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1 A plural understanding of justice
In the context of the existing legal instruments of the State,5x Such as the Political Constitution of Colombia 1991 (Art. 246: The authorities of Indigenous peoples may exercise their jurisdictional functions within their territorial jurisdictions in accordance with their own laws and procedures as long as they are not contrary to the Constitution and the laws of the Republic. A law shall establish the forms of coordination between this special jurisdiction and the national judicial system). See as well: General Rules of Procedure for the SJP – 01 Agreement of 2020 or (Arts. 49, 98, 107), Statutory law on the administration of justice in the SJP, 2019 (Arts. 3 y 35). the uncodifiable law emanating from Indigenous peoples must be understood and adapted through exercises of permanent interaction that imply mutual recognition and the blurring of the traditional limits of the predominant State-set catalogue of law. The concept of legal pluralism illustrates a commitment of intercultural dialogue and allows for a redefinition of the role of the State as not being the only legitimate actor to establish norms and rules. In this regard, prior to the development of the justice framework of the SJP, Indigenous representatives in Colombia have developed several principles on which the current transitional justice framework is now based. They thereby contributed, also indirectly, to its refinement. As an example, the Wayúu normative system contains fundamental principles ‘that regulate or guide the social and spiritual behaviour of the members of the ethnic group’ (Junta Mayor Autónoma de Palabreros, 2013). These are specified, among others,6x A more detailed description of the principles and their adoption in transitional scenarios can be found in Cantillo Pushaina (2020). in ‘the Word’ (Pütchikalü) as a primary tool for conflict resolution and compromise finding, the Truth (Shiimain) based on the acknowledgement of an error committed, Reparation and Compensation (Ojutawaa), the Non-Repetition (Anou’tawaa), which re-establishes the social and spiritual order, and Reconciliation (Anajirawaa).
The FPA integrated these aspects into its guiding principles and pointed out thatethnic people have contributed to the construction of a stable and lasting peace, they have suffered historical conditions of injustice, they have been seriously affected by the armed conflict and, therefore, the maximum guarantees for the exercise of their human and collective rights must be promoted, within the framework of their own aspirations, interests and worldviews. (Cote & Vega, 2021: 4)
Therefore, ‘in terms of transitional justice, State justice must be able to learn the ways of conceiving the damage and reparation that ethnic people have handled for centuries’ (De Sousa Santos, 2020: 8).
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2 Creating tools for a fruitful justice systems dialogue
A harmonious mutual reinforcement of normative systems requires a State-led incorporation of lessons learned from Indigenous justice into the State justice mechanisms as well as specific dialogue tools.
The analysis of the instruments provided by the SIJ reveals that certain concerns vis-à-vis a pluralistic approach still need to be addressed to enhance trust and legitimacy. One of these concerns related to an alleged duplicity according to which the permanent interaction of special systems could slow down the dynamics of the SJP, which is a non-permanent jurisdiction that must fulfil its objectives within a limited time frame. To overcome this risk, the SIJ in general, and the SJP in particular, have made notable progress with the potential of extension and reinforcement, for example, through the institutionalisation of participation tools for Indigenous people within the exercises of articulation and cooperation as defined by the overall structure of the SJP. Article 18 of Law 1957 of 2019 establishes that all the actions of the SJP must have an ethnic focus, ‘which implies identifying the differentiated impact of the armed conflict on these peoples and ethnic communities and the exercise of their fundamental and collective rights’. Based on this mandate, the SJP has sought to incorporate the perspective, logic and world view of Indigenous peoples in multiple scenarios, among which it is possible to highlight the following:The creation of the Ethnic Commission as a permanent instance in charge of promoting the effective incorporation and implementation of the ethnic approach, in accordance with the provisions of Agreement 001 of 2020.7x Which enshrines the mechanisms of articulation and coordination between the JEP and the SIJ by mandate of Art. 35 of Law 1957 of 2019 in compliance with Art. 246 of the Colombian Constitution. These mechanisms were agreed upon in prior consultation with ethnic peoples and communities.
The Protocol 001 of 2019 which coordinates and provides for interjurisdictional articulation and intercultural dialogue between the SIJ and the SJP, whose main objective is to guarantee collaboration between these judicial systems, while respecting their autonomy and ‘without ignoring the capacity of Indigenous peoples to make decisions in their territorial scope and in accordance with their habits, customs and own law’.8x This protocol is one of the agreed products of prior consultation with Indigenous peoples.
