Shoshana Levy is a lawyer in International Criminal Law and International Humanitarian law, expert on transitional justice and on Colombia’s transition to peace. The opinions expressed in this article are solely her own.
The Special Jurisdiction for Peace (SJP), Colombia’s transitional tribunal was set up to prosecute the perpetrators of crimes committed during the armed conflict between the FARC-EP guerilla and the Colombian government. Its slow pace is raising skepticism among some sectors of Colombian society. Almost three years after its official creation, the SJP has not yet handed down its first sentence. In a deeply polarized sociopolitical context, Colombian President Iván Duque has repeatedly expressed ardent criticism regarding the pace of the SJP, declaring that it “can no longer provide excuses for not acting with greater speed”. But given its mandate and the immense scope of its jurisdiction, is the SJP’s work actually slow?
The widest temporal jurisdiction for a transitional criminal tribunal
The SJP has jurisdiction over the serious Human Rights and International Humanitarian Law violations committed prior to the signing of the Peace Agreement in December 2016 and in the context of the armed conflict in Colombia. The war was one of the longest-lasting contemporary armed conflicts to date.
The outbreak of violence in Colombia was reported in 1948, while the official creation of the FARC-EP guerrilla dates back to 1964. With a temporal jurisdiction covering over half a century of internal armed conflict, this transitional tribunal has by far the most ambitious scope of all courts with similar mandates. In comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in 1993 and covered crimes committed since 1991. As for the International Criminal Tribunal for Rwanda (ICTR), it only examined the crimes committed during the year of the genocide in 1994. Likewise, the Special Court for Sierra Leone (SCSL) had a one-year temporal jurisdiction, and the Extraordinary Chambers in the Courts of Cambodia (ECCC) covered violations committed during the two-and-a-half-year period of Democratic Kampuchea.
In addition, the Special Jurisdiction for Peace does not solely aim to establish individual criminal responsibility. Rather, it seeks to interrogate large numbers of violations and their context, in order to shed light on the patterns of behavior and internal policies of both the FARC-EP and the Colombian military and identify the circumstances that promoted or facilitated them. It is the first time that such a deep and broad analysis has been carried out by the Colombian judiciary, allowing contextual elements to be legally characterized. As a result, “crimes against humanity” and “war crimes” can be named as such, and their perpetrators prosecuted correspondingly.
The SJP has opened seven “macro cases” which, instead of focusing on one specific perpetrator, deal with reiterated patterns of conduct, including kidnappings committed by the FARC-EP (macro case 01), extrajudicial killings and forced disappearances committed by public forces (macro case 03), recruitment and use of child soldiers (macro case 07), systematic targetting of political opponents (macro case 06) and a range of violations committed in specific regions particularly affected by the armed conflict. As of January 2020, the Jurisdiction declared having examined over 60,000 criminal facts within these macro cases.
A transitional tribunal set up to deliver innovative restorative justice
All international criminal tribunals established so far have relied on retributive grounds, where victims’ participation and right to redress were minor. The Peace Agreement signed by the FARC-EP and the Colombian Government on 1 December 2016, one of the most comprehensive peace agreements worldwide, provides for the “centrality of the rights of the victims”. The SJP created by the Peace Agreement is thus fundamentally different from other international criminal tribunals and courts established thus far, as its end is primarily restorative.
The most innovative aspect of the SJP is the possibility for this court to substitute classic retributive sentences (namely prison sentences) by special restorative sanctions, or ”sanciones propias”. These restorative sanctions combine two elements: an effective restriction of rights and liberty, and concrete reparations or restorative work, to be performed by the perpetrator and which are aimed at satisfying the rights of the victims and affected communities. According to the SJP’s Statutory Law, these can consist of symbolic reparations to victims, infrastructure projects (i.e. building schools, roads, health care centers, etc.), substitution of illicit coca crops, removal of land mines and explosive remnants of war, search for persons deemed missing, restoration of environmental damage, among others. These restorative sanctions are subject to two conditions: that the perpetrator provide the full and detailed truth about the violence committed within the armed conflict, and that they acknowledge their individual responsibility for those crimes. These activities are determined by the Peace Tribunal of the SJP, which rules on these in a dialogue process between defendants and victims.
