President Juan Manuel Santos of Colombia presents a copy of a peace agreement that was forged in his country to United Nations Secretary-General Ban Ki-moon. Sept. 19, 2016. AP Photo/Craig Ruttle. The final agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) has attracted a great deal of interest from the international community regarding the system of justice agreed by the parties. This is quite understandable; given that it is unusual for two undefeated contenders at an armed conflict to agree on an accountability mechanism under criminal law. The usual practice has been the opposite: pardon or general amnesty formulas agreed bilaterally or mechanisms where the prevailing party judges the party that has been defeated.
The system of justice created for accountability is a complex one because, on the one hand, it includes several mechanisms (a truth commission, a unit for searching missing persons, and a criminal system of justice called Special Jurisdiction for Peace - JEP). On the other hand, the system does not include final or extreme formulas since it is the result of negotiations. It does not include a maximalist prosecutorial system (where all veterans and all those who were involved in crimes should stand trial and be put in jail), nor a blanket, indiscriminate amnesty. It includes accountability mechanisms in varying degrees, depending on factors such as:
- The seriousness of the offense (the most serious crimes are to be prosecuted and punished)
- The nature of the involvement (prosecution will focus on those who have been involved in a decisive way in the most serious crimes)
- The degree of commitment of those who are brought to justice to both the peace process and the rights of the victims (the greater their contribution and participation, the greater their chances of being granted legal benefits)
For this reason, the JEP system consists of mechanisms such as (i) accountability court rooms where judicial officers, through speedy procedures, are to grant legal benefits such as amnesties, pardons and cessation of criminal proceedings; (ii) a proper court of law responsible for ascertaining the liability of the main participants in the most serious crimes, and for imposing sanctions; and (iii) a mechanism for the granting of amnesty, pardon and early release to those who have stood trial or are being prosecuted for less serious crimes.
