Legitimacy, accountability, victims' participation and reparation in transitional justice settings - lessons from and for Colombia

Lead Research Organisation: University of Essex
Department Name: Law

Abstract

It is widely accepted that Transitional Justice (TJ) contributes to building peace, preventing new conflict and promoting the rights of victims of conflict. It can also help to identify the root causes of inequality and marginalisation. It can therefore enhance development in various ways: through promoting the rule of law, strengthening institutions, increasing access to justice, reducing inequalities and promoting gender equality.
The currently predominant view is that a holistic approach to TJ needs to be adopted after periods of armed conflict in which massive human rights violations occurred, based on a coexistence of mechanisms of truth, justice, reparation and guarantees of non-recurrence. However, it is not yet clearly understood how to resolve the possible tensions between the different components of this approach and how to put it into practice successfully so that the legitimacy of a TJ process is enhanced rather than undermined. It is equally still an open question what would be necessary for TJ to have a positive effect on development.
Colombia is the first country worldwide that designed a TJ process that aims to put into practice the theory of the holistic approach to TJ. This puts to the forefront novel questions of far-reaching significance for achieving peace, strengthening institutions, and improving the situation of victims of conflict who are often the most disempowered in a society. The legitimacy of the justice component of the Colombian TJ process, the Special Jurisdiction for Peace (SJP), has been highly contested from the outset. This has partly been due to the fact that, in implementing the holistic approach to TJ, it provides the perpetrators of mass atrocities with special sanctions (that do not include imprisonment) in exchange for truth, reparation and guarantees of non-recurrence. Among the supporters of the SJP, this approach is regarded as legitimate because of its "victim-centred" focus which is meant to ensure that procedures are designed and undertaken so that victims can participate effectively at every stage and have a say on how to best satisfy their rights to truth, justice and reparation throughout. Its opponents regard this as impunity.
The SJP is only in its second year and this early stage of its operation provides a unique opportunity to analyse the potential and challenges of the implementation of some of the features of the holistic approach to TJ in practice. Such an analysis is of crucial importance at this particular point in time, as it will feed back into the Colombian peace-building process while it evolves, and it will also inform academic debate and the formulation of future TJ processes worldwide, which primarily take place in LMIC and therefore have an important link to development.
Through various research methods, in particular semi-structured interviews, focus groups and participant observation in public hearings, we will collect and process original data on how the implementation of the holistic approach to TJ in Colombia is perceived by victims and other key stakeholders, and in particular on what they perceive as the main issues that weaken or increase the legitimacy of the justice process as carried out by the SJP. We will add to the existing academic literature through our analysis of the novel Colombian approach to TJ and lessons to be learned from it. Our research also aims at informing TJ practice, both in Colombia and internationally. In Colombia through briefing papers specifically aimed at assisting the SJP in addressing pressing questions such as how to operationalise victim participation and the restorative component of the special sanctions in a way that maximises their legitimacy, and how to define key legal concepts such as the criteria according to which cases are selected for investigation.

Planned Impact

Our research is intended to have various beneficiaries in Colombia as well as internationally. In Colombia, it will first of all benefit those working at the Special Jurisdiction for Peace (SJP) and key stakeholders that interact with it, in particular:
- The SJP will benefit because we will provide policy and academic input (through policy briefings, meetings and academic publications) that is tailored at informing their most urgent and significant decisions and showing ways in which to enhance the legitimacy of its work.
- Victims whose cases are currently before the SJP and their representatives, by providing recommendations on essential issues such as how to improve victim participation, reparation, the design of hearings, and the definition and application of key legal concepts. Victims will benefit from this because our research will strengthen their involvement in decisions made by the SJP at many different levels, and will provide input in how best to design this involvement, including in decisions on reparation and their role in the hearings, to ensure it results in victim empowerment and not in re-victimisation. They will also benefit because our research will make the decisions of the SJP that directly impact them more robust.
Throughout the project lifecycle, we will engage with these beneficiaries through meetings at which we will present our research questions and initial research findings and seek their feedback on and input in the focus and direction of our research to ensure its relevance for these beneficiaries.
Beyond these direct beneficiaries, our research aims to reach all those whose work has some relation to the justice component of transitional justice (TJ) mechanisms, including, for example, transitional justice practitioners, policy makers, relevant government officials, the judiciary, and civil society organisations. These groups will benefit from our research both if they are based in Colombia or in countries that undergo a transitional justice process and need to design a justice mechanism that balances victims' rights and expectations with the realities of often polarised and fragile states that have to deal with the aftermath of mass atrocities and will regularly not be able to investigate, prosecute and punish all violations that occurred. Our research findings will provide them with answers to what measures could enhance the legitimacy of such endeavours, including in relation to how to conduct hearings, victim participation, reparation and robust criteria for the selection of cases and other legal issues.
Our research findings are also highly significant for development agencies and actors worldwide, given the importance of TJ for development, in particular for strengthening peace, justice, the protection of the rights of victims and for tackling inequalities. They will inform their work by shedding light on the as yet under-researched relationship between the design of the justice component of a TJ process and development, particularly with regard to what factors will enhance victim empowerment as opposed to perpetuating inequalities, and contribute to the legitimacy of the process and therefore strengthen peace and justice, instead of risking further polarisation and recurrence of violence.
These stakeholders will be reached through our websites, newspaper articles, blogs, and policy and academic publications. Representatives of these beneficiary groups will also be invited to the international seminar that we will organise towards the end of the project.

