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FINALLY, THE FINAL AGREEMENT. A comparative perspective on the Colombian Peace Agreement

After a long and tortuous journey, the final Agreement between the Colombian Government and the FARC-EP[1] has been ratified. The previous version of the agreement, which was announced on past 24th August, was rejected in the referendum held on 2nd October by an unexpected and narrow majority of Colombian citizens. Yet, a process to revise the agreement was held shortly after.

The revised agreement was signed on 24th November and, instead of being submitted to a new referendum, it has been ratified by the Parliament, thereby reaching its final status. Now the time has come for implementation, and both the legislative and the executive branches of the Colombian State are struggling to pass the required laws and reforms in a short time.

Although it is difficult to make a thorough analysis of a transitional project that has not been put into practice yet, an analysis of the Agreement itself from a comparative perspective offers some very interesting insights. The Special Jurisdiction for Peace (SJP hereafter), particularly, shows the results of lessons learnt from other transitional experiences, but it combines them with some quite original features that turns it into a novel and interesting case study.

1) The creation of a special jurisdiction

The decision to create an ad hoc judicial body to deal with the offences committed during a conflict or under a repressive regime is rather common in transitional contexts. One might recall, in addition to the International Tribunals for the former Yugoslavia and Rwanda, the many hybrid or internationalised Tribunals, such as the Extraordinary Chambers in the Courts of Cambodia or the Special Court for Sierra Leona.

All those bodies were created by virtue of an agreement between the State concerned and the United Nations and they always have an international component, either fixed or changing over time (this is the case for the War Crimes Chamber in Bosnia Herzegovina, in which the initial number of 2 foreign judges was gradually reduced until their elimination in 2012).[2]

On the contrary, the Colombian SJP is the outcome of a national decision, and the international community only plays a role as an external observer and guarantor of its implementation. Additionally, whereas the first version of the final Agreement envisaged the presence of a minority of international members within the judicial bodies, this provision has been eliminated in the revised agreement. There is still room for foreign experts, but they act as amici curiae, that is, with a merely consultative role. Just like in the original agreement, their participation is optional, insofar as it occurs only when the accused requires it.[3] Therefore, even if their participation in the processes might have a (positive) impact, the concrete resolutions and judgments will be delivered by Colombian judges.

2) Amnesty, pardon and political crimes

In the special justice system the category of political crimes plays a pivotal role. The Agreement expressly states that people who have been convicted or who face an investigation for a number of political and related crimes shall benefit from an amnesty or pardon. Such possibility was already provided in the Constitutional reform known as “Marco jurídico para la paz”, which granted constitutional status to the transitional principles and mechanisms that were later developed in the negotiation between the Government and FARC.

The same option was taken by South Africa in its transitional process after the fall of the apartheid regime. There, the Truth and Reconciliation Commission (TRC) had the power to grant an amnesty to people who had committed crimes for political reasons.[4] The Act creating the TRC provided a minimum guidance on which offences fell into this category,[5] but it was the Amnesty Committee within the TRC that developed a set of criteria to determine whether a crime fitted in the definition, based on a case by case approach.[6]

The Colombian project has taken a step forward in this regard, since the final Agreement sets out a list of offences that amount to political crimes per se (rebellion, sedition, mutiny, and so on) as well as a number of interpretive criteria to define the related crimes.[7] According to the Amnesty Act, which was passed on 28th December, the former category shall be granted a de jure amnesty, whereas the latter qualification shall be established by the Amnesty Chamber case by case and according to the criteria envisaged in the final Agreement and in the Act. This feature improves the legal certainty and helps preventing inconsistencies and arbitrariness in the relevant decisions.

3) Beneficial measures as an incentive

Another point in common with the transitional experience in South Africa is the application of an incentive mechanism based on the exclusion/limitation of criminal punishment. The South African TRC could only grant an amnesty after the offender made a full disclosure of all relevant facts .[8] In a similar vein, the Colombian SJP may grant beneficial sanctions to those offenders who voluntarily recognise their responsibility. It may exempt them from imprisonment and subject them to restrictions on freedom and to reparation programs, or, in case of a belated recognition, it may impose them a reduced prison term.[9]

Both mechanisms are based on an exchange between the offenders’ contribution to the discovering of the facts and the imposition of beneficial measures. This strategy provides a strong incentive for perpetrators to take part in the procedures aimed at clarifying and declaring the offences and providing reparation to the victims. The contribution thus given by the perpetrators fosters the fulfilment of two key transitional goals, namely, truth and reparation.

