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Home Archive for category "Transitional Justice"

Achieving Justice Through Restorative Means in Colombia: New Developments in Implementing the Peace Deal

Published on May 3, 2017        Author: 

On 4 April 2017, the Colombian Congress passed amendments to the Constitution creating the ‘Integral System of Truth, Justice, Reparation and Non-repetition’ (‘El Sistema law). This law is part of the fast-track package used to implement the peace deal signed between the government of President Juan Manuel Santos and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on 24 November 2016. The new El Sistema law brings the implementation of the deal one step closer to reality as it creates a unique transitional justice mechanism oriented towards truth and reparations to victims. Yet the law’s limited reach and lack of popular support for the deal may stall further progress.

The Legitimacy Question

The document signed in November 2016 is the second version of the peace deal, after Colombian voters rejected by a narrow margin the first draft in the referendum of 2 October 2016. This result was largely unexpected. There are many factors that explain the failure of the first peace deal in the national plebiscite. The first is the strong cult of personality and influence of the former President Álvaro Uribe, who actively campaigned against signing a peace treaty with guerillas by appealing to concerns of different groups of population. Bad weather conditions on the polling day, coupled with the lack of infrastructure in many parts of the country, also effectively prevented many people from travelling to polling stations. Finally, little information and time was allotted to voters to study the deal prior to the referendum.

The ‘no’ result created serious challenges for the government, which wished to press ahead with the deal. Over the course of several weeks following its initial rejection, the government of President Santos introduced amendments tackling some of the concerns of the ‘no’ campaign. For example, the new deal provides for a more limited role of international judges within the newly created Special Jurisdiction for Peace (SJP) and guarantees special treatment for the army. These changes were limited, however, as the negotiators balanced conflicting interests of different stakeholders – ‘yes’ and ‘no’ campaigns, FARC, and the civil society. Read the rest of this entry…

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ICTY Convicts Radovan Karadzic

Published on March 25, 2016        Author: 

Yesterday the ICTY Trial Chamber convicted Radovan Karadzic, the wartime political leader of the Bosnian Serbs, for numerous crimes committed during the conflict and sentenced him to 40 years imprisonment. The (mammoth) trial judgment is here, standing at 2615 pages that not even Karadzic’s lawyers will read as a whole; the more accessible summary is here.

The end result is basically as I predicted it will be a couple of days ago – Karadzic got acquitted for genocide in Bosnian municipalities other than Srebrenica, and got convicted for everything else, including the Srebrenica genocide. The sentence is effectively life; he could be eligible for provisional release after serving 2/3 of his sentence, which would (counting the 7 years and 8 months he already spent in detention) mean he would have to spend some 19 more years in prison – but if he lives into his nineties he may get provisionally released, assuming of course that the sentence is affirmed on appeal and that he does not eventually get released on compassionate grounds.

On the vast majority of issues the Trial Chamber was unanimous (I’ll come to points of dissent later on), and that is a very good thing. All in all the judgment is basically exactly what it should have been, although the political reactions in the region are also exactly what one might have expected – while many Bosniaks welcomed the conviction they also decried the acquittal for genocide outside Srebrenica, whereas the current Bosnian Serb president has decried the judgment as yet another example of the ICTY’s anti-Serb bias. So far so predictable. That said, I will spend the remainder of this post on looking at some of the more interesting parts of the judgment, based on a very quick skim read.

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Syria the Land of Impunity

Published on November 24, 2015        Author: 

FullSizeRenderThe Geneva Communiqué of the Action Group for Syria of 30 June 2012, which was endorsed by the UNSC Resolution 2118 (2013), identified key steps for a Syrian led political transition. The Communiqué problematized the “Syrian conflict” as one involving a challenge of security, safety and restoration of stability and calm. During the first half of 2015, Mr. Staffan De Mistura, the UN Special Envoy for Syria, carried out a series of consultations in Geneva with various local and international actors in the Syrian conflict, to explore views on how to “operationalize” the Geneva Communiqué. The consultations produced a proposal to set up four thematic intra-Syrian working groups, which would bring together Syrians from the government and the oppositions to discuss a range of transition topics, including a group on “safety and protection for all”. On 30 October 2015, all regional and international actors involved in the “Syrian conflict” met in Vienna and produced the Vienna Declaration, which promised to launch a “renewed political process” based on eight points of agreement. On 14 November 2015, the same group met again in Vienna and formed the International Syria Support Group (ISSG).  The ISSG pledged to bring the Syrian government and the opposition together to embark on a “political process pursuant to the 2012 Geneva Communiqué.”

Nowhere in the diplomatic literature produced so far can one find the word “impunity.” Indeed the political solution contemplated in the Geneva Communiqué, which is still at the core of the renewed political process, rests on the absence of this potentially explosive word. Instead, the Communiqué sets forth at point No. 10(d) that in order to achieve “safety, stability and calm” there needs to be a commitment to accountability for future crimes. As for accountability for acts committed during the present conflict, this must be addressed pursuant to a comprehensive package for transitional justice. The Communiqué stresses, in particular, “national reconciliation” and “forgiveness.”

The problematization of the “political process” as one involving a technocratic challenge to ensure “safety” is hugely shortsighted. The current diplomatic efforts are entirely geared towards bringing the local actors to the negotiation table. The language of “justice” and “rights” is seen as inadequate and unhelpful, as it is likely to subvert the political process. However, in the Syrian context this premise is both historically unwarranted and politically untenable. Indeed, the Syrian political process will have little chance of success if it does not address head-on the question of impunity, which is at the core of the Syrian conflict. Read the rest of this entry…

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An Assessment of the Colombian-FARC ‘Peace Jurisdiction’ Agreement

Published on September 29, 2015        Author: 

Last week Wednesday (23 September 2015), Colombian President Juan Manuel Santos met in Cuba with the leader of the Colombian guerrilla movement FARC (alias Timochenko”), to publicly announce the agreement to establish a ‘Special Peace Jurisdiction’ reached between the Government and FARC. This is certainly a milestone in the Colombian peace process. While many local and international voices (including heads of government and State of other countries) have been supportive of the agreement (see here and here), a few have rejected its content considering that it fosters impunity. Among those who have objected to the agreement is Alvaro Uribe, the former Colombian president who has been very vocal in his opposition to the conditions of the current peace process and has favored either a militaristic strategy or one in which the guerrilla members subject themselves to ordinary criminal sanctions.

Given the controversy, it is worth briefly considering whether, as critics pose, the agreement would be contrary to international law standards or whether, according to its supporters, it is not only consistent with them but proves to be a unique opportunity to end the conflict with the FARC, which is the oldest operating guerrilla movement in the world.

To do this, it is necessary to briefly look at the content of the agreement. In assessing the agreement, it is important to bear in mind that its full contents are yet to be revealed, and indeed some aspects have not been fleshed out fully. However, the main points of the agreement are set out in the oral statements of the Colombian President and, in greater detail, in written form in a joint communiqué, which can be found (in Spanish) in the official webpage of the Colombian presidency.

The “Special Peace Jurisdiction” – A new Mixed Tribunal?

The key aspect of the agreement is the creation of a judicial body –  ‘Special Peace Jurisdiction’ – which will make decisions on cases related to the Colombian armed conflict and has the capacity to issue extraordinary decisions that differ from those of ordinary criminal trials. The members of the body will mostly be Colombians but it will also include a few foreigners (point 3 of the joint communiqué). Read the rest of this entry…

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