Closing the 20th century on Colombia through transitional justice


[dropcap]E[/dropcap]ric Hobsbawm, one of the most respected historians in the recent past, coined the expression “the short 20th century” to refer to the characteristics of that period of time, notably the bipolar clash between capitalism and communism.

Thus, the 20th century lasted globally just 77 years, starting in 1914 with the beginning of the Great War and finishing in 1989 with the fall of the Berlin Wall.

However, Colombia has not closed its own 20th century, given that the mentioned bipolar debate keeps developing armed violence in our country. For this reason, the current peace talks carrying on in Havana, Cuba, and the highly probable final accord expected to be adopted would be the historical end of the Colombian 20th century.

Moreover, the end of the armed conflict provokes positive perspectives regarding the respect and guarantee of human rights, the termination of the use of armed violence as an extension of politics and the definitive takeoff of Colombian democracy and economy.

Bearing in mind this panorama, the pursued peace has to be protected in order to make it permanent. To this aim, Colombia is betting on a complex transitional justice system to set the bases towards a sustainable peace.

But, what is transitional justice?

First of all, transitional justice is not a legal issue — at least not exclusively. Transitional justice entails the mechanisms and processes adopted to make possible the transition from repression or armed conflict to peace and the respect of the Rule of Law.

Thus, transitional justice has been developed by societies in extreme conditions and under urgent circumstances that require extraordinary measures. Taking this into account, Colombia has structured a sophisticated transitional justice system, in which all kinds of mechanisms have been and will be operated.

Secondly, nowadays the term “transitional justice” refers to a set of four types of mechanisms: truth, justice, redress and institutional reforms. Thus, transitional justice is not restricted to the justice axe.

In this sense, Colombia has adopted several measures related to each type of mechanisms that constitute today a transitional justice system. Let’s see what those Colombian mechanisms are.

In order to reveal the truth about what has happened throughout the conflict, the Havana Table of Dialogue has accorded to create the “Commission for the Clarification of Truth, Coexistence and Non-recurrence.”

The commission will be a temporal and extrajudicial truth-seeking body with the mandate to clarify human rights violations, explain the complexity of conflict, acknowledge victims and promote social coexistence in the territories as a measure of non-recurrence.

Additionally, the Table of Dialogue has accorded to create the “Unit for the Search of Forcibly Disappeared Persons.” The unit will lead the search and localization of disappeared persons (in the case they might still be alive) or the whereabouts of their remains, including their identification and return to their next of kin.

In relation with the justice dimension of transitional justice, the “Victims Accord” sets up a “Special Jurisdiction for Peace”, a judicial body that will deal with the crimes committed over the conflict. The “Tribunal for Peace” will apply a particular set of criminal law dispositions, which include the possibility to grant amnesties or pardon to the perpetrators.

However, those potential benefits will not cover crimes against humanity, war crimes and genocide, according with the Rome Statute of the International Criminal Court. Additionally, those that contribute with the truth about their crimes and with the redress of the victims, can be beneficiaries of special punishments, like contributing with work in social programs or deprivation of their liberty for a maximum period of eight years.

On the other hand, those who deny their participation in the crimes will be prosecuted and could be punished with up to 20 years in prison. The Special Jurisdiction for Peace will deal with crimes committed by the guerrillas, state agents and even third parties that directly or indirectly participated in human rights violations.

Moreover, regarding the redress of victims of the conflict, the “Victims Accord” points out that acts of public acknowledgment will be carried out as a measure of satisfaction. Furthermore, territorial plans for collective reparations will be developed, with the full participation of the victims, in order to rebuild the broken social fabric.

The Accord also calls for a plan to guarantee the return of forcibly displaced persons to their territories through land restitution, and psycho-social rehabilitation measures both at the individual and collective levels.

As non-recurrence measures, the Accord calls for guarantees to eliminate political persecution, a frontal fight against impunity, the fulfillment of measures adopted to terminate the armed conflict, and the respect and fulfillment of human rights. It is important to take into consideration that these reparation measures complement the Victims and Land Restitution Law.

All the above measures look to ensure a sustainable peace and to prevent a possible conflict recurrence. The end of the Colombian 20th century seems to be a reality, but this process has to be protected from new forms of political violence.

The transitional justice system described is an ambitious measure with no precedent, which represents a challenge in itself and will require a tireless effort to make it work properly.

As President Santos has said, “Peace is close, and the transitional justice system promoted can become a model to other societies in transition.”

Colombia has suffered deeply, but this painful experience can serve other peoples to overcome their difficulties and build a sustainable political stability with respect of human rights.

Alvaro Amaya-Villarreal is a partner at Sostenibilidad Legal and adjunct professor of international law and human rights at Javeriana University, Rosario University and the Superior War School. He is a founding member of the Colombian Academy of International Law and member of RedBrit, the U.K alumni network in Colombia.


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