Reaching for both justice and peace in Colombia: Understanding the Special Jurisdiction for Peace’s mixed approach (using both retributive and restorative justice) to deal with international crimes

Abstract

ABSTRACTIn the wake of the five-decade-long armed conflict in Colombia, the Comprehensive System of Truth, Justice, Reparation, and Non-Repetition was created as an ambitious system to deal with past crimes. It aims at engaging with all the pillars of transitional justice to ensure long-lasting peace and stability. Within this system, the Special Jurisdiction for Peace is tasked with delivering justice, while contributing to securing reconciliation and promoting peace. To do so, this transitional judicial body combines both retributive and restorative proceedings and sanctions. It embodies a mixed approach to criminal justice ensuring both justice and peace in the country. This approach, however, has been criticised as a lenient, and less than optimal, way of delivering peace and justice. Some see this as a methodology motivated by practical constraints and the lack of political will to pursue a more rigorous and prosecution-orientated model. This article aims at refuting such a perception by shedding light on the innovative mixed approach. It suggests that this approach might be well suited for delivering national and international criminal justice in transitional settings.KEYWORDS: Special Jurisdiction for PeaceColombiarestorative justicetransitional justiceInternational Criminal Court Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. Even after the dissolution of the FARC, and despite the Government’s most recent efforts to ensure ceasefire and continue the peace talks, the Colombian conflict persists, namely, for the other armed groups, such as the National Liberation Army (ELN, or Ejército de Liberación Nacional), which remain active in the Country.2. The Peace Agreement was rejected by a slim majority in a plebiscite on 2 October 2016.3. This was not the first time Colombia adopted transitional justice, incorporating restorative justice principles. There was the ‘Justice and Peace Law’ that was adopted in 2005 after the peace agreement between the State and paramilitary units.4. Also commonly referred to by its acronym in Spanish, ‘JEP’, i.e. Jurisdicción Especial para la Paz.5. Most notably, the ICC has incorporated supposedly restorative features within its proceedings such as victim participation and reparations (Llorente, Citation2013, p. 5) with the intent of equipping this Court with the means to effectively enforce international criminal justice all the while contributing to reconciliation and long-lasting peace in transitions (De Hoon, Citation2017, p. 612; Findlay, Citation2016, p. 153). However, this incorporation remains deeply rooted in the conceptual overlap between retributive and restorative justice described above (Daly & Proietti-Scifoni, Citation2011, p. 52). However, it sets an important precedent that should not be overlook (De Hoon, Citation2017, p. 612) – that of resorting to restorative justice to make criminal trials better suited for transitional settings, but others as well.6. Article 9 of Act 1957/2019.7. The voluntariness required for offenders’ participation in proceedings has led to criticism and concern in regard to the SJP’s success (Sandoval et al., Citation2022, p. 10), and recommendations have been made for this judicial body to actively engage in the promotion of voluntary participation (ICJ, Citation2020, p. 10). Nevertheless, adhesion to the SJP insofar has proven to be considerably high (Liévano, Citation2020).8. Article 62 of Act 1957/2019.9. Under Act 1820/2016, amnesties are to be granted to FARC members for the commission of so-called political crimes, i.e. crimes considered inherent to the military practice of rebellion (Freeman & Orozco, Citation2020, pp. 241–242). In turn, State agents may not receive such amnesties nor pardons, but benefit from parallel processes, such as the waiver of criminal prosecutions, which, under article 46 of Act 1820/2016, are to be granted in similar terms.10. Article 40(2) of Act 1957/2019.11. Article 80 of Act 1957/2019.12. Articles 15(g) and 80 of Act 1957/2019.13. Article 141 of Act 1957/2019.14. Articles 126 and 141 of Act 1957/2019.15. Article 125 of Act 1957/2019.16. Article 125 of Act 1957/2019.17. Article 141 of Act 1957/2019. The SJP is still drafting – with the participation of several relevant stakeholders -, the concrete way in which such special sanctions will be effectively carried out (UN, 2022, p. 13).18. Article 127 of Act 1957/2019.19. Articles 130 and 143 of Act 1957/2019.20. Article 128 of Act 1957/2019.21. Article 129, in reference to article 84(h), of Act 1957/2019.22. Article 97 of Act 1957/2019.23. Article 141 of Act 1957/2019.Additional informationFundingThe work was supported by the FCT – Portuguese Foundation for Science and Technology. [UID/00714/2020].