Image: Al Cortés via Creative Commons
Colombia’s Justicia Especial para la Paz (JEP) is tasked with prosecuting those responsible for grave human rights violations perpetrated during the domestic conflict which has wracked the country for the past 50 years. The special court was established in 2016 as part of a peace deal between the Fuerzas Armadas Revolucionarias de Colombia (FARC), an armed rebel group turned political party, and the Colombian government. But since its 2017 opening, the court has been subject to wide-ranging critique.
Now as armed tensions escalate, the JEP finds itself walking the wire between justice and reconciliation, with the prospect of renewed conflict an ever-looming threat.
The JEP has been lauded for holding both the FARC and Colombian government accountable for their violations of human rights.
In September last year, the JEP collected testimonies from over 250 members of the Armed Forces regarding 'false positive' killings, a term that refers to extrajudicial executions of young civilian men falsely labelled as FARC Combatants, carried out by the Armed Forces primarily between 2002 and 2008. These testimonies led to the JEP’s conclusion in February 2021 that over 6,400 people have been victims of these killings, the majority of whom died during the Alvaro Uribe presidency. Uribe has now been called to testify before the JEP.
A month earlier in January, the JEP indicted eight FARC leaders for war crimes and crimes against humanity. The court found that all eight leaders, including top-commander Rodrigo Londono (known as Timochenko), were all connected to the capture of over 21,396 hostages between 1990 and 2016. Hostages were found to have been subjected to inhumane conditions; beaten, starved, and sometimes even forced to dig their own graves.
FARC leaders have since expressed their “shock” at the gravity of the atrocities and attempted to shift blame to lower-ranking officers. But the JEP maintained that it would prosecute the leaders as if the leaders had committed the abuses personally, as is stipulated by international law.
These proceedings indicate that the court has adopted a seemingly impartial, comprehensive approach to tackling the human rights violations perpetrated by both the government and the FARC.
The court and its critics
Nonetheless, the JEP has also been subject to enduring criticism, which have produced tensions within Colombia’s civil and political spheres. Human Rights Watch has voiced their concern that the trials may risk exempting those at the top of the military hierarchy who are most responsible for the crimes perpetrated. While the prosecution of 'little fish' - lower and middle-ranking officers - has been effective, efforts to prosecute high ranking officials in the Colombian army have made little progress.
Victims of the various atrocities themselves have also come forward to criticise the JEP. While disapproval is not necessarily unanimous, some victims believe that the JEP is a sham meant to placate the wider international community and failing to hold the FARC accountable for their crimes.
Victims cite issues such as the lack of financial restitution by the FARC and the continued presence of FARC leaders in the Colombian senate. But most importantly they object to the light sentences FARC commanders face if they admit to the perpetration of war crimes: so long as they admit their guilt, redress victims and ‘tell the truth’, they face non-prison sentences for a maximum of eight years, generally meaning house-arrest.
These measures were taken in order to facilitate and accelerate the restoration of civil ties between the perpetrators and victims by incentivising admissions of guilt. The JEP desperately seeks to fulfil this process, since there are over 8.9 million registered victims of the conflict in Colombia, almost a fifth of the population. But, the terms of non-prison sentences are unclear, and victims do not appear so quick to forgive or forget. For some victims, the loss of a loved one is a pain that “is irreparable”. Whilst some accept the JEP, explaining that it is 'all we have', others believe that there will never be justice because “[the FARC] are never going to tell the whole truth”.
The government responds
The government has also accused the courts of being too lenient to the FARC, leading to continuous violations of the original peace agreement which established the court. Incumbent President Ivan Duque has greatly politicised the trials. During his election campaign, he promised to pursue a tougher line of action towards the courts, by attempting to amend the peace deal in order to increase FARC culpability, whilst simultaneously diminishing that of the government.
The JEP’s peace efforts have also been continually undermined by public denials of wrongdoing from former government members such as Alvaro Uribe and Juan Manuel Santos, who have been accused of orchestrating much of the human rights violations on the part of the government. Former president Uribe has denounced the JEP, claiming it was created to “discredit [him] personally”.
The government response has only served to stymie the reintegration of the FARC, while simultaneously encouraging renewed conflict. For example, a lack of government compliance with the peace agreement has led to the abandonment of FARC reintegration camps since 2018, ending large scale efforts to restore civil relations between FARC militants and their compatriots.
While the FARC has officially committed to acting as a political organisation rather than an armed one, it has frequently demonstrated that further government interference in the transitional justice process will not go unanswered. President Duque’s efforts to amend the peace deal led to the remobilization of the FARC in the summer of 2019, causing domestic and international criticism which has continued to decrease the credibility of the government and the hopes that peace will be achieved. This remobilisation has resulted in a return to small-scale violence between the Armed Forces and the FARC, placing even more pressure on the JEP to continue its prosecutions, and for Colombia to finally enjoy peace and stability after over 50 years of strife.
A balancing act
The struggle of the JEP typifies a broader issue within transitional justice. Since both the government and FARC have perpetrated crimes, the JEP finds itself caught between a rock and a hard place: retributive justice and restorative justice.
Various crimes mentioned in this article amount to torture and other forms of malpractice under international human rights law. The right to be free from torture, and other inhumane or degrading treatment is enshrined in both Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Cultural and Political Rights. The right to human dignity cannot be limited or suspended in any circumstance, it is a non-derogable right in the eyes of international jurors. The JEP is obligated by law to prosecute such offences.
However, in an effort to balance such accountability with reconciliation, the JEP has attempted the application of both retributive and restorative justice. In order to facilitate stability as demanded by the peace agreement, the court has implemented of 5-8 year-long special sanctions for individuals guilty of perpetrating serious crimes amounting to torture and murder on the condition that they agree to tell the truth and reconcile with victims. Yet as demonstrated by the wide criticism of the JEP, the leniency of a sentencing can undermine the legitimacy of the retributive justice served.
Persistent criticism and interference by the Colombian government, as well as the FARC’s response have resulted in an escalation of tensions. This threatens to halt justice procedures and potentially disband a peace agreement which has yet to be fully realised. Colombian citizens and ex-FARC members have yet to see the schools, clinics and jobs the government promised them with the peace agreements. And while efforts have been made to establish a new peace deal, these have not yet shown any promise. And as opportunities for peace dwindle, opportunities for renewed open conflict multiply.
Ultimately, Colombia’s JEP finds itself in a pressure-cooker situation; caught in the midst of a struggle to conform to the standards of international human rights law whilst also offering opportunities for perpetrators to make amends with victims to create a sustainable state of peace. The criticism and escalating tensions surrounding the JEP have turned its earnest performance into a delicate balancing act of both retributive and restorative justice, plagued by violence and political strife between the two factions its aims to reconcile. It's a balancing act which, if executed poorly, may harm the social and political foundations which the JEP, and thereby the prospect of peace in Colombia, rest on.