This research provides an overview of the evolution of transitional justice (hereafter TJ) in Colombian peace processes between 1984 and 2017, focusing on its role in the last two negotiation processes between the Colombian government and Non-State Armed Groups. Thus, it aims to provide a detailed comparison of the TJ frameworks in the Disarmament, Demobilisation, and Reintegration (DDR) processes with the United Self-Defense Forces of Colombia (AUC) in 2003 and the Revolutionary Armed Forces of Colombia (FARC) in 2016. The broader goal is to describe the relationship between the reintegration process and the TJ framework to understand the key developments of the most recent framework and the challenges that persist in the peace-building process.
The International Centre for Transitional Justice (ICTJ, 2017) has defined TJ as:
“the ways countries emerging from periods of conflict and repression address large scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. [It] is rooted in accountability and redress for victims. It recognizes their dignity as citizens and as human beings”.
TJ aims to find legitimate responses to massive violations that occurred during the conflict, with the principle of putting the victims’ rights first (ICTJ, 2017); often needing to be implemented in the context of high social instability. Traditionally, four “principles” have been emphasised to achieve this principle: i) criminal prosecutions for those most responsible for the most serious crimes; ii) “truth-seeking” processes into human rights violations; iii) reparations to victims; and iv) justice system reform to prevent the repetition of violence.
A key characteristic of TJ as compared to the ordinary penal system is the combination of judicial and extra-judicial mechanisms (e.g., truth commissions and reparation activities). Additionally, emphasis is given to restorative justice measures (e.g., compensation for victims and social service activities) instead of exclusively retributive sanctions (e.g., imprisonment). The TJ process runs in parallel with the broader justice system and has the same governmental bureaucratic structure (ICTJ, 2017).
Each TJ framework is unique to the country and type of conflict in which it is being implemented, but the following features are constant: the recognition of the dignity of individuals; the redress and acknowledgement of violations; and the aim to prevent them from happening again. The four principles in the Colombian context as defined in this research and outlined in the Final Agreement are the satisfaction of victims’ rights to truth, justice, reparations, and guarantees of the non-recurrence of violent offences to achieve a stable and long-lasting peace (OHCP, 2016, p.143).
Scholars have noted the importance of TJ and its principles as one of the core structures of peace agreements. The fulfilment of the principles of truth, justice, reparation, non-recurrence of violent offences and reconciliation has a direct effect on the peacebuilding mechanism and contributes to the goal of violent and recidivism prevention, and clamour of justice processes (Theidon, 2007).
Hence, TJ and its principles should be included as a cross-cutting element of peacebuilding and post-conflict programmes such as Disarmament, Demobilisation and Reintegration (DDR) programmes. This avoids the exclusive focus on military and security objectives (Knight and Özerdem, 2004). This process provides a clear link between the DDR process and the rights of victims (García-Godos and Lid, 2010).
The principles should be built at the grassroots level (i.e. transitional justice from below) by focusing on the leadership and experiences of the communities. This tailored approach will avoid the effect of a one-size-fits-all international approach (Theidon, 2006) that does not take into account the important individual characteristics of each community (e.g. ethnicity; symbolic elements).
Comparative law research in TJ (Adams and Bomhoff, 2012; Siems, 2014) is the methodology used in this research to analyse the TJ starting in 2003 with the AUC and the TJ process in 2015 with the FARC, as part of the same legal system in Colombia (Collins, 1991). This research is looking at one system in light of the concerns raised by another (Bell, 2011; Sacco, 1991). Therefore, this comparison produces results based on the similarities and/or differences of the legal frameworks (Ratner and Slaughter, 1999; Piccone, 2019; O’Connor, 2020), by focusing on the TJ system evolution from 2003 until the 2015 peace processes and the current legal tools in the process of being approved.
This research used horizontal comparative research by defining and comparing two different TJ frameworks (Legrand and Munday, 2003), two different NSAGs, and two political and negotiation processes, but in the same country. Beyond their shared location, the two TJ frameworks can be compared as, in our opinion, the mechanisms (principles) involved form the basis of the TJ structure in each framework. Thus, the main components of analysis would be the comparison of: i) the respective TJ frameworks; ii) the legal mechanisms and procedures implemented; and iii) the principal objectives of the respective reintegration/reincorporation processes.
The types of research used are the monitoring framework and a micro comparison method (Steffek, 2017). Thus, the comparative tool is the descriptive statistics of the indicators per the TJ principle to monitor and assess the policies and programmes in place. Due to the evolving nature of the 2015 TJ framework being implemented in the current peace process with the FARC, the goal of the research is not to make an evaluation, but to use the 2003 TJ statistical analysis to create a baseline framework for the 2015 TJ statistical analysis after the first few years of implementation. Pham and Vinck (2007, p.248) outline the importance of the development of monitoring and evaluation research methods in TJ due to the multiplication of programmes and the lack of objective assessments of TJ mechanisms.
Furthermore, they state that:
Researchers and practitioners can use data to understand better how societies rebuild and how or indeed whether transitional justice mechanisms can contribute to this process. Such knowledge is essential to determine if improvements should be made to ongoing processes and to inform the design and implementation of future transitional justice interventions. (2007, p. 248)
Different scholars and practitioners have addressed TJ as the core component of a peace-building process (McEvoy and Shirlow, 2009). It warrants the effectiveness of a comprehensive reintegration process within Disarmament, Demobilisation, and Reintegration (DDR). In essence, a comprehensive TJ process should work on achieving the principles of truth, justice, reparations, reconciliation, and non-repetition of violent actions. Moreover, a reintegration process should be strongly linked to and coordinated with the design and implementation of the TJ, through interdisciplinary analysis involving politics and law for the functionality of theoretical agreements. The long-term sustainability of the peace process is defined by the level of trust and confidence between the parties within a violent conflict, including victims and civil society, which requires the implementation of an adequate legal transitional framework. Therefore, this comparative study could facilitate the development of a tool for monitoring outcomes of the 2015 TJ model through the baseline framework created and provide indications of the potential risks and challenges that the process faces in the long term.
