Special Jurisdiction for Peace in Colombia: Delivering People-Centered Justice

Transitional justice comprises of tools, mechanisms, and processes that support a “society’s attempt to come to terms with a legacy of large-scale past conflict, repression, violations and abuses in order to ensure accountability, serve justice, and achieve reconciliation in the attempt to deliver justice in conflict-affected settings.”  Its mechanisms and processes often include a combination of truth-seeking initiatives, community reconciliation, reparations programs, institutional and legal reforms, and criminal prosecutions. 

As highlighted by the Justice for All report, transitional justice is most effective when it is based on a broad understanding of the justice needs of victims and societies. Such an understanding was the foundation of Colombia’s Comprehensive System of Truth, Justice, Reparation and Non-Repetition, which was created following the 2016 peace agreement between the government and the FARC-EP guerrilla group, which put an end to more than fifty years of armed conflict.

The Special Jurisdiction for Peace (JEP) is the judicial component of the process, which relies on international law to investigate war crimes committed before December 1, 2016. It was created to guarantee and satisfy the rights of victims to justice, provide them with truth, and contribute to their reparation, with the aim of helping to build a stable and lasting peace. 

In this Champions of Change* interview, Laura Ospina talks to Alexandra Sandoval, Magistrate of the JEP’s Amnesty or Pardon Chamber, and Coordinator of its Gender Commission, about her experiences as well as her advice for other conflict-affected countries striving to implement people/victim-centered transitional justice systems.

Laura: What is the Special Jurisdiction for Peace (JEP), and how does it work?

Alexandra: The JEP is the fourth element of a transitional justice system that was established as part of the peace agreement to deliver justice to victims of the conflict in Colombia. The other three elements are a Truth Commission, a unit for missing persons, and a reparations program.  

The JEP is the tribunal, and it’s in charge of investigating, prosecuting, and adjudicating gross violations of human rights. These include crimes committed by the guerrillas of the Revolutionary Armed Forces of Colombia (FARC) and crimes committed by the national army.

Laura: How long has it been in operation?

Alexandra: We are a transitional tribunal so we’re not going to be around forever. We have been operating for almost six years and we have four more years to complete our work, for a total of ten years.

Laura: Is punishing the perpetrators of rights violations the tribunal’s main objective?

Alexandra: No, in many cases we apply restorative justice instead, which focuses on reconciliation and reparation rather than punishment and gives offenders the opportunity to repair some of the damage they have caused. This means that not all of the people that are going to be condemned as responsible for these crimes are going to go to jail. They receive what we call “special sanctions” instead. We establish which type of crimes can be granted amnesties and which we have to investigate and prosecute the perpetrators for. 

Laura: Do you consider the JEP’s mandate to have a people-centered justice lens? And if so, how has this changed the direction of transitional justice efforts in Colombia?

Alexandra: The approach of putting the victims at the center is not just for the transitional justice system—it’s a principle that has to be followed in all the rules that were established in the peace agreement. It’s one of the main goals of the peace agreement.

What this means in practice is that in all the proceedings we establish must have effective participation of victims. We have to grant victims a safe space where they can talk about what happened to them. 

Even the special sanctions are the result of a dialogue between the victims and the perpetrators. That’s why when observers ask us to explain what this type of sanction is going to be implemented, we don’t have an answer, because the result will be what the victims and the perpetrators agree should be carried out by the perpetrators in order to give reparation to the victims.  

Laura: Do you have any examples of how the tribunal’s work helped to promote reconciliation with victims and help them to achieve closure, and how it has helped perpetrators to reintegrate themselves into communities? 

Alexandra: Recently we had a hearing where we granted an amnesty to eleven former FARC guerrilla members who had killed sixteen soldiers during a battle. We grant amnesties for cases like these because these types of killings in battle are permitted according to international norms.  

It’s easy to explain the legal arguments for this, but it’s more difficult to explain to the families of the soldiers why you are granting an amnesty to their killers. So, we had a hearing that brought together the relatives of the soldiers, the ex-guerrillas, and some soldiers who were injured during the battle. It was a truth hearing. We asked the combatants to tell the story of what happened, how it happened, and who gave the orders. 

What was interesting was that at a certain point in the hearing, the former members of FARC were explaining how everything had happened, and one of the soldiers who had been injured raised his hand and started to corroborate the story that the ex-guerrilla combatants were telling. Between the ex-guerrillas and the soldiers they were trying to reconstruct the history of what had happened that day. And they had the same story. They knew everything that had happened.

The ex-guerrillas from FARC started to accept responsibility for what they had done and they wanted to ask for forgiveness. We don’t insist that combatants ask for forgiveness because that is a very personal matter, but they started to ask the families of the soldiers and also the soldiers that had been injured in the battle for forgiveness. 

It was really a restorative moment because at the end the soldiers told them: “We were exactly the same, we were doing the same things as you at that moment, only that we were on a different side of the conflict. We did exactly the same with your people. So, we understand that you didn’t want the injuries, it was just part of war and we had to do it. But we are not bad people.” 

It was a nice moment, because these are people that had been bitter enemies.  And when we have these kinds of hearings, you can see that it is possible at some point to place yourself in the shoes of others and to understand how difficult and how complicated this conflict has been for all of us, and especially for the ones who were combatants. I don’t know if it gave total reparation to the families of the soldiers that were killed, but they at least knew what had happened to their relatives. They had the truth, the whole story, and they had a space that most of the time victims don’t have to put a face to the other side and to understand that they were as human as their family members were. It can be restorative for victims to have these spaces.