Publications

10 25 50

 
Description The project has 4 thematic areas which have important linkages.
On accountability, our main findings were that:
• Given that the Special Jurisdiction for Peace (SJP) is dealing with largescale international crimes and not with individual criminality, the highest responsibility lies with those actors who are responsible for the policies behind the conflict related crimes, but those who are heavily involved in the way these crimes were carried out should also be included in this category. The most responsible can therefore include not only commanders of the armed groups and guerrilla fighters and military officers of different rank, but also third party actors, for example those who provided substantial financing for these groups. In the book "A quienes sancionar?" (Who to punish?) we provide an in-depth legal analysis of this and provide concrete recommendations as to how to determine the different layers of responsibility.
• The conditionality regime according to which the benefits the SJP can confer benefits, eg special lenient sanctions or waivers of prosecution, in exchange for truth, reparation and guarantees of non-recurrence is the most important mechanism to fight impunity in the Colombian transitional justice process. Our research defines how to evaluate whether contributions to the truth and recognitions of responsibility to decide whether conferring the benefits is justified.
Reparation:
• With regard to the system of special sanctions that have a focus on reparatory and restorative justice, our empirical research has uncovered administrative, logistic and economic challenges for its implementation.
• Both the special sanctions and the reparatory element of the conditionalities face the problem of the indeterminacy of the victims they have to repair. It is no clear whether they should repair the direct victims of the crimes investigated; those victims/communities residing in the regions most affected by the conflict; those that were recognized as victims before the SJP, or victims that are part of a particular collective group (e.g. journalists, ethnic group). There is also the question of whether the 'social harm', understood as the social tissue (social relationships) that was affected by the conflict needs to be repaired, and if so, how.
• When dealing with conditionalities, both civil society organizations and SJP's officials tend to focus on the component of truth and its reparative potential, but do not engage directly with how reparations can be achieved through conditionalities.
• Having identified these challenges, we are currently working on several outputs that focus on ways forward to address some of these challenges.
Victims participation:
• The Centrality of victims is a key principle at stake in the work of the Special Jurisdiction for Peace. However, victims' participation before the SJP is facing many obstacles such as insecurity, the lack of psychosocial support and personal protection measures to enable participation. These obstacles increased due to Covid-19. Overcoming those challenges requires a coordinated response from all institutions and not only the SJP.
• To address these, we recommended, in particular, that the SJP must facilitate participation that is gender and culturally sensitive and grounded in dialogical processes and provide victims with adequate and timely information, Victims also need two enabling measures: access to adequate legal representation and psycho-social support. Our research also considered the implications of Covid-19 for victims' participation in Colombia before the SJP and recommended 'compensatory measures', such as providing additional time for filing arguments or views with the SJP. These recommendations were included in the Victims' Participation Manual adopted by the SJP.
Legitimacy:
• Our research has shown that the political division that led to, and emerged from, the 2016 plebiscite on the Colombian Peace Agreement has persisted among Twitter users in relation to their perception of the Special Jurisdiction for Peace despite its relatively rapid response to the public´s demands for investigation and prosecution of certain atrocities. The main reason for this persisting division around the Special Jurisdiction for Peace seems to be a combination of a deeply engrained mistrust towards one or both negotiating parties (FARC guerrillas and the Colombian government), the socio-political trajectories of judges and the alternative legal regime it must apply, decided in Habana during negotiations, and developed by a series of statutes in Congress.
Exploitation Route We expect the outcomes of this funding to be taken forward and put to use by both academic and non-academic beneficiaries. We have been dissemnating and will continue to disseminate the research findings in academic publications (for example a 51 page long article on the special sanctions system in Colombia is currently under review for publication in a special issue of the OUP Journal of Human Rights Practice). Many of our publications are open access which should increase their uptake, and we publish in both English and Spanish, which further broadens the audience. The briefing documents and working papers we have produced will continue to influence the work of the Colombian Special Jurisdiction for Peace and that of other policymakers and transitional justice practitioners. The dissemination events planned for the summer 2021 for a wide international audience, both in English and in Spanish, are intended to ensure that our findings are made known to relevant academic and non-academic audiences worldwide, as the fidnings of our research are of relevance beyond Colombia.
Sectors Government, Democracy and Justice

