The rocky road to peace: current challenges at the Special Jurisdiction for Peace in Colombia

In November 2016, a peace agreement between the Revolutionary Armed Forces of Colombia (FARC-EP) and the Colombian government put an end to a 50-year-old conflict and established an institution unique in its kind: The Special Jurisdiction for Peace (SJP or JEP). As the cornerstone of Colombia’s transitional justice process, this tribunal was tasked with prosecuting the international crimes that took place in the Colombian armed conflict as well as granting benefits like amnesties and pardons to perpetrators of “common crimes” (i.e. non-international crimes) that are linked to that conflict. In its nearly four years of operation, the SJP has delivered on its mandate. Among other achievements, the SJP opened seven different cases concerning the most representative crimes committed in the Colombian conflict, some of which exposed a much wider scope of victimization than that previously anticipated.

Aside from its success, these years have also exposed the many challenges the SJP is currently facing. Some of these have been extensively discussed by commentators here, here and here, focusing mainly on legislative proposals aimed at altering the SJP’s mandate and the uncertainty of victims’ rights in the proceedings. This post will address similar issues. The first is external and it relates to the government’s tactics to undermine the work of the tribunal. The other two are internal and relate to the design of the tribunal and its practices. By exploring these challenges, this post sheds light on the transitional justice process in Colombia and hopes to contribute to the overall debate on transitional justice processes everywhere.

Government’s tactics

Following the 2016 peace agreement, the presidential campaign of then-candidate, Ivan Duque, revolved around putting into question its legitimacy and the institutions it created, most notably the SJP. Once elected in 2018, his administration resorted to tactics intended to undermine the work of the tribunal such as cutting its funding and vetoing the approval of its statute on the basis of unconstitutionality. But perhaps the most worrisome tactic consists of the apparent unwillingness to protect witnesses, victims and former FARC-EP militants. At the time of writing, and despite the condemnation of civil society, the international community, NGOs and the SJP itself, 253 former FARC-EP members have been murdered since 2016. This ongoing tragedy negatively impacts the work of the SJP and hinders this tribunal’s ability to satisfy the rights to truth and justice of victims.

While these government tactics have been the most visible obstacle for the SJP, other more subtle challenges have manifested over the past few years. These stem from the design of the court and its practices and will be addressed in the next sections.

The design of the SJP

The peace agreement and subsequent Colombian legislation establish that the SJP has exclusive jurisdiction over all crimes committed within the Colombian territory, provided they were committed in the context of the armed conflict and that they fall within its timeframe. This means that the SJP was designed to have a jurisdictional scope that not only covers all conflict-related crimes committed in Colombia, but also those committed over a period of at least 50 years. Such large jurisdictional scope, far wider than that of any other international tribunal, has led to an overwhelming number of cases which unsurprisingly overburdened the tribunal and led to violations of the rights to liberty and due process of individuals acting before it. While today the SJP has managed to process an important number of cases through its tireless work, an overwhelming backlog of pending cases remains.

The SJP’s wide jurisdictional scope is not only challenging due to the volume of cases but also, due to how far back in time they go: the SJP’s temporal scope expands for more than 50 years. The difficulty then is to find sufficient evidence for prosecution or granting of benefits in some of the older cases. While some of this evidence has been compiled in the files of ordinary criminal cases, it usually is incomplete or of poor quality given the precarious state of the judicial system in Colombia. Added to this complexity is the fact that the evidence in these older cases is simply inexistent as no ordinary criminal case was ever initiated. The SJP must therefore procure this evidence through its own investigations. While the Tribunal has made important findings in one case regarding crimes that date back to the late 1980s, it remains to be seen whether such evidence can be found in other cases and if it could fulfil the stringencies of criminal procedure if the case reaches an adversarial setting.

The wide temporal scope also brings with it concerns about the SJP’s adherence to the principle of legality. The SJP, like the ad hoc tribunals, was established ex-post facto. This means that the legal source to prosecute crimes under its jurisdiction is not its statute but the law applicable at the time in which the crimes occurred. Now, this in and of itself does not affect the principle of legality. However, the fact that the SJP’s temporal jurisdiction stretches out to the origins of the non-international armed conflict between the government and the FARC-EP, conflict that started over 50 years ago, could be problematic. This is because, in order to comply with the principle of legality, the SJP must demonstrate that crimes within its jurisdiction were in fact crimes under treaty or customary international law when they were committed, even those crimes that took place 50 years ago.

