Justice 285-297
Catalina Diaz, Lina Moreno and Sandra Santa, 'Truth and recognition at the Colombian Special Jurisdiction for Peace', (2023) The International Journal of Restorative Justice 285-297