Three major challenges the Special Jurisdiction for Peace in Colombia faces

Rocío Quintero M. is a Legal Adviser with the Latin American Programme of the International Commission of Jurists

After more than six years of negotiations, the Colombian government and the Revolutionary Armed Forces of Colombia—People’s Army (FARC-EP from its acronym in Spanish) reached a peace agreement in November 2016.  Unlike other previous peace negotiations in Colombia, victims’ rights were a major focus of the negotiations. In fact, the peace agreement designed a set of transitional mechanisms to protect and guarantee victims’ rights, called the Integral System of Truth, Justice, Reparation and Non-Repetition. It comprises a tribunal called the Special Jurisdiction for Peace (JEP by its Spanish acronym), a truth commission, a search unit for missing persons, and the possibility to grant reparation measures and ensure guarantees of non-recurrence.

Given the high levels of impunity for human rights and international humanitarian law violations, the Special Jurisdiction has gained notoriety as the institution with a leading role in guaranteeing victims’ rights. Its work began in January 2018 and, over the last 19 months of functioning, it has made significant advances in fulfilling its mandate. However, there are several challenges the JEP must face to fully protect and guarantee victims’ rights.

In this respect, in June 2019, the International Commission of Jurists issued a report on the JEP. The report features an in-depth analysis of JEP’s activities, strengths and challenges. It also sets out recommendations to overcome those challenges. Drawing on the ICJ’s report, this blog addresses the Special Jurisdiction’ three major challenges.

 First, the Special Jurisdiction for Peace has yet to consolidate its role as the justice tribunal in charge of the investigation, prosecution, and sanction of human rights and international humanitarian law violations committed during the internal armed conflict.

Apart from the intrinsic difficulties in bringing justice to victims of over sixty years of conflict, fulfilling this objective has been complicated by the fact that the JEP started operating without a comprehensive legal framework.

In January 2018, when the Special Jurisdiction began functioning, there were only a few laws setting out its functions. There were only an amnesty law (2016) and the constitutional amendment (2017) that created the JEP. Neither of them fully describes the proceedings before the JEP. Afterwards, in July 2018, a procedural code was enacted, and finally, a statutory law was approved in June 2019.

It is worth noting that before having a complete framework, the Special Jurisdiction took essential decisions on investigating and prosecuting serious human rights crimes. Notably, the JEP opened seven cases. Each case is focused on a widespread and serious crime committed during the conflict or on a specific locality of the Colombian territory that suffered high levels of violence. So far, the JEP has identified more than 8000 possible victims. However, each of the seven cases does not aim to resolve individual crimes, their objective is to identify crime patterns and establish links between perpetrators. In that sense, instead of using a case-by-case approach to the investigations, the JEP has followed a more systematic approach to identifying those most criminally responsible. In addition, the JEP has also conducted hearings where 26 leaders of the FARC-EP and 98 members of the State’s military forces made statements regarding their involvement in kidnappings and extrajudicial killings, respectively.

It is now expected that the Special Jurisdiction will hand down verdicts establishing individual criminal responsibility. This is a fundamental step towards the consolidation of the JEP as the justice tribunal of the conflict. In doing so, the JEP faces two main tasks. On the one hand, in order to fulfill the victims’ right to truth, the Special Jurisdiction should aim to offer a complete account of the crimes and actors who participated in the conflict. In that regard, the JEP should determine a judicial truth beyond what has already been established by ordinary tribunals.

On the other hand, to guarantee victims’ rights to justice and reparations, the Special Jurisdiction should impose sanctions and order reparation measures in accordance with international standards. To put it simply, the JEP should make sure that reduced prison sentences, suspended sentences and other benefits are not perceived as effectively granting impunity to perpetrators. This is particularly important since, for example, in cases where the JEP considers that the perpetrators’ acknowledgement of their criminal responsibility is complete and comprehensive, it will impose non-custodial sentences, even in cases involving gross human rights violations. Consequently, in-depth investigations, including revision and verification of information provided by the perpetrators, and pertinent reparation measures should feature prominently in the sentences imposed.

Second, the Special Jurisdiction has to improve victims’ participation in its proceedings.

As yet, even though several laws set out that the place of victims should be central in the proceedings before the JEP, victims and victims’ organisations have faced some obstacles to their participation in its proceeding, as explained by the Office of the High Commissioner for Human Rights and the International Commission of Jurists.

For instance, victims have not been allowed to be present during all hearings (the JEP has alluded to the risk of re-victimization and procedural rules to justify this). Other limitations imposed on victims include inconsistent requirements for the recognition of individuals as victims before the JEP, and some inadequate protection measures. Additionally, there are no well-established procedures to guarantee the participation of victims who live in remote and deprived areas of the country, which are the localities that have been more affected by the conflict.

Therefore, the Special Jurisdiction should establish coherent and uniform procedures to guarantee victims’ participation. Once these are in place, they should be publicised and explained to victims around the country.  Likewise, creating effective channels of communications with local authorities and civil society organisations will be indispensable to enable victims to take their rightful place in proceeding before the JEP.

Third, it is imperative that national authorities respect the judicial independence of the Special Jurisdiction.

Although the Special Jurisdiction is an independent tribunal, it does not operate in a vacuum. The JEP needs the respect and cooperation of all three branches of the State to accomplish its mandate. Unfortunately, in the aftermath of some of their decisions, the JEP´s judges have been put under pressure on a number of occasions and have been the target of attacks. Some authorities, such as the Colombian President and the former Colombian Attorney General, have also insinuated that the JEP is not capable of tackling impunity and, as a consequence, the International Criminal Court might open a formal investigation in the Colombian case. Furthermore, the JEP has been informed of a 30% budget cut for 2020.

It is vital that national authorities respect the legitimacy and independence of the JEP. Accordingly, they should work jointly to ensure that the Special Jurisdiction delivers and enforces its decisions according to international standards. That will require permanent cooperation and adequate funding.

To conclude, the Special Jurisdiction, a key institution in fulfilling Colombia’s international human rights obligations, finds itself at a crucial stage of its operation. Importantly, the JEP’s approach and manner in overcoming the challenges described above will have a definitive impact on building sustainable peace in Colombia. Therefore, it is imperative that the sentences the JEP hands down feature appropriate sanctions, as well as reparation measures. To achieve this dual objective, victims’ participation from the beginning of the proceedings is indispensable. Finally, it is equally important that the JEP’s judicial independence be fully guaranteed.