Juan Carlos Botero and Mateo Merchán join JiC for this contribution to our symposium on ‘Rethinking Peace and Justice. Juan Carlos is Associate Professor at the Department of Philosophy and History of Law at the Pontificia Universidad Javeriana School of Law, Bogota, Colombia. Mateo is an Adjunct Professor at the same school.
The liberal version of transitional justice assumes that the central dilemma of transition is how to transform a society that has been subjected to illiberal rule and the extent to which this shift is guided by conventional tenets of the rule of law and the responsibilities associated with established democracies (Teitel, 2006, p.3). However, “[t]here are many misunderstandings and controversies about the nature of transitional justice. Some believe it is simply a form of criminal justice diluted by the need for transaction and compromise—a kind of ‘criminal justice lite’” (Seils, 2015, p.3). Presumably, this ‘light’ form of justice would be justified by the society’s need to ‘turn the page’ after devastating violence, as a means to achieve peace, or because of the practical impossibility of securing full accountability. At a time when the International Criminal Court (ICC) is perceived by many as a ‘walking dead’ (Thakur, 2019; Lee, 2018), it seems timely to ask whether the justice resulting from the Colombian peace process was a disappointing form of ‘light’ justice, or if is it rather a promising new model for international criminal justice in the ‘post-ICC’ era of the XXI century?
The Final Agreement for the Termination of the Conflict and Construction of a Stable and Lasting Peace (Final Agreement), signed by the Government of Colombia and the FARC-EP guerrillas in November 2016, created a transitional justice system that seeks to satisfy the rights of the victims of the armed conflict to truth, justice, reparation, and non-repetition (Art. 1. Legislative Act 01 of 2017), while striking a new balance between the conflicting interests of peace and justice (understanding Justice as accountability, retribution, and punishment for grave crimes).
This transitional justice system, called the Comprehensive System of Truth, Justice, Reparation, and Non-Repetition (SIVJRNR), encompasses three mechanisms: The Truth, Coexistence and Non-Repetition Commission (CEV); the Search Unit for Persons Presumed Disappeared in the context and because of the armed conflict (UBDP) and the Special Jurisdiction for Peace (JEP), the latter being the mechanisms to prosecute and punish those responsible for the most serious crimes committed in the context of the armed conflict (Art. 5. Legislative Act 01 of 2017).
Transitional justice systems, as the Colombian one, often face limitations stemming from the exceedingly complex contexts of violence in which mass atrocities are perpetrated (Duthie and Seils, 2017). In fact, there is no country that has made a transition where each perpetrator of human rights violations has been prosecuted (De Greiff, 2012, p. 35). In this context, the Final Agreement proposes a new balance between the demands of justice and peace through the prosecution of the most serious and massive crimes from a restorative rather than a retributive (punitive) justice approach. Restorative justice encompasses a diverse set of values, aims, and processes that have as a common factor attempts to repair the harm caused by criminal behaviors when victims, community and offenders meet to decide how to repair the damage caused (Hoyle, 2010, p. 9).
“Both retributive and restorative theories of justice acknowledge a basic moral intuition that a balance has been thrown off by the wrongdoing. Consequently, the victim deserves something and the offender owes something. Both approaches argue that there must be a proportional relationship between the act and the response. They differ, however, on the currency that will fulfill the obligations and right the balance. Retributive theory believes that pain will vindicate, but in practice that is often counterproductive for both victim and offender. Restorative justice theory, on the other hand, argues that what truly vindicates is acknowledgment of victims’ harms and needs combined with an active effort to encourage offenders to take responsibility, make right the wrongs and address the causes of their behavior. By addressing this need for vindication in a positive way, restorative justice has the potential to affirm both victim and offender and help them transform their lives.” (Zehr and Gohar, 2003, p. 59).