The determination and implementation of those sentences entail great challenges for the SJP. First, it implies bringing together victims and perpetrators in order to find the most appropriate responses to the crimes. As of January 2021, these include 9,781 former FARC-EP members, along with 2,807 members of the public forces and 126 state agents subject to the SJP’s jurisdiction. In addition, over 300,000 victims have been formally registered in the seven macro cases opened by the SJP. According to its legal framework, these victims are to participate at every stage of the proceedings and are, most notably, invited to present their observations on the “voluntary versions” presented by the perpetrators, as well as on the restorative work being considered by the Court and the defendants. This is a lengthy process whose success rests on the adequate legal and psychological preparation of all actors involved.
In addition, the SJP is still in the process of defining the concrete framework for the conditions under which these tasks can be executed most appropriately. This includes determining how they are to be financed and implemented in terms of logistics, and what security measures will be needed to ensure their success. Likewise, the magnitude of these works is an issue that is yet to be determined, considering that the compatibility of the restorative sentences with international standards has never been examined in the past. As a matter of fact, there is little guidance on what amounts to a sufficient sentence for the purposes of admissibility and complementarity of the International Criminal Court’s jurisdiction. The ICC’s Office of the Prosecutor has announced that it will establish benchmarks to monitor whether Colombia’s national efforts towards accountability for crimes potentially falling under ICC jurisdiction are sufficient, or whether they warrant the opening of a formal investigation at the international level. These benchmarks are currently being discussed directly by the ICC and the SJP and may provide accurate guidance on the issuance of these alternative innovative sentences.
A pace in line with trials for international crimes
Officially set up in March 2018, the SJP became fully operational by July 2019. Less than a year later, the COVID-19 pandemic cut short the SJP’s planning and compelled it to adapt to its new circumstances. The SJP reacted swiftly and brought proceedings online. However, virtual hearings at the SJP proved to be particularly complicated because most of victims and defendants live in rural area with no or weak internet connectivity.
In spite of these challenges, however, the SJP received and examined 333 reports on Human Rights violations from victims, NGOs and State institutions, which provided the basis for the opening of the seven macro-cases. 790 defendants already delivered their voluntary versions of the crimes and their circumstances, after which these versions were submitted to victims, who were able to present their observations. As a result, on 26 January 2021, the “Truth Acknowledgment Chamber” of the SJP issued its first indictment against eight high-ranking former FARC-EP commanders for hostage-taking and other severe privations of liberty. It also announced that it is working on a second indictment for members of the public forces for extra-judicial killings. The Chamber will subsequently call on the defendants to publicly recognize their responsibility for the crimes as determined by the indictments. Should the defendants do so, their case will be transferred to another organ of the SJP, the Peace Tribunal, which is competent to decide on their sentence.
Given the procedural framework of such proceedings and the delay caused by the COVID-19 pandemic, the first final sentence is expected by the beginning of 2022 – about four years after the formal opening of the SJP and two and a half years after its full implementation. In comparison, the ICTR handed down its first judgement almost three years after it was fully operational, the ICTY took three years, the ECCC four-and-a-half years and the SCSL almost five years. The ICC took even longer, as it handed down its first sentence almost ten years after becoming operational. Within the Colombian national context, the “Peace and Justice” system, which is a transitional tribunal set up in 2005 to investigate and prosecute members of organized armed groups, handed down its first sentence after five years of functioning, with the conviction in 2010 of three paramilitary commanders.
Overall, it appears that the SJP’s pace is in line with that of other trials of a similar nature. While the slowness of trials for international crimes is a common criticism, the SJP undoubtedly requires time to comply with its ambitious restorative justice mandate. The span of crimes it examines is incomparable, and the safe space it provides for dialogue between victims and perpetrators is unprecedented in the context of a well-settled tradition of adversarial trials for international crimes, and is key to a historical reconciliation process. The SJP is on its way to fulfilling its enormous responsibility, not only of contributing to Colombia’s transition to peace, but also of setting a historical precedent of institutionalized restorative justice to face the legacy of war.