The Promises and Pitfalls of Comprehensive Transitional Justice: The Colombian Case

05 December 2018   ·   Christian Völkel

Colombia´s peace process has set in motion one of the world’s most ambitious and holistic transitional justice projects. While the new institutions remain at the core of political controversy, the backing of the international community has proven vital. Germany has the expertise and credibility to assist the process and should pay more attention to capacity building in civil society at local and regional levels.

As the German government acknowledges that measures for dealing with past atrocities are critical for sustainable peace processes, the implementation of Colombia’s land-mark peace agreement holds lessons on the strengths and limitations of transitional justice measures to drive lasting conflict transformation.

One of the world´s most ambitious and holistic transitional justice projects

After rising rapidly to international prominence, the field of transitional justice has recently come under increasing fire for the ad-hoc nature of many measures. But not every process is liable to this criticism: Colombia’s peace process with the rebels from the Revolutionary Armed Forces of Colombia (FARC) has set in motion one of the world´s most ambitious and holistic transitional justice projects. It took an extraordinary effort and years of work by negotiators to hammer out an innovative institutional arrangement that combines judicial and extrajudicial measures to ensure victims’ rights to truth, justice, reparation and guarantees of non-repetition to the widest degree possible.

The agreement calls for a Special Jurisdiction for Peace to provide legal closure for both the armed forces and guerilla combatants in compliance with Colombia’s national and international obligations to prosecute serious international crimes. A separate, non-judicial truth commission will look to unveil the historical truth behind the conflict. Finally, the parties set up a new humanitarian body to search for the disappeared, in recognition that judicial mechanisms have faced tremendous difficulties in providing an answer to the families of the estimated 100,000 missing persons.

These measures are deeply anchored in the peace agreement. For instance, legal benefits are conditional on truth-telling and victim reparations, creating incentives for perpetrators to participate in the transitional justice process. Sanctions for those who recognize responsibility are intended to have restorative and reparatory effects. And perhaps most tantalizingly, the system could jointly provide effective guarantees of non-repetition. Thus transitional justice can become a motor for conflict transformation and the implementation of other peace agreement measures, including special development programs for the most affected areas. In the words of one expert who advised the parties during the talks: “this is not a transitional justice deal; it’s a peace deal that has transitional justice components.”

From theory to practice

Two years after the signing of the final agreement, it is now crunch time for starting to deliver on these promises. To no small degree, success will depend on whether the new institutions can give strategic vision and practical meaning to the notion of working together as a transitional justice system in which the different components complement and reinforce each other.

Challenges for cooperation and coordination abound. Far from being recognized as the central conduit to an inclusive transition, the new institutions remain at the core of political controversy. Advances in the implementation are also uneven, with both the Truth Commission and the Unit for the Search of the disappeared lagging substantially behind the Special Jurisdiction. Finally, the institutions of the system work on vastly different time scales. While the Truth Commission needs to wrap up by 2021, the Special Jurisdiction and the Unit for the Search of the Disappeared have much longer initial mandates – of 15 and 20 years respectively.

Cooperation between pre-existing and new institutions

All this complicates sequencing transitional justice measures, exchanging information between the judicial and the non-judicial components of the system, implementing common strategies for territorial impact and coordinating approaches to conditionality, victims’ participation, psychosocial support and reparations. Furthermore, the new institutions must also quickly establish good operational relations with Colombia’s already working transitional justice institutions. This includes importantly the Attorney General’s office.

Encouragingly, the new institutions are rapidly making headway. Officials frequently stress that their goals will only be achievable if they are embedded in a coordinated and articulated strategy across all institutions. The GIZ programme to support the Colombian peace process (ProPaz) has started to advise the institutions on the development of a common strategy. Alongside its ability to provide technical assistance on regional and national levels, the GIZ can draw on its long-standing relations with a broad range of key actors. Furthermore, as a German institution, it has the necessary credibility to act under a mandate of the peace agreement which specifically solicited German support in the implementation of transitional justice measures.

Comprehensive political support by the international community is key

As Kristina Birke Daniels has pointed out on this blog, Colombia’s ambitious transitional justice experiment needs comprehensive political support in order to succeed. The backing of the international community has proven vital in the transition to President Iván Duque´s current administration whose political party remains skeptical of the peace process. With its mandate under the peace agreement, the strong engagement of the Federal Foreign Office and the Federal Ministry for Economic Cooperation and Development as well as the long-established presence of political foundations and NGOs, Germany is particularly well positioned to help the transitional justice system stay on track in Colombia’s highly polarized politics.

This is not an easy task. Mirroring what has frequently happened in transitional justice processes, attention is still too often focused on the judicial component. But for the idea of a comprehensive transitional system to work, political and technical support needs to be re-balanced to equally strengthen the three institutions. By the same systemic logic, the international community should not lose sight of the already existing transitional justice measures, including a 2011 policy to provide comprehensive reparations and return stolen land to victims. Without them, the goal of comprehensively realizing victims’ rights will be unattainable.

Activating civil society

It has also become clear that the new system will only be able to deliver if it gets the input it needs from civil society. There have been important initiatives to help civil society organizations prepare for this challenge, including from a GIZ-run peace fund and the UN Multidonor Trust Fund, of which Germany is a member. But with time pressure already mounting to submit information to the Special Jurisdiction and the Truth Commission, supporting governments should pay more attention to capacity building in civil society, in particular at local and regional levels where violence has often stifled and in some cases continues to impede the development of strong victims’ and human rights organizations. 

And lastly, critical lessons from previous experiences need to be taken into account. An OECD member since 2018, Colombia can wield more resources than most other conflict-affected countries and over a decade of transitional justice experience has created a deep pool of knowledge within both the state and civil society. But the mixed results from the still ongoing trials of high ranking rightwing paramilitaries who laid down weapons under a 2005 law highlight the pitfalls of overambitious transitional justice laws that lack a robust implementation strategy. When programming support, the international community should urge policy makers to take existing capacity constraints seriously and to clearly explain the limits of what is achievable. The expectations of Colombia’s eight million conflict victims have been disappointed more than once. They deserve better this time. 

Zivilgesellschaft Transitional Justice

Christian Völkel

Christian Völkel is the coordinator for transitional justice in the GiZ programme to support the Colombian peace process (ProPaz).