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.
Given the scale of victimisation and perpetrators as well as the lack of a relationship between the parties to be repaired, contexts have struggled to apply the precepts of restorative justice practices to address international crimes. The experience of using restorative justice for responding to atrocities have found that perpetrators can be falsely implicated, do not make full confessions or their apologies lack sincerity, whereas victims can feel apprehension, be silenced from publicly speaking about their suffering or instrumentalised to fulfil the external goals of the state, rather than micro- or meso-level reconciliation. These are likely to be challenges for the JEP.
Reparations and Sentencing
The JEP strikes a balance between punishment and restoration by incentivising perpetrators to acknowledge the harm that they have caused and by providing a framework for perpetrators to engage with victims in repairing the harm caused. While the threat of the ICC opening an investigation in Colombia has been diluted by the recent Afghanistan decision, there remains little guidance on what amounts to sufficient sentence for the purposes of admissibility and complementarity under the Rome Statute for the JEP.
In light of the ambiguity over sentencing, our report argues that reparations and other contributions by ex-combatants is part of international criminal justice sentencing. Reparations in international criminal proceedings are now becoming well settled at the ICC, but the JEP goes further by situating such measures within the framework of meting out a proportionate punishment. There are provisions within the Court to mitigate a sentence for international crimes based on a perpetrator’s contribution of reparations to victims.
The JEP will not be for all victims. It is necessarily limited to territorial and thematic (macro) cases brought before the Court. The Victims Unit, responsible for reparations to the nearly 9 million victims, will be the main focal point for redress. But there remains a space for the JEP to nudge perpetrators to provide symbolic and collective reparations, such as acknowledgements of responsibility and apologies that speak to redressing the moral harm of victims.
Some perpetrators at the JEP may seem contrite to get the benefits of an alternative sanction. Nonetheless, there are some small positive steps, such as the (limited) apology by General Torres in the false positive case. We should not expect or demand, as President Duque tried to do, for full reparations to be granted before the JEP. It lacks the jurisdiction and capacity to do so. Moreover, this overlooks the specialist role each mechanism of the comprehensive transitional justice system is supposed to deliver and how they are intended to complement each other.
Role of Ex-Combatants
Perhaps the most innovative part of the JEP is the role of ex-combatants in repairing the harm that they have caused. This continues to be a struggle given palpable distrust between the FARC and the Colombian government. Dissident FARC groups refuse to disarm and some have left the demobilisation process; 85 demobilised FARC have been killed since the peace agreement. The legal uncertainty of the JEP has encouraged little faith in the Colombian government, which under President Duque has preferred a more one-sided retributive approach to dealing with the past, one that focuses on crimes of the FARC, rather than other paramilitary and state actors.
The experience of Northern Ireland demonstrates that ex-combatants can make a useful contribution to peacebuilding and transitional justice. Often these individuals provide political and moral leadership in their communities and can help to transform cultures of violence towards cultures of human rights. The JEP could provide a space for perpetrators to confront their own wrongdoing and provide symbolic reparations that could provide some closure for victims and affected communities.
The JEP faces a gargantuan task in seeking to account for some of the numerous atrocities committed during the Colombian conflict. It also represents the best case study for positive complementarity of the ICC and the for transitional justice in a post-conflict society by trying to be holistic and complex. The future of addressing international crimes requires a broader construction of justice and a clever instrumentalisation of criminal processes to achieve justice for victims.