Data description: This research used secondary data and information sources, collected through documents and records in a literature review. It was collected using web sources of academic journals of comparative law research, TJ think tanks, international organisations, non-governmental organisations (NGOs), media articles of analysis, and the Colombian national government organisations linked to the TJ process. Spanish and English were the two languages chosen for the research because of two key factors: i) making a comparative analysis of national and international data sources and legal research; and ii) reducing the identified possible bias of the national government and local sources. Academic literature on this research topic is limited due to the current level of implementation of the TJ process with the FARC in Colombia.
This research also proposes the creation of a comparative tool that could facilitate the continued monitoring and assessment of the two TJ models in the Colombian context. However, scholars such as Oppenheim and Söderström (2017) have analysed the TJ framework with the AUC; and others including Sánchez Duque (2013a, 2013b) and Sánchez León and Marín López (2017) have researched the TJ model with the FARC. Furthermore, much work has been done on the concept and implementation of TJ in general, both in Colombia and abroad (Delgado et al., 2014). Moreover, Rodrigo Uprimny Yepes has been central to this research, based on his collaborative and individual scholarly and journalistic writing (Uprimny, 2017; Uprimny and Güiza Gómez, 2016; 2017; Uprimny, Sánchez Duque & Sánchez León, 2014; Uprimny and Sánchez León, 2017).
This section describes the evolution of TJ in Colombia concerning the various peace agreements between 1980 and 2016. The purpose is to understand the evolution of TJ through: i) amnesty/reinsertion programmes from 1984 until 2002; ii) the reintegration process and TJ framework from 2003 until 2015 with the AUC; and iii) the reincorporation programme and TJ system implemented from 2016 in the peace agreement with the FARC.
It also details the institutional evolution of the entities in charge of implementing the DDR programmes in Colombia. These fundamental changes have significantly strengthened the institutional capacity in Colombia to deal with the high numbers of demobilised combatants over the last twenty years.
Since 1984, Colombia has seen numerous peace processes negotiated and designed following varying TJ legal principles. This framework has evolved and defines the reintegration processes of different illegal armed groups. The evolution of TJ began with reinsertion programmes that favoured amnesties and pardons, which, according to the most recent DDR procedures in Africa and Southeast Asia, was the model most frequently adopted during this period (Triana-E, 2019).
The concepts of amnesty and pardon are defined according to Colombian legislation (ACR, 2013):
Amnesty: A decision of the State through which the ‘punishable’ facts of those who have participated in the conflict are being legally processed. Amnesty leads to the pardoning or review of the corresponding sentence and may only be granted in cases of political crimes.
Presidential pardon: Full or partial pardon granted by the President of the Republic on the compliance of a sentence imposed on people convicted for political crimes and related common crimes, except kidnapping and drug trafficking.
In summary, this model prioritises a short transition to civilian life by focusing away from prosecuting historical criminal records, thus universally absolving all ex-combatants from any crime committed as part of the conflict and providing them with a ‘new start’ in civilian life.
Moreover, this TJ framework did not include a social reintegration process or require any contribution to truth or reparation to victims. Instead, a reinsertion programme was designed that provided ex-combatants with an initial economic benefit and, most significantly, the possibility of political participation. This last point would become the most important aspect of peace negotiations for subsequent illegal armed groups (FIP, 2014, p.17).
The political reintegration of the IAGs during this period was legitimised in the Constitution of Colombia of 1991, which was created as an outcome of the peace agreement between the Colombian state and seven guerrilla groups. Article 22 of the Constitution defines peace as a right and thus a mandatory task of the State, as well as includes a legal framework for peace reform that defines TJ as a tool to achieve a sustainable peacebuilding process. The aim is to provide guarantees of non-repetition and safety; truth as a justice right; and victims’ reparation. Further to this, Articles 66 and 67 define TJ tools focused on the reparation of victims; the investigation of crimes in conflict; and the provision of public services to the participants of the reinsertion process.
The constitution provided the legal basis for any subsequent peace agreement between the State and an illegal armed group. However, this type of reinsertion process tends not to adhere to International humanitarian law (IHL) standards since there is no obligation to truth and all offences, including crimes against humanity, may be eligible for amnesty (McFee and Rettberg Beil, 2019). IHL is a set of rules designed to mitigate the effects of armed conflict. It seeks to protect those who are not or are no longer involved in hostilities, as well as to limit the means and methods of warfare in both international and non-international conflict. People who are protected by IHL are entitled to respect for their lives, dignity, and physical and mental integrity. They are also given various guarantees. They must be protected and treated humanely under all circumstances, without exception. The four 1949 Geneva Conventions are the core treaties of IHL, outlining the rules applicable to non-international armed conflict, which are more limited in scope than those applicable to international conflict. IHL applies equally to all parties, regardless of who started the fighting (Melzer and Kuster, 2016).
This analysis will not include the 1984–2002 timeframe and DDR type. However, it is necessary to understand that this process created the foundations for the following two processes, which are the focus of this research.
In 2003, fundamental law reforms occurred which facilitated the beginning of negotiations with the AUC (FIP, 2014, p.20). The general characteristics of this era of TJ reveal significant differences from the previous period (1984–2002). As a result, a TJ framework and reintegration process was created that vindicated the rights of victims based on the four TJ principles of truth, justice, reparations, and non-recurrence of violent offences, thus complying with IHL standards. This process enabled the demobilisation of 31,671 paramilitaries between 2003 and 2006 and created a baseline for the design of the peace process with the FARC in 2015.
