Elena Maculan
Post-doc Research Fellow, Instituto Universitario Gutiérrez Mellado, Madrid (Spain).
Formerly Visiting Fellow at Middlesex University (January-March 2015).

The Colombian peace process is probably one of the most complex, interesting and challenging currently taking place. It opens up new pathways for Transitional Justice by applying a traditional framework to a non-conventional situation, which might be described as “transitional justice without transition”.[1] The armed conflict in Colombia is extremely violent and protracted; since 1958 it has caused over 220,000 deaths and many other serious offences, mostly against civilians.[2] Additionally, it is highly complex due to the great number of armed actors involved. In this context, there is no clear-cut end of a former situation that marks the beginning of a transition, since no peace agreement has been signed by all the parties in the conflict. Moreover, violence has spread throughout the country under a democratic regime and, unlike the situation in other Latin-American countries, the harsh State repression has never turned into a dictatorship. Despite this, transitional justice principles and mechanisms have been widely used by the State to deal not with the violent past, but with the violent present. This experience demonstrates some original features, namely, the implementation of exceptional instruments for criminal prosecution based on a flexible approach, the “constitutionalisation” of transitional mechanisms, and a focus on victims’ recognition and their participation in the decision-making process. These might offer interesting suggestions for other transitional experiences.

1.     Exceptional measures in criminal law

In the Colombian system, criminal prosecution for the offences committed during the conflict encompasses two exceptional tools. First, Law 975(2005), known as the Justice and Peace Law, provides a reduction of the normal applicable criminal penalties as an incentive for participation in the peace process. Members of armed groups that agree to demobilise are admitted into a special procedure.[3] Here, they are asked to give a declaration (versión libre) about the crimes in which they played a role and to contribute to victims reparations. In exchange, they are granted a reduced prison sentence and, after a further period of probation, their sentence is extinguished.[4] A second exception to the normal criminal procedures was introduced by the 2012 constitutional reform law and allows the prosecutor to select and prioritise cases for investigation and trial. The Office of the General Prosecutor further developed this concept, by establishing a number of criteria that placed the focus on those who bear the greatest responsibility, the gravity of the crime, the feasibility of the trial and, most interestingly, the “representativity” of the case (its capacity to describe a criminal pattern). These criteria have been incorporated in the Justice and Peace process by means of Law 1592(2012). Obviously, the underlying assumption is that cases that do not fall within the scope of these criteria might not be prosecuted. Both the alternative sanctions and the selection and prioritisation criteria are grounded on the basic idea that any transitional process requires some compromise solutions. This can (and often does) imply limiting the application of ordinary criminal prosecution and sanctions. As the Colombian Constitutional Court rightly observed, any transitional process requires a balancing of countervailing values: the victims’ right to justice, truth and reparation on the one hand, and the core value of peace, as a right and duty of the State as a whole on the other.[5] This view apparently runs counter to the purported international duty to prosecute and punish gross human rights violations or, at least, a strict interpretation thereof.[6] However, the Constitutional Court maintains, correctly in my view, that this is not a strict rule, but a principle, which has to be balanced with other core values, such as the establishment of a lasting and sustainable peace.[7] The need to strike a balance may legitimate the application of exceptional measures, as long as they fulfil some minimum conditions, namely, the prosecution of international crimes, and the effective protection of the victims’ rights. It is also worth noting that the Prosecutor of the ICC has been monitoring the Colombian situation since 2006 under a preliminary investigation, but has not decided to open a situation yet. Indeed, the Colombian State has been found to comply, at least thus far, with the requirements, under Art. 17 ICC Statute, of capacity and willingness to undertake effective investigations and prosecutions.[8] This might suggest that the transitional mechanisms that have been implemented, including the exceptional measures for criminal prosecution, are not deemed to violate the international duty to prosecute and punish.[9]

2.     Constitutionalisation of the transitional process

A second central feature of the Colombian peace process is its “constitutionalisation”, introduced through the constitutional reform known as Marco Jurídico para la Paz. Temporary Articles 66 and 67 articulate the fundamental goals of the transitional process, namely, bringing an end to the armed conflict; building a sustainable and lasting peace; and granting “to the highest possible level” the victims’ rights to truth, justice and peace. The provisions also list the “exceptional mechanisms” that have been or shall be implemented to reach these goals: criteria for the selection and prioritisation of cases for criminal prosecution; the suspension of sentences; the application of alternative sanctions; the right to participate in politics and the creation of a Truth Commission. The constitutional provisions clarify that these mechanisms shall be applied as long as the beneficiaries comply with a set of conditions, such as disarmament, the recognition of their responsibility and their engagement in truth finding and reparation initiatives. In a nutshell, the reform grants constitutional recognition not only to some specific mechanisms applied in the peace process, but also to the very underlying idea that establishing a sustainable peace requires exceptional measures, albeit while safeguarding the victims’ rights as far as possible.[10] Although enshrining the transitional justice approach in the Constitution is not a novelty – one may recall the South African Constitution (Art. 22) – the difference is that Colombia has taken this step after the implementation of most of the transitional mechanisms, and at a crucial moment during which negotiations with the FARC[11] began. This suggests the willingness to build a comprehensive transitional project, by taking advantage of existent mechanisms and addressing further unresolved issues. In addition, it provides the peace process with increased legitimacy at both the legal and social levels.

