Judging the Justice of the Colombian Final Agreement

2021 ◽  
pp. 310-330
Author(s):  
Colleen Murphy
Keyword(s):  
Transitional Justice ◽  
Social Transformation ◽  
Peace Agreement ◽  
Temporal Dimension ◽  
Political Relationships ◽  
Deep Disagreement ◽  
Alternative Measures ◽  
Justice Process ◽  
Final Agreement ◽  
Past Wrongs

This chapter studies the text of the Colombian peace agreement (also known as the Final Agreement), arguing that the justice component of this agreement depends on the extent to which the envisioned transitional process contributes to social transformation. Despite the fact that societies emerging from periods of conflict or repression characteristically try to address past wrongs using processes that are not criminal punishment, there is a deep disagreement as to whether true justice is achieved with alternative measures such as amnesty or a truth commission. To that extent, justice, in transitional circumstances, is not aimed at giving perpetrators what they deserve, but rather in transforming the political relationships among citizens and between citizens and officials, and in doing so in a just manner by treating victims and perpetrators fairly. The chapter then explains that the justice process outlined in the Final Agreement is comprehensive. By drawing on the cases of Northern Ireland and South Africa, it discusses the temporal dimension of transitional justice and the constitutional changes that occur in the pursuit of it.

scholarly journals Transitional Justice in the Middle East and North Africa – Taking Account of Islam

2017 ◽  
Vol 14 (1) ◽  
Author(s):  
Hakeem O. Yusuf
Keyword(s):  
Middle East ◽  
Significant Role ◽  
North Africa ◽  
Transitional Justice ◽  
Social Transformation ◽  
Cultural Value ◽  
The Core ◽  
The Past ◽  
Justice Process ◽  
Islamic Values

AbstractThe core of the argument of this article is that the integration of Islamic notions of justice into transitional justice mechanisms in the MENA makes for a more viable and sustainable transitional justice process in the region. This would mean a critical cultural value in the MENA is given a place in dealing with the past and mapping out a sustainable future in the region. The argument here is premised on the logic that a social transformation-focused enterprise like transitional justice ought to engage with Islam for sustainable outcomes in societies in the MENA where Islam is very influential. Given the significant role and influence of Islam on cultural, socio-political and legal institutions in the MENA, a process of transitional justice that takes account of Islamic values and practices is important for negotiating justice and institutionalising reforms in societies in the region.

scholarly journals Aproximaciones al derecho a la verdad en la justicia transicional, en Colombia

2021 ◽  
pp. 121-162
Author(s):  
Vera Samudio ◽  
Alejandra Figueredo
Keyword(s):  
Transitional Justice ◽  
Justice System ◽  
Peace Agreement ◽  
The Right To Know ◽  
Lasting Peace ◽  
Colombian Government ◽  
Rational Character ◽  
Final Agreement ◽  
The Right ◽  
Peace And Reconciliation

Resumen: La configuración de la verdad como el derecho a “saber qué ocurrió”, es uno de los pilares fundamentales del sistema de justicia transicional implementado tras la firma del Acuerdo Final de Paz entre el Gobierno colombiano y las FARC-EP. En la verdad se ha depositado parte im- portante de la esperanza por la construcción de una paz estable y duradera, y de la reconciliación en el país. En el presente artículo se sostiene que el derecho a la verdad en el funcionamiento del Sistema Integral de Verdad, Justicia, Reparación y No Repetición (sIvJRnR) se experimenta como una construcción ética, jurídica, política y fáctica, que se desarrolla en el marco de un proceso relacional, multidireccional y polifónico, que va cambiando, modificándose y perfeccionándose en el tiempo, y puede pasar, según las necesidades y problemas a resolver, de tener un carácter puramente instrumental y racional, a uno ampliamente axiológico y moral. Para ello, se presenta una propuesta de operacionalización de esta verdad en respuesta a interrogantes sobre su com- prensión: ¿Qué? ¿Cómo? ¿Para qué? ¿Cuándo? y ¿Quién? Approaches to the Right to Truth in Transitional Justice in Colombia Abstract: The truth’s configuration as the right to “know what happened” has become one of the fundamental pillars of the transitional justice system implemented after signing the Final Peace Agreement between the Colombian Government and the FARC-EP. Thus, in truth, lays the hope for building a stable and lasting peace and reconciliation in the country. This article sustains that the right to the truth in the operation of the Comprehensive System of Truth, Justice, Reparation and Non-Repetition (sIvJRnR) is experienced as an ethical, legal, political and factual construction that is developed within the framework of a relational, multidirectional and polyphonic process. This construction is changing, modifying and improving through time and can go, depending on the needs and problems to be solved, from having a purely instrumental and rational character to a broadly axiological and moral one. To this end, a proposal for operationalisation of this truth is presented in response to questions about its understanding: What? How? Why? When? and Who? Keywords: Truth, Transitional Justice, Final Agreement, SIVJRNR  

scholarly journals Playing with Fire: International Criminal Law, Transitional Justice, and the Implementation of the Colombian Peace Agreement