The development of the TJ framework during this period includes three different Laws: Law 782/2002; the Justice and Peace Law 975/2005; and Law 1424/2010 (Triana-E, 2019). In 2002, the Public Order Law (418 of 1997) was reformed to create Law 782 of 2002. This law eliminated the need to recognise the political character of the illegal armed groups which was a major issue for the government at the time and, therefore, provided the legal framework for the initial demobilizations of AUC members (2003). However, the law did not include any crimes other than political rebellion or illegal armed group membership.
Alongside negotiations, the Government presented the project of alternative sanctioning which established the legal framework for paramilitary demobilisation (FIP, 2014, p.21). This would eventually lead to the creation of the Justice and Peace Law 975 of 2005 which facilitated the demobilisation of ex-combatants who were prosecuted for crimes against humanity whilst complying with IHL standards. It did so by defining alternative sentences for these specific sub-groups of offences (ACR, 2013).
Later, Law 1424 of 2010 was approved to strengthen compliance with the IHL standards defined above. This law created a balance between the reparation of victims and the reintegration process by giving legal benefits of non-imprisonment to participants in the process. In other words, ex-combatants admit guilt by signing a guilty plea statement. In return, the state grants them the benefit of non-imprisonment on the condition that they do not re-offend, and that they comply with their obligations defined by the TJ framework. These obligations entail contributions to ‘historic truth’ and reparation through social work in communities harmed by their offences (ACR, 2013).
The reintegration process with the AUC was the first time that a TJ framework was applied in Colombia and became the baseline for the peace process with the FARC. The implementation of this model represents an attempt to consolidate the political objectives of such transitions with rights to truth, justice, and reparations for victims. To further consolidate reparative measures, the Law 1448 of 2011, or the ‘Law of Victims’, was created to establish a programme of integral reparation and restitution of lands, with plundering and looting being considered a cause and consequence of the armed conflict. The Unit for Attention and Reparation of Victims (Victims Unit), the Land Restitution Unit, and the National Centre of Historical Memory (CNMH) were created to implement these programmes (ICTJ, 2017).
The creation of this law and these programmes reflects a shift in Colombia’s policies in peace-making from a system of amnesty and pardon to one that complies with IHL standards and legal systems (Uprimny Yepes, Sánchez Duque, and Sánchez León, 2014, pp.13–14). It continues to aim to create a balance between comprehensive reparations for victims and the reintegration process through a combination of restorative sanctions and more retributive sanctions. The centrality of victims in law-making and their participation in the process marks a key development from the former process with the AUC. Therefore, the current peace process with the FARC is limited by legal frameworks that are essentially concerned with human rights and, above all, with victims’ rights (ibid., p.13).
With the signing of the peace agreement with the FARC in 2016, the Colombian Agency for Reintegration (ACR), had to modify its functions and structure to respond to the new legal mandates and the processes of reincorporation into the civil life of the members of the armed group. Thus, the ACR was renamed the ARN to “manage, implement, coordinate and evaluate, in conjunction with the competent bodies, the policy, plans, programmes and projects for the reincorporation and normalization of the members of the FARC-EP, per the Final Agreement […] in order to promote peace, security and coexistence” (ACR, 2016b). Furthermore, as the peace process with the FARC is still ongoing, certain laws, such as Law 1448 of 2011 (ICTJ, 2017), Law 1820 of 2016, Law 1922 of 2018, and Law 1957 of 2019 (JEP, n.d.), are still in effect and may be amended in the future.
The principal aim of the TJ and reintegration process with the AUC is to facilitate reintegration and prevent reoffending by ex-combatants of illegal armed groups and the resumption of violence (CONPES N° 3554/2008, p.6). As previously mentioned, this process must comply with the four principles of TJ as defined in the Colombian context. The peace agreement and TJ framework define the institutions responsible for this compliance. The structure of these institutions and the measures they take to achieve this end are outlined below.
The principle of truth is upheld through extra-judicial truth commissions within the National Centre of Historic Memory. The objective is “to contribute to the satisfaction of the right to the truth and to the victims’ and Colombian society’s non-repetition warranties through the clarification of the AUC, their armed activities and their participation in the context” (ACR, 2016a, p.1). The satisfaction of this principle is measured by the contributions to the historic truth of the conflict submitted. Thus, the main task of the CNMH is to collect, classify, systematise, analyse and preserve the information with the testimonies provided by the demobilised ex-combatants after signing the contribution to the truth agreement. The second source of information is the participation of victims, human rights and victims’ organisations, or any citizen that can voluntarily contribute to the facts or actions related to this mechanism (ibid., p.15).
The principle of justice is represented by the Attorney General’s Office (CONPES N° 3554/2008). A team of specialised enforcement judges investigates each case of criminal offences committed during the conflict. The purpose is to determine whether each ex-combatant meets the requirements to be registered in the reintegration process and thus granted legal benefits. If requirements are not met, the ex-combatant is excluded from the process and goes to trial. This flexibility and conditionality aim to facilitate the successful transition to legality and reintegration into society whilst fulfilling victims’ rights to justice. The satisfaction of this principle is measured by the prosecutions and verdicts reached, as well as by the rates of compliance with statutory requirements (CONPES N° 3554/2008).
Law 1424/2010 creates the TJ framework for this process. The law aims to ensure society’s right to truth and to grant and oversee the ex-combatants’ judicial benefits (CONPES N° 3554/2008). The first objective seeks to satisfy both the victims’ and society’s rights to truth, justice, and reparation. The second one focuses on promoting ex-combatants’ reintegration into society and the prevention of future violence.
The key policy elements of the law are the judicial benefits granted to ex-combatants alongside the social and economic benefits for themselves, their families, and their communities if they are included in the reintegration process. The purpose is to prevent the recurrence of violent, criminal offences by reducing vulnerabilities and developing a life plan. These benefits consist of non-imprisonment and the suspension of conviction and penalties in an ordinary judicial and conviction process. The law defines two conditions for these benefits: commitment to the reintegration process and participation in social service activities within communities. The reintegration process takes on average seven years during which time all the participants fulfil all their legal requirements (ACR, 2014).