The opening of macro-cases 029x Case 02: Prioritises the territorial situation of Ricaurte, Tumaco and Barbacoas (Nariño). Thereby, for the first time, two ethnic authorities were accredited as special interveners before the SJP with the power to defend the legal order of their people (Awá) and represent an ancestral territory (Katsa Sú) that was recognised as a victim. See https://www.jep.gov.co/macrocasos/caso02.html (last accessed 28 April 2023). and 0510x Case 05: Prioritises territorial situation in the region of northern Cauca and southern Valle del Cauca. In March 2023, the SJP charged fourteen former members of the FARC-EP with fourteen war crimes and crimes against humanity which also entailed attacks that systematically affected the right to cultural identity of ancestral Indigenous and Afro-Colombian peoples prioritised in this case. See https://www.jep.gov.co/macrocasos/caso05.html (last accessed 21 June 2023). with a deliberate territorial approach and a focus on the investigation of crimes committed against Indigenous people and of macro-case 09 with a focus on crimes against ethnic peoples and territories11x Special Jurisdiction for Peace, Chamber for the Acknowledgment of Truth, Responsibility and Determination of Facts and Conduct, Order No. 105 of November 7, 2022, through which case No. 09 regarding non-amnestied crimes committed against Ethnic Peoples and Territories due to, on occasion, or in direct or indirect relation to the Colombian armed conflict. See https://www.jep.gov.co/macrocasos/caso09.html (last accessed 21 June 2023). require a constant exercise of articulation and constant testing and learning regarding the respective mechanisms. In this regard, the definition and establishment of the most serious and representative crimes committed against Indigenous peoples in the context of the armed conflict by the SJP implies an identification of the specific impacts of these crimes on ethnic peoples and the exercise of their fundamental rights, as well as the nexus with the risk of physical and cultural extermination.12x Statutory law on the administration of justice in the SJP, 2019 (Col.) Art. 79.
The obligation of the SJP and, in particular, of its Investigation and Prosecution Unit (UIA)13x SJP (2019). Protocol for the investigation and prosecution unit’s communication with victims. Retrieved from https://www.jep.gov.co/JEP/documents1/Protocolo%20de%20comunicacio%CC%81n%20de%20la%20Unidad%20de%20Investigacio%CC%81n%20y%20Acusacio%CC%81n%20con%20las%20vi%CC%81ctimas.pdf (last accessed 21 June 2023). to carry out comprehensive investigation with an ethnic-sensitive approach which requires (i) making the identity characteristics and cultural expressions of ethnic groups as collective subjects visible, considering the kinds of discrimination and victimisation they have suffered over time, and recognising the forms of exclusion, impacts, as well as their means for resistance, healing and relationships,14x SJP (2020). Handbook for victims’ participation before the Special Jurisdiction for Peace. Retrieved from www.jep.gov.co/Infografas/participacion/manualparticipacion.pdf (last accessed 21 June 2023). and (ii) to ‘characterise the direct and related damages and impacts in order to recognise the magnitude of the harm inflicted on the people and their members, life, culture, spirituality, environment and territory’.15x SJP (2019). Protocol 001 of 2019 adopted by the Ethnic Commission of the SJP for the coordination, articulation, and intercultural dialogue between the special indigenous jurisdiction and the SJP. Retrieved from https://www.jep.gov.co/PlanAccion/Protocolo%20instrumentos%20coordinaci%C3%B3n%20articulaci%C3%B3n%20pueblos%20ind%C3%ADgenas%20y%20JEP.pdf (last accessed 21 June 2023).
The obligation to guarantee the participation of Indigenous peoples in the different SJP procedures, both (i) through the submission of reports,16x The submission of reports is the mechanism provided for in the AFP through which victims’ organisations have the opportunity to participate in the SJP, disclosing the relevant information they possess on the facts and conduct related to the armed conflict. These collective reports are the gateway to the jurisdiction. See https://www.jep.gov.co/DocumentosJEPWP/6cartilla-guia-rientacion-para-elaboracion-de-informes-cot-62000.pdf (last accessed 21 June 2023). and (ii) as special interveners during the hearings and circular intercultural proceedings which need to be characterised by horizontal and egalitarian dialogue between authorities recognised by the Constitution and the support of interpreters when so requested by the Indigenous authority. Likewise, they have been distinguished by the inclusion of the harmonisation rites of the peoples involved, as they correspond to an institution that is not only spiritual, family, and social, but also because it is part of the proper law of the respective original people (Cantillo Pushaina, 2023: 69).