 
Description The project has resulted in non-academic impacts. Our main impact generating strategy has been to produce the research jointly with the primary research users which in our case are the professionals of the Colombian Special Jurisdiction for Peace (SJP). From the outset of the project we have been engaging with many different professionals within the SJP through small closed door meetings with particular colleagues to discuss particular problems they are facing, providing input into their day-to-day work, discussing how our work could best assist with it, all the way to high profile public events where we presented research findings to audiences of professional practitioners, policymakers, NGO representatives etc. In particular the work on victims' participation has had tangible impact, as it has influenced the Victims Participation Manual of the SJP which, in turn, is guiding the current work of the SJP and will continue to do so for years to come. We provided draft chapters for the Manual whose content was largely included so that our research findings and the recommendations resulting therefrom now shape the SJP's approach to victim participation. Our work has also influenced discussions inside the SJP on the concept of the most responsible, one of the key concepts to be applied by the SJP. Some of our recommendations have been adopted (though without citing our work, as is common practice of the SJP) and continue to shape the SJP's jurisprudence. As these discussions are still in flux, the impact is not yet fully evident, but magistrates of the SJP have written to us to confirm the importance of our work to advance their own thinking and discussions within the SJP and we have since been invited to provide amicus briefs on difficult legal questions which then influenced the decisions. As our work on special sanctions and the conditionality regime is still evolving, in close collaboration with the SJP, it has so far not had any traceable impact.
First Year Of Impact 2020
Sector Government, Democracy and Justice
Impact Types Societal,Policy & public services

 
Description influence on the Manual on Victims Participation of the COlombian Special Jurisdiction for Peace
Geographic Reach National 
Policy Influence Type Citation in other policy documents
Impact Our influence has materialised in two key chapters of the Manual. It is particularly noteworthy in the first chapter of the Protocol, on General Principles on Victims' Participation before the SJP. We put forward the concept of participation as a holistic (integral) right that has various dimensions, changing the Special Jurisdiction's view that victims' participation needs to be more than simply effective participation. Our work also influenced the SJP during the coronavirus pandemic, helping it design the guidelines that should apply to victims' participation during the lockdown, bearing in mind lack of access to ICTs in Colombia, particularly in conflict zones, as well as challenges in relation to bio and other security conditions.
 
Description Alternative Sanctions in Catatumbo: Exploring Punishment, Reparation and Victims' Participation
Amount £10,000 (GBP)
Organisation Economic and Social Research Council 
Sector Public
Country United Kingdom
Start 07/2020 
End 01/2021
 
Description Assisting the Colombian Special Jurisdiction for Peace with defining the concept of "most responsible" for the most serious international crimes
Amount £8,632 (GBP)
Organisation United Kingdom Research and Innovation 
Department Global Challenges Research Fund
Sector Public
Country United Kingdom
Start 03/2020 
End 07/2020
 
Description Can transitional justice (TJ) be a vehicle for development in post-conflict situations?
Amount £29,329 (GBP)
Organisation United Kingdom Research and Innovation 
Department Global Challenges Research Fund
Sector Public
Country United Kingdom
Start 02/2021 
End 07/2021
 