Under the judicial procedure of Law 1424/10, the General Attorney’s Office leads a process against the demobilised ex-combatant under the existing law at the moment of demobilisation by following these processes (ACR, 2016a, p.11). The objective of this judicial procedure is to determine if the demobilised ex-combatants fulfil the requirements to be granted the legal benefits linked to the reintegration programme. Firstly, there is an investigative measure; secondly, questions are addressed concerning their activity in the illegal armed group. Thirdly, after the inquest hearing and if appropriate, the demobilised ex-combatant will be granted the legal benefits by request of the ACR.
The ACR is responsible for providing supporting documentation that demonstrates compliance with the requirements outlined in Law 1424/10: Art 8–9. The arrest warrant is cancelled or not issued as a result of this benefit (ACR, 2016a, p.11). In the event of non-compliance, the Attorney General will continue the investigation and, if deemed necessary, may bring the ex-combatant to trial. Finally, if the judgement is not appealed, the “Judge of Enforcement and Safety Measures” will ensure that the penalty and legal obligations are met. This entitles the ex-combatant to the benefits outlined in Law 1424/10 (ACR, 2016a, p.11).
To receive the above judicial benefits, the ex-combatant must show a commitment to: i) historic truth by giving relevant information on illegal armed group conformation, their participation in the IAG, and any other situation to his knowledge as part of the illegal armed group; ii) being part of the reintegration process managed by the ACR; iii) their active participation in the reintegration route and good behaviour; iv) social service activities with communities linked to the reintegration process; v) the reparation for victims for the crimes included in the law, unless proven economically incapable to do so; and vi) they must not have received a conviction for any criminal activity committed after the demobilisation certification (ACR, 2016a, pp.11–12).
Once the demobilised ex-combatant has been accepted as a participant in the reintegration process they need to follow certain procedures to maintain the judicial and socioeconomic benefits stipulated in the agreement (Law 1424/10:Art8): i) inform of any residence change; ii) when it is required, attend meetings with the judicial authority in charge of monitoring the compliance of the judgement; iii) not leave the country without authorisation of the judicial authority; iv) commit to good conduct; and v) continue and finish the ACR reintegration process and truth contribution with the National Centre for Historical Memory (ACR, 2016a, p.14).
The heavy reliance on the penal system to process and judge each case has presented significant challenges to the objectives of truth and justice that the system aims to achieve. The high volume of cases produced long delays in the process and, therefore, not all responsible parties could be convicted within a reasonable timeframe (Uprimny et al., 2014). Delays caused by institutional incapacity present major risks to the integrity of the reintegration process, as levels of mistrust and dissatisfaction increase amongst both the ex-combatants involved in the process and civil society in general.
The principle of reparation for victims is implemented by the Attorney General’s Office in cooperation with the ACR. It is upheld through the participation of ex-combatants in social service activities and the handover of goods and assets to victims. These actions are a mandatory requirement of the reintegration programme and a condition of judicial benefits being granted. Those who were responsible for damage during the armed conflict must now contribute to the restoration of affected communities.
Reparative activities are focused on the following projects: i) institutional development of the most vulnerable communities; ii) development of capacities within the communities; iii) consolidation of peaceful coexistence spaces; and iv) the warranty of non-repetition of violent offences (ACR, 2016a, p.7). The main social service projects are: i) recreational, art, cultural, and sports activities; ii) public space recovery; iii) support of community health brigades; and iv) beautification of the environment (ACR, 2016a, p.8). The satisfaction of this principle is measured by the completion of socially and economically reparative actions such as restorative activities in the community and the monies handed over to victims’ trust funds (CONPES N° 3554/2008).
The principle of guarantees of non-recurrence of violent offences is the responsibility of the ACR. It is upheld through the reintegration programme’s aim to facilitate the transition of ex-combatants to legality and their reintegration into society (CONPES N° 3554/2008). The satisfaction of this principle is assessed through a commitment to and compliance with the reintegration programme requirements (relating to reoffending and drop-out rates).
In short, reoffending by ex-combatants includes any offence committed after demobilisation. Repetition of criminal offences after demobilisation is the trigger for the transition from TJ to the mainstream penal system since criminal activity signifies the breaching of the ex-combatant’s commitment to legality. If there is a criminal conviction, judicial and social benefits granted as part of the reintegration process are removed and the ex-combatant is de-registered from TJ and registered into the penal system instead.
The Ideas for Peace Foundation (FIP) in collaboration with researchers from the University of Columbia and data given by the ACR reported in 2014 that 76% of the participants in the reintegration process had not participated in illegal activities, while 24% had reoffended. Furthermore, 42% of the population were found to be at a low to medium risk of reoffending, and 14% at a medium to high risk (2014, p.7). To determine these risk levels, several variables were measured to determine the ex-combatant’s inclination to re-offend (their sympathy for the illegal activity of other ex-combatants) and their vulnerability to recruitment by illegal armed groups (whether attempts had been made to recruit them).
The results of this study indicate, in general, that factors associated with the ex-combatants’ experience within the reintegration process are more precise indicators of reoffending than factors related to their time spent with the armed group. This confers special importance to the ACR’s job in the design and implementation of the reintegration programme (FIP, 2014, p.8). Furthermore, these findings demonstrate the success of the reintegration process and transitional-justice framework, as a 76% success rate is 2.5 times higher than that of the regular penal system, where only 30% of former convicts refrain from reoffending (Florez et al., 2017).
As previously mentioned, the compensation of victims is a central objective of the Final Agreement signed by the FARC and the Colombian government in 2016. To this end, Article five, the Agreement on the Victims of the Conflict, focuses on victims’ rights and clarifies what happened in the conflict. The principles of this agreement focus on the recognition of victims and of the Government’s and the FARC’s responsibility towards them, the satisfaction of victims’ rights, the participation of victims in the peace process, reparations for them, and guarantees of protection and non-recurrence of violent offences (OHCP, 2016, p. 124).
