When exploring solutions to an armed conflict and a history of human rights violations, one can usually think of bringing cases before a tribunal to find those responsible and hold them accountable. However, it is not that easy. Policymakers must also think about the reconciliation process, the aftermath and desirable future. If peace is the ultimate goal, it’s best to study options that might help people on both sides of the conflict, particularly when the future of the nation depends on all these people working together to keep the country afloat. This is when the topic of transitional justice comes into play. This article will seek to define transitional justice, its components, and provide examples. The goal is to shed light on mechanisms that may or may not have been successful, and the reasons why.
Transitional justice, according to the United Nations Office of the High Commissioner for Human Rights (OHCHR), covers the full range of processes and mechanisms that seek to help a society come to terms with a legacy of a traumatic past conflict, repression, human rights abuses and violations in order to ensure accountability, serve justice, achieve reconciliation, and hopefully avoid repetition. These mechanisms may be judicial and non-judicial, restorative or retributive in nature, ranging from truth-seeking commissions, the strengthening of civil society, legal and institutional reform, the preservation of archives, the reform of history education, or the creation of specialized courts. The goal of transitional justice is to provide victims with a sense of justice, reconcile and prevent future violations, enhance public trust, reinforce respect for human rights, and promote the rule of law.
Mechanisms are usually created to approach the unique problems of the region or State in question; they are context-specific and focused on the needs of the affected individuals. The OHCHR is currently supporting the designing and implementation of transitional justice mechanisms in a wide range of States, including: Afghanistan, the Central African Republic, Colombia, the Democratic Republic of the Congo, El Salvador, the Gambia, Guatemala, Iraq, Lebanon, Liberia, Mali, Mexico, Nepal, South Sudan, Sri Lanka, the Sudan, the Syrian Arab Republic, Tunisia and the Western Balkans including Kosovo.
Difference Between Restorative and Retributive Justice
The traditional criminal system is retributive in nature. It focuses on establishing guilt and punishing the individual who broke the law. Retributive justice focuses on answering the following three simple questions: 1) What law was broken?; 2) Who broke the law?; and What is the punishment?. Restorative justice, on the other hand, focuses on a dialogue-driven approach, which includes victims, offenders and community members who have all been harmed or participants in a certain crime, abuse, or violation. Ideally, all these actors would be included in the justice process. Restorative justice seeks to answer other questions like: 1) What is the harm?; 2) How do we repair the harm?; and 3) Who is responsible for repairing the harm? When international, regional, or national-level conflicts surge, like human rights violations or armed conflicts, peace needs to be restored so that individuals can move on.
Court systems or other judicial-like mechanisms may involve both types of justice. Truth can be sought, and perpetrators may be punished for their crimes. However, sometimes a dialogue is necessary because all actors need to be on the same page for the conflict to end and for the victims to feel like justice has been achieved. On the other hand, retributive justice sometimes limits the number of victims involved because cases are chosen from a vast group and there is a limited amount of resources.
Transitional Justice in Today’s Colombia
Colombia’s conflict has been one of the longest running active armed conflicts in the world. Reported outbreak of violence started around 1948; however, many say that the armed conflict officially began in 1964 with the creation of the Revolutionary Armed Forces of Colombia (also known as the FARC guerrilla, abbreviation of its Spanish name: “Fuerzas Armadas Revolucionarias de Colombia) and the ELN (Spanish abbreviation of the National Liberation Army). Millions of Colombians were and continue to be greatly affected by this armed conflict. Forced displacement, deaths, disappearances, torture, massacres, and sexual violence are just some examples of these grievances. The conflict affected all Colombian people, but some groups were disproportionately affected: Indigenous peoples; Afro-Colombians; Black, palenquero, raizal, and Roma communities; and members of the LGBTI community, journalists, and human rights defenders. A peace process started in 2012, culminating with a peace agreement in November 2016, titled: “Final Agreement to End the Armed Conflict and Build a Stable and Lasting Peace.”
Colombia’s peace agreement uses a victims-centered approach, relying on both restorative and retributive justice. The country made a concerted effort to center victims when creating the agreement, but also continually seeks new ways to help victims in a prospective manner. The negotiators of the peace agreement established shared principles on victims, invited them to participate at the negotiating table in Havana, listened to their proposals, and gave them a leading role in the transitional justice system established by the agreement.
The peace agreement’s fifth chapter focuses on the victims of the conflict, creating the Comprehensive System of Truth, Justice, Reparations and Non-Recurrence as well as commitments toward respecting human rights. This chapter relies on several principles of recognition of the victims: acknowledgement of responsibility; the realization of victims’ rights; victim participation; historical clarification of the truth; reparations for the victims; guarantees of protection and security; guarantees of non-recurrence; reconciliation; and, finally, a rights-based approach. Three institutions make up this system: the Truth, Coexistence and Non-Recurrence Commission (Truth Commission); the Special Unit for the Search for Persons Deemed as Missing; and the Special Jurisdiction for Peace (SJP).
