SCL Lecture ‘Lights and Shadows of the Proposed Special Jurisdiction for Peace in Colombia’ by Héctor Olasolo Alonso

Published 16 December 2015

On 9 December 2015 Prof. dr. Héctor Olasolo Alonso, Chair in International Law at El Rosario University (Colombia), Chairman at the Iberoamerican Institute of The Hague (IIH) and Ad Hoc Professor at The Hague University of Applied Sciences, gave a presentation on ‘Lights and Shadows of the Proposed Special Jurisdiction for Peace in Colombia’ at the T.M.C. Asser Instituut. The lecture took place in the framework of the Supranational Criminal Law Lectures organised by the T.M.C. Asser Instituut, the Coalition for the International Criminal Court (CICC) and the Grotius Centre for International Legal Studies of Leiden University, and was moderated by Dr. Bérénice Boutin, Researcher Public International Law at the Asser Institute.

Prof. Olasolo briefly introduced the situation in Colombia, the groups involved in the conflict as well as the victims. He thereafter analysed the existing judicial transitional mechanism, the 2005 Colombian Peace and Justice Law, and the 2012 Legal Framework for Peace, which is an extra-judicial transitional mechanism. He highlighted the scope of application as well as the pros and cons of both tools. Besides these mechanisms, many issues have been addressed in the framework of the Peace Talks between the Colombian government and the FARC-EP since 2013. Prof.Olasolo said this agenda demonstrates that the fight against impunity, as well as the search for truth and justice, are not enough to tackle political, economic and social issues in Colombia. Moreover, this agenda is pushed by foreign actors in the context of the global fight against drugs. He therefore mentioned the importance of the international community in the transitional process.

Throughout his presentation, Prof.Olasolo emphasised the crucial role of reparations. Indeed, despite of the efforts of the Colombian government to provide reparation to the victims (Colombia has the most important national fund dedicated to reparations) more has to be done regarding this issue, since around 15% of the Colombian population are victims of the conflict. Violence remains one of the options to make a living in the country and he believes that an effective and ambitious reparation policy could be a step further in combating poverty.

The speaker thereafter discussed the proposed Special Jurisdiction for Peace, which he qualified as a comprehensive system for truth, justice, reparation and non-repetition. The justice element of the Special Jurisdiction for Peace in Colombia is a judicial mechanism with five functions: ending impunity, finding the truth, contributing to victim reparations, prosecuting and sanctioning those responsible in the conflict (and not only ‘the most responsible’ as the 2005 Peace and justice Law did) and, finally, guaranteeing non-repetition. The Special Jurisdiction for Peace will have jurisdiction over all those who directly or indirectly participated in the armed conflict, although we do not know yet the boundaries of this categorisation. In line with the so-called Colombian amnesty law, the material scope of application of the Special Jurisdiction for Peace will cover genocide, crimes against humanity and serious war crimes that have been committed in the context of an armed conflict. Once again, Prof. Olasolo drew attention to the shadows surrounding the definition of this material scope. Two types of procedure are being envisaged in the Special Jurisdiction for Peace, distinguishing between on the one hand those alleged perpetrators who say the truth and recognise their liability, and on the other those who have not recognised it and do not tell the truth. Judicial proceedings and penalties will differ whether an alleged perpetrator belongs to one category or the other. The goals and functions of the penalties focus greatly on the rights of the victims. Prof. Olasolo also stressed the restricted nature of the envisaged penalties.

Finally, Prof. Olasolo concluded the presentation by stressing that serious use of the Special Jurisdiction for Peace by judges can make it an efficient tool. However we do not know if this will be the case in practice and there are many shadows in the proposal. The Special Jurisdiction for Peace will be very different from the 2012 agreement and, to a certain extent, contains similarities with the 2005 judicial transitional mechanism. Yet it is more than this because it is also a comprehensive system dealing with relevant political, economic and social aspects of the conflict in Colombia.