The obligation to implement a ‘gender-, women-, family- and generation-’ sensitive approach, including from a territorial perspective, has its origin in the conceptions of integrality of the world and societies of Indigenous peoples. Accordingly, the protection of life, the interaction in the community collective and the sustaining of family ties and the relationship with the Earth must be transmitted to future generations through knowledge and experience, which are fundamentally held by the women of each people.17x SJP (2020). Ethnic-racial differential approach guidelines in the Special Jurisdiction for Peace. Retrieved from https://www.jep.gov.co/Control%20interno/Pregunta%20129/129.06%20Anexo%206.%20Lineamientos%20Enfoque%20Etnico%20Racial%20en%20la%20JEP%2011122020.pdf (last accessed 21 June 2023).
The effective implementation of these tools, and the fulfilment of the effective empowerment of traditional actors as well as local and ancestral communities, are required to achieve a truly lasting peace for all Colombian societal groups and territories. The SJP is a legitimate body to contribute to this effort.
Another key concern with respect to the inter-justice dialogues consists in the assumption that the new inter-justice tools translate into a lack of effectiveness. However, on the contrary, the new SJP system has the advantage of an innovative and unique approach: the materialisation of horizontal dialogues between the special justices (SJP and SIJ) demonstrates that there is not only an effective legal framework but also a permanent will to articulate and give meaning to the entire justice system.
The intercultural dialogue hearings that different organs of the SJP have held with the traditional authorities of the ethnic peoples are an example for this approach. They are based on a horizontal dialogue that are inaugurated, amongst others, with harmonisation rituals of the respective Indigenous people.18x SJP (2022). Precautionary measures hearing with the Indigenous reservation of San Lorenzo. Retrieved from https://www.jep.gov.co/Sala-de-Prensa/Paginas/JEP-avanza-en-estudio-de-medidas-cautelares-en-el-resguardo-ind%C3%ADgena-de-San-Lorenzo-(Caldas).aspx (last accessed 21 June 2023. These harmonisation rituals are a form of preliminary interaction to spiritually prepare communities and external actors who will participate in political or judicial scenarios. This can take place through symbolic interactions such as offerings of food, seeds, plants, and flowers native to the regions to which each people belong, the traditional songs and ceremonies of the authorities of each Indigenous people, or the sharing of drinks and dishes that are specific to each participating community, among others.19x This generalisation is made because it is impossible to mention in these pages the rituals of each of the Indigenous peoples of Colombia. As examples for further study of two of these peoples, look at the study of some of the rituals of the Nasa and the Pastos peoples by Losonczy and Herrán (2020).
Nevertheless, certain adjustments and efforts will be essential to overcome the remaining obstacles that could undermine the effectiveness of the established legal instruments of the Colombian transitional justice framework. Moreover, the grave security situation which ancestral territories of ethnic peoples in Colombia face needs to be taken into consideration. So far, the central State has not yet provided sufficient provisions or concrete solutions, and emergency measures with long-term provisions that are adjusted to the social, political and economic realities and needs of each region and each of the people are yet to be articulated. -
3 The way forward
From a socio-legal perspective, the current recognition of the importance of an intercultural dialogue between the legal systems could be the occasion to establish new milestones for regulating a society as dynamic and complex as the Colombian one. These milestones could be established by (i) the interaction of ‘ordinary’, transitional and Indigenous justice systems as well as the creation of institutional synergies to avoid overlapping actions, the compartmentalisation of initiatives and the dispersion of competences and resources needed for the purposes of the FPA; (ii) the territorial work with ethnic peoples; and iii) the ethnic-territorial approach as a tool for constructive dialogue.
