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Researching the Colombian transitional justice system

Jurisdicción Especial para la Paz, Bogotá, Colombia © Pauline Martini
Jurisdicción Especial para la Paz, Bogotá, Colombia © Pauline Martini

I am very grateful to have been awarded a PG & PD Research Support Grant from SLAS in May 2022. The grant helped me fund my two-month stay in Bogotá, Colombia, in the course of the summer of the same year.

My Ph.D. research at Queen Mary University of London focuses on the identification of legal solutions to address conflicts arising between the International Criminal Court (ICC) and other mechanisms created at the local and national level to achieve accountability in relation to war crimes, crimes against humanity and genocide in the aftermath of mass violence.

Conflicts arise because of diverging purposes and visions of justice of the ICC and the aforementioned mechanisms. Whilst the ICC aims to end impunity and focuses mainly on retribution and deterrence, local and national accountability mechanisms set up in post-conflict States combine the search for accountability with broader restorative goals, including achieving peace, unveiling the truth over the events that led to the egregious violations of human rights and international humanitarian law, ensuring the reinsertion of criminals into the society, and providing reparations to victims.

The ICC Statute, as well as the ICC jurisprudence and practice, left the question unclear as to whether the Court should exercise its jurisdiction in situations and cases where restorative proceedings have been initiated in the concerned State.

The recent decision of the ICC Prosecutor to close the preliminary examination of the situation in Colombia is a particularly interesting case study in this respect. Contrary to the ICC, the Colombian Special Jurisdiction for Peace (Jurisdicción Especial para la Paz) – a temporary court established following the 2016 peace agreement concluded between the Colombian Government and the FARC-EP – may impose restorative penalties excluding prison terms if the perpetrator acknowledges their responsibility and contributes to the truth. Despite this obvious departure from the ICC standards, the ICC Prosecutor considered the Colombian proceedings genuine, thereby generating a series of interrogations as to whether this set a precedent towards the acceptance of restorative proceedings before the ICC.

The purpose of my stay in Bogotá was two-fold. Firstly, I conducted fieldwork research which consisted of conducting in-person interviews with magistrates and staff members of the Special Jurisdiction for Peace, NGOs, and individuals representing the interests of victims and the interests of accused. The interviews aimed to assess the compliance of the Special Jurisdiction for Peace with international legal standards, and to set grounds for the incorporation of restorative perspectives before the ICC as a means to reconcile the tension between retributive and restorative goals. Secondly, I undertook a research stay at the School of Law (Facultad de Jurisprudencia) of the Universidad del Rosario, where I had the chance to discuss my research with renowned experts in international law and transitional justice who considerably enriched my reflections.

I would like to express my sincere gratitude to the SLAS for financing my stay in Bogotá, which has been immensely fruitful for my doctoral research.

Pauline Martini (QMUL)

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