Written by Juanita Garcia Uribe
The Yale University Law School hosted a talk entitled “Justice and Peace in Colombia’s Embattled but Groundbreaking Special Jurisdiction for Peace (JEP)” with Julieta Lemaitre on February 21st.
Lemaitre serves as a judge on the JEP’s Chamber for the Recognition for Truth and Responsibility and was a former associate professor at the Universidad de los Andes Law School. Along with describing the structure and operations of the JEP, Lemaitre highlighted its groundbreaking strides in the fields of transitional, restorative, and retributive justice throughout her talk.
La Jurisdicción Especial para la Paz, The Special Jurisdiction for Peace, was established with the passage of the 2016 peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC), a leftist guerilla group. The peace process was highly controversial among the Colombian populace, as the government ratified the agreement despite the “No” vote, a vote against its ratification, narrowly winning the majority of the plebiscite at 50.2%. However, the passage of these accords in the Colombian congress signaled the end to a fifty-year-long armed conflict that killed over 220,000 people and displaced another 7 million.
The JEP was created as an avenue towards transitional, restorative, and retributive justice that operates separately from the Colombian legal system, hearing cases of ex-FARC combatants, soldiers of the Colombian armed forces, and civilians accused of committing war crimes. Although it is only able to sentence civilians who voluntarily consent to be tried in its Chambers, it is one of the largest transitional justice courts in history with almost 12,000 insurgents and 2,000 soldiers currently awaiting trial.
In the context Colombian history, this court has also taken great strides in representing women and ethnic minorities on its bench. 52% of judges serving in its Chambers are women, and indigenous and afro-Colombians are also among the first in Colombian history to serve as judges in its legal system.
Lemaitre further highlighted the JEP’s groundbreaking position in being the first transitional justice system where a constitutional democracy has its own military and insurgents tried within the same jurisdictional court, albeit under different chambers. The Chamber for the Recognition of Truth and Responsibility, in which Lemaitre presides, is responsible for hearing the cases of former FARC combatants. In this chamber, Lemaitre explained, defendants are granted leniency and benefits in the form of lighter sentences, if they tell the truth about their accusations. Defendants that refuse to tell the truth are sent to an investigative tribunal and receive harsher sentences. Accused soldiers are tried in the Chamber of Definition of Legal Situation. This chamber is unique in that many of the soldiers being tried have received prior sentencing through the Colombian legal system. However, they seek retrial in this court in the hopes of receiving a reduction in their sentences. Evidently, the JEP values truth and leniency over retribution in the hopes of healing and reconciling the Colombian populace.
Lemaitre also described the unique procedures utilized in her own chamber, the Chamber for the Recognition of Truth and Responsibility. Along with the existence of “adversarial” procedures – conventional court procedures in which an investigation leads to jail time – the JEP created “dialogic” procedures. These procedures are victim-centered, in which the court mediates dialogue between the victims and the defendants; both parties have the opportunity to tell their side of the story as well as comment on the others’ statements. Following the conclusion of the dialogue, sentencing occurs as penas propias, in which the victim is able to decide on the sentencing.
In an example given by Lemaitre, she detailed a case between a group of people orphaned by the FARC who had kidnapped and killed their politician parents. These orphans, now adults, decided that those responsible for their parents’ deaths were to build a primary school in an area formerly controlled by the FARC. Their hope was to prevent the future radicalization of rural populations due to their lack of education and access to opportunities. According to Lemaitre, the scope of the Colombian conflict necessitates sentences that have far-reaching impacts.
Among other justice systems, the JEP is unique in that it not only focuses on transitional justice, but on restorative and retributive justice as well. Leniency in the sentencing of cooperative defendants allows for reconciliation and restoration of society. Additionally, its victim-centered approach allows for past grievances and concerns to be addressed through dialogic procedure and the sentencing process.
Of course, the Special Jurisdiction for Peace isn’t perfect. There are concerns with members of the public demanding harsher sentencing for ex-combatants, soldiers, and civilians accused of committing war crimes. Moreover, many view the JEP’s existence as illegitimate because of the controversy surrounding the ratification of the peace accords.
Among those hostile towards the JEP is Attorney General Néstor Humberto Martínez, who believes his office, La Fiscalía General de la Nación,solely possesses the jurisdiction to try these cases. Lemaitre argues Martínez’s prejudice is depriving his office from forming a powerful alliance with the JEP. The use of plea bargains is limited in the Colombian court system. But, according to Lemaitre, La Fiscalia should take advantage of the JEP’s lenient reputation and offer for defendants to be tried under its jurisdiction in return for truth and information.
Another obstacle faced by the JEP is the recent election of President Ivan Duque. With his election, the “No” coalition, those who voted against the peace agreement, now controls the presidency and 20% of Congress. Consequently, ex-FARC combatants are becoming increasingly hesitant to cooperate because they distrust the current government and fear it will seek harsher retribution in the future.
Lastly, the JEP is creating intergenerational cleavages within the Colombian armed forces. Drawing from the transitional justice experiences of the Southern Cone, younger soldiers are more eager to take advantage of the leniency of the JEP, fearing retaliation and harsher sentences if they postpone trials. However, older military officials are less willing to accept the need to take punitive action against the military, as they believe the military should be praised for liberating the country of a Communist threat.
These obstacles threaten the effectiveness of the Special Jurisdiction for Peace in achieving reconciliation among the Colombian populace. However, Lemaitre cites the lack of positive alternatives as justification for supporting its mission. Without justice, there can be no peace or reconciliation that heals the country of its fifty-year-old wounds. The existence of the Special Jurisdiction for Peace is necessary for Colombia to salir adelante – move forward.