When facing this issue, the SJP’s emerging jurisprudence has relied to a large extent on the Rome Statute as the applicable law. However, even assuming that this treaty is directly applicable to individuals appearing before a national court, the SJP’s large temporal scope means that in some cases the Rome Statute could not be applied because the crimes precede the Statute itself. Without the Rome Statute, the SJP may be forced to engage in creative custom identifying practices and judicial activism, common in the days of the ad hoc tribunals, but also the source of their main criticism.

From the above one could argue that a wide jurisdictional scope may not be a desirable feature in a transitional justice mechanism like the SJP. As already mentioned, this may lead to an overwhelming volume of cases, some of which date back to the origins of the conflict. This vast temporal scope, in turn, may raise concerns on the quality and availability of evidence and respect of the principle of legality.

Much like with a wide jurisdictional scope, certain practices at the SJP may not be desirable in a transitional justice mechanism. These relate in particular to the SJP’s practice of prioritization and selection of cases. As the next section argues, this methodology may lead to a series of further challenges.

The SJP’s practice of selection and prioritization of cases

One of the main achievements of the SJP is the investigation of the most representative crimes in the Colombian conflict. Today, these are grouped into seven cases, four of which are “thematic cases” and three are “territorial cases”. While thematic cases focus on a phenomenon or situation covering all the Colombian territory, territorial cases focus on a region in Colombia where a set of crimes is to be investigated. This practice seems unproblematic at first glance. However, a closer look reveals a number of complexities.

First, it could be argued that when opening a territorial case, the SJP is essentially imposing a straitjacket on the results of any investigation before it even takes place. By focusing on a pre-established set of crimes in a region, during a specific timeframe, the SJP will inevitably ignore other related crimes that are under its jurisdiction simply because they fall outside of the strictly defined parameters of the case. In other words, setting the territorial, material and temporal scope of an investigation ahead of the investigation itself may lead to arbitrary limitations to the work of the SJP. These rigid boundaries also bring questions of a practical nature like whether a crime could fall within the scope of a case if part of it takes place inside its geographic boundaries and another part does not.

Second, in having a double approach to prioritization (thematic and territorial), the scopes of the different cases are bound to clash with each other. In fact, this is the case now. Case 04, which is a territorial case, deals with many crimes including those related to serious deprivation of liberty. This very same phenomenon is addressed on a national scale in case 01. Likewise, case 05, another territorial case, looks into a series of war crimes including conscripting or recruiting children; crime that is already covered nationally in case 07. From this it is clear that the thematic and territorial approaches are not complementary but rather conflicting. This becomes more complex when considering the fact that no hierarchy among cases has been formally established.

Instead of the current practice, focusing exclusively on thematic cases may prove to be beneficial. As these cases do not rely on a list of crimes but rather address a phenomenon or a situation, they could also encompass the full scope of crimes that derive from it. This approach is also closer to the practice of the ICC. Investigations at this court, as determined by the Appeals Chamber in the Afghanistan Situation, can expand to all crimes under the Rome Statute, provided they are “sufficiently linked” to a particular situation. Drawing from this methodology and relying exclusively on thematic cases, the SJP may be in the position to allow investigations to evolve and include other crimes sufficiently linked to the same situation. Following this path, however, would bring issues of its own like what to do with the territorial cases that have already been opened.  

Concluding remarks

One must recognize the achievements of transitional justice in Colombia in general, and of the SJP in particular. The peace agreement finally put an end to the longest armed conflict in the western hemisphere and the SJP has started investigations and prosecution on the gravest crimes that occurred during that conflict. This is without a doubt a remarkable step forward in Colombia’s strive for peace and its fight against impunity.

However, it is also important to reflect on the many challenges that lie ahead and the lessons that can be drawn from them. The current administration’s active role in undermining the work of the SJP, for example, highlights the importance of the joint efforts of all branches of government and civil society for the success of transitional justice processes. Likewise, the SJP’s design, particularly its wide jurisdictional scope, is a reminder of how overly ambitious institutions may lead to shortcomings in its implementation, violation of rights and frictions with principles of law like legality. Finally, the rigid scope of investigations in prioritized cases at the SJP is a reflection of how adhering to strict methodologies may prevent from understanding the complexities and evolving nature of armed conflicts.

This brief look into the challenges that come with the first years of the SJP, though, should not be discouraging. On the contrary, as an institution in its infancy, the SJP has the potential to meet these challenges and, in doing so, shape the future of transitional justice processes elsewhere.