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 364-368 ◽  
Author(s):  
René Urueña
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
International Criminal Law ◽  
Peace Agreement ◽  
Peace And Justice ◽  
Colombian Government ◽  
Justice Process ◽  
The Government ◽  
Pass Through ◽  
Daunting Challenge

On November 30, 2016, after much uncertainty, the Colombian Congress finally approved a historic peace deal between the Colombian government and the Fuerzas Armadas Revolucionarias de Colombia (FARC), bringing to an end the country's fifty-year conflict. This peace deal was a historical achievement, and had important ramifications for international law, as discussed in a recent AJIL Unbound symposium. But once the spotlights were off, the government was faced with the daunting challenge of implementing the complex, lengthy accord. In particular, the government had to draw up and pass through Congress the legal and constitutional framework for the transitional justice process—a key component of the peace deal. It is there, in the subtle details of domestic criminal law, where the balance between peace and justice must be achieved.

An Overview of the DDR Process Established in the Aftermath of the Revised Peace Agreement between the Colombian Government and the FARC: Finally on the Right Track?

Global Jurist ◽  
2017 ◽  
Vol 18 (1) ◽  
Author(s):  
Francesca Capone
Keyword(s):  
Transitional Justice ◽  
Civilian Life ◽  
Peace Agreement ◽  
Essential Step ◽  
Peace Negotiations ◽  
Colombian Government ◽  
Justice Process ◽  
Specific Factors ◽  
Context Specific ◽  
The Right

Abstract The revised peace agreement between the Colombian Government and the FARC, officially approved by the Congress on 30 November 2016, covers several crucial issues, including the destiny of the FARC rebels in the aftermath of the world’s longest civil war. The establishment of an effective DDR process is an essential step to ensure that FARC's members will meaningfully transition into civilian life and it represents one of the most controversial aspects amongst those addressed during the four years peace negotiations that led to the signature of the current deal. The present article, after providing an overview of the essential features of DDR programmes and the context-specific factors that can either facilitate or hamper their implementation, will first look at Colombia’s past attempts to reintegrate former FARC combatants and then it will discuss the DDR process outlined in the peace deal under implementation, arguing that, in comparison to the previous efforts and at least on paper, it satisfies many of the key requirements for success, in primis being part of a comprehensive transitional justice process.

Grasping at Straws: Judicial Review of Legislation in Sri Lanka

ICL Journal ◽  
2020 ◽  
Vol 13 (3) ◽  
pp. 281-306
Author(s):  
Danushka S Medawatte
Keyword(s):  
Sri Lanka ◽  
Transitional Justice ◽  
Judicial Review ◽  
Descriptive Analysis ◽  
Executive Power ◽  
Sri Lankan ◽  
Legal Literature ◽  
Justice Process ◽  
Provincial Councils ◽  
The Impact

AbstractIn this paper, I attempt to examine the evolution of judicial review of legislation in Sri Lanka with a view to better understanding how it has impacted the democratic fabric and constitutional matrix of Sri Lanka. The impact that judicial review of legislation has had on rights jurisprudence, enhancement of democracy, prevention of persecution against selected groups are analysed in this paper in relation to the Ceylon Constitutional Order in Council of 1946 (‘Soulbury’ Constitution) and the two autochthonous constitutions of Sri Lanka of 1972 and 1978. The first part of the paper comprises of a descriptive analysis of judicial review of legislation under the three Constitutions. This is expected to perform a gap filling function in respect of the lacuna that exists in Sri Lankan legal literature in relation to the assessment of the trends pertaining to judicial review of legislation in Sri Lanka. In the second part of the paper, I have analysed decided cases of Sri Lanka to explore how the judiciary has responded to legislative and executive power, and has given up or maintained judicial independence. In this respect, I have also attempted to explore whether the judiciary has unduly engaged in restraint thereby impeding its own independence. The third part of the paper evaluates the differences in technique and stance the judiciary has adopted when reviewing draft enactments of the national legislature and when reviewing draft or enacted statutes of Provincial Councils. From a comparative constitutional perspective, this assessment is expected to provide the background that is essential in understanding the island nation’s current constitutional discourse, transitional justice process, and its approach to human rights.

scholarly journals Tunisia’s Re-Configurations and Transitional Justice in Process: How Planned Processes of Social and Political Change Interplay with Unplanned Political Dynamics

2020 ◽  
pp. 37-49
Author(s):  
Mariam Salehi
Keyword(s):  
Transitional Justice ◽  
Political Change ◽  
Social Dynamics ◽  
Field Research ◽  
Feedback Loops ◽  
The Political ◽  
Power Shifts ◽  
Political Dynamics ◽  
Political Preferences ◽  
Justice Process