The Truth Commission’s mission was to complete an extrajudicial investigation, looking into the causes and consequences of the armed conflict. For about 4 years, it listened to approximately 30,000 people in individual and collective interviews, which included: victims, relatives of victims, eyewitnesses, armed actors involved in the conflict, civilian third parties, businesspeople, officers of law enforcement agencies, former Colombian presidents, as well as other social and political stakeholders. The Truth Commission also had a participatory process that included twenty-eight “houses of truth” in various municipalities affected by the conflict. These “houses” staged events, talks, and proceedings seeking to ensure the end and non-recurrence of the armed conflict, to name those responsible for the crimes, to dignify victims, and to make recommendations. On June 28, 2022, the Truth Commission presented its final report. Since 2018, this commission has sought to seek the truth and shed light on the atrocities and human rights violations committed during the armed conflict, interviewing approximately 24,000 people in exile and across the country to complete its findings. The commission’s mandate was not to provide evidence in judicial proceedings or to point out individual responsibility for crimes committed, but rather to identify groups who participated and were responsible for the many human rights violations that took place during the 58 years of the armed conflict.
The Colombian government established the Unit for the Search of Disappeared Persons through a law signed in 2017. This Unit’s goal is to direct, coordinate, and contribute to the implementation of humanitarian measures to search for and identify all people missing as a result of the armed conflict. If a person is no longer alive, the unit is responsible for the recovery, identification, and dignified delivery of the remains. On the other hand, the SJP was created and designed to investigate and sanction, within the boundaries of Colombian law, those responsible for the crimes and human rights violations committed during the armed conflict. It must also guarantee the victims’ rights in its proceedings, repair the harm suffered by the victims by imposing sanctions, and contribute to the reconstruction of society.
In 2005, the Justice and Peace Law (Law 975) was enacted to “facilitate the reintegration of demobilized former combatants into civilian life.” This law sought to promote the idea of peace by offering former paramilitary members reduced prison sentences in exchange for their full confession. By October 2020, around 4,400 former paramilitaries had passed through the justice and peace tribunals, but only 650 had been sentenced. Some have stated that this mechanism has fallen short in holding perpetrators accountable and establishing the truth. Others highlight the fact that it created an environment for victims to achieve the truth, justice and reparations they so much deserve.
Former-President Iván Duque, when running for president, promised to modify the transitional justice elements of the Peace Agreement. In 2019, he remanded crucial legislation that established the SJP and threatened to cut the SJP’s budget by about 30%. However, since this caused so much political turmoil, Duque ultimately backtracked and granted the SJP its initial 2020 budget of USD $82 million. Duque also sought to change the SJP’s function because in his opinion, the SJP allows “impunity.” The Democratic Center, Duque’s political party, tried to create a special court within the SJP that would only try members of the military. Duque tried to limit the kinds of crimes that would fall under the SJP’s jurisdiction by excluding sexual crimes and have FARC ex-combatants monetarily compensate victims. He also wanted tougher sentencing protocols for war crimes; to allow simultaneous investigations in Colombia’s normal judicial system; and limit the statute of limitations for crimes to be investigated. Finally, his political party also promoted a referendum to revoke the SJP and attempted to discredit some of the information released by the SJP on the 6,402 extrajudicial killings committed by Colombia’s armed forces. The controversy ended when Duque signed the bill governing the SJP after the Colombian Congress rejected his suggestions and the constitutional court upheld Congress’s rejection.
The Comprehensive System of Truth, Justice, Reparations and Non-Recurrence is an important element to Colombia’s recovery. Military generals and officers have acknowledged that they have committed war crimes and crimes against humanity thanks to the Special Jurisdiction for Peace. They will be held accountable for their actions, and victims can now feel like justice is being made. While perpetrators will not receive harsh prison sentences, they will be facing restorative sanctions, like house arrest and hard labor, and have to face their victims in mandatory hearings. On the other hand, the Truth Commission’s investigations, interviews, and final report have provided accurate information regarding the atrocities that took place during the armed conflict, and it also allowed public participation. The commission found that at least 450,666 people were killed in the context of the armed conflict; 121,768 were victims of forced disappearances; 50,770 were kidnapped; 16,238 children and adolescents were recruited; 32,446 individuals were victims of violations of the right to sexual freedom and integrity; and around 8 million people were displaced. Their report also contained analysis regarding the participation of other actors such as the United States, as well as recommendations for the Colombian government moving forward. This system has both protected victims’ rights and given them a voice. However, this is just a small piece of a process that will take years. Persisting armed disputes must end and trust between society and institutions needs to be rebuilt. Victims still need to recover from the effects of the lengthy armed conflict and more need to be held accountable. Reconciliation and non-recurrence are important principles to keep in mind.