Those are the moments when you say, “Yes, this what we do. It has a purpose, and sometimes we can achieve what the peace agreement wanted to do.”

Laura: How does the tribunal’s work help to strengthen stability and reduce the risk of a recurrence of conflict?

Alexandra: I’m not sure that we’re capable of doing that. We keep telling the country that we are only a tribunal. We establish what happened and who was responsible and try to provide truth and justice to the victims. Guaranteeing the security of the country is a mandate we don’t have.

But the peace agreement contained a number of measures to guarantee non-recurrence. And it’s satisfying to see that the former members of FARC who demobilized and gave up their weapons are truly committed to the agreement. They’re not only coming before the tribunal, providing information, participating in the proceedings, and complying with their sentences— they are also trying to build a new life. 

When they gave up their weapons, they moved to certain zones around the country and stayed there together. This year, I visited five of these zones and I saw that they are trying to help themselves and also their communities by building schools and other projects. There are tons of children in these places—they call them the Children of Peace—because most of the ex-combatants didn’t have children during the war, but now they’re trying to rebuild their family lives. This gives me hope that these people found a way to get out of the conflict and are fighting to stay out of it. 

Laura: Are you confident that the conflict won’t recur?

Alexandra: No. The bigger problem that caused the conflict—drug trafficking— is still there, and I’m convinced that if we don’t do something about it, we will keep having different kinds of conflicts. There is too much money in the industry, and in a country like Colombia where people don’t have enough opportunities and can’t make a living through legal means, there are still people who are willing to do this work. 

Laura: What are the main challenges you have faced? 

Alexandra: Being unable to guarantee security is one of them. I had a meeting with the International Committee of the Red Cross and they told me that we have eight different conflicts happening in the country right now. They’re not as big as they used to be with the FARC, which had 12,000 members at the time of the peace agreement, but they still have strong negative effects on communities. 

We keep holding hearings and working in parts of the country where the conflict is still active, and it’s difficult to explain to the victims that we don’t have jurisdiction to investigate or prosecute the perpetrators of what happened to them two weeks ago, and that our mandate only covers the period until 2016. It’s hard for them to understand that, but also if they don’t have security it’s difficult for them to talk to us about the period we are investigating. Some of the violent actors from that period have come back with new names, so people don’t feel safe to talk to us. 

Another problem is that since the peace agreement was signed, more than 300 ex-combatants have been killed. That also makes it hard to do our job—we always say that it’s not only that ex-combatants are being killed, but with those deaths, the truth is being killed, along with the reparation they could haven given to the victims.

The sheer number of cases we have to deal with is another challenge. We are trying to investigate what happened during sixty years of war. In the first six years of the tribunal’s existence, almost 14,000 people have presented themselves before it. It’s not possible to give an answer to every war crime or gross human rights violation. We don’t have enough resources to do that, so we have to prioritize. This makes it hard to satisfy the expectations of victims. For every victim, their case is the most important, and explaining to them that there are going to be instances where we’re not going to know what happened is really hard. 

Finally, explaining how restorative justice works is also difficult. In Colombia we don’t deliver that kind of justice, we deliver punitive justice. The expectation of victims is that perpetrators are going to go to jail and stay there for the rest of their lives. It’s hard to explain to them that this is not possible when you have a peace agreement, otherwise the ex-combatants would never have given up their weapons, and that if we don’t grant them some kind of amnesty, they’re not going to have the legal certainty they need to continue their lives.

Laura: Within Pathfinders we work a lot with countries around the world that are having conflicts of their own or transitioning from conflict to peace. For example, we’re working with Ukraine right now, which has a very particular context. What advice would you give colleagues from other countries or contexts who are struggling with ongoing conflicts while trying to implement transitional justice mechanisms?

Alexandra: My advice would be that while it is important to analyze other experiences in order to find solutions to your conflict, every conflict is different. There is no magical solution to a conflict, and every country does or tries to do what is possible to do, taking into account the kind of conflict they have. 

For example, we had a meeting with a Ukrainian delegation two months ago and they wanted to know how we are investigating sexual violence crimes. When we started the conversation, I said to them that our tribunal was the result of a negotiation. We are able to do everything we’re doing because ex-combatants agreed that this tribunal should be created, that they were going to be part of it, and that one of the obligations they had was to come here and tell the truth, answer to the victims, and try to give them reparations.

But not every conflict is going to be like that, and I was saying to them that their conflict might not be resolved by a negotiation. Are you going to talk with Putin? That’s not possible. They have to take into account the kind of conflict they have and the solutions that are doable. Because they can say that in Ukraine, they are going to create something similar to JEP, but who is going to come to this tribunal, who is going to force the perpetrators of sexual violence to appear before the court? 

There are some things that you are not going to fully be able to do, so you have to compromise. When we talk about transitional justice we always talk about truth, justice, reparation, and guarantees of non-repetition, but that depends on the situation. 

In some cases you will be able to give more truth to people than justice, or more reparation than truth. It will depend on how you deal with past grievances and what you can deliver to people. Because if you try to create a system that generates a lot of expectations and you don’t fulfill them, you’re going to end up with another conflict.

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