In this way, restorative justice focuses on the production of reintegrative shame on the perpetrator, through which there is full recognition of the crimes committed, disapproved by the community, but followed by actions of acceptance and integration of those responsible along with the victims and the community (Braithwaite, 1989, p. 54). While some argue that restorative justice practices were born and developed mainly in the legal systems of New Zealand, Australia, and the United Kingdom, and have gradually expanded to transitional scenarios (Hoyle, 2010, p. 3), this approach has a much broader legacy. From time immemorial, restorative justice practices have been at the core of dispute resolution by customary justice authorities throughout the world, e.g., among the Navajo Nation in North America (Spruhan, 2012), the Kogi community in Colombia, or the Liberian chiefs (Botero, 2013).
Consequently, the great challenge of the SIVJRNR, and particularly of the Special Jurisdiction for Peace, will be to carry out this restorative justice model (which is based on the ‘direct’ participation of victims, those responsible, and the community, in formulating solutions for their conflicts) in scenarios of mass atrocities, where it is not possible to prosecute all those responsible and satisfy the rights of all victims individually.
Thus, JEP constitutes a mixed justice model composed of a retributive justice dimension, through punitive punishment, and a restorative approach through which the victims and those responsible are expected to negotiate reconciliation and reintegration into their communities, understanding crime not simply as a transgression of the law, but as an assault on the people and the community (Final Agreement, 2016. p. 144).
The restorative approach within the Special Jurisdiction for Peace is concentrated in a procedural dimension, through which the JEP’s decisions and actions constitute instances of recognition and reparation of the victims through their procedures, work guides and community and victim participation mechanisms. Likewise, section No. 60 of point No. 5.1.2 of the Final Agreement establishes that the sanctions imposed by the JEP, must have a restorative function of the damage caused, always concerning the degree of recognition of truth and responsibility, and should be oriented to satisfy the rights of victims. This novel “mixed” approach of the JEP is fundamentally reflected in three scenarios: The truth recognition ‘dialogic’ procedure; the imposition of ‘own’ and ‘alternative’ sanctions; and the granting of provisional and definitive special legal treatments (Art. 27A. Act. No. 1922 of 2018).
In this regard, it is worth noting that, in the dialogic procedure of recognition of truth, multiple scenarios of encounter between the victims and those responsible are foreseen, while the imposition of sanctions starts from a concession among all those involved, in a manner that the victims and the community have the possibility of determining, in restorative justice mode, the measures to be adopted (Colombian Constitutional Court, C-080/18). While there is a risk of ‘re-victimization’ involved in this dialogic procedure, some have argued that allowing top perpetrators of systematic crimes to confront their victims face to face enables them to understand the social rejection that their behavior has produced (Seils, 2015, p. 13). While ‘the jury is still out’ on this novel justice approach for the prosecution of grave crimes, early indications suggest that this procedure is already generating a reparation and restoration dynamic in Colombia (see, e.g., Lemaitre and Rondón, 2020).
However, the SIVJRNR’s goal to prosecute, through a restorative approach, those responsible for serious and massive human rights violations, represents a great challenge, since it implies recognizing the limits of criminal responsibility (Jager, 1998, p. 9), and to that extent, adopting ‘representation’ as the only way to guarantee the participation of victims in the transitional justice process. The JEP justice model has the challenge of unveiling the complex criminal structures that participated in the Colombian armed conflict, attributing responsibilities and punishing those responsible based on a global investigation and judicialization methodology that allows identifying policies, plans and practices underlying systematic crimes (ICTJ, 2019, p. 43). The Special Jurisdiction for Peace must recognize from the outset the impossibility of elucidating all the events that occurred in the armed conflict, and consequently, it must seek that the majority of victims feel represented in the policies, plans, and practices that are investigated, prosecuted and sanctioned (ICTJ, 2019, p. 44).
In sum, the Colombian Final Agreement has the potential to alter our understanding of international criminal justice, by implementing a mixed justice system (restorative and retributive) that meets the demands of justice and the political stability needs of the peace process. Recent experiences with transitional justice around the globe suggest that “a re-assessment of the relationship between peace and justice is past due” (IFIT, 2020, p. 10). The innovative Colombian mixed justice system will use representation as a way to prosecute those responsible for grave crimes, and restorative justice practices to satisfy the victims’ rights to truth, justice, reparation, and non-repetition. If successful, this novel approach may lead to a global reckoning about the meaning and limitations of justice and particularly the concept of punishment in international criminal law.