Based on these principles, the “Integral System of Truth, Justice, Reparation and Non-Repetition” (henceforth, the Integral System) was created to consolidate the institutional scenario in the transition from conflict to peace, satisfy victims’ rights, and contribute to national reconciliation (JEP, 2022).
The Integral System is composed of different judicial and extra-judicial mechanisms that are closely interconnected. As in the legal framework with the AUC, all judicial benefits are granted on the condition of a commitment to legality and a contribution to truth and reparations. However, the participation of victims, which is central to each process within the system. signifies an important development from the previous reintegration process. Furthermore, this system is the first of its kind to be used in a transition from conflict to peace. Therefore, the Integral System presents an innovative combination of judicial and extra-judicial mechanisms, and retributive and restorative justice measures, to satisfy IHL standards related to victims’ rights through the four core principles of TJ (OHCP, 2016).
Thus, the reincorporation process with the FARC signifies important advances in the application of TJ models to post-conflict contexts, as an innovative, Integral System is implemented to ensure the satisfaction of victims’ rights within the construction of a stable and long-lasting peace. How this system aims to achieve this in each of its four components will be analysed below.
The Commission for the Clarification of Truth, Coexistence and Non-Repetition (CEV) is an extrajudicial mechanism within the Integral System that seeks to contribute to the clarification of events and the recognition of victims to provide acknowledgement of responsibility of those who participated in the armed conflict and facilitate harmonious coexistence in the transitory zones (OHCP, 2016, p.129).
The three objectives of the CEV are: i) to clarify what happened; ii) to promote recognition of what happened; and iii) to promote coexistence. To this end, it will implement a wide-ranging and diverse process of participation in which different voices and visions will be heard to promote the participation of different sectors of society, including victims (OHCP, 2016, p.129).
This extrajudicial mechanism is a response to lessons learned from the previous process with the AUC. It recognises the scale and complexity of the truth-seeking process within the context of a transition from conflict to peace. Thus, it acknowledges the incapacity of the penal system to clarify what happened during the many years of conflict across the country. Therefore, an extrajudicial setting is proposed to encourage the participation of as many different people as possible from diverse sectors of society.
The Special Jurisdiction for Peace (JEP) carries out the judicial functions within the Integral System and forms the main mechanism of TJ within it. The Jurisdiction complies with the Colombian State’s obligation, as stipulated in the Final Peace Agreement to ‘investigate, clarify, persecute, judge and punish the most severe human rights violations and the most severe infractions to IHL that took place in the context of, and due to, the armed conflict’ (OHCP, 2016, p.125).
The objectives of the JEP are to:
To satisfy the victims’ rights to justice; to offer truth to Colombian society; to contribute to the reparations for victims; to contribute to the fight against impunity; to adopt decisions that grant legal certainty to those who participated directly or indirectly in the armed conflict, in relation to acts committed in the context of, and due to, said conflict; and, to contribute to the attainment of a stable and long-lasting peace. (2016, p.143)
This process is based on three central ideas that aim to provide a system that satisfies victims’ rights while also enabling a stable and long-term peace: i) a process without impunity, ensuring that justice is served in the most severe and representative crimes as well as those who had a determining role in the execution of such acts; thus seeking both a clarification of the truth and fulfilment of victims’ right to justice, ii) all special treatments of justice are granted conditionally, with no legal benefit being given without a contribution to truth and reparations, as well as a radical commitment to the non-recurrence of violent criminal acts through the handing over of weapons and iii) acknowledgement of responsibility and yielding of accounts is encouraged through alternative sentences (OHCP, 2016).
The JEP is made up of five organisms and an Executive Secretary: i) Chamber of Acknowledgment of Truth and Responsibility and the identification of acts and conduct; ii) Chamber of Amnesty and Pardon; iii) Chamber for the Determination of Legal Status; iv) Unit for Investigation and Accusation, and v) Peace Tribunal (OHCP, 2016, pp.154–159).
Within the jurisdiction, there are two options. All cases are first heard in the Chamber of Acknowledgment of Truth and Responsibility, where they are examined and contrasted to determine which crimes are eligible for amnesty and which cannot be pardoned. The following procedures are outlined in the Agreement on Victims of the Conflict (OHCP, 2016, pp.124–192).
Cases that do not meet the requirements for amnesty are forwarded to the Peace Tribunal, which conducts investigations, renders verdicts and prosecutes individuals responsible for the most serious offences under the TJ framework outlined above. Those who accept responsibility for the armed conflict and contribute to truth and reparations benefit from the best legal privileges and avoid being incarcerated. The effective restraint of liberty the ex-combatant receives lasts for a period of 5–8 years or 2–5 years for less significant offences. Additionally, they are required to take part in social service activities. If responsibility is admitted belatedly, the ex-combatant receives a punishment of effective deprivation of liberty in normal penitentiary conditions with a duration of 5–8 years or 2–5 years for less serious offences.
If responsibility is not acknowledged, the case is transferred to the Investigation and Indictment Unit, which investigates the case and brings the perpetrators to justice. The ex-combatant loses their legal benefits and the Peace Tribunal decides on whether or not they are guilty. If the ex-combatant is found guilty, they are sentenced to 15–20 years of effective loss of liberty under normal penitentiary conditions (OHCP, 2016, pp.153–60).
When crimes qualify for amnesty, legal actions are renounced and proceedings ended. This legal benefit is granted on condition of compliance with certain restorative actions to contribute to the reparation of society and victims of armed conflict. The Constitution may only grant amnesty or pardon for the political crime of rebellion or other similar offences. Extradition could be pursued for any crime committed after the signing of the Final Peace Agreement. If the ex-combatant did not commit crimes against humanity or other war crimes, but the crimes did not qualify for amnesty, the case is sent to the Chamber for the Determination of Legal Status, which will determine a sanction for the offence. (OHCP, 2016, p.157).
