Colombia’s war criminals will soon be tried in a transitional justice tribunal that will seek justice for many of the country’s victims of war crimes.
Unlike the common punitive justice system, which is common to both Latin and North America, this court will pursue what is called “restorative justice.”
This restorative justice seeks to attend to the needs of victims, and functions differently than what you may be used to.
A “Comprehensive System for Truth, Justice, Reparation and Non-repetition”
That wordy title is the umbrella name for Colombia’s new transitional justice system, which will encompass courts, a truth commission, and special units to search for tens of thousands of disappeared and dismantle ties between state officials and illegal armed groups.
According to the Final Peace Agreement between the two parties, the System “places special emphasis on restorative and reparative measures.” In other words, it seeks to empower victims of the conflict by facilitating testimonies and reparations from perpetrators, rather than doling out traditional punishments such as jail time.
The system is also supposed to give particular attention to women and ethnic minorities, ensuring that both groups are fully represented on transitional justice decision-making bodies as magistrates, commissioners, and victims.
In the years ahead, former FARC members, military soldiers, police officers, and some civilians will all be put on trial before the new system.
The Special Jurisdiction for Peace
At the heart of the new transitional justice system is the Special Jurisdiction for Peace.
The JEP, as it’s abbreviated in Spanish, will comprise a series of courts to investigate and try those who committed human rights violations during the armed conflict.
Only those who have participated in the armed conflict in a direct manner such as military officials and soldiers, FARC members, police, and some civilians will be able to bring their cases to the JEP.
If they fully cooperate with the system, perpetrators can expect to receive alternative sanctions, such as confinement to a community area where they will have to contribute as a volunteer for a number of years. They will also have to repair their victims in whatever way the court, and the victims, see as fit.
During Colombia’s most recent transitional justice initiative with the AUC paramilitaries, many common criminals posed as members of the AUC in order to receive the social and judicial benefits of the transitional process. To avoid the same problem this time around, the JEP will try to ensure that it only processes those directly involved in the political conflict.
For example, the FARC recently provided the government a list of all of its active members, which the government is currently verifying. Members of that list, as well as any FARC member arrested by the government prior to December 2016, will be the only FARC members eligible to participate in the JEP.
All FARC members participating in the JEP will have to prove that their crimes contributed to the FARC’s political cause.
For crimes like drug trafficking, the court will have to evaluate if criminal proceeds went directly toward the FARC’s political war effort or merely to the personal gain of those involved.
Of the FARC’s 7,000 members who laid down their arms, at least 5,000 have already received amnesty for their act of rebellion and will not be required to participate in the JEP. The rest, who are suspected of committing major war crimes like the FARC’s top leaders “Timochenko” and “Iván Márquez,” will be tried before the JEP.
According to the April 2017 law that created the Special Jurisdiction, participants in the JEP will have to tell “the plain truth” of crimes they committed, “provide reparations to their victims, and guarantee they will never repeat their crimes” in order to avoid jail time.
If the court finds that a participant fails to complete the requirements of truth, reparation and non-repetition, the court may dole out the maximum punishment of twenty years in prison. Meanwhile, if the court finds that a person continued committing crimes beyond December 2016, that person’s case will likely be referred to the criminal courts for ordinary sentencing.
Transitional Justice Court
The organization of the Special Jurisdiction is best understood as a pyramid.
At the top is the Peace Tribunal. With 20 national and four non-voting foreign judges, the Peace Tribunal will provide the sentences for all cases and evaluate the gravest crimes of the conflict such as forced displacement, recruitment of minors, and sexual violence.
Before cases arrive to the Peace Tribunal, they have to first go through a series of smaller chambers, lead by a total of 18 national judges.
In one of those chambers, applicants will have the opportunity to confess the full truth of their crimes. If they do so, and depending on the severity of their crime, they may be referred to receive amnesty or limited sanctions. All cases will receive final approval from the Peace Tribunal.
At the same time, an Investigatory Unit will research cases where a person suspected of a crime has not confessed and bring those people to trial.
If that person did commit a crime, they will have the opportunity to tell the truth in the smaller chambers before their case heads to the Peace Tribunal.
Once a case is resolved in the Peace Tribunal and the magistrates issue a sentence, both victims and victimizers will have the opportunity to appeal. The Tribunal will also ensure that all cases meet international legal standards as well as the final agreement with the FARC.
The truth commission
Colombia’s truth commission, officially called the “Commission for the Clarification of Truth, Coexistence and Non-Repetition,” will seek to clarify major human rights violations that occurred during the armed conflict. It will also try to provide a general explanation of the conflict as a whole.
The Commission will have the ability to subpoena persons to testify, but any evidence it collects cannot be used in penal proceedings.
The peace negotiators who designed the truth commission believed people would provide more truthful testimonies of their crimes if they knew their testimony could not be used against them in court.
The Truth Commission was officially created by presidential decree in April 2017, and it will have an operating period of three years.
The transitional justice system’s Selection Committee is fielding applications for the 11 truth commissioners, and it expects to have the positions nailed down by November 14.
It’s also not clear what impact the new truth commission will have overall.
Colombia has already had a number of truth commissions as the result of previous peace processes. There is also the National Center for Historical Memory, which has been producing lengthy reports about the conflict since 2012. No one yet knows to what extent the National Center and the new truth commission will collaborate.
The search unit
According to the National Center for Historical Memory, Colombia has more registered cases of forced disappearance than under the dictatorships of Chile, Argentina and Uruguay combined.
That’s 60,630 cases to be exact.
In order to find these disappeared people, or in most cases their remains, the FARC and government have agreed to create a special Search Unit for Disappeared People as part of the transitional justice system.
The Search Unit will have its own autonomous budget to carry out its mission, and it may subpoena people to provide information on disappeared people’s’ whereabouts. Like the truth commission, any information provided to the Search Unit cannot be used in judicial proceedings.
The Search Unit was created by presidential decree in April 2017, and it will have an operational period of twenty years with possible extension by Congress.
Moving forward, the new transitional justice system is likely to remain a contentious subject.
Many of those who voted “No” in the national plebiscite on the peace accords in October of 2016 did so because they opposed the idea of FARC criminals avoiding jail time. Their opposition to the restorative justice approach is not likely to dwindle in the coming months.
Furthermore, the Colombian Congress still has to pass a law that will give a green light to the JEP, and they only have until November 1 to do it through the legislative “Fast Track” route.
That law was supposed to be passed months ago. If the lawmakers do manage to pass it in the fast track window, debate over the law in the Constitutional Court will likely stretch into early 2018.
Given the lack of political will surrounding the law up until now, whatever ends up passed will likely have few adamant supporters.