Ximena Vengoechea

The Special Jurisdiction for Peace has issued its first ever sentence, convicting seven top leaders of the demobilised FARC-EP guerrillas for crimes against humanity, crimes of war and grave breaches of international humanitarian law and international human rights law. The sentence will not be well received, I suspect. Many will choose to condemn the sentences, used as we are to incarceration and punishment as a means to get justice. But the aim of transitional, restorative justice is not to exact revenge, nor to seek a penalty equivalent to the harm, death and loss caused by the armed conflict. No. The purpose of restorative justice systems is to contribute to the restoration of societies torn by war.

The JEP is a special judicial system based on the United Nations’ transitional justice model, with its own distinct principles and objectives. These include, in order, truth about the conflict; recognition of responsibility; reparation, and non-repetition. For ex-combatants, the strict application of these four principles determine whether their cases fall under the JEP’s mandate. Non-compliance with truth, recognition, reparation or non-repetition means exclusion from the Special Jurisdiction and an automatic referral to the ordinary criminal courts. The cornerstone of restorative justice is not the accused’s interest. Here, victims are main actors. Their needs, their experiences and their suffering take central stage.

Through what is known as a “dialogic” process, victims participate throughout proceedings, demanding truth, confronting the accused, attending hearings, questioning testimonies and, fundamentally, deciding the sanctions to be imposed. In fact, the sentencing options have long been discussed and shaped with the participation of victims and with accompaniment from the JEP. Those sanctions will not mean jail. Those sanctions will consist of actions meant to honour the victims and their memory, recognise the damage caused, build infrastructure, repair the damage done to the people, to communities, to the most vulnerable groups, to the territory, to the peasantry, and the country. Those sanctions will include restorative works, projects, and activities. The causes of our war are structural and there is a complex violence “continuum”, which allowed it to take hold for almost six decades, until 2016. In that context, prison serves little purpose, whereas restoration does.

The centrality of victims does not mean that there are no guarantees for accused persons in restorative justice systems. On the contrary, the judicial process closely follows all constitutional and legal norms regarding due process. The victims have shaped the judicial processes that today culminate in restorative condemnatory sentences. Yet we need to humanise the perpetrators as much as they need to recognise the humanity in their victims. Without eradicating cultural violence – which roots us in the mentality of the other as the enemy – the country will never overcome war.

Our protracted, nation-wide armed conflict destroyed the country. The accused must, in observance of their sentences, contribute to rebuilding it in the terms victims demand. The State failed to protect the people. It must ensure compliance with the JEP’s decisions. I invite you to read this first sentence, which will show the size and scale of the atrocities which took place during the Colombian armed conflict. We shall learn the truth, or at least one side of it. There shall be a second sentence, in the case of the “False Positives” — unlawful killings presented as war casualties by the armed forces. This may help us understand what happened and show us the path we must take in order not to repeat our woeful history.