Description Conditionalities in the Colombian Special Jurisdiction for Peace
Amount £10,000 (GBP)
Organisation Economic and Social Research Council 
Sector Public
Country United Kingdom
Start 07/2020 
End 01/2021
 
Description Enabling Victims Participation at the Special Jurisdiction for Peace in Colombia and access to Reparation
Amount £8,828 (GBP)
Organisation United Kingdom Research and Innovation 
Department Global Challenges Research Fund
Sector Public
Country United Kingdom
Start 03/2020 
End 07/2020
 
Description Helping the Special Jurisdiction for Peace to address questions of harm and conditionalities
Amount £7,332 (GBP)
Organisation Economic and Social Research Council 
Sector Public
Country United Kingdom
Start 01/2021 
End 07/2021
 
Description Collaboration with Act of Listening Lab at the University of Concordia, Canada 
Organisation Concordia University
Country Canada 
Sector Academic/University 
PI Contribution providing expertise to jointly produce the document "Puesta en escena de procesos de justicia restaurativa en el SIVJRNR: el camino hacia múltiples audiencias de reconocimiento de verdad y responsabilidad. Caja de herramientas conceptuales y metodológicas para la SRVR de la JEP" (22 pages)
Collaborator Contribution providing expertise to jointly produce the document "Puesta en escena de procesos de justicia restaurativa en el SIVJRNR: el camino hacia múltiples audiencias de reconocimiento de verdad y responsabilidad. Caja de herramientas conceptuales y metodológicas para la SRVR de la JEP" (22 pages)
Impact "Puesta en escena de procesos de justicia restaurativa en el SIVJRNR: el camino hacia múltiples audiencias de reconocimiento de verdad y responsabilidad. Caja de herramientas conceptuales y metodológicas para la SRVR de la JEP" (22 pages); provided to the Special Jurisdiction for Peace, unpublished
Start Year 2020
 
Description Collaboration with Colombian CSO Dejusticia that was Co-I of the grant 
Organisation Dejusticia
Country Colombia 
Sector Public 
PI Contribution providing expertise regarding the various topics of the project, in particular victim participation; commenting on draft research outputs and providing input in the methodology of the research carried out by the partner who was a formal partner of the grant
Collaborator Contribution Organising a meeting with a number of researchers to provide feedback on a draft of the project output: "A quienes sancionar"; Co-organising and moderating focus groups research on legitimacy of the Special Jurisdiction for Peace
Impact jointly organising 2 focus groups about victim participation in the Special Jurisdiction for Peace succesful collaborative grant application for GCRF@essex funding (£30000)
Start Year 2020
 
Description collaboration with the Colombian Special Jurisdiction for Peace 
Organisation Special Jurisdiction for Peace
Country Colombia 
Sector Public 
PI Contribution commenting on draft decisions; our expertise on various legal issues, in particular with regard to the Manual on Victims Participation and the Guidelines on Victims Participation during Covid-19; recommendations on how to address specific legal problems and concepts (most responsible of the international crimes; harm; special sanctions; system of conditionalities)
Collaborator Contribution assistance with organisation of focus groups on victims participation, for example through providing contacts of victims who participated in the focus groups; feedback on various draft publications; providing information on their work and access to internal documents; participation in discussion groups and in interviews that informed our work etc.
Impact Manual of Victims Participation and Guidelines on Victims Participation during Covid-19; book: A quienes sancionar?
Start Year 2020
 
Description Attending meeting of the interinstitutional network to set an outreach strategy for the victims' participation Manual 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact The meeting consisted of showing what each institution is doing and how to combine and coordinate actions. The idea was that it was necessary to define uniform inter-institutional messages to make the Manual known beyond academic-scholars or practitioners. Institutions involved were the Public Attorney's Office, the Special Jurisdiction for Peace and the MInistry of Justice.
Year(s) Of Engagement Activity 2020
 