Such a plural-system-approach would require a reinforcement of monitoring mechanisms, awareness-raising and involvement of society in general. At the same time, the dissemination of information on these articulation mechanisms can turn the respect for the democratic, participatory and pluralist20x Political Constitution of Colombia 1991, Art. 1: Colombia is a social State under the rule of law, organised in the form of a unitary republic, decentralised, with autonomy of its territorial units, democratic, participatory and pluralistic, based on respect for the human dignity, work and solidarity of the individuals who belong to it, and the prevalence of the general interest. republic from a formal obligation into an expression of a regional identity. In addition, given that legislation alone is not enough to guarantee its effectiveness, the SJP-JEI dialogic process requires a clear long-term vision to avoid stagnation.
Without undermining the significant actions already undertaken by the transitional justice system, the Colombian State must assume the task of harmonising, converging, and making demands for participation, reparation, and non-repetition of ethnic peoples coherent with its objectives and priority of ‘total peace’.21x Total Peace Law – No. 2272, 2022 (Col.). Therefore, the lessons from the work of the SIJ, the assets, but also the limitations of the transitional justice system as well as the continuous threats against Indigenous peoples need to be considered for a new vision and policies necessary for achieving a real transformation of the social system.
Only a holistic, multi-agency, interdisciplinary and participatory approach will be able to generate actions that allow the true implementation of the Comprehensive System. Accordingly, the articulated and horizontal SJP-SIJ dialogue is a balancing exercise for the creation of a new pluralistic transitional justice system that serves as an example at the international level.
Overall, the remaining concerns regarding the effectiveness of a plural system of justice can be overcome by strengthening dialogue, coordination and balance between justice systems, which can guarantee the harmonious development and well-being of the plurality of societal groups. A ‘new beginning’ for peace would consist in the affirmation of the special legal corpus and in the reform of legal instruments of classical law from an interdisciplinary and, above all, a pluralist approach.
At the risk of sounding dramatic: not doing so not only would endanger the survival of ethnic people, but also deprive future generations of the opportunity to ‘build a stable and lasting peace, with the participation of all Colombians’.22x AFP. (2016). Preamble. Retrieved from https://www.jep.gov.co/Documents/Acuerdo%20Final/Acuerdo%20Final%20Firmado.pdf (last accessed 21 June 2023). Thus, the present opportunity is historic, and the actions to maintain the initiated intercultural dialogue must be unbreakable. References Cantillo Pushaina, J. (2020). Dialogues entre la Juridiction spéciale pour la paix et la Juridiction spéciale autochtone en Colombie. Une référence spécifique au système normatif Wayuu. Annuaire de Justice Transitionnelle, Collection Transition et Justice, IFJD, 42-66.
Cantillo Pushaina, J. (2023). El Pluralismo jurídico en la justicia dialógica de la Jurisdicción Especial para la Paz. In A. Olarte & M. Gutiérrez (eds.), Gobierno y Gobernanza – Experiencias de diálogos restaurativos en el contexto transicional colombiano (pp. 67-85). Bogotá: Universidad Externado de Colombia.
Cote, G. & Vega, L. (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, Policy Brief 9. Bogotá: Instituto CAPAZ.
De Sousa Santos, B. (2020). Para una articulación descolonizadora entre la justicia estatal y la justicia propia, Policy Brief 5. Bogotá: Instituto CAPAZ.
Junta Mayor Autónoma de Palabreros. (2013). El palabrero como restaurador de PAZ. Pastor del respeto, Ouutkajawaa Molousükalü Pütchiü´üi: Colombia – Venezuela, in-house edition.
Losonczy, A.M. & Herrán, S.L. (2020). El espíritu de la Ley, ritualidad y política entre los indígenas del Valle del Cauca. Maguaré, 34, 183-211.
Swenson, G. (2018). Legal pluralism in theory and practice. International Studies Review, 20(3), 438-462. doi: 10.1093/isr/vix060.
Van Sliedregt, E. (2014). Pluralism: a new framework for international criminal justice. In E. van Sliedregt & S. Vasiliev (eds.), Pluralism in international criminal law (pp. 3-38). Oxford: Oxford Scholarship Online.
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1 The AFP recognises that the impact of serious violations of international humanitarian law and human rights is stronger when it comes to victims belonging to the most vulnerable groups, including Indigenous peoples. For more background information on the AFP, see the contribution by Janna Greve and Lorena Vega in this Notes from the Field.
