On past 24th August the Colombian Government and Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP) announced a long-awaited final agreement that puts an end to the armed conflict that has lasted for more than 60 years. The agreement is going to be signed today (26th September) in an official act and submitted to referendum on 2nd October. If the outcome of the referendum is favourable, legislative and constitutional reforms shall be passed in order to implement the agreement. Therefore, what they call final agreement is somehow only the beginning of a broader and more complex transitional process.

Despite all these uncertainties and open issues, the content of the agreement confirms that Colombia is leading a new trend in a comparative perspective. Actually, it encompasses a number of innovative solutions that may challenge the dominant view about State obligations when it comes to prosecution and punishment of gross human rights violations in transitional contexts.[1]

One of these novelties are the sanctions provided by the Special Jurisdiction for Peace, which, as mentioned in a previous post of mine, is aimed at dealing, in combination with non-judicial mechanisms, with the serious crimes committed during the conflict.[2]  The sanctions provided under these mechanisms vary depending on whether or not those allegedly responsible for the commission of such crimes plead guilty. If this happens before a formal process is opened against them, these people may be sentenced to “alternative penalties” of 5 to 8 years.

Whilst the former provisional agreement left the category of “alternative penalties” undefined, the final agreement sets out a list thereof. This list distinguishes among the sanctions to be served in rural areas (for example, programs for reparation for displaced peasants, environmental protection, substitution of illicit crops), those to be served in urban areas (for example, programs to build infrastructures or to grant access to potable water) and those related to demining and the disposal of the remains of other arms.

The applicants may submit to the attention of the competent Section of the Special Jurisdiction an individual or collective project to realize an activity or a deed within one of the listed fields. This project has to specify duties, duration, timetable and place of execution, and must provide for consultation with victims that live in the place of execution. The Chamber shall decide the place where the applicant shall live during the serving of this sentence. The agreement clarifies that this restriction in no case can imply imprisonment or detention.

There are many interesting issues at stake regarding this system of penalties. Firstly, their rationale is to combine a limited restriction on fundamental freedoms with a restorative justice perspective.[3] Instead of temporarily isolating perpetrators from society by putting them into jail, these sanctions involve them in reparation mechanisms, thereby satisfying some of the victims’ claims and fostering reintegration and reconciliation.

Secondly, the procedure by which the applicant may propose a project allows the development of more specific and targeted activities, which should pay the due attention to local needs. Furthermore, the fact that perpetrators have a say in the definition of the project encourages their personal commitment.

Thirdly, this type of penalties clearly departs from prison sentences that are ordinarily applied to serious crimes, both at the national and international level. This original feature raises some questions as to the international duty to prosecute and punish gross Human Rights violations.

This duty has emerged in the past years mainly as a result of judicial and scholarly interpretation of international instruments.[4] Beyond the unclear scope of this duty (i.e., does it require both prosecution and punishment? Does it allow for flexible application in transitional contexts?), what matters here is that it does not impose a unique type of penalty. International and hybrid criminal tribunals, including the International Criminal Court, have clearly opted for detention,[5] and the majority of domestic tribunals, when confronted with serious crimes have done the same. Yet, none of the relevant international legal instruments expressly rule out the possibility to apply different sanctions.

By contrast, a number of studies have cast into doubt the capability of prison sentences to serve the fundamental purposes of criminal punishment when dealing with extraordinary massive criminality.[6] Although it is impossible to dwell into the endless debate about the purposes of punishment,[7] it suffices here to recall that the main difference lies between retributivists (in whose view punishment is a way to compensate the evil caused by the offence and, in modern theories, encompasses the idea of proportionality between the offence and the penalty) and consequentialists (according to whom punishment is needed since it prevents the commission of further crimes in the future). Some others focus on the communicative or expressive function of punishment, that is, on its ability to send a message of reprobation and condemnation of the crime to both the offender and society as a whole.[8]

When dealing with massive and heinous crimes, it may be argued that retribution considered as proportionality is frustrated by the seriousness of the crimes itself,[9] as well as by selectivity in prosecution and the inconsistent judicial sentencing practice, at both domestic and international level.[10]

Furthermore, the massive and systematic nature of the crimes committed in Colombia cast some doubts as to the effectiveness of deterrence. Since offenders normally perpetrate the crimes either because they feel gratified to belong to violent groups or because they consider it necessary for their own survival,[11] deterrence, being based on their rational estimate of advantages and drawbacks of crime, falls short of operating. This purpose seems better served, therefore, by other mechanisms, such as institutional reforms that dismantle the violent groups.

 In a similar vein, general deterrence has proved to be a failure, in terms of preventing the commission of further atrocities in the same or other areas. Despite the proliferation of international and internationalised criminal tribunals after the Nuremberg experience, massive atrocities are still committed in many countries.

When facing this kind of crimes, by contrast, there is still room for expressivism.[12]  Yet, in my view, this communicative function is furthered more by a fair process and judgment than by the prison sentence itself:[13] what matters is the acknowledgement of the facts and the charges and the declaration of responsibility made in the judgment.[14]

Furthermore, this communicative purpose is better served by sanctions that, instead of excluding the offenders from the society (as imprisonment does), create a venue for their recognition as members of the polity, although under the condition of them fulfilling some burdensome task.[15]

Besides, one should also take into account the additional and competing goals at which every transitional process aims, namely, social reconciliation, consolidation of the new regime or, as it happens in Colombia, the end of an armed conflict and the building of a sustainable peace. These priorities often require flexibility in the exercise of criminal prosecution and/or in the imposition of criminal punishment, such as the selection of those who are the most responsible ones, the reduction of sentences, or even the controversial provision for conditional amnesties and pardons.[16]

The Colombian Special Jurisdiction does envisage a criminal prosecution, a conviction and the imposition of a punishment. Yet, it amounts to a different kind of sanction, in which the convicted person’s active participation in restorative projects and limited restriction of freedom is preferred to the classic prison sentence. There is no doubt that these penalties fulfil the aim of reintegration of the offenders even better than detention, since they already insert them in the society and give them a task for the benefit of a specific local community. As for deterrence, the alternative penalties probably fall short of achieving it, but the same does, as we have seen, imprisonment as a traditional penalty.