The Special Jurisdiction for Peace (SJP) started operation in November 2017, after the Senate’s approval and it was further strengthened in March 2018 through the Acuerdo 001 of 2018, which provided more detail on the regulation and structure of the body. The SJP has jurisdiction over any violations committed prior to the signing of the Peace Agreement in 2016. Going back to the reported outbreak of violence in 1948 and the official creation of the guerrilla groups in 1964. Therefore, its temporal jurisdiction covers more than half a century, which makes it very ambitious when compared to other courts. For example, the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) was created in May 1993 after the passage of Resolution 827 by the UN Security Council and it sought to cover crimes committed since 1991. On the other hand, the International Criminal Tribunal for Rwanda (ICTR) was created in November of 1994 by the UN Security Council’s Resolution 955 and its goal was to only cover cases committed on the territory of Rwanda as well as neighboring states between January and December of that same year. Other courts we could look at are the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, which covered events committed during one year and two-and-a-half years respectively.
While the SJP seeks to establish individual criminal responsibility and accountability like the courts previously mentioned, it also seeks to search for the truth. It seeks to interrogate large numbers of violations and their context to have an insight of the patterns of behavior and the internal policies of the FARC and the Colombian military at that time. It also seeks to identify the causes of this conflict, to identify the circumstances that promoted and facilitated the violations.
Taking this into consideration, the SJP as well as the Peace Agreement are very ambitious and idealistic in this sense. Its temporal jurisdiction covers decades of conflict and its goal is to do more than establish individual criminal responsibility. Therefore, an accurate comparison with these other courts wouldn’t necessarily be possible. However, one could look at these other courts and see what made them effective or ineffective, their critiques. The ICTY was dissolved in 2017 (24 years) and it tried 161 cases (sentencing 91, acquitting 18, referring 13 to national jurisdictions, 37 having their indictments withdrawn or they died, and 2 are ongoing). ICTR tried around 71 individuals before it closed in 2016. These courts took decades to end with its cases and some criticized saying that the criminal proceedings proved to be extremely costly. The SJP is a national effort, that could receive more international assistance in order to follow its ambitious agenda, that also seems to be very different and even answer some of the criticisms these courts received after their dissolution.
Every transitional justice system is unique, because it reflects its unique context or conflict. The Peace Agreement is ambitious, but it is a national situation that can only be addressed by those who have lived through these events. Unlike the other courts previously highlighted, the Comprehensive System of Truth, Justice, Reparations and Non-Recurrence as well as the Special Jurisdiction for Peace have a victim-centered approach and it’s fundamentally different from other international criminal tribunals and courts because its end is to primarily achieve restorative justice, not retributive justice. It offers benefits to perpetrators, as long as they provide the full and detailed truth about the violence committed, and that they acknowledge their role or individual responsibility for these crimes. Also, the SJP has 11 macro-cases and, as of October 2022, it has already issued “its first resolution of conclusions in relation to macro-case No. 3, concerning deaths illegitimately presented as combat casualties by State agents, also known as ‘false positive’ killings.” This combined system has worked for Colombia, even though it needs financial and logistical assistance from the international community in order to fully comply with the transitional justice mechanisms’ long-term goals. It is costly however, if it is also working and the community has been involved. Some have criticized that the perpetrators will not receive the punishment they deserve. They have asked the SJP to address certain issues of interest like gender-based violence, specifically sexual violence, and the Court has complied by opening a case solely on this issue whilst adopting an intersectional approach and considering how this violence was interlinked with other violations. The SJP should continue to be responsive to the victim’s wishes and open to dialogue. This backlash from the citizenry could decrease by providing victims with a voice and by having their right of participation dutifully respected. Some people will always disagree with a set-out process or mechanism, but one can seek to improve the current situation as best as possible in order to achieve long-term peace.
Author Biography: Sabrina M. Rodríguez is a Senior Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. She has a Bachelor of Arts in Political Science, with an emphasis in International Relations, and a second concentration in French from the University of Puerto Rico, Río Piedras Campus. She is a joint-degree student, also pursuing a Master’s in International Affairs, with an emphasis in International Security Studies, at the Elliott School of International Affairs.
Editor: R. Avery Morrow, ILPB Moderator-in-Chief; GW Law J.D. Candidate, 2024.