The main difference lies in that the South African measure envisaged a total exclusion of criminal punishment, whereas the Colombian system provides for alternative and reduced criminal sanctions under this exchange dynamic. Accordingly, the competent body to grant the beneficial measure in the Colombian project is a tribunal, whereas in South Africa it was a non-judicial body.

 As we have seen in the previous section, amnesty is also envisaged as a tool, but outside this exchange mechanism and only for political and related crimes. This is another difference with the South African experiment, where  the exchange mechanism applied to a wider number of offences, including international crimes, which are expressly excluded from the Colombian amnesty.

4) Alternative sanctions with a restorative content

Among the different sanctions that the Special Jurisdiction for Peace envisages, the most novel ones are the alternative sanctions (which the Agreement calls “sanciones propias”, i.e., “own sanctions”). They shall be imposed if the offenders recognise their responsibility before having been formally charged before the tribunal and are accordingly the most beneficial ones. They encompass the limitation of the offenders’ freedom of movement together with the obligation to perform activities such as environmental protection, substitution of illicit crops, and programs to build infrastructures.

These sanctions have a clear restorative focus, in that they aim at repairing the harm done to victims and communities that were affected by the crimes committed during the conflict. Moreover, they shall be executed at a local level and beneficiaries may have a say in the definition of programs and their execution.

These two features remind of a mechanism that was put into practice in the transitional process in East Timor. There, the Community Reconciliation Procedure, which was a complement of the Comissão de Acolhimento, Verdade e Reconciliação,[10] may impose on the offenders a restorative measure, such as community service (an example was cleaning the community church once a week).[11] The aim of this mechanism was to both grant victims’ reparation and foster offenders’ reintegration into their communities.[12]

The same idea lies under the Colombian “own sanctions”, which are anyway more burdensome insofar as they also imply a restriction on freedom of movement. Nonetheless, the East Timorese mechanism only applied to less serious offences, for example, bodily harm and offences against property, while the serious offences were prosecuted before the Special Panels for Serious Crimes in the Courts of Dili[13] and entailed ordinary prison sentences.

The Colombian proposal is much more ambitious in this regard, since it provides that the “own sanctions” shall apply to very serious offences, including international crimes, under the condition that the offenders recognise their responsibility.

5) Final remarks

These features show that the complex transitional design envisaged in the Agreement between the Colombian Government and FARC-EP has treasured the lessons learnt from many other transitional experiences. But this scheme contains some original features that might offer new models and ideas for Transitional Justice. The creation of a national special jurisdiction, the use of amnesties, pardons and alternative penalties as tools under an exchange mechanism, the imposition of alternative sanctions with a restorative content (even for serious offences), may be interesting mechanisms for future transitional experiences.

Now, the world has its eye on the implementation of this design.

[1] The Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo are the main guerrilla group in the Colombian armed conflict.

[2] G. Werle, F. Jessberger (2014), Principles of International Criminal Law, 3rd ed., 128.

[3] Para. 65, Point 5 (”Victims”) of the Final Agreement.

[4] A. Lollini (2011), “Constitutionalism and Transitional Justice in South Africa” (Oxford – New York: Berghahn Books).

[6] A. Du Bois-Pedain (2007), “Transitional Amnesty in South Africa” (Cambridge: CUP). Political crimes included gross human rights violations, as set out in s 19(3) (b) of the Act. When these offences were concerned, the Committee may not grant amnesty without holding a hearing.

[7] Paras. 39-40, Point 5 (“Victims”) of the Final Agreement.

[8] Section 20(1)(c) of the TRC Act. See also: J. Sarkin-Hughes (2004), “Carrots and Sticks: The TRC and the South African Amnesty Process” (Cambridge: Intersentia).

[9] See the following Section of the post.

[10] Created by UNTAET Regulation 2001/10, “On the establishment of a Commission for Reception, Truth and Reconciliation in East Timor”, 13.07.2001.