3.     Victims’ recognition and participation

Another key feature of the Colombian transitional process is the increasing centrality of victims in the process. Formal recognition of their status and of their rights to justice, truth and reparation were envisaged in the Justice and Peace Law[12] and reiterated by the Constitutional Court in its Judgment C-370/2006. The same Law provided for the creation of a Commission (Comisión Nacional de Reparación y Reconciliación) with the main task of laying out guidelines and proposals for reparations.[13] Furthermore, under the Commission, a separate entity (Grupo de Memoria Histórica, later replaced by the Centro Nacional de Memoria Histórica) was created in order to build a full and impartial narrative about the conflict. However, a major step is probably the Law on Victims (1448/2011), which encompasses some ambitious and far-reaching measures to address victims’ rights and claims. One of its novel aspects is the creation of a mechanism for land restitution, to be implemented by way of a special procedure. The Law also envisages proceedings for house restitution, programs to foster employment and education, psycho-social assistance, a new administrative compensation measure, and a number of symbolic reparation initiatives. A second avenue for victims’ recognition are the peace talks between the Colombian Government and the FARC, currently taking place in La Habana, following a General Agreement signed in 2012. Here, victims are one of the six points on the agenda of the talks. Additionally, they have been given the opportunity to participate directly in the negotiations. The Negotiating Committee received victims’ delegations, selected to represent all the different victims, in five different hearings; they had the opportunity to tell their stories and make proposals for the transitional process. In my view, this falls within the broader trend in Transitional Justice, to consider victims not only as beneficiaries, but as active participants (albeit not the sole voice) in the decision-making process.

4.     Final remarks

The Colombian peace process has been applying transitional justice principles and mechanisms in a non-conventional transitional context, thereby developing a number of creative solutions. Although the peace process is still ongoing, and there still are many challenges ahead, these features might provide a good framework for its success. They might also serve as a useful example for other transitional experiences, even though there is no “one-fits-all” solution in this field.

[1] R. Uprimny Yepes et al. (2006). ¿Justicia transicional sin transición? Verdad, justicia y reparación para Colombia. Bogotá.

[2] Comisión Nacional de Memoria Histórica (2013), ¡Basta Ya! .

[3] Potential beneficiaries also need to be included on a Governmental list, provided that they fulfil certain requirements. This proceeding is complementary to Law 758(2002), which provides for pardons and other beneficial measures to members of illegal armed groups that committed political crimes and who are willing to be engaged in the peace process. [4] For a full analysis of this Law, see e.g.: K. Ambos (2010), “Procedimiento de la Ley de Justicia y Paz (Ley 975 de 2005) y Derecho Penal Internacional”. Bogotá: Temis (ProFis), 9-148.

[5] Constitutional Court, Judgment C-370/2006, wherein the Court confirmed the constitutionality of the Justice and Peace Law by applying this balancing test. Nonetheless, it also imposed some additional requirements to the special proceeding (that the defendant must give a full and truthful confession, and that they must contribute to reparation with all their assets) in order to better grant the effectiveness of victims’ rights.

[6] The Inter-American Court of Human Rights has been especially proactive in affirming this duty and enlarging its scope, by interpreting it almost as a duty to prosecute and punish all perpetrators and participants in any human rights violations; contra: E. Malarino (2012): “Judicial activism, punitivism and supranationalisation: Illiberal and antidemocratic tendencies of the Inter-American Court of Human Rights”. 12(4) International Criminal Law Review, 665-695.

[7] Constitutional Court, Judgment C-579/2013.

[8] See also the study by K. Ambos and F. Huber.

[9] Nevertheless, the OTP, in its 2012 Interim Report, has noted that some areas, like sexual crimes, the killings known as “false positives” and forced displacements, need to be more thoroughly addressed. The Office conducted a mission to Colombia earlier this year, at the end of which it reiterated its support for Colombia’s ongoing efforts to deal with the crimes and bring about peace.

[10] The Constitutional Court has confirmed the constitutionality of the selection and prioritisation of cases (Judgment C-579/2013) and the possibility for the former members of illegal groups to participate in politics, after serving their sentence (Judgment C-577/2014).

[11] Fuerzas Armadas Revolucionarias de Colombia: the most important guerrilla group still active in Colombia.

[12] Arts. 6-8. [13] Arts. 50-51.red_slide_paz