The following post on the use of alternative sentences to blend restorative and retributive justice in Colombia was written by Luke Moffett. Luke is a senior lecturer at Queen’s University Belfast and the Principal Investigator on the ‘Reparations, Responsibility and Victimhood in Transitional Societies‘ project.
How do you deliver peace and justice after fifty years of conflict that saw millions of civilians victimised? This has been the core issue Colombia has been grappling with as part of the peace agreement between the FARC and the Colombian government in 2016. One of its main bodies of the comprehensive transitional justice system is the Special Jurisdiction for Peace (JEP), established to investigate and prosecute international crimes. The JEP is attempting to tackle the perennial challenge of how to square the circle of doing justice, ascertain the truth and achieving peace in a post-conflict society that is facing ongoing violence and insecurity. It hasn’t been easy and has required compromise, especially on the question of combining restorative and retributive justice through its alternative sentences for those who perpetrated crimes during the civil war.
It began its work in March 2018 and currently has seven cases including kidnappings, forced disappearances, use of child soldiers and a range of violations in different territories. The JEP has only recently received approval for its governing law from the lower house, but awaits the Senate vote later this year, reflecting the continuing and contested transition in Colombia since the peace agreement.
Beyond political contestation, the JEP also faces the legal challenge of attenuating punishment to encourage perpetrators to tell the truth, contribute to community service, and provide symbolic reparations to victims. In return for being truthful and expressing remorse, perpetrators in the FARC and Colombian government could benefit from reduced sentences of 5-8 years through alternative punishment arrangements, such as house arrest or other restricted freedoms.
There are some who view these alternative sanctions as impunity. However, this overlooks the experience of transitional justice, the demands of victims and human rights jurisprudence that doing nothing and remaining silentis impunity. Providing a space to coax perpetrators to confront, acknowledge and remedy some of the harm they have caused can go a long way to reconstituting the dignity of victims and their lived experience. More broadly, courts in post-conflict societies play an important expressive role through prosecution and punishment in re-establishing the rule of law and reaffirming moral values.
In light of these challenges, over the past few months our project team have been engaging the JEP and drawing from international practice in order to inform the alternative sanction regime. In our recently released report on alternative sanctions at the JEP, we outline the experiences of other states and international jurisprudence on matters of restorative justice, victim participation, sentencing and the contribution of ex-combatants. This report in part draws from our ongoing research project on reparations in post-conflict transitional societies, in particular the contribution of non-state armed groups.
Victims are a central part of the peace agreement and restorative justice is the paradigm under which their rights and restoration is key.
Restorative justice in transitional justice is nothing new, it was used in the South African Truth and Reconciliation Commission along with ubuntu. The Community Reconciliation Process in Timor Leste, paramilitary punishment attacks in Northern Ireland and to a lesser extent the gacaca courts in Rwanda, have used more measured forms of retributive justice informed by restorative principles to adjudicate on international crimes. This is the compromise that the JEP is also seeking to make in trying to break new ground in addressing international crimes by evoking the notion of restorative justice, by bringing the victims and perpetrators together to acknowledge, and by finding appropriate responses to the crimes through community service and symbolic reparations. Continue reading