Dealing with the Past: Transitional Justice
Processes of transition from armed conflict to peace raise the question how to deal with the perpetrators and victims of past crimes. The Peace talks aimed at avoiding impunity and to protect victim’s rights. Based upon lessons learned from the past the negotiators have taken up the internationally recognized concept of Transitional Justice (in the following: TJ).
The former peace process as of 2005 with paramilitary groups led to the application of TJ policies for the first time. According to TJ, the combination of criminal prosecutions, truth finding, repara- tion for the victims and guarantees of non-repetition are most promising in coming to terms with the conflict, contributing to reconciliation within the society as a whole and affirming rule of law.
The law on Marco Jurídico para la Paz, whose conformity with the Constitution has been affirmed, establishes a pertinent constitutional framework for TJ. The criminal prosecutions are to be embedded in an integral system, where punishment will depend on the contributions of the perpetrators to truth, reparation and guarantees of non-repetition.
a) Justice
Criminal law is an integral part of TJ as applied in Colombia. The agreement on the prosecution of perpetrators of crimes during the conflict establishes a special jurisdiction for peace (Jurisdicción Especial para la Paz), including an extraordinary tribunal for the most serious crimes. For the other crimes, amnesties shall be granted. Criminal relief will depend on the contribution of defendants.
Colombian actors have often pointed out that one-size-fits-all approaches do not meet the challenges of the situation and that a proper understanding of the particular circumstances is imperative. The consortium can meet these concerns and broaden the perspective by additional comparative expertise.
Criminal justice and TJ in Colombia are key aspects of the work of CEDPAL. JLU conducts research on constitutional aspects of TJ and the admissibility of amnesties. The LAI provides expertise in Colombian constitutional law and jurisprudence. PRIF can contribute with analyses and assessments of TJ and reconciliation.
A persistent concern in Colombia has been the peace agreement’s admissibility under international law. The Colombian case is new in so far as neither the International Criminal Court (ICC) nor the Inter-American Court of Human Rights (IACtHR) had to deal with a comparable situation before. The IACtHR has addressed amnesties in only a single post-conflict situation (El Mozote vs El Salvador, 2012). The Court held the amnesties to contravene human rights law, however, with a concurring opinion arguing that a well-balanced approach to TJ might be permissible.
Profound knowledge of these bodies and their case law are available at JLU and at CEPDAL. LAI researchers have addressed many related issues from their perspective.
b) Memory
Perceptions of history and interpretations of the past are not only based on objective facts but are often socially constructed. Colombian institutions and civil society have made considerable efforts to deal with the violent past by pursuing remembrance initiatives, even during the violent conflict.
Due to specific local experiences and varying impacts there are different perceptions and interpretations of the conflict, including those of perpetrators and of victims, ranging from vindictive or justifying to reconciling attitudes.
c) Truth
Establishing the truth may be construed on the basis of victims’ rights and of society as a whole. It requires cooperation and confessions of perpetrators on the crimes committed. The truth commission, as envisaged by the Colombian Constitution and the peace agreement, aims at providing incentives for the perpetrators to reveal the entire truth and circumstances of the conflict. Such incentives are crucial for victims.
The CAPAZ will support the development of a memory culture along these lines and will accompany pertinent processes by providing advisory services.
CEDPAL has already performed research on existing Colombian measures and policies. JLU and PRIF have profound expertise with respect to peacebuilding. The LAI has a long-standing regional expertise regarding the history of the South Cone and Central America as well as different perspectives on the conflict.
d) Reparation
Reparation for victims of the armed conflict is a vital aspect of the current peace process. The Law of 2011 (Ley de víctimas y restitución de tierras), stipulates integral reparation for victims via individual, collective, material, moral and symbolic measures. Forced displacement of over six million people makes land restitution a crucial part of the reparation process.
Although some commendable efforts have been undertaken, little progress has been achieved so far, and the process has not been free from criticism. The total number of officially registered victims by now amounts to more than eight million and entails a huge challenge with respect to integral reparation. Though the Colombian government has undertaken efforts, numerous factors have caused delays of many reparation processes.
While JLU and CEDPAL can provide pertinent legal expertise, the LAI is in a position to support victims, with the department of psychology (FU) and the Albert Ludwigs University (Freiburg).
e) Non-repetition
Guarantees of non-repetition encompass measures and institutional reforms that are necessary to prevent further harm to the victims of the conflict. Related to this is successful DDR (Disarmament, Demobilization and Reintegration), providing employment and education in order to prevent demobilized FARC members from joining illegal groups, and supporting their efforts to form a political party. This requires sensitization of the population, state institutions and the private sector as well as the development of non-violent capacities.