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2 Legal pluralism whereby two or more legal systems coexist in the same social field is the dominant feature of most legal orders worldwide (see Swenson, 2018).
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3 Although legal pluralism can be understood according to the above definition, this article, being a brief commentary on the interactions between systems, will not develop the theoretical difficulties that have arisen regarding this concept.
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4 See Greve and Vega in this Notes from the Field, and https://web.comisiondelaverdad.co/transparencia/informacion-de-interes/glosario/sistema-integral-de-verdad-justicia-reparacion-y-no-repeticion-sivjrnr (last accessed 28 April 2023).
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5 Such as the Political Constitution of Colombia 1991 (Art. 246: The authorities of Indigenous peoples may exercise their jurisdictional functions within their territorial jurisdictions in accordance with their own laws and procedures as long as they are not contrary to the Constitution and the laws of the Republic. A law shall establish the forms of coordination between this special jurisdiction and the national judicial system). See as well: General Rules of Procedure for the SJP – 01 Agreement of 2020 or (Arts. 49, 98, 107), Statutory law on the administration of justice in the SJP, 2019 (Arts. 3 y 35).
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6 A more detailed description of the principles and their adoption in transitional scenarios can be found in Cantillo Pushaina (2020).
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7 Which enshrines the mechanisms of articulation and coordination between the JEP and the SIJ by mandate of Art. 35 of Law 1957 of 2019 in compliance with Art. 246 of the Colombian Constitution. These mechanisms were agreed upon in prior consultation with ethnic peoples and communities.
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8 This protocol is one of the agreed products of prior consultation with Indigenous peoples.
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9 Case 02: Prioritises the territorial situation of Ricaurte, Tumaco and Barbacoas (Nariño). Thereby, for the first time, two ethnic authorities were accredited as special interveners before the SJP with the power to defend the legal order of their people (Awá) and represent an ancestral territory (Katsa Sú) that was recognised as a victim. See https://www.jep.gov.co/macrocasos/caso02.html (last accessed 28 April 2023).
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10 Case 05: Prioritises territorial situation in the region of northern Cauca and southern Valle del Cauca. In March 2023, the SJP charged fourteen former members of the FARC-EP with fourteen war crimes and crimes against humanity which also entailed attacks that systematically affected the right to cultural identity of ancestral Indigenous and Afro-Colombian peoples prioritised in this case. See https://www.jep.gov.co/macrocasos/caso05.html (last accessed 21 June 2023).
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11 Special Jurisdiction for Peace, Chamber for the Acknowledgment of Truth, Responsibility and Determination of Facts and Conduct, Order No. 105 of November 7, 2022, through which case No. 09 regarding non-amnestied crimes committed against Ethnic Peoples and Territories due to, on occasion, or in direct or indirect relation to the Colombian armed conflict. See https://www.jep.gov.co/macrocasos/caso09.html (last accessed 21 June 2023).
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12 Statutory law on the administration of justice in the SJP, 2019 (Col.) Art. 79.
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13 SJP (2019). Protocol for the investigation and prosecution unit’s communication with victims. Retrieved from https://www.jep.gov.co/JEP/documents1/Protocolo%20de%20comunicacio%CC%81n%20de%20la%20Unidad%20de%20Investigacio%CC%81n%20y%20Acusacio%CC%81n%20con%20las%20vi%CC%81ctimas.pdf (last accessed 21 June 2023).
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14 SJP (2020). Handbook for victims’ participation before the Special Jurisdiction for Peace. Retrieved from www.jep.gov.co/Infografas/participacion/manualparticipacion.pdf (last accessed 21 June 2023).
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15 SJP (2019). Protocol 001 of 2019 adopted by the Ethnic Commission of the SJP for the coordination, articulation, and intercultural dialogue between the special indigenous jurisdiction and the SJP. Retrieved from https://www.jep.gov.co/PlanAccion/Protocolo%20instrumentos%20coordinaci%C3%B3n%20articulaci%C3%B3n%20pueblos%20ind%C3%ADgenas%20y%20JEP.pdf (last accessed 21 June 2023).