Furthermore, alternative penalties perfectly serve the expressive or communicative purpose of punishment in that they impose a burdensome duty on perpetrators and thereby blame them before victims and the whole society. By actively participating in the recovery of the damages caused by the crimes, the criminals may be more effectively persuaded of the wrongfulness of their acts and of the validity of the norms and the underlying social values infringed by the crimes.

As regards their compatibility with other transitional justice goals, by granting them a more favourable treatment than what they would face under ordinary Criminal Law, these sanctions provide a strong incentive for the perpetrators’ participation in the peace process. This contributes to the consolidation of the new socio-political scenario and to the inclusiveness of the transition. In addition, by requiring the offenders to perform a deed in local communities, they also foster social reconciliation.

Therefore, alternative penalties strike a good balance between retributive considerations, restorative justice, and all the other goals of the transitional process. Instead of predicating that this mechanism is at odds with the so-called fight against impunity (as some NGOs have recently done), one should remind that this fight is not an end in itself, but is instrumental in achieving a number of aims that are admittedly served by criminal punishment. If a penalty other than imprisonment is found to serve those purposes equally well or even better and, in addition to this, allows combining retribution with restoration and other transitional goals, why should it be rejected?

[1] For a thorough analysis of the legal sources and content of this international duty, see: A. Seibert-Fohr, Prosecuting Serious Human Rights Violations (OUP 2009), arguing for a more strict approach; see: J. Chinchón Álvarez, Derecho Internacional y transiciones a la democracia y a la paz, Sevilla (Parthenos 2007), 235 ff. See also the classic work by D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal (8), 2537-2615, and her more recent ‘Settling Accounts Revisited: Reconciling Global Norms with Local Agency’ (2007) 1 International Journal of Transitional Justice, 10-22.

[2] Since its bursting in 1958, the armed conflict has caused over 220,000 deaths and resulted in many other serious offences, such as forced displacement, torture, sexual violence, mostly against civilians. For further details about these abuses, see the report: Comisión Nacional de Memoria Histórica, Informe ¡Basta Ya! (2013).

[3] See para. 60 of the agreement.

[4] The Inter-American Court of Human Rights has played a pivotal role in the affirmation of this duty and has interpreted it in a very strict way, as opposed to the more nuanced interpretation given by the European Court of Human Rights. See: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP 2009); for a critical view, see: E. Malarino, ‘Judicial activism, punitivism and supranationalisation: Illiberal and antidemocratic tendencies of the Inter-American Court of Human Rights’ (2012) 12 International Criminal Law Review, 665-695.

[5] Article 77 of the Rome Statute for the International Criminal Court envisages imprisonment for a term up to 30 years and life imprisonment (under certain circumstances); articles 24 of the ICTY Statute and 23 of the ICTR Statute also establishes imprisonment as the applicable sanction, albeit without a fixed maximum term. Imprisonment is affirmed as the applicable sanction also by the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (arts. 38-39), by the Statute of the Special Court for Sierra Leone (art. 19), and so on.

[6] See for instance the brilliant study by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 15-18 and 149 ff.

[7] For a clear overview about the main theories surrounding the rationale of punishment, see for instance: S. Cohen, ‘An Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment’ (1981-2) 27 McGill Law Journal, 73 ff.; R. Card, Card, Cross & Jones Criminal Law, (21st ed., OUP 2014) 414 ff. and, for a focus on the status of the debate in International Criminal Law, see: R. Cryer, ‘Aims, Objective, Justifications of International Criminal Law’, in R. Cryer et al., An Introduction to International Criminal Law and Procedure (CUP 2014) 28 ff.

[8] A. Duff, Punishment, Communication and Community (OUP 2001).

[9] According to the title of a book by Antoine Garapon, named after the famous sentence by Hannah Arendt, these are “crimes that cannot be punished nor forgiven”: A. Garapon, Des crimes qu’on ne peut ni punir ni pardonner (Odile Jacob 2002).

[10] Inconsistencies emerge regarding the application of sentencing criteria and in the total amount of penalties imposed by international criminal tribunals and domestic courts: see the examples provided by M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 46-122. Inconsistency in sentencing is also a typical feature of the case law of both the ICTY and the ICTR: see B. Hola, A. Smeulers, C. Bijleveld, ‘International Sentencing Fact and Figures: Sentencing Practice at the ICTY and ICTR’ (2011) 9 Journal of International Criminal Justice, 411-439.

[11] M. Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 171-3.

[12] D. Luban, ‘Fairness to Rightness: Jurisdiction, Leaglity and the Legitimacy of International Criminal Law’ in Georgetown Public Law Research Paper NO. 1154117 (2008), at 9.

[13] In a similar vein, ibidem, at 7-9.

[14] See A. Duff, Punishment, Communication and Community (OUP 2001); A. von Hirsch, Censure and Sanctions (OUP 1993).

[15] Similarly, A. Duff, Punishment, Communication and Community (OUP 2001), 101 ff.

[16] On the need to strike a balance between these competing goals, see for instance: K. Ambos, ‘The legal framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC’ in K. Ambos et al. (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (Springer 2009) 19 ff.