By Leah Matthews, Volunteer
After years of high-profile conflict and failed attempts at negotiation, the Colombian government and the FARC-EP guerilla rebel group reached an agreement to end the Western Hemisphere’s most protracted armed conflict late at night on November 24, 2016.
One of the Peace Agreement’s primary tasks was to establish transitional justice mechanisms that would hold to account those culpable of committing crimes under international law, satisfy the FARC-EP’s desire to transition into the political sphere, and provide restitution and a sense of justice to the millions of civilian victims of the conflict. No small feat.
The agreed-upon model for transitional justice in Colombia is known as the “Comprehensive System for Truth Justice, Reparation and Guarantees of Non-Repetition,” under which the judicial component – the Special Jurisdiction for Peace, or the JEP (Jurisdicción Especial para la Paz) – will permit the state to sanction serious misconduct.
Special Jurisdiction for Peace
The JEP follows principles of restorative justice, meaning that at its core, the focus of Colombian transitional justice is not only on criminal penalties and incarceration, but primarily on the reconciliation between victim and perpetrator as a means of rebuilding the social bonds broken by war and thus making peace sustainable.
Under this model, the JEP has established special tribunals that will mete out alternative sentences like landmine removal for ex-guerrilla leaders who are convicted of crimes under international and international humanitarian law, serious human rights violations, or war crimes. The JEP tribunals are competent to rule on police conduct.
The law can also apply to members of the military and civilians who funded illegal groups like paramilitaries or who, without being members of armed groups, contributed directly or indirectly to the commission of crimes. However, on November 14, the Constitutional Court limited certain aspects of the tribunals’ oversight: the courts cannot compel civilians or third parties investigated for crimes during the armed conflict to appear before the JEP, but those people can do so voluntarily.
According to the Peace Agreement, the Comprehensive System for Truth Justice, Reparation and Guarantees of Non-Repetition explicitly contains a territorial and gender-sensitive mandate. This will ensure the representation of women and ethnic minorities on transitional justice decision-making bodies, in roles such as magistrates, commissioners and victim representatives.
The transitional justice framework will operate in parallel with the existing system of justicia ordinaria, or “ordinary justice”, which will continue to be responsible for to the prosecution of crimes that took place outside the context of the armed conflict.
However, in a country that was consumed by intractable criminality and an armed conflict that simmered and boiled to varying degrees for half a century, identifying which historical crimes were committed inside or outside the context of the conflict, and where culpability lies in the chain of command, remain ongoing challenges.
In the year since its conception, the JEP has made critical strides forward. Most notably, the Peace Agreement mandated the creation of a Selection Committee to elect judges and magistrates to oversee the transitional justice tribunals. After a six-month selection process that included public and expert input and high degrees of transparency, on September 26th the Committee announced a panel of 51 justices that reflects the political, ethnic, geographic and gender representation of Colombia. Over half of the justices are women and more than 15% are indigenous or Afro-Colombian, unprecedented in the country’s history.
The implementation of the JEP has not been without controversies, however. Political opposition from former president Álvaro Uribe’s Democratic Centre party has threatened to undermine the legitimacy of the tribunals’ selection process.
Lawyers Without Borders Canada (LWBC), working in close collaboration with its network of Colombian lawyers and human rights defenders, has observed the challenges in identifying which cases should fall under the JEP as opposed to the justicia ordinaria, as well as concerns of access to justice for victims of the armed conflict, particularly those residing in rural areas far from judicial oversight. It remains to been seen whether the institutions of the JEP will be able to successfully extend beyond the confines of Bogotá.
Transitionnal Justice for Women (JUSTRAM)
LWBC’s work in Colombia is continuing to support nascent transitional justice mechanisms. In June 2017, LWBC presented an amicus curiae to the JEP’s open consultation process regarding the Peace Agreement’s treatment of command responsibility for accountability for gross human rights violations, serious breaches of international humanitarian law, war crimes, and other international crimes.
In September 2017, the project Transitionnal Justice for Women (JUSTRAM), financed by the Government of Canada through it's Peace and Stabilization Operations Program (PSOP's), was officilially lauched in Bogotá.
LWBC also provides observation and monitoring of emblematic criminal cases in Colombia, as well as ongoing monitoring of the activities of institutions charged with implementation of transitional justice.