Description Focus groups with victims before the Special Jurisdiction for Peace 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact 1. Focus groups on victim's participation before the Special Jurisdiction for Peace. Together with the Bonavera Institute at Oxford, Dejusticia and the Special Jurisdiction for Peace we held two focus groups attended by 18 victims to discuss their views on participation before the jurisdiction. They exchanged ideas and provided insights that we transformed into two graphic reports in real time and a written report that we submited to the Victim's Participation Commission of the Special Jurisdiction for Peace on 11 December 2020. Our written report entitled "Diagnóstico de las preguntas sobre la participación de las víctimas acreditadas y no acreditadas ante la Jurisdicción Especial para la Paz" (4 pages), provided the SJP with a summary of issues and concerns of victims and the most useful tools for communicating the required answers about victim's participation, and the priority questions to enable the comprehensive participation of victims before the SJP so as to be included into the commission 2021 agenda. Based on those results we have been working on communicative pieces radio spots, infographics) to develop specific answers to victims related to personal security measures, psychosocial accompaniment and the right to submit reports to the SJP by victims organisations.
Year(s) Of Engagement Activity 2020
 
Description Holding meeting with the magistrates of the Chamber of Recognition of Truth within the Special Jurisdiction for Peace in Colombia on the concept of the most responsible 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Professional Practitioners
Results and Impact Upon invitation, we shared with the Chamber of Recognition of Truth wthin the Special Jurisdiction for Peace a draft of our document on the most responsible (later published as 'A quienes sancionar') which triggeerd a lively debate among the magistrates and between them and our team on the concept and how best to define it. It informed our views and also those of the magistrates.
Year(s) Of Engagement Activity 2020
 
Description Meeting with Magistrate Izquierda and her legal team on the concept of the most responsible 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Professional Practitioners
Results and Impact After a workshop with the Chamber for Recognition of Truth at the Special Jurisdiction for Peace, we were invited to hold a follow up meeting with Magistrate Izquierda and her team to enter a more detailed discussion of some of the conceptual problems they were facing and get our views on them.
Year(s) Of Engagement Activity 2020
 
Description Panelist at launch event of the Operative Protocol on Victims Participation 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact This panel launched the Manual of Victims Participation of the Special Jurisdiction for Peace and presented the main recommendations of the manual to a national Colombian and international audience of legal practitioners, NGOs, victims organisation representatives and academics. It discussed challenges and best practice regarding the enhancement of victim participation, particularly in times of Covid-19.
Year(s) Of Engagement Activity 2020
 
Description Panelist on webinar: Lucha contra la impunidad y participación de las victimas en contextos de transición 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact This was an expert panel organised by the Attorney General's Office in Colombia, El Espectador 2020, DAAD and Capaz. We could share some of our by then still preliminary findings on the issue of victims participation which sparked a lot of interest.
Year(s) Of Engagement Activity 2020
 
Description Participation in an Extraordinary season of the Victim's Participation Commission of the Special Jurisdiction for Peace 
Form Of Engagement Activity A formal working group, expert panel or dialogue
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Professional Practitioners
Results and Impact We attended an Extraordinary season of the Victim's Participation Commission of the Special Jurisdiction for Peace on December 11, 2020, in wich we provided the SJP with a summary of issues and concerns of victims and the most useful tools for communicating the required answers about victim's participation, and the priority questions to enable the comprehensive participation of victims before the SJP so as to be included into the commission 2021 agenda.
Year(s) Of Engagement Activity 2020
 
Description Participation in closed door meeting with officials from the special Jurisdiction for Peace (SJP), particularly from the Unit of Investigation and Accusation (UIA) 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Professional Practitioners
Results and Impact The purpose of this closed door meeting with officials from the special Jurisdiction for Peace (SJP), particularly from the Unit of Investigation and Accusation (UIA),was to share reflections of the team on the problems and challenges around the special sanctions applied in Colombia as a new way to punish those involved in the most serious violations of human rights. The discussion increased the level of awareness of the attendees on the difficulties that come with applying such an ambitious and novel kind of punishment.
Year(s) Of Engagement Activity 2020
 
Description organising workshop on third party actors in the Special Jurisdiction for Peace and the ordinary criminal jurisdiction 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Professional Practitioners
Results and Impact Realising the lack of communication between the Special Jurisdiction for Peace and the Prosecutor General's Office on cases involving third party actors over which both have concurring jurisdiction, together with Dejusticia we organised a workshop that enabled communication between both groups to facilitate future collaboration.
Year(s) Of Engagement Activity 2020