[11] W. Lambourne (2012), “Commission for Reception, Truth and Reconciliation (East Timor)”. In L. Stan, & N. Nedelsky (eds.), Encyclopedia of Transitional Justice (Vol. 3, Cambridge: CUP), 46.

[12] Burgess (2005), “Justice and reconciliation in East Timor”. 15 Criminal Law Forum, 135-158.

[13] Created by UNTAET Regulation 2000/15, “On the establishment of Panels with exclusive jurisdiction over serious criminal offences”, 6.6.2000.

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CRIMINAL PUNISHMENT AND PEACE PROCESS. Some thoughts on the “alternative penalties” envisaged in the Colombian Special Jurisdiction for Peace

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.

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THE COLOMBIAN “COMPREHENSIVE SYSTEM OF TRUTH, JUSTICE, REPARATION AND NON REPETITION”: A HOLISTIC AND INNOVATIVE PROPOSAL

 

The whole world is waiting with bated breath at the La Habana Peace Talks between the Colombian Government and the FARC. Not only might this be this the way to end one of the longest armed conflicts in the last decades, but it could also offer a plethora of deeply-thought, well-advised measures in order to cope with the problematic legacy of the conflict.

 

Among these measures, the creation of a “Comprehensive System of Truth, Justice, Reparation and Non Repetition” is an extremely interesting proposal within the transitional justice scheme.

 

As the name itself suggests, this system takes a holistic approach, which combines different mechanisms that pursue the key goals of truth, justice, reparation and non-repetition. The proposal for the creation of this system is based on three complementary mechanisms: a Truth Commission, a Special Jurisdiction and an amnesty law. The present post examines the main features of these three mechanisms.

 

  1. The Commission for the Elucidation of Truth, Coexistence and Non-Repetition

The Agreement on the creation of a Truth Commission (TC) was reached last June and, although it might need further clarification, it already contains the basic conditions for its enactment. The “Comisión para el Esclarecimiento de la Verdad, la Convivencia y la No Repetición” shall have the broad mandate of investigating the armed conflict in general, including its root causes, its impact on society and the serious human rights violations committed therein from a historical perspective. Besides collecting any useful material for this investigation, it may hold public hearings, thereby providing a public forum for narrative, recognition and a possible apology. The proposal devotes great attention to the criteria for the commissioners’ appointment and it envisages the creation of a follow-up mechanism in order to supervise the status of implementation of the Commission’s final recommendations.

 

A very interesting feature of this proposal is the clear separation provided between the TC and any judicial activity. Firstly, the Agreement clearly states as follows:

 

“[the TC] activities will not be of a judicial nature, and they may not imply criminal charges against those who appear before it. The information received or produced by the Commission may not be conveyed by it to the judicial authorities to be used for attributing liabilities in judicial processes or have evidentiary value; likewise, judicial authorities may not demand it”.

 

Though it does not clarify how to grant such a separation, this provision aims at avoiding problems of coordination and overlapping between the TC and the judicial activity. It also prevents the possible infringement of the suspects’ defence rights, including the right not to incriminate oneself, which would be violated if their statements given before the TC were used within a trial.

 

Secondly, the Commission will have the power to investigate and find “collective responsibilities” of all groups involved in the conflict, but apparently not to ascertain individual responsibility nor to “name names”. Declaring individual responsibility and imposing sanctions is therefore an exclusive prerogative of judicial investigation. Such a clear separation between judicial and historical (or collective) truth is certainly a positive achievement of this proposal.[1]

 

  1. The Special Jurisdiction for Peace

The negotiations’ second key issue relates to individual responsibilities stemming from the crimes committed during the conflict. Following a long debate, a communiqué published in September disclosed an agreement for the creation of a Special Jurisdiction for Peace, which would resemble a hybrid tribunal, since it will be composed of both Colombian and foreign judges, which however will constitute a minority.

 

Its core idea is to distinguish between two parallel paths and three levels of sanctions, depending on whether or not the suspect recognises the truth and his/her responsibility for the crimes. Thus, a sentence shall be imposed on those suspects who make such recognition, every time their statements are confirmed by resorting to additional evidence.