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16 The submission of reports is the mechanism provided for in the AFP through which victims’ organisations have the opportunity to participate in the SJP, disclosing the relevant information they possess on the facts and conduct related to the armed conflict. These collective reports are the gateway to the jurisdiction. See https://www.jep.gov.co/DocumentosJEPWP/6cartilla-guia-rientacion-para-elaboracion-de-informes-cot-62000.pdf (last accessed 21 June 2023).
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17 SJP (2020). Ethnic-racial differential approach guidelines in the Special Jurisdiction for Peace. Retrieved from https://www.jep.gov.co/Control%20interno/Pregunta%20129/129.06%20Anexo%206.%20Lineamientos%20Enfoque%20Etnico%20Racial%20en%20la%20JEP%2011122020.pdf (last accessed 21 June 2023).
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18 SJP (2022). Precautionary measures hearing with the Indigenous reservation of San Lorenzo. Retrieved from https://www.jep.gov.co/Sala-de-Prensa/Paginas/JEP-avanza-en-estudio-de-medidas-cautelares-en-el-resguardo-ind%C3%ADgena-de-San-Lorenzo-(Caldas).aspx (last accessed 21 June 2023.
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19 This generalisation is made because it is impossible to mention in these pages the rituals of each of the Indigenous peoples of Colombia. As examples for further study of two of these peoples, look at the study of some of the rituals of the Nasa and the Pastos peoples by Losonczy and Herrán (2020).
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20 Political Constitution of Colombia 1991, Art. 1: Colombia is a social State under the rule of law, organised in the form of a unitary republic, decentralised, with autonomy of its territorial units, democratic, participatory and pluralistic, based on respect for the human dignity, work and solidarity of the individuals who belong to it, and the prevalence of the general interest.
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21 Total Peace Law – No. 2272, 2022 (Col.).
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22 AFP. (2016). Preamble. Retrieved from https://www.jep.gov.co/Documents/Acuerdo%20Final/Acuerdo%20Final%20Firmado.pdf (last accessed 21 June 2023).
As part of the Special Jurisdiction for Peace in Colombia (SJP), we have seen how important challenges of interjurisdictional articulation have been raised and attempted to be solved. Mainly, this transitional justice system, unique in the world, has sought to generate scenarios for the exhaustive participation of ethnic communities and dialogue between equals with the authorities of Indigenous peoples. It is precisely the particularity of this debate that we would like to briefly address in the following lines.
Overall, the participation of Indigenous peoples in traditional and transitional justice systems offers a contrasting picture. In Colombia, this picture was in past years enriched by considerable achievements as a result of the Final Peace Agreement (FPA).1x The AFP recognises that the impact of serious violations of international humanitarian law and human rights is stronger when it comes to victims belonging to the most vulnerable groups, including Indigenous peoples. For more background information on the AFP, see the contribution by Janna Greve and Lorena Vega in this Notes from the Field. The FPA enhanced the understanding and application of legal pluralism2x Legal pluralism whereby two or more legal systems coexist in the same social field is the dominant feature of most legal orders worldwide (see Swenson, 2018). of the State and society and thus contributed to its development.3x Although legal pluralism can be understood according to the above definition, this article, being a brief commentary on the interactions between systems, will not develop the theoretical difficulties that have arisen regarding this concept.
Several types of legal interaction can be identified, each of which has multiple variants. In legal pluralism, the idea rests on crossed or competitive actions, convergent or opposite. They will proceed by readjustment, revision, repetition and even emulation. The common point of all these interactions is a mutual consolidation of the two approaches, even if they sometimes come into competition (Van Sliedregt, 2014). Thus, transitional justice and special Indigenous justice will mutually influence each other and jointly develop plural States. It is precisely the consolidation of a plural society that was pursued through the FPA.
However, although this encouraging panorama has been reinforced by the practice of the Comprehensive System for Peace (SIP),4x See Greve and Vega in this Notes from the Field, and https://web.comisiondelaverdad.co/transparencia/informacion-de-interes/glosario/sistema-integral-de-verdad-justicia-reparacion-y-no-repeticion-sivjrnr (last accessed 28 April 2023). it is necessary to overcome the false concept of a ‘duplication’ between transitional justice and the Special Indigenous Jurisdiction (SIJ) that could hinder the interactions between both.
In light of the earlier text, reflections on the progress made in the interactions between the Indigenous justice and the SIP, as well as possible remaining challenges and how to address these, will be shared.