Abstract This chapter seeks to explain the developments of the Tunisian transitional justice process. Drawing on Norbert Elias’s ideas about social processes, it argues that dynamics of transitional justice processes can neither be understood solely in light of international norms and the “justice industry” that both shape institutionalized transitional justice projects, nor simply by examining context and the political preferences of domestic actors. Rather, these shifts are shaped by the interplay of planned processes with unplanned political and social dynamics; with a political context in flux, power shifts, and sometimes competing planned efforts in other realms. Empirically grounded in “process-concurrent” field research in post- “Arab Spring” Tunisia, the contribution shows that a technocratic/institutionalized transitional justice project can develop dynamics that are somewhat, but not entirely, independent of power shifts. However, the above interplays may lead to frictional encounters that trigger feedback loops, new processes, and new structures.

Of Old Men, Country Clubs, and Atrocities: The Visualities and Externalities of Detaining Elderly Human Rights Violators in Chile

2021 ◽  
pp. 1-24
Author(s):  
Caroline Davidson
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Negative Externality ◽  
Human Right ◽  
Penal Reform ◽  
Country Club ◽  
Justice Process ◽  
Human Rights Norms ◽  
Old Men ◽  
The Way

Abstract This article explores a pair of powerful but competing symbols in the Chilean human transitional justice process: ‘pobres viejitos’ (poor little old men) and country club prisons. The symbol of the ‘pobres viejitos’ is used very effectively by conservative elements of Chilean society to argue the futility or even inhumanity of punishing perpetrators of human right violations so long after the commission of their crimes. In turn, to victims and more liberal segments of society, the country club or ‘five star’ prison for human rights violators stands as a symbol of impunity and the failure of the Chilean state to do justice for the crimes of the dictatorship. This article examines the power of these symbols in undermining support for transitional justice efforts, as well as the externalities of the debate. The fate of the ‘pobres viejitos’ and whether to release the from even their relatively comfortable places of confinement has bled into debates on penal reform for other elderly prisoners. This mostly negative externality suggests the need for international and regional courts (or countries not in the throes of transitional justice processes, particularly delayed ones) to lead the way on the articulation of human rights norms related to the trial and punishment of elderly prisoners.

The Resilient Constitution

2021 ◽  
pp. 277-309
Author(s):  
David Dyzenhaus ◽  
Alma Diamond
Keyword(s):  
South Africa ◽  
South African ◽  
Transitional Justice ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Extreme Pressure ◽  
The Face ◽  
Justice Process ◽  
The One

This chapter evaluates the so called 'transitional constitution' of South Africa and the 'permanent constitution' of Colombia. Through a comparative approach, it contends that constitutions are better understood in terms of their resilience rather than either being transitional or permanent, and that a 'resilient constitution' is the one capable of springing back even after being subjected to extreme pressure, as long as leaders maintain their commitment to governing within the limits of the law. In this sense, the differences between the Colombian transitional justice and the South African case do not stem primarily from the 'permanence' of its Constitution, but rather from the difficulties and tensions inherent to any transitional justice process, because it derives from some of the very rights it is designed to promote. The chapter then details how the jurisprudence of the Colombian Constitutional Court on transitional matters can be understood as having moved from an understanding of the Constitution as permanent, to one of resilience that does not represent a new power grabbed by the Court. Rather than that, it signals an understanding of the role of the Court in maintaining a constitutional order even in the face of existential threats to it.

Transitional Justice without Transition

2020 ◽  
pp. 397-446
Author(s):  
Beth Van Schaack
Keyword(s):  
Transitional Justice ◽  
Institutional Reform ◽  
International Community ◽  
Political Transition ◽  
Truth Commissions ◽  
Truth Telling ◽  
Historical Case ◽  
Reconstruction Process ◽  
History Of ◽  
Justice Process

The penultimate chapter offers a discussion of the prospects for a genuine transitional justice process in Syria. Chapter 10 begins with a short history of the development of the archetypal tools within the transitional justice toolkit—criminal accountability, truth commissions, reparations, amnesties, lustration, institutional reform, and guarantees of nonrecurrence—and the way in which transitional justice efforts have become increasingly internationalized. This enhanced involvement of the international community in promoting transitional justice reflects the belief—premised on historical case studies and emerging empirical research—that societies in transition must address the crimes of the past in some capacity or risk their repetition. The chapter surveys the most recent research testing these claims, which has benefited from the creation of a number of new databases gleaned from states in transition. The chapter then describes ways in which the international community has tried to prepare for a future transitional justice process in Syria even in the absence of a political transition, including by training Syrian advocates, surveying Syrian communities to understand their knowledge of transitional justice and preferences for Syria, promoting psychosocial rehabilitation and solidarity among victims, and preparing for truth-telling exercises and institutional reform measures. The conclusion suggests ways in which the international community could still promote some form of transitional justice as part of the reconstruction process, even if Assad remains in power, which seems increasingly likely.

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