 

The agreement says that the sanction “will have a component involving the restraint of liberties and rights, ensuring the fulfilment of the reparation and restoration functions thereof through the engagement in jobs, works and activities and, in general, the satisfaction of the victims’ rights”. Where the person involved admits to have committed very serious crimes, the penalty will consist of the “effective restraint of liberty, under special conditions” from five to eight years. This rather ambiguous provision does not imply prison, but alternative restricted spaces such as prison farms or work camps, where people have their freedom of movement restricted but are under a more flexible regime than in jail. Additionally, convicted people will be required to cooperate in activities like demining, building infrastructures, etc. These sanctions are therefore aimed at contributing to victims’ reparation. Besides, they might prove extremely useful for reintegration and resocialisation of convicted people.

 

A second set of measures will be applied to those suspects who make a belated recognition of their responsibility (namely, after a judicial proceeding has been opened against them). They will be sentenced to the same reduced period of restraint of liberty (five to eight years), but this time these would be served in prison “under ordinary conditions”.

 

Finally, suspects who do not make such recognition shall face a trial based on cross-examination and be subject to an ordinary prison penalty of up to 20 years.

 

This three-level system of sanctions clearly aims at providing incentives to perpetrators to disclose the crimes and recognise their responsibility. Accordingly, the imposition of both reduced prison penalties and alternative penalties amounts to a flexible and creative application of criminal law, which is legitimised by the special circumstances of the peace process. Furthermore, these alternative sanctions show a shift from a purely retributive criminal system towards forms of restorative justice.

 

  1. Amnesty provisions

The Agreement for the creation of a Special Jurisdiction for Peace also envisages the enactment of an amnesty law. Point 4 of the Agreement affirms that “upon the termination of hostilities, pursuant to IHL, the Colombian State will grant the broadest possible amnesty for political and related/connected crimes”. The reference to International Humanitarian Law (IHL) recalls the view already expressed by the Inter-American Court of Human Rights (IACHR) in the El Mozote v. El Salvador case. According to that Judgment, to determine the validity of an amnesty law enacted within negotiations to put an end to an armed conflict, one should make reference not only to International Human Rights Law, but also to IHL, especially to art. 6 of the II Additional Protocol to the Geneva Conventions that recognises amnesty as a tool for peace (para. 284 et seq.). This would be the case for Colombia as well, insofar as its current priority are the ongoing negotiations to cease a long-term armed conflict.

 

The exact meaning of the “related crimes” category will be defined by a law enacted by the Parliament. Yet, the Agreement already establishes that a number of crimes shall be excluded from its scope, namely, “the conducts typified in the national legislation as corresponding to crimes against humanity, genocide, and grave war crimes, among other serious crimes such as the taking hostages or other serious deprivation of liberty, torture, forced displacement, forced disappearance, extra-judicial executions and sexual violence”. The exclusion of conducts that amount to core international crimes and to other serious crimes seems in line with the international duty to prosecute international crimes, insofar as one interprets it in a flexible manner, namely, allowing partial or conditional amnesties that do not cover international crimes.

 

  1. Challenges ahead

There are still important challenges ahead to reach a full agreement on the delicate issues of truth, justice and reparation within the peace talks in La Habana.

 

First, the negotiating parties still have to define further details for the creation and functioning of the three mechanisms described above. Moreover, since the principle underlying the whole process is that “nothing is agreed until everything is agreed”, each of the partial agreements might theoretically be submitted to revision.

 

Second, after the Final Agreement is signed, Colombian citizens are required to ratify it in a referendum or plebiscite, the result of which is not fully predictable. Additionally, Colombian institutions will have to enact legislation to implement what has been agreed. This not only requires the necessary consensus among the political parties, but also a thorough drafting, in order to grant the compatibility of the new mechanisms with the existing institutions, proceedings and laws (not least, the constitutional reform of 2012).

 

Last, one cannot easily predict the reaction of international bodies such as the ICC and the IACHR, which will probably have to verify the compatibility of these mechanisms with international legal standards.

 

Still, the Comprehensive System that has been proposed in La Habana is in my view very smart, innovative and well grounded. Therefore, it may definitely open a new stage in the development of transitional justice.

 

 

[1] For a deep analysis of this issue and for further references, see D. Pastor, “Acerca de la verdad como derecho y como objeto exclusivo del derecho penal”, in E. Maculan, D. Pastor (2013), El derecho a la verdad y su realización por medio del proceso penal, at 21 et seq.Elena's post

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