One of the JEP’s innovations, as detailed in the Final Peace Agreement, is how it combines retributive and restorative justice. The jurisdiction employs a formula that combines retributive sanctions, such as imprisonment, with restorative and reparative sanctions, such as social service activities. The Peace Tribunal’s combination of sanctions aims not only to satisfy victims’ rights through retribution but also to consolidate peace through reconciliation with affected communities to achieve a legally and politically secure transition to a stable and long-lasting peace (Uprimny Yepes and Güiza Gómez, 2016).
To receive and maintain any judicial benefits, the ex-combatant must show a commitment to truth, reparations and non-recurrence by: i) surrendering all weapons; ii) acknowledging responsibility; iii) contributing to the clarification of truth; iv) contributing to the integral reparations for victims; v) contributing to the release of captives; vi) contributing to the freeing of underage combatants recruited illegally (Sánchez Duque, 2013a).
The agreement emphasises the importance of acknowledgement and accountability and thus creates early acts of acknowledgement of responsibility so that victims receive their rights to truth and justice. Ex-combatants must also contribute to the reparations of armed conflict-related damages through social service activities. The JEP oversees and ensures that the above conditions are met. If any ex-combatant fails to comply with the conditions outlined, legal benefits and special treatment are revoked immediately, and the member is tried in the ordinary judiciary system.
Two components of the Integral System are focused on the right of victims “to be repaid for the damages they suffered because of the conflict” (Uprimny Yepes and Güiza Gómez, 2016, p.124), namely the Unit for the Search of Persons declared as Disappeared and the Measures of Integral Reparation for the Construction of Peace. The Unit contributes to the satisfaction of victims’ rights to both truth and integral reparation by establishing what happened to those who have been declared to have disappeared in the context of, and due to, the armed conflict.
The special reparative measures that involve the commitment of ex-combatants are: i) early acts of recognition of collective responsibility; ii) concrete actions to contribute to reparations by those who caused the damage; and iii) the commitment of the FARC to contribute to the integral reparation of victims, including material reparation.
The guarantee of non-recurrence of violence and armed conflict is the result of the implementation of different mechanisms and measures defined in the Final Agreement. The components of the Integral System outlined above all contribute to this principle. Through the clarification of truth and the recognition of responsibility, the Truth Commission aims to promote harmonious coexistence between communities and ex-combatants, thus contributing to reconciliation and reducing the risks of a return to conflict. The JEP establishes legal security and benefits for ex-combatants which are dependent on a commitment to the non-recurrence of criminal offences.
Furthermore, Article three of the Final Agreement, “The End of Conflict”, defines a series of measures to guarantee the definitive end of armed conflict. It details the Disarmament, Demobilisation, and Reincorporation process with the FARC ex-combatants and outlines security measures and guarantees of economic, legal, and social benefits and political participation (OHCP, 2016, p.57). The reincorporation process aims to provide ex-combatants with the skills and assistance they need to return to legality and reintegrate into civil society. Levels of satisfaction and trust in this process are essential to minimise the risk of reoffending.
Nevertheless, as in the reintegration process with the AUC, reoffending continues to be a major risk and obstacle to the reincorporation programme with the FARC. According to an intelligence report seen by the newspaper El Tiempo (2018), 1,749 FARC ex-combatants had abandoned the reincorporation process and could be counted as dissidents. Mid-rank commanders are seen to be most at risk since they often suffer from a greater loss of social prestige through demobilisation and thus are more likely to abandon the reincorporation process and remobilise with dissident groups (Nussio, 2009).
This theory has been confirmed in the FARC case as mid-rank leaders have abandoned their reincorporation spaces and their whereabouts are currently unknown. Moreover, more than 327 FARC ex-combatants and 62 family members have been killed since the start of the reincorporation process (Monroy, 2022).
The analysis above details the principal mechanisms and measures implemented in the reintegration/reincorporation process with the AUC and the FARC. It defined the key objectives of each process and analysed how the processes aimed to achieve them. A close comparison of the key developments and limitations of the reincorporation process with the FARC regarding the reintegration process with the AUC is outlined below. Table 1 provides a descriptive analysis of the main indicators of the four TJ principles with the AUC (2003–2017) and the FARC (2015–2022) that are discussed in this section.
|AUC, 2003–2017/35,317 EX-COMBATANTS (ACR, 2017)||FARC, 2015–2022/13,601 EX-COMBATANTS (KROC INSTITUTE FOR INTERNATIONAL PEACE STUDIES, 2022; UN-VMC, 2022)|
|Total number of allegations (Law 975 of 2005)||82,563||Testimonies (CEV)||1,748|
|Number of victims in allegations (Law 975 of 2005)||211,013||Participants in the testimonies (CEV)||4,656|
|Number of candidates for L975/05 (‘postulado’) (Law 975 of 2005)||1,399||Missing persons found alive (UBPD)||5|
|Number of enforcement court judgements in Transitional Justice||55||Dignified deliveries of human remains (UBPD)||132|
|Support sessions to the victims (Law 975 of 2005)||906||Recovered bodies (UBPD)||344|
|Total number of exhumed bodies||8,736||Biological samples (UBPD)||2,380|
|Number of identifiable bodies in the laboratory||1,861||Necropsy of unidentified bodies (UBPD)||16,824|
|Number of unidentifiable bodies in the laboratory||2,574||People search requests (UBPD)||20,125|
|Number of bodies delivered to the GRUBE Transitional Justice Department||4,062|
|Justice conditions resolved (Law 1424 of 2010)||21,086||Relevant decisions in open macro-cases and recognition of the FARC-EP’s responsibility (JEP)||2/7|
|Criminal charges for plea bargaining (Law 1424 of 2010)||17,942||Identification of victims in the macro-cases (JEP)||21,396|
|Condemnatory sentence -conviction- (Law 1424 of 2010)||8,116||Identification of victims of extrajudicial executions (2002–2008) (JEP)||6,402|
|Active processes of the Law 1424/2010 in the TJ department until June 30th, 2017||5,431||Imputation of charges (i.e. State armed forces and civilians) linked to the extrajudicial executions (SRVR)||26|
|Group investigations copies and investigations filed of candidates excluded by Law 1424/10 candidates||457|
|Registered by Law 1424/10 (2017)||24,841|
|Not registered by Law 1424/10 (2017)||10,746|
|PRPs not required to go to prison:||99.93%|
|Total number of assets linked to the Transitional Justice process||4,791||Monetized goods delivered by the extinct FARC-EP||COP 42.765.005.
|Total price of the assets with defined status and in standby to be delivered to the Trust Fund for Victims (FRV)||COP $ 882.982.362.250,00||National plans of collective reparation (UARIV)||57%|
|Beneficiaries of the Victims Unit||6,416,426||Subjects of collective reparation with implemented collective reparation plan (UARIV)||27%|
|Land restitution requests (2016)||100,797 (F: 2,938 – M: 40,034)||Percentage of collective reparation subjects with ethnic PIRC arranged, consulted, and implemented (UARIV)||60%|
|Land restitution cases resolved (2016)||42,986 (54%)||National Education Plan on Human Rights (strengthen) (CPDHAI)||51%|
|Registered victims||8,504,127||Registered victims of the conflict (RUV)||9,099,358|
|Implementation of collective reparations (SIIPO)||50/820 (6%)|
|Non-recurrence of violent offences|
|Killing of ex-combatants (El Tiempo, 2019)||2,000||Killings of ex-combatants (UN-VMC)||327 (11 women)|
|Attempted homicides of ex-combatants (UN-VMC)||93 (6 women)|
|Responsibility of Non-state actors in the homicide of ex-combatants||80%|
|Killings of human rights defenders (UN-VMC)||541|
|Large scale killings (UN-VMC)||53|
|Possible recidivism rate (FIP, 2013)||24%||Possible recidivism rate (Colombia Peace, 2019)||15%|
The process with the FARC involved major advances in terms of institutional capacity to manage and process the high volume of criminal cases. The TJ model with the AUC relied heavily on the penal system, revealing the incapacity of the system to investigate and judge all violations and responsible parties within a reasonable timeframe (Uprimny, Sánchez Duque & Sánchez León, 2014). Therefore, the satisfaction of victims’ rights to truth and justice was compromised since it was not possible to review all cases and convict those responsible.
This issue was acknowledged in the design of the TJ system with the FARC and resulted in the creation of the Integral System of Truth, Justice, Reparation, and Non-Repetition. This system strengthens the key principles of TJ by facilitating the political objectives of the successful transition to legality and complying with IHL standards concerned with human rights and with victims’ rights. The advantage of this system is that it greatly consolidates institutional capacity to deal with a high number of cases effectively and efficiently. Furthermore, it creates more platforms for victims to have their voices heard, which is essential for their rights and the reconciliation of society in general.
The process with the FARC also developed the application of legal mechanisms to ensure both that the key principles of justice and reparation were met. Concerning the issue of the dependence on the penal system in the process with the AUC, Uprimny Yepes and Güiza Gómez (2016) suggested the need for a dual approach of retributive justice with restorative justice. This system would aim to achieve a legally and politically secure transition to a stable and long-lasting peace (Uprimny Yepes and Güiza Gómez, 2016). This suggestion was considered and operationalised in the procedures of the JEP with the FARC. The innovative combination of retributive and restorative justice applied in the sanctions given to ex-combatants satisfies victims’ rights by investigating all cases, imprisoning those who do not acknowledge responsibility, and committing reparative acts. The restorative and reparative activities consolidate peace by generating improvements in communities that suffered damage due to the armed conflict.
Moreover, as recognised by Uprimny, Sánchez Duque & Sánchez León (2014, pp.101–3), the application of alternative sanctions to those who acknowledge responsibility reduced the dependence on the penal system to process and prosecute all human rights violations committed during the conflict. Therefore, the TJ framework implemented in the peace process with the FARC offers advantages related to the principles of justice, truth, and reparation. It facilitates the processing of more cases through alternative sanctioning whilst simultaneously avoiding amnesty which compromises IHL standards. In addition, it demands contributions to the truth commission and reparative activities.
Finally, concerning the two previous points, the justice framework was strengthened in the process with the FARC to guarantee the satisfaction of victims’ rights. Due to the challenges of institutional capacity mentioned above, the satisfaction of the other core TJ principles was often limited. The Integral System is designed to mitigate these issues, as the interconnected nature of the different mechanisms within the system helps to alleviate the high volume of cases and increases processing capacity. Figure 1 compares the legal procedures in the case of the AUC (2003) and the FARC (2015) outlined in this section.
Despite impressive advancements regarding issues identified in the process with the AUC, the current process with the FARC presents problems that carry substantial risks to the attainment of successful reincarnation and long-lasting peace.
The long-term sustainability of a peace process depends on the level of trust and confidence that can be established between the parties involved in the violent conflict (Tilly, 2005). This requires an adequate legal transitional framework (Delgado et al., 2014) that can guarantee legal benefits for ex-combatants who comply with specific obligations whilst also providing sufficient reparations for victims of the conflict. Between 2002 and 2015, there were constant, significant changes to the judicial system centred on the TJ framework that strengthened commitments to victims› rights and TJ principles; however, these changes may raise ex-combatants› sense of judicial inequality and legal vulnerability (ACR, 2017). Colombia›s peace process with the AUC and the FARC has highlighted legal instability as a problem, with the Colombian government suggesting that the instability of the legal system around TJ could pose a risk of recidivism (ACR, 2017). This is strengthened by the abandonment of the reincorporation programme by several high-profile FARC leaders and a lack of legal guarantees is cited as a major reason for exiting the programme.
Two serious problems in both processes have been the vulnerability and physical insecurity of the demobilised population:
Furthermore, ex-combatants cite insecurity as a key reason for leaving reintegration/reincorporation programmes and joining armed groups, with those joining being most likely to be killed in either a clash with armed forces or criminal rivals (Nussio, 2011).
In both peace processes examined in this article, the reoffending of ex-combatants, and thus the breaking of the principle of non-recurrence of criminal offences, has been a significant problem. According to the study carried out by the FIP (2014, p.7), 24% of AUC ex-combatants had reoffended with 56% at some degree of risk of doing so. The number of FARC ex-combatants abandoning the reincorporation programme and remobilising is also growing, with 1,749 dissidents currently active (El Tiempo, 2018). Although recidivism rates are considerably lower for these programmes concerning the ordinary penal system, reoffending remains a serious issue. In addition to the physical and legal insecurity mentioned above, factors that exacerbate this problem are a perceived lack of economic opportunity and the delayed progress of productive projects for ex-combatants.
Scholars and practitioners have addressed TJ as the core component of a peace-building process (McEvoy and Shirlow, 2009; Uprimny, 2014; 2016) and an essential part of the DDR programme and the achievement of the goal of effective reintegration of ex-combatants into civil society (ICTJ, 2017). As demonstrated in the evolution of DDR in Colombia, a reintegration process should be strongly linked to and coordinated with the design and implementation of the TJ framework and core principles. Based on the discussion, this paper suggests that the monitoring tool depicted in Figure 2 be investigated further in future publications to compare and evaluate the TJ outcomes of these respective processes and contribute to the ongoing evolution and development of TJ instruments in Colombia.
The comparative analysis conducted in this research demonstrates how TJ plays a crucial role in reducing reoffending because it aims to build foundations for a stable and long-lasting peace by facilitating the transition of ex-combatants whilst providing the most comprehensive satisfaction of victims’ rights to truth, justice, reparations, and guarantees of non-recurrence. Furthermore, this research has shown that the TJ framework in Colombia has been critical for the satisfaction of victims’ rights because it adheres to IHL and has evolved from amnesty and pardon models to a model that places victims at the centre of the process.
The in-depth analysis facilitates an understanding of how the TJ framework functions and helps to achieve the end of conflict and secure a transition to peace whilst defending victims’ rights. In the current process with the FARC, this is done through a combination of retributive and restorative sanctions, the application of conditional benefits, and a focus on victims’ rights, recognition, participation, and reparation. The Integral System of judicial and extra-judicial mechanisms aims to contend against impunity and bring society the highest level of justice. This parallel system also addresses issues of capacity in the regular penal system to investigate and judge all violations and responsible parties (Uprimny, Sánchez Duque & Sánchez León, 2014; Uprimny and Güiza Gómez, 2016).
The comparative analysis carried out in this research demonstrates the similarities and differences between the TJ framework implemented in the peace process with the AUC in 2003 and the process with the FARC. The frameworks coincide with the reduced use of models of amnesty and pardon as used in former processes implemented between 1984 and 2002. Furthermore, both processes adopt a TJ framework that focuses on satisfying victims’ rights to truth, justice, reparations, and guarantees of non-recurrence. The TJ framework, used for the first time in Colombia in the process with the AUC, is developed in the process with the FARC to provide a more comprehensive satisfaction of victims’ rights and facilitate a transition to civilian life with as much legal security as possible.
Thus, this study has highlighted some significant advances in Colombia’s DDR programmes and TJ models. However, it has also identified persisting issues that pose a risk to the attainment of a stable, long-lasting, and constitutional peace, namely physical and legal insecurity for ex-combatants and the risk of reoffending. Furthermore, despite significant institutional strengthening, the magnitude and complexity of the task still present serious challenges to ensuring all the guarantees and objectives defined in the Final Agreements, especially related to victims’ rights of truth, reparation, and non-recurrence of violent acts, and the ex-combatant’s economic reintegration and security guarantees. Furthermore, the unwillingness of some ex-combatants to participate and cooperate in the TJ and reintegration processes constitutes an additional difficulty and represents a risk of increasing reoffending amongst the demobilised population.
The TJ process has made significant advances in designing and implementing frameworks that fulfil the TJ principles, satisfy victims’ rights, and provide an example for other TJ systems worldwide. However, improvements within this system are still needed to strengthen institutional capacity and fulfil the security, legal and reconciliation guarantee the peace agreement stipulates. Due to the magnitude and complexity of the task, and the number of victims affected, it is necessary to keep improving the monitoring and effectiveness of both the TJ and regular justice systems in the country to continue strengthening the construction of a stable and long-lasting peace. Further research on this topic should focus on the homicide rate of the demobilised population, the risk for ex-combatants on a municipal level and the perception of ex-combatants as a cause and consequence of reoffending.
The following acronyms have been translated to English by the authors for ease of reading.
CPDHAI – Permanent Committee for the Defence of Human Rights
FRV – Victim’s Reparation Fund
RUV – Victim’s Register
SIIPO – Integral Post-Conflict Information System
SRVR – Chamber for the Recognition of Truth, Responsibility and Determination of Facts and Conducts
UARIV – Unit for the Attention and Integral Reparation to the Victims
UBPD – Unit for the Search of Disappeared Persons
UN – United Nations
UN-VMC – United Nations Verification Mission in Colombia
The funding was provided by the Ministry of Technology and Innovation of the Republic of Colombia. The grant number is 2014 (year of approval) PhD funding.
The